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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THANH LONG LEGAL STATUS OF LAWERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION ACCORDING TO VIETNAMESE CRIMINAL PROCEDURE CODE FROM HO CHI MINH CITY PRACTICE Major: Criminal Code and Criminal Procedure Code Major code: 9.38.01.04 SUMMARY OF THE PHD THESIS IN LAWS Hanoi - 2019 The Thesis is completed at: GRADUATE ACADEMY OF SOCIAL SCIENCES VIETNAM ACADEMY OF SOCIAL SCIENCES Scienctific: Assoc.Prof.PhD. Nguyen Van Huyen Reviewer 1: Prof. PhD. Bui Minh Thanh Reviewer 2: Assoc. Prof. PhD. Tran Van Do Reviewer 3: PhD. Pham Manh Hung The Thesis defence before the Academy-level Dissertation Committee will be held at: Graduate Academy of Social Sciences, No 477 Nguyen Trai, Thanh Xuan, Hanoi At ……., ……… June,2019 Thesis might found in: - National Library of Vietnam - Graduate Academy of Social Sciences Library INTRODUCTION 1. The necessity of the thesis In order to ensure human rights, citizenship rights and defense rights of the accused, our country has signed most of the international conventions on human rights, including the right to defend the accused under the Criminal Procedure Code. Along with that, Resolution 08 - NQ/TW dated January 2, 2002 [4], Resolution 48-NQ/TW dated May 24, 2005 [5], Resolution 49NQ/TW dated June 02, 2005 [6] guided the strategy to build and perfect the Criminal Procedure Code system in terms of judicial reforms, attaching importance to ensuring the defense of the accused, protecting the legitimate rights and interests of the victim, litigant. The 2013 Constitution recognizes new regulations to ensure human rights, civil rights and defense rights of the accused. The policy of assuring the right to defend the accused, enhancing the position, the role of defense counsel, and the mechanism of assuring defenders' rights is the foundation for ensuring democratization of criminal legal proceedings, creating an independent and equal position among actors with incriminating functions. This means that where there is accusation, the defense right shall be respected; ensure that the Court is truly the embodiment of justice, objectivity and impartiality in the trial process so that people can really live in the “protection of citizens” of law [34]. On the other hand, the Constitution has strict and specific regulations to protect the legitimate rights and interests of the accused, and the principles applied to protect people from the “whirlpool” of criminal legal proceedings that agencies and people have jurisdiction to conduct legal proceedings when prosecuting, investigating, suing and adjudicating. One of these rights is: “A person who is arrested, detained, detained, prosecuted, investigated, sued, adjucated, have the right to defend themselves, to seek defense by a lawyer or other person” [84, p 24]. The right to defense is a necessary legal basis for the defender to defend and protect legitimate rights and interests for the accused. Ensuring the accused's defense rights is not only an important principle of the Criminal Procedure Code but also a regulation recorded in the 5 Constitutional Versions from the Constitution 1946, 1959, 1980, 1992 to 2013. One of the actors that can exercise the right to defend the accused, protect legitimate rights and interests for the victims, the litigants according to the Criminal Procedure Code, is the Lawyer. The investigation period is the decisive stage in the process of conducting legal legal proceedings, because the person temporarily kept in custody, who is called the accused, is only the subject of “suspicion of criminal offense”, if not being careful, the gap between not guilty and committing a 1 crime or a mistake and a crime can be easily erased [137]. The outstanding feature in the investigation period is that i) the competent proceeding authority (Investigator) is the person to take the lead; they tend to “condemn, accuse”; ii) those who are suspected to commit crimes, are weak and passive, often have psychological confusion, fluctuation, instability in the testimony (easy to have different testimonies); iii) A lawyer at this stage is the “legal doctor” who approaches the accused as the defender for the accused, the person protects legal rights and interests for the victim, the litigant. This situation requires that the participation of Lawyers during the criminal case investigation period is very important, in order to seek evidence of offense, details to extenuate criminal liability for the accused; protecting legitimate rights and interests for the victim, the litigants in making penalty proposals, collecting documents and evidence to claim damages including material, mental and financial losses or violated asset...; At the same time, it contributes to limit the violation of legal proceedings in investigation activities such as harassment, corporal punishment, clarifying the objective truths of the case, helping the investigation to be quick and accurate and not unjust the innocent, not let the criminals left behind. However, through the study of the provisions of the Criminal Procedure Code and practice of procedural activities, the Criminal Procedure Code regulations on the legal status of lawyers in the period of criminal case investigation are still of formality and lack of real mechanism to ensure the participation in the legal proceedings of Lawyers. In many cases, Lawyers have been prevented, made difficult, delayed in issuing written notices of defense counsels, not allowed to meet the accused, not participating in interrogation and in other investigation activities, which leads to the consequences when Lawyers seem to be excluded from legal proceedingsduring the criminal case investigation period, failing to protect the rights and legitimate interests of the accused, the victim and litigant. Many competent proceeding authorities, people are not aware of the role of Lawyers, respecting Lawyers, disregarding the provisions of the Criminal Procedure Code, leading to errors, criminal omission and failure to clarify the truth of the criminal case. The correct identification of the legal status of lawyers in the Criminal Law contributes an important part to the efficiency of the Criminal Law of judicial reforms. When the lawyer participates in the legal proceedings, the Criminal Law must “legalize” the rights and obligations; These regulations constitute the legal status of Lawyers in the legal proceedings. On the other 2 hand, Lawyers' participation in the early criminal case investigation period “... the role of Lawyers in unfair and wrong cases is at the time when the unjust person has to “ abide by the sentence”, means in the initial stages of the legal proceedings, Lawyers have not really been recognized and respected in proportion to the role of “soldiers committed to justice” as well as in the prevention and petition against errors,”[167] will contribute to with agencies and people with authority to conduct legal proceedings to find out the objective facts of criminal cases, contributing to overcoming wrongfull and false cases. Being the largest city in Vietnam and also an economic engine, with favorable natural conditions, Ho Chi Minh City is now a place to attract workers across the country, in which labor operating in the legal field in general and Lawyers in particular accounts for the largest number in the country. As of November 2016, Ho Chi Minh City had a total of 8,066 Lawyers, including 5,527 Official Lawyers and 2,539 Lawyer interns. The city has the largest population of 8,611,100 as of 2017 [132, p 24] so there is a scale of 1 Lawyer/1,558 people. The increase in criminals, in which number of annually settled criminal cases in Ho Chi Minh City always accounts for a high proportion compared to other localities [104] in recent years, cause more and more people to participate in legal proceedingson. So there is a bigger and bigger demand for Lawyers in Ho Chi Minh City. Over the past time, there are many works related to the study of the legal status of Lawyers in the stages of legal proceedings, but there has not been any separate research on the professional actor to exercise the right to defend as lawyers; separate research during the criminal case investigation phase in Ho Chi Minh City. The thesis makes a comprehensive research on theoretical issues; current legal status; practical implementation of the legal status of lawyers during the criminal case investigation in accordance with Vietnam's Criminal Procedure Code in order to propose solutions to improve the legal status of lawyers during the investigation period of criminal cases according to Vietnam's Criminal Procedure Code. Currently, it is meaningful not only in terms of theory and practice but also contributes to perfecting Vietnam's criminal laws; changing awareness of competent authorities and authorities about the role and position of lawyers. This is the reason that the PhD student chooses the topic “Legal status of Lawyers in the period of criminal case investigation under Vietnam's criminal procedure code from Ho Chi Minh City practice” to conduct research. 3 2. Research Purposes and tasks of the thesis 2.1. Research Purposes 2.2. Research Tasks 3. Objects and Scope of Research 3.1. Objects of research Research objects of the thesis are theoretical issues, legal provisions, practical implementation of legal provisions on the legal status of lawyers in the period of criminal case investigation in Ho Chi Minh City. 3.2. Scope of research - The thesis studies the legal status of Lawyers during the criminal case investigation in accordance with Vietnam's criminal law from the practice of Ho Chi Minh City in terms of rights attached to the defender's obligations in the period of investigation of criminal case under the Criminal Law of Vietnam, focusing on the only subject group of Lawyer because Lawyers are closely and professionally engaged in professional activities, achieving the highest efficiency compared to other defense counsels. - Scope of space: Studying the legal status of Lawyers in the period of investigation of criminal cases (except cases of infringing against the environment and national security) under the investigation authority of the Investigation Police Department in 24 Districts, Police Investigation Department of Ho Chi Minh City; Investigation Police Department under Ministry of Public Security C01, C03; Investigation agency of the Supreme People's Procuracy; Criminal Investigation Agency under the Ministry of Defense from Ho Chi Minh City practice. - Scope of time: The thesis studies the practice of implementing the provisions of the criminal law on legal status of lawyers in Ho Chi Minh City for 10 years from 2009 to 2018. 4. Methodology and research method 4.1. Methodology The thesis conducts research on the basis of dialectical materialism methodology of Marxist-Leninist philosophy and Ho Chi Minh's thought on the State and the law. 4.2. Research method To solve the tasks of the thesis, the author uses the following specific research methods: - Methods of sociological investigation - Criminal statistics method 4 - Methods of summarizing experience - Method of talks with experts - Typical project selection method - Methods of synthesis, analysis and comparison - Historical method 5. New points of the thesis - Clarifying the theoretical basis of legal status of lawyers, such as building a legal position concept of a lawyer, pointing out characteristics and meaning, content of legal status of lawyers in the investigation period criminal case. - Clarifying the shortcomings in the provisions of the criminal procedure code and the Law on Lawyers affecting the legal status of lawyers. - Clarifying the practice of implementing the provisions of criminal procedure code on the legal status of lawyers in the period of criminal case investigation; the causes of inadequacies and limitations in implementing the provisions of the procedural laws on the legal status of lawyers in the period of criminal cases investigation from the practice of Ho Chi Minh City. - Proposing solutions to implement the Criminal Procedure in the direction of extending to Lawyers many rights and opportunities to participate in the legal proceedings in equality with the competent person to conduct the legal proceedings. This is very important for ensuring the implementation, improving the quality of defense of lawyers in general and protecting the legitimate rights and interests of the accused in particular, especially the author wishes to recommend to the competent authority a legal document guiding the provisions of Clause 1, Article 79 of the Criminal Procedure Code of 2015. 6. Scientific and practical significance of the thesis Research results of the thesis can supplement the theoretical basis of the legal status of defense counsels and the lawyers in the investigation period criminal cases of in particular. With the presentation and analysis of the theoretical basis of the legal status of the Lawyer; the mechanism to ensure the legal status of the lawyer during the period of criminal case investigation under the Vietnamese Criminal Procedure, the thesis will be a meaningful source of information for competent state agencies and law makers to consult, study, review and finalize the 2015 Criminal Procedure Code and the current Law on Lawyers; propose solutions including issuing documents under the law on criminal procedure code. The thesis is also a research document, useful reference for scientists, lawmakers, 5 lecturers, Lawyers, and other advocates; or can be used as teaching materials at judicial training institutions. 7. Structure of the thesis The main content structure of the thesis includes: Chapter 1. Overview of the research situation. Chapter 2. Theoretical issues and provisions of criminal procedure code on the legal status of lawyers in the period of criminal case investigation. Chapter 3. Status of legal status of lawyers in the period of criminal case investigation in Ho Chi Minh City. Chapter 4. Requirements and solutions to ensure compliance with the provisions of law and improve the legal status of Lawyers in the period of criminal case investigation. Chapter 1 OVERVIEW OF THE RESEARCH SITUATION 1.1. Foreign research situation 1.1.1. Overview of the foreign study of the issues related to the thesis. 1.1.1.1. Research works on defense counsels and rights to have defense councils of defendants in criminal proceedings. - The book”Brownlie’s document on the human rights” [183], by Ian Brownlie – a British professor wrote in 2010. - The book “Toward an international criminal procedure” [188], by the author Christoph Saffeling in 2003, - The article “Evolution of U. S.Criminal Law” [182], by the U.S. Criminal authors James B.Jacobs, Warren.E.Burger (the United States) Professor of New York University, Director of the Center for Crime and Justice Research at the Faculty of Law, New York University, published in the U.S. Department of State's e-Journal No. 1, volume 6, July 2001. 1.1.1.2. The research works on the legal status of Lawyers in the investigation period; about the legal system of countries; about procedural models - Concerning the issue of defense activities of Lawyers in the investigation period, the book “Law and legal system of the Russian Federation” [178] by Professor William Burnham, first published in 1999, 5th edition in 2012. - “Basic principles on the role of lawyers” [149], adopted at the 8th United Nations Congress on Crime Prevention and Crime Treatment, held in Havana (Cuba), from August 27 to September 7, 1990. 6 - International Conference on Criminal Procedure Code in 2003 and the rights of defense lawyers in 2012, author Tian Wen Chang - a Chinese expert published the article “Thinking and evaluating the overall draft of the revised Chinese Criminal Procedure Code.” [184]. - The book “Outline of the U.S. Legal system, Congressional Quarterly, Inc, 2001” [185], by the author Michael Jay Friedman (the United States) - “Body of Principles for the protection of All Persons under Any Form of Detention or Imprisonment” [150]. - The book “Research on the organization and operation of the judicial system of China, Indonesia, Japan, Korea and Russia” [151] carried out by the United Nations in 2010 - The book “Comparative Criminal Justice Systems”, [187] 6th edition in 2012 by Philip L.Reichel (the United States), Professor in Kansas University, Colorado, New Hampshire… 1.2. Overview of the domestic study situation 1.2.1. Group of research works on procedural models and criminal procedure principles; Criminal procedure functions related to the legal status of defense counsels and lawyers; on the rights and legal status of actors in the Criminal procedure; on the rights and legal status of defense counsels, lawyers in general and in the period of investigation of criminal cases in particular. The author divided into 3 groups of research projects as follows: Group of research works on procedural models and criminal procedure principles; Criminal procedure functions related to the legal status of defense counsels and lawyers. + The doctoral law thesis “Vietnam Criminal Procedure Model and the issue of litigation proceedings” [100] by Dr. Nguyen Thi Thuy in 2014. + The doctoral law thesis by author Nguyen Manh Hung in 2012 “Functions in Vietnamese criminal procedures - Theoretical and practical issues” [46]. + The doctoral thesis “Principles of litigation in Vietnamese criminal procedure - Theoretical and practical issues” [36] by author Nguyen Van Hien in 2010. + For the outline level, there is a textbook called “Criminal Procedure code” [107] of Hanoi Law University in 2006; Textbook “Vietnam Criminal Procedure code” [108] of Hanoi Law University in 2011; textbook “Lawyer and Lawyer profession” [109] of the Training School of Justice titles in 2001; 7 Textbook “Skills to solve criminal cases” [43] of the Judicial Academy (Labor Publishing House) in 2014; Textbook “Law practice skills” volume IV [42] of the Judicial Academy in 2001. + Articles for reference in litigation activities in criminal procedure such as: “Discussion on litigation in criminal proceedings” by Dr. Hoang Thi Quynh Chi [126]. + Published at the International Conference on Criminal Procedure Code in 2003 and the rights of Lawyers, in 2012, PhD. Le Huu The and Master Nguyen Thi Thuy, wrote the article “Completing the Vietnam Criminal Procedure Model in accordance with the requirements of judicial reform” [96]. The Vietnam Bar Federation has also organized scientific conferences to study the legal status of lawyers such as the scientific conference “Judicial reform and wrongful prevention in litigation activities” [55]. held in Hanoi on November 2 & 3, 2009; Hanoi Law University and UNDP also held an international conference “Report on defense rights in criminal procedure code and practice in Vietnam” [130] in May 2010 + Project “New contents in the Criminal Procedure Code in 2015” by Assoc. Prof. Dr. Nguyen Hoa Binh (editor) - National Political Publishing House - Truth Publishing House, Hanoi, 2016 [3]. + Project “Scientific commentary on Criminal Procedure Code in 2015” by Assoc. Prof. Dr. Nguyen Van Huyen - Dr. Le Lan Chi (Editor) Labor Publishing House, 2016 [47]. + The project “Scientific Review of 2015 Criminal Procedure Code” by Prof. Dr. Nguyen Ngoc Anh - LS. Dr. Phan Trung Hoai (Editor-in-Chief) National Political Publishing House - Truth, 2018 [1]. - A group of research works on the rights and legal status of subjects in criminal proceedings. + In 2014, the doctoral thesis “The defense rights of defendants who are juniors in criminal proceedings” [106], by the author Nguyen Huu The Trach + Doctoral thesis in law “Implementing the defense right of defendants in criminal proceedings” [95] by Hoang Thi Minh Son, Hanoi Law University, 2003. + Document “Studying the defense rights in criminal law and practice in Vietnam” [76] by the researchers's group Nguyen Hung Quang et al 2012 - Group of research works on the rights and legal status of defense counsels, lawyers in general and in the period of investigation of criminal cases in particular. 8 + Theses related to the theoretical basis, master degree thesis of Hoang Chi Hieu, in 2016 with the topic “Legal status of defense counsel in the period of criminal case investigation” [37]; Master degree thesis of Chu Dang Chung, in 2014 with the topic “Defense lawyers in the period of criminal case investigation” [24]. + Doctoral thesis “Defense activities of Lawyers during the first instance trial of criminal cases” [116] by the author Ngo Thi Ngoc Van, 2016. + Doctoral thesis “Implementing defense rights in Vietnam's criminal proceedings today” [73] in 2016, by the author Dang Tran Thanh Ngoc + In 2011, the doctoral thesis “Ensuring the right to defense of the accused - Comparison between the Criminal Procedure Codes of Vietnam, Germany, America” [92] by the author Luong Thi My Quynh + In 2003, the doctoral thesis “The theoretical basis of completing law on lawyers in Vietnam today” [38, p. 155] by the author Phan Trung Hoai + The doctoral thesis in law by the author Do Van Duong in 2000 “Collecting, evaluating and using evidence in the investigation of criminal cases in Vietnam today” [33] + The book “Mechanism to ensure and protect human rights” [122] Monographs of the Human Rights Education Forum Project - Prof. Dr. Vo Khanh Vinh, Editor-in-Chief, Social Sciences Publishing House, Hanoi 2011. Besides, human rights studies such as monograph “Human rights - Multidisciplinary and interdisciplinary approach to Law” [121] by Prof. Dr. Vo Khanh Vinh editor, Social Science Publishing House, Hanoi 2010 (2 volumes). + The book “The role of Lawyers in criminal proceedings” [110] of Dr. Nguyen Van Tuan, National University Publishing House, Hanoi 2001. + The Works “The position of the lawyer defending in trial” [35] of the author Pham Hong Hai in 1999 + Contemporary commentary articles about the wrongful and false cases, such as “Prosecutor, litigant accused to refuse Lawyer by Lawyer” [136] dated December 08, 2016 by Nguyen Duc;“Preventing Lawyers from copying documents is illegal” [161] on December 4, 2016 by author Dinh van Que; Tuoi Tre newspaper published the article: “Lawyers can copy the case documents” [November 18, 2016] by the author Tuyet Mai 9 - A project on the reference book “New points of defense regimen in 2015 Criminal Procedure Code” of Dr. Lawyer Phan Trung Hoai - National Political Publishing House - Truth, Hanoi, 2016 [41] ... 1.2.2. Reports at conferences, scientific research workshops, surveys on defense rights of lawyers in the period of criminal case investigation. + Survey conducted by a group of experts in Vietnam such as: “Report on the defense rights in the Criminal Procedure Code and Practice in Vietnam” + At the International Conference on Criminal Procedure Code in 2003 and the right of defense lawyer, in 2012, Lawyer Nguyen Huy Thiep, published the article “Completing the provisions of the Criminal Procedure Code 2003 on the defense of lawyers' rights” [97]. + Workshop on evaluating 1 year of implementing Circular 70/2011/TT-BCA and Regulation on coordination between Vietnam Bar Federation and the Supreme People's Procuracy, JPP [140]; Report at the Conference on summarizing the implementation of 10 years of implementing the 2003 Criminal Procedure Code of the Supreme People's Procuracy in 2015 [128]; 1.3. Evaluating the research situation related to the thesis and the issues that the thesis continues to study and solve 1.3.1. Issues related to the topic have been resolved - Foreign studies related to the thesis IT can be affirmed that, up to now, most of the published research projects abroad only analyze and comment on the provisions of the law on the defense of the accused; litigation position of Lawyers during the investigation period; practice rights, advantages and disadvantages when practicing practice of Lawyers. However, the contents of the survey evaluated “Report on defense in the criminal procedure law and practice in Vietnam” [130] implemented by the United Nations Development Program (UNDP) shall be used as references as it refers to the actual status of the legal status of lawyers during the criminal case investigation period for subsequent surveys for comparison. - Domestic studies related to the thesis. Through an overview of the research situation on the legal status of lawyers during the investigation period of criminal cases according to Vietnam's Criminal Procedure Code, it shows that the research works, articles have solved the problems: 10 Firstly, the research works have mentioned and solved the content of legal status of the lawyer but only at a preliminary level; being able to solve the theoretical basis of the legal status of the lawyer; It is necessary to ensure that the legal status of lawyers in the investigation period under Circular 70/2011/TT-BCA [11] is necessary but it is recommended to cancel because it is no longer appropriate for the Criminal Procedure Code of 2015. Secondly, in the published studies, the authors focused mainly on solutions to complete the Criminal Procedure Code in 2003 [80]. Thirdly, a number of research works and articles mentioned very briefly about the legal status of Lawyers, with little research, specific analyses of related aspects or just going into a research of some specific issues without having been invested specifically in the legal status of lawyers during the criminal case investigation period, failing to provide an overview of synchronous solutions and recommendations for the amendment and supplement the Criminal Procedure Code of 2003. 1.3.2. The contents of the thesis that continue to study and solve - Related overseas studies need to be researched and addressed. Through studying foreign projects, especially on the Due Process of Law and the principle of fair trial (Right to fair trial) [93; p 25]. - Related domestic studies need to be researched and resolved. There are 6 contents to be studied and solved. 1.4. Theoretical basis and research methods 1.4.1. Theoretical basis 1.4.1.1 Research questions 1.4.1.2 Research theory. 1.4.1.3 Research hypothesis. Summary of Chapter 1 Although there have been many scientific works published and mentioned in legal status both at home and abroad, due to limited scope of research as well as research level, issues related to the legal position of lawyers during the criminal case investigation period is often not presented separately but is only mentioned in some aspects when writing about advocates in general. In some separate studies on the legal status of lawyers during the criminal case investigation period, the theoretical basis has not been addressed in a comprehensive and systematic way. Therefore, as a comprehensive study of the legal status of lawyers during the criminal case investigation period, the thesis continues to study at a deeper level to become a full-scale systematic research 11 project with new features in the practice of Lawyers in Vietnam in general and in Ho Chi Minh City in particular. Chapter 2 THEORETICAL ISSUES AND PROVISIONS OF THE CRIMINAL PROCEDURE CODE ON LEGAL STATUS OF THE LAWYERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION 2.1. Theoretical issues about the legal status of Lawyers in the period of criminal case investigation 2.1.1. The concept of legal status of Lawyers in the period of criminal case investigation 2.1.1.1. Concept of Lawyers Firstly, Lawyer is a person with extensive professional knowledge and legal knowledge, trained in Law practice skills, professional ethics and joined the Lawyers' organization. Secondly, Lawyer is a professional advocate and works in the Bar Association. Thirdly, the laws of the countries in the world often do not give the concept of lawyers but only regulations on qualifications to become lawyers. Common standards for recognition of lawyers are: i) Being citizens of the host country; ii) Having a bachelor's degree in law; iii) Having good moral qualities [162]. On the basis of the above analysis it can give the concept of Lawyers as follows: Lawyers are those who meet the criteria and conditions for practicing according to regulations related to the field of law, implementation and provision of legal services according to customer requirements. 2.1.1.2. Scope of practice of Lawyers Lawyers operate in the proceedings mainly on 3 areas: 2.1.1.3. Lawyer in the period of criminal case investigation - Criminal case. - Concept of criminal investigation period. 2.1.2. Characteristics of legal status of Lawyers in the period of criminal case investigation There are 4 characteristics: 2.1.3. The purpose and meaning of the legal status of lawyers in the investigation of criminal cases 12 2.1.3.1. The purpose of regulating the legal status of Lawyers in the period of criminal case investigation. The provisions of the law on the legal status of Lawyers are the legal basis for Lawyers to perform their duties, helping Lawyers to have conditions to implement protection measures for customers. The basis of the provisions of the Criminal Procedure Code is the foundation for Lawyers to implement their natural functions and noble professional qualities. Lawyers express their arguments on the basis of analysis and petition, request the Investigation Agency to accept evidence and documents to remove crime allegations or protect legitimate rights and interests for customers.. 2.1.3.2. The meaning of regulating the legal status of Lawyers in the period of criminal case investigation. Political meaning: The defense right of the accused is a constitutional principle expressed in paragraph 4 of Article 31 of the 2013 Constitution [84; p 24] “Persons arrested, detained, temporarily detained, prosecuted, investigated, prosecuted or tried have the right to defend themselves, to seek defense by other lawyers or other persons”, prescribing the legal status of the Lawyer not only demonstrates the democratic and objective nature of the Socialist State in litigation activities, but also ensures the exercise of citizens' freedom and democracy. Social meaning: The law stipulates that the expansion of the Lawyers' right to participate in the investigation phase of criminal cases to ensure that lawyers have the necessary means to protect the legitimate rights and interests of the accused is also a guarantee of a balanced Social - State status, reinforcing democratic legislation. Legal meaning: The legal status of lawyers in the investigation period of criminal cases is to ensure the implementation of the basic principles of Vietnamese Criminal Procedures. It is possible to say that the participation of lawyers is very essential. 2.2. Legal provisions on legal status of Lawyers in the period of criminal case investigation 2.2.1. The provisions on rights and obligations of Lawyers in the period of criminal case investigation 13 2.2.1.1. Time to join criminal procedure of Lawyers in the period of criminal case investigation. 2.2.1.2. Regulating procedures for registration of defense counsels; granting and sending written notices of defense counsels for defense applicants This is the biggest barrier, limiting the participation of Lawyers, seriously affecting the legitimate rights and interests of the person placed in the proceedings. Obstacles and obstacles in granting procedures, refusing to issue a certificate of defense are said to be “bottlenecks” that limit the right to defend and ask others to defend the accused's rights to obey the right to practice of lawyers. 2.2.1.3. Provisions on responsibility to notify lawyers of competent agencies conducting proceedings in the criminal case investigation period The new regulation aims to ensure the right to be present when the investigation agency takes testimony, asks the arrested person, the detainee, the accused. Notification to Lawyers is considered to be the responsibility of the agency competent to conduct the proceedings. 2.1.4. Regulations on the right to ask when taking testimonies and interrogations; right to be present in other proceedings. The right to ask the accused should be distinguished in two cases as provided in points a and b of article 73 of the Criminal Procedure Code of 2015. 2.2.1.5. Provisions on the right to see the minutes of the legal proceedings, the proceeding decisions related to the person they defend; Claiming decisions and procedural acts of agencies and persons competent to conduct legal proceedings. 2.2.1.6. Provisions on the right to request to change persons with authority to conduct legal proceedings, to participate in legal proceedings, to propose changes, to cancel preventive measures. This group of rights stipulated in point e, clause 1, Article 73 of the Criminal Procedure Code of 2015, contributes to ensuring the principle of determining the objective truth of the case. 2.2.1.7. Regulations on the right to collect evidence and give evidence; examination and evaluation to present opinions on evidence and use of evidence; request the authorized person to conduct the examination and evaluation of the procedure; request the competent authority to conduct proceedings to collect evidence; additional assessment, re-assessment and valuation of assets. 14 This group of rights has meaning in professional activities of Lawyers, as stipulated in points h, i and k, Clause 1, Article 73 of the Criminal Procedure Code of 2015, this is considered an important group of rights which is key to expressing equal status for Lawyers in the process of participating in legal proceedings. 2.2.1.8. Regulations on obligations to legally help the accused in order to protect their legitimate rights and interests; on the obligations of the lawyer during the criminal case investigation period. - When a lawyer participates in a legal proceeding as an advocate for the accused, the person defending the legal rights and interests of the victim, the litigant under the provisions of the criminal procedure code, the lawyer is responsible for applying every measure legal measures required to defend or protect clients. The law stipulates that lawyers exercise these rights to protect their rights and legitimate interests. 2.2.2. The regulations to ensure the implementation of the legal status of Lawyers 2.2.2.1. Principles to ensure the defense of the accused, protection of legitimate rights and interests of the victims, the litigants. The right to self-defense, to solicit a lawyer or to ask others to defend the accused is the first recorded Constitutional right in Article 67 of the 1946 Constitution to date. 2.2.2.2. Principles to determine the truth of the case. The principle of determining the truth of the case is provided in Article 15 of the Criminal Procedure Code in 2015, this is an important principle of the Criminal Procedure to ensure the fair handling, not missing criminals, and not to make wrongful cases over innocent people. 2.2.2.3. The principle of innocent speculation. The Declaration of Human Rights in 1948, the United Nations International Convention on Civil and Political Rights, states: “Any accused person has the right to speculate that he will not commit a crime until his fault is determined in a legal order set by the Court's public trial with the assurance of his defense.” 2.2.2.4. The principle of litigation in trial is guaranteed. The first litigation proceeding model that appeared in the ancient Greek nation was then widely spread in Rome and throughout Europe under the name “continuous inquiry procedure.” Over the centuries, this model has been increasingly improved, but the nature of litigation remains an equality between 15 the parties in presenting, debating, clarifying significant issues to resolve the case. Summary of Chapter 2 In order to ensure the legal rights and interests of the accused, it is necessary for the lawyers to be involved in the legal proceedings at the time of the criminal case investigation. The 2015 Criminal Procedure Code sets out rules about the obligations of the Lawyers that they must implement and comply with to ensure objectivity and accuracy in the investigation. However, according to the author, most of the regulations on rights and obligations of Lawyers have not been specifically instructed, in addition to the Circular No. 70/2011/TT-BCA of the Ministry of Public Security dated October 10, 2011 stipulating detailed implementation of the 2003 Criminal Procedure Code's provisions relates to the guarantee of defense rights during the criminal case investigation period, which leads to inadequacies in applying the Criminal Procedure in investigation activities. Continuing to clarify this issue, the author will continue to analyze issues related to the implementation of the criminal procedure provisions on the legal status of lawyers during the criminal case investigation in Chapter 3. Chapter 3 LEGAL STATUS OF THE LAWYERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION IN HO CHI MINH CITY 3.1. Current situation of factors affecting the legal status of lawyers in the period of criminal case investigation in Ho Chi Minh City 3.1.1. Characteristics of the socio-economic situation in Ho Chi Minh City. 3.1.1.1. Overview of Ho Chi Minh City - Geographic - population characteristics: Ho Chi Minh City is a special urban area with a central location in the South, a key economic region in the South, with an important political position of the country. The area is 2,095.6 km2, the population as of December 2017 is 8,611,100 people [132]. Administrative units are divided into 24 districts. - Socio-economic situation of Ho Chi Minh City:Ho Chi Minh City is one of the most dynamic economic areas, with continuous high growth rate, playing an important role in the Vietnamese economy. Though only accounting for 0.6% of the area and 8.56% of the country's population, Ho Chi Minh City contributed 21.3% of the country's GDP; 29.38% of the total state budget revenue [155]. 3.1.1.2. Organizational characteristics of Ho Chi Minh City Bar Association. 16 Ho Chi Minh City Bar Association was established on October 24, 1989 on the basis of the Law on Organization of Laws on December 18, 1987, located at 104 Nguyen Dinh Chieu, Da Kao Ward, District 1, Ho Chi Minh City. 3.1.2. Characteristics in the number of criminal cases, the number of defendants, the accused in Ho Chi Minh City. - The economic development of the most dynamic city in the country has affected the social situation of 24 districts in general, districts and suburban districts in particular, due to the rapid increase of migrant workers in the district. Especially in Binh Tan where there is the highest proportion of immigrants in Ho Chi Minh City and higher than the number of permanent residents [152], many instabilities and difficulties in State management are created, especially when the city is urgently applying specific mechanisms and policies [144] - Due to the fact that the city has active economic activities, in local people's awareness, thoughts and living conditions they have a habit of asking lawyers when their relatives are engaged in the legal cycle, which leads to the more and more increasing need of the Lawyers. 3.1.3. Overview of crime situation in Ho Chi Minh City. - Crime situation in Ho Chi Minh City; the handling and settlement of criminal cases from 2009 to 2018 of the two-level People's Court of Ho Chi Minh City. - Report on work situation in 10 years from 2009 to 2018, Ho Chi Minh City Police recorded 114,809 criminal cases [74]. Crime in the city is becoming more and more sophisticated, sly and organized, making it difficult for police forces in the struggle and prevention work. [145]. 3.2. Practical implementation of criminal procedure code provisions on the legal status of lawyers in the period of criminal case investigation in Ho Chi Minh City 3.2.1. Advantages 3.2.1.1. Advantages in implementing the provisions of criminal procedure code on the legal status of lawyers in the period of investigation of criminal cases throughout the country. The position of Lawyers is increasingly improved in the process of coordinating with agencies and conducting proceedings, thereby we can see the fighting results of the Lawyers' team in judicial reforms, enhancing its legal status, ensuring the defense and protection of customers' legitimate rights and interests in an effective way. 17 3.2.1.2. The yielded results of the Ho Chi Minh City Bar Association in participation in the proceedings of criminal cases during the investigation period. See List of Tables and Charts 3.3 3.2.1.3. Results in implementing the work of coordinating with legal proceeding agencies and authorities in the period of criminal investigation of Ho Chi Minh City Bar Association. In general, the settlement of complaints and denunciations at the Bar Association is a difficult and complicated task due to the large number of members in the Bar Association, with many complicated cases, making it timeconsuming for verification and in many cases the cooperation of complainants and denouncers as well as those who are complained and accused cannot be received. [32]. 3.2.2. Limitations, shortcomings and causes of limitations and shortcomings 3.2.2.1. The limitations and shortcomings in the criminal investigation phase under the Criminal Procedure Code 2003. Through summarizing 10 years of implementing the 2003 Criminal Procedure Code [128], the causes of these limitations and shortcomings are determined due to 2 reasons: 3.2.2.2. Limitations, shortcomings in the criminal case investigation period according to the 2015 Criminal Procedure Code. Limitations, shortcomings come from 4 reasons: 3.2.2.3. Limitations and shortcomings in implementing defense registration procedures; granting and sending written notices of defense counsels to the defense applicants. - Regarding the presentation of papers: - Regarding the request of the representative of the accused person to confirm the personal relationship with the accused: - Regarding the issue of receiving registration of procedures and issuance of notices on defense counsels: - Regarding the time for issuing documents to notify defense counsel: - Regarding the value of using documents to inform defense counsel: - Regarding responsibility to notify defense counsel: 3.2.2.4. Limitations and shortcomings in the exercise of the right of the Lawyers being present when the investigation agency ask the accused, taking testimony of the custody; The lawyer meeting the detainee and the accused who are being detained in the investigation period. 18
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