VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES DINH VAN SON THE ROLE OF THE PEOPLE'S PROCURACY IN SETTLING COMPLAINTS AND DENUNCIATIONS IN VIETNAM'S CRIMINAL PROCEDURE Major: Criminal Law and Criminal Procedure Code : 9380105 SUMMARY OF DISSERTATION FOR DEGREE OF DOCTOR IN JURISPRUDENCE Hanoi - 2020 The thesis is completed at the Academy of Social Sciences Name of Supervisor: 1) Dr Tran Ngoc Huong 2) Dr Nguyen Minh Duc Reviewer 1: Prof Dr Bui Minh Thanh Reviewer 2: Assoc Prof Dr Hoang Thi Minh Son Reviewer 3: Dr Quan Minh Tuong The thesis will be defended in front of the Academy level Judging Council meeting in ………at…………on …………… The thesis can be found at the: National Library of Vietnam Science Library Academy of Social Sciences INTRODUCTION The urgency of the topic The right to make complaints and denunciations of citizens and the responsibility of competent agencies to consider and settle are recorded in Article 30 of the 2013 Constitution The work of settling complaints and denunciations in the CP prescribed in the CP Code has institutionalized the Party's line of guidelines and the State's legal policies The provisions of the CP Code (CPC) on citizens’ right to make complaints and denunciations and State agencies' responsibility to settle complaints and denunciations are means to ensure direct democratic rights, avoid injustice, wrong conviction, prevent crime and contribute to social justice The PP (PP) is a constitutional agency with the function of exercising prosecution rights and controlling judicial activities; at the same time, it is responsible for protecting the Constitution and laws, protecting human rights, citizens' rights, protecting the interests of the State, and the legitimate rights and interests of organizations and individuals The process of performing functions and duties gives rise to the legal relationship between the PP and the state agencies, organizations and individuals in issuing procedural decisions and carrying out procedural acts in judicial action; at the same time, complaints and denunciations will arise against such decisions and / or acts when the complainants or denunciators believe that there are violations of law In addition to being responsible for settling complaints and denunciations arising in CP (CP) under its jurisdiction, the Procuracy also has the function of supervising the compliance with law of other competent agencies on settlement of complaints and denunciations in CP As such, the PP is not only responsible for the results of its own complaint and denunciation settlement, but also for other competent entities In recent years, the role of the PP in settling complaints and denunciations in the CP has been enhanced Many complaints and denunciations in the CP related to injustice, false conviction or prolonged have been resolved; contributing to protecting the interests of the state, the legitimate rights and interests of citizens, and protecting the socialist legislation However, besides the achieved results, the quality of the settlement of complaints and denunciations in the CP of the judicial agencies in general and in the Procuracy in particular, there lye of shortcomings, constrains andlimitations; a number of complaints and denunciations have not been settled in time or have not been handled in accordance with the law These weaknesses partly reduce people's confidence in the Party's guidelines and policies and the laws of the state As an officer working inProcuracysector for many years with directly works in the Department of Procuracy and handling complaints and denunciations in judicial activities, the author have always concerning and thinking to find the causes of constrains and limitations; at the same time, to propose solutions to ensure the role of the PP in dealing with complaints and denunciations in the CP From the theoretical angle, although there have been a number of published scientific works related to the settlement of complaints and denunciations in general, and complaints and denunciations about decisions and specific acts of CP such as complaints about decisions to institute criminal cases; complaints against indictments but so far there has no scientific research systematically studied the role of the PP in dealing with complaints and denunciations in the CP In this field of research, the author has initially accumulated practical and theoretical experience in the process of working, researching, developing thematic subjects, cultivating and gaining knowledge in seminars, conferences and public works and professional training From the above perception, the author has chosen the topic of: "The role of the PP in settling complaints and denunciations in Vietnam's CP" as the doctoral thesis of jurisprudence, majoring in Department of Criminal Law and CP Code, code 380104 Purpose and research mission of thesis 2.1 Research purposes The thesis analyzes and proves the theoretical issues showing the role of the PP in settling complaints and denunciations in CP On the basis of justified theory, the thesis analyzes and assesses the legal status and reality of performing the role of controlling and settling complaints and denunciations in CP on the basis of certain criteria; propose a number of scientific solutions to ensure the role of the PP in settling complaints and denunciations in CP in Vietnam 2.2 Research mission To accomplish this purpose, the thesis sets and solves the following tasks: - Formulating concepts, pointing out the characteristics and nature of complaints and denunciations and settling complaints and denunciations in CP; concepts and characteristics of the PP's role in settling complaints and denunciations in CP; - Analyze and prove the basic aspects showing the role of the PP in settling complaints and denunciations in CP; - Analyzing and clarifying the legal status and reality of the performance of the PP's role in settling complaints and denunciations in CP; shortcomings, limitations and obstacles; - Research to clarify the causes of the problems and shortcomings; - Proposing solutions to ensure the role of the PP in settling complaints and denunciations in CP in Vietnam today Subject and scope of the thesis research 3.1 Research subjects The thesis studies theoretical issues; the law status and the status of performing the role of PP on settlement of complaints and denunciations in CP in terms of direct settlement of complaints and denunciations and ways to supervise the observance of law on settlement for other competent subjects; find out the cause of the existence and limit to propose solutions to ensure the role of the PP in dealing with complaints and denunciations in CP 3.2 Scope of research - Scope of space: Theory and practice in Vietnam; - Scope of time: In 10 years, from 2009 to 2018; -Scope of the contents: The thesis only studied in depth the role of PP on settlement of complaints and denunciations in CP under the jurisdiction and control of compliance with the legislation on settlement of complaints and denunciations in CP of other competent entities The methodology and research method of the thesis The topic is studied based on the methodology of Marxism - Leninism, Ho Chi Minh thought; policies and guidelines of the Party, laws of the State on building and perfecting the legal system of complaints and denunciations During the research approach, the author uses a systematic approach method; social sciences interdisciplinary; theoretical and historical os State and lawapproach with special attention to jurisprudence; mainly the approach method of Criminal Law, Criminal Procedure To solve the research objectives and tasks, the author uses specific research methods such as: - Methods of analysis, synthesis, comparison and abstraction used in the process of constructing concepts; analyze prove and explain the characteristics of settling complaints and denunciations in the CP and the role of PP in this field - Methods of statistical and collective used in the clarification of status of of applying legal provisions on control and settlement of complaints and denunciations in CP of PP; clarify the suitable factors and relevant inadequacies of the law, the limitations in performing the functions and duties of the PP in this field - Method ofsystemizing isused in all chapters of thesisto present problems and contents ofthesisin order, suitable andtight structure and having inheritance to develop issues and content to achieve goals, task requirements that have been identified for the thesis New scientific contributions of the thesis The thesis is the first project in Vietnam comprehensively studies the role of PP on settlement of complaints and denunciations in CP in the context of our country building a socialist law-governed State; The thesis has built issues basic theoretical in addition to the system of scientific theories about the role of PP on settlement of complaints and denunciations in CP; Thesis commentaries the effects of PP when put on the functions and tasks of control, and settlement of complaints and denunciations in CP; The thesis identifies the basic contents in the role of the PP in dealing with complaints and denunciations in CP in practice; basic factors affecting the role of the PP in this field; shortcomings, limitations and inadequacies in expressing the role of the PP in settling complaints and denunciations in CP, and at the same time points out the basic causes of these shortcomings, limitations and inadequacies to propose a system of scientific solutions suitable to the conditions to build a socialist law-governed State in Vietnam to ensure the role of the PP in resolving complaints and denunciations in CP Theoretical and practical meanings of the thesis 6.1 Theoretical meanings With obtained research results, the thesis contributes to enriching and supplementing the interpretations on the role of the PP in settling complaints and denunciations in CP; at the same time, the thesis determines the functions, duties and powers of the PP on resolving complaints and denunciations in CP which are indispensable; affirming that the institution of supervising the settlement of complaints and denunciations in CP is an expression of the control of judicial power, minimizing the abuse of power in judicial activities and has the effect of protecting the legitimate rights and interests of agencies, organizations and individuals in society 6.2 Practicalmeanings The thesis can be used as a reference for officers practicing in this field; as well as resources to the individual in society to research and defense their legitimate interests; Content of the thesis may be references to compiling textbooks, teaching materials, training, promoting and dissemination of law; The thesis will be important documents for legislativeresearchers, regulatory scientists, students in law and those who are interested in this field Structure of the thesis Chapter Overview of research situation and issues related to the thesis Chapter The theoretical issues about the role of the People's Procuracy on settling complaints and denunciations in Criminal Procedure in Vietnam Chapter Current situation of the role of the People's Procuracyin settling complaints and denunciations in Vietnam's Criminal Procedure Chapter 4.Solutions to ensure the role of the People's Procuracyin settling complaints and denunciations in Vietnam's Criminal Procedure Chapter OVERVIEW OF THE RESEARCH SITUATION AND ISSUES RELATED TO THE THESIS 1.1 Research situation related to the thesis topic 1.1.1 Research situation abroad related to the thesis topic The works (04 works) by foreign authors related to the thesis such as: judicial reform, upholding the role of investigators, building up a team of investigators with professional ethics, integrity and qualification to limit law violations leading to complaints and denunciations; problems of abuse of power, corruption, obstruction of justice; legal mechanisms for settling complaints and denunciations against violators Although these works not have theProcuracy's presence in settling complaints and denunciations in CP due to the organizational structure and operation of foreign judicial agencies are different from our country, they are valuable document for comparing, evaluating and proposing solutions in the thesis research topic 1.1.2 The situation of domestic research on complaints and denunciationsin criminal procedureabroad The works of the domestic authors studied on complaints and denunciations in CP abroad , such as: "Research on Law of criminal procedure in Russian Union"; " SResearch on Law of criminal procedure in China" ; " Research on Law of criminal procedure in Republic of France"; "Comparison on Vietnamese Law of criminal procedureand other countries in the world" , the authors focused on the study, analysis preparations for the order, procedures and competence for proceedings in handling the case, thereby indicating the right of complaint of the person participating in the procedure to the competent authorities and persons The research results are important basis of theoretical and practical for the author to compare with the CP law in Vietnam, propose solutions ensuring the role of the PPon settling complaints and denunciations in CP compliance with Vietnamese practices 1.1.3 The situation of domestic research on complaints and denunciations The research works that have been studied include:Group of researches on the complaints and denunciations right; a group of studies on the competence and responsibilities of state agencies in settling complaints and denunciations; group of studies on the presence of PP in settling complaints and denunciations The authors analyzed from the legal perspective on the right oncomplaint and denunciation as a tool to monitor and counterbalance the entities of the State’s power The authors, commenting on the responsibility of the competent authorities in settling complaints and denouncing, statedthat the competent entities to settle must voluntarily and strictly comply with the provisions of law; have a mechanism of inspection and supervision; preventing and strictly handling violations of the law on complaints and denunciations are manifestations of socialist legislation in the activity of settlement of complaints and denunciations Analyzing the presence of the PP in resolving complaints and denunciations, the authors gave their views on the aspects of resolving complaints and denunciations within their jurisdiction and supervised the compliance with the law on settlement of complaints and denunciations in the judicial activities of other competent entities 1.2 Assess the research situation related to the thesis topic 1.2.1 About the advantages and research results that the thesis will inherit and further develop - Regarding the theoretical aspect The research results of the works published have important implications for authors to refer to implement the thesis, including: the perspective of human rights, the right to lodge complaints and denunciations; concepts of complaints and denunciations and settlement of complaints and denunciations; principles, competence, order and procedures for settling complaints and denunciations; results of settling complaints and denunciations; shortcomings, limitations, inadequacies and causes; solutions in general, and in CP in particular - On the practical side The research works have overall fully summarized the provisions of the law on complaints and denunciations in foreign countries as well as in domestic; initially approached, analyzed and assessed the implementation of the law on complaints and denunciations; the role of competent entities to handle complaints and denunciations and the role of entities supervising the handling of complaints and denunciations On that basis, the achievements, inadequacies, limitations and causes have been pointed out, leading to the role of the authority in resolving complaints and denunciations and the role of the entity in charge of resolving complaintsand denunciations are still unclear Thereby, helping authors to have basis to research and propose specific solutions to ensure the role of the PP of settling complaints and denunciations in CP in Vietnam 1.2.2 Issues need to be studiedfurther - Regarding the theoretical aspect Scientific works and articles in our country commenting on regulations on the CP in foreign countries; there are many scientific works and articles in ourcountry researching on complaints and denunciations and resolving complaints and denunciations in Vietnam in general and CP in particular, but no research has been conducted directly onPP’s role in settling complaints and denunciations in CP due to the complex nature of the problem Thus, no studies yet come up with the general and full conceptrecognized in Vietnam for the area that author chose to study The group of studies that is close to the research topic of the thesis author: The research works on complaints and denunciations; there have been studies that have gone straight to complaints and denunciations in the CP in Vietnam However, these works only list the provisions of the law on complaints and denunciations; or merely done in form of investigating complaints against a type of procedural decision, not investigating systematically; not go into interpreting the role of PP on settlement of complaints and denunciations in CP in terms of direct settlement of complaints and denunciations in CP under the jurisdiction and control of compliance with the law on settling lodge complaints and denunciations in the CP of other competent subjects - On the practical side An overview of the research situation shows that, in Vietnam, there have been a number of studies that researches, analyzes and assesses the actual situation and practice of performingand ensure the implementation of the role of the PP in resolving complaints and denunciations in CP in the perspective of legal science However, these studies only stop at assessing the status of the law on the role of the PP in dealing with complaints and denunciations in each specific case, not done comprehensively and profoundly From the above-mentioned remarks, the issues posed for the thesis research are: (1) in-depth, systematic research and interpretation to formulate the concept of complaints and denunciations and to resolve complaints and denunciations in CP; (2) Clarify the characteristics and nature of complaints and denunciations and settle complaints and denunciations in CP ; (3) Introduce concepts and content of the role of PP in dealing with complaints and denunciations in CP ; (4) Develop criteria for evaluating the quality of resolving complaints and denunciations in the Vietnam CP ; ( ) Assess the status of implementing the role of PP in resolving complaints and denunciations in CP , pointing out the advantages, limitations, shortcomings, inadequacies and causes of these problems, then to propose solutions to ensure the role of PP in resolving complaints and denunciations in CP in Vietnam 1.3 Theoretical basis and research hypotheses; Approach of the thesis 1.3.1 Theoretical basis - The meaning of Marxist-Leninism, Ho Chi Minh's thought about the State and the law; guidance and policies of the Party and State on the settlement of complaints and denunciations in judicial activities Based on the above theoretical basis, the thesis is implemented with the research questions, as follows: - Research questions on theoretical aspects: The concept, characteristics, nature of complaints and denunciations and settlement of complaints and denunciations in CP, the process of formation and development? The concept, content and ensure the role of PP in settling complaints and denunciations in the Vietnamese CP? - Research questions on practical aspects: How is the role of the PP of settling complaints and denunciations in CP stipulated in the current law in Vietnam? How is practical implementation and ensure the implementation of the role of PPin settling complaints and denunciations in CP in Vietnam? 1.3.2 Research hypotheses In the socialist rule-of-law state, the role ofPP to handle complaints and denunciations in CP is indispensable In order to prove the abovescientific hypotheses, the thesis directly addresses the scientific issues, including: - In the socialist rule-of-law State,why does the PP have its functions, duties, authority to control and settle complaints and denunciations in CP? - Researching, analyzing and clarifying the results and limitations of PP in performing the functions, tasks and authority to control and settle complaints and denunciations; causes and solutions to overcome limitations to ensure the indispensable role of PP in settling complaints and denunciations in CP 1.3.3 Approach of the thesis Firstly, access to the system: Analyzing and assessing issues of state power, judicial rights, the role of the Procuracy in the system of judicial agencies, in the state apparatus, especially the role of the Procuracy in settling complaints and denunciations in CP; the interaction between judicial authorities with each other through the performance of functions and tasks constitutes a unified whole Secondly, interdisciplinary approach: There is a combination of knowledge of many social sciences, such as political science, philosophy science, criminal law science, criminal procedure law science, administration law science, state theoretical science and law, constitutional law science, human rights science Thirdly, access to history: The historical viewpoint used in the research process, especially the process of considering relationships through different historical stages; generalize and assess the status of implementation of the role of Procuracy in settling complaints and denunciations in CP in historical context and the specific conditions and be recognized in terms of logical development Fourthly, comparative law approach:is used mainly to compare current criminal procedure law and earlier CP lawon the role of PPin settling complaints and denunciations in CP Conclusion of chapter Chapter THEORETICAL ISSUES ABOUT THE ROLE OF PEOPLE’S PROCURACY ON SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS IN VIETNAMESECRIMINAL PROCEDURE 2.1 Overview of complaints and denunciations; settling complaints and denunciations and supervising the settlement of complaints and denunciations in criminal procedure To interpret the role of PP on settlement of complaints and denunciations in CP, the first thing is being aware of what complaints and denunciations in CP are; its characteristics; competent entitiesand entities with the function of supervising the observance of law on the settlement of complaints and denunciations in CP 2.1.1 Definition, features and nature of complaints and denunciations in CP 2.1.1.1 Concept of complaints in CP 2.1.1.2 Features of complaints in CP - Complainants: must have rights and legitimate interests directly affected by decisions of the proceeding activity that he or she complaints; - Person being complained: Is a competent agency or individual conducting criminal procedure - Subjects being complained:procedural acts or decisions of competent agencies and individuals in conducting criminal procedure 2.1.1.3 Concept of denunciations in CP 2.1.1.4 Features of denunciations in CP 11 Settling complaints and denunciations is both right and responsibility of the Procuracy The powers to settle complaints and denunciations in criminal procedure of the PP are stipulated in the CP Code and the Law on Organization of PP and legal documents guiding the implementation and professional regulations of the sector Accordingly, PP has competent role to resolve complaints and denunciations about the acts and procedural decisions of procedure-conducting persons belonging to the PP and acts and procedure decision of head of investigation agency; The agency chief is assignedto conduct a number of investigative activities; results of complaint settlement by headof investigating agency; at the same time have the mission of settling denunciations against the procedural acts of persons of the agencies being assigned to conduct a number of investigating activities As such, the PP also plays a role in resolving complaints and denunciations for those who conduct legal proceedings that are not under their administrative management 2.2.2.2 The role of the Procuracy in supervising the settlement of complaints and denunciations in CP of other entities The role of the People 's Procuracy in supervising the settlement of complaints and denunciations in CP is stipulated in the Law on Organization of the PP, the Criminal Procedure Code, and is specifies in the documents under laws such as Joint Circular No 02 of the Central Judicial Interdisciplinary, the Professional Regulation of the sector Accordingly, the Procuracy has the function of supervising the compliance with the law on settling complaints and denunciations in the CP of competent entities 2.2.3 The purpose of implementingPP's role in settling complaints and denunciations in CP 2.2.3.1 State protection, regime protection, law protection, human rights protection 2.2.3.2 Contribute to improving the quality and effectiveness of the Procuracy 2.2.3.3 Settlement of complaints and denunciations haseffects on promoting and educating law for subjects of complaints and denunciations 2.2.3.4 Contributein building and improving the law on complaints and denunciations 2.2.3.5 Contributein the prevention and combating of acts of law violations and crimes, limit to the lowest cases of injustice, wrong conviction and undetected crime 2.2.4 Requirements for fulfilling the role of the PP in settling complaints and denunciations in CP 2.2.4.1 Ensure the right to lodge complaints and denunciations in CP 2.2.4.2 Comply laws 2.2.4.3 Urgently, timely and not affect the normal operation of other entities 2.3 Factors affecting the role of the People's Procuracyin settling complaints and denunciations in CP 12 2.3.1 Awareness of the Party, the State and the people on the role of the PP in settling complaints and denunciations in CP The Communist Party of Vietnam is a leading force of the State and society Accordingly, the Party's guidelines and policies will have a strong impact on all areas of social life, including the role of the PP in settling complaints and denunciations Competent agencies to settle complaints and denunciations in CP should also be fully aware of the role of the Procuracy in supervising the observance of the law on settlement of complaints and denunciations CP Only then can the Procuracy carry out its functions, tasks and powers; At the same time, it also helps these agencies detect violations to rectify them promptly in order to ensure social justice, protect the legitimate rights and interests of the State, individuals and organizations In addition, people's awareness of the Procuracy's role in resolving complaints and denunciations in the CP is also very important First of all, people need to be aware of their right to make complaints and denunciations in order to protect themselves and to protect the legitimate rights and interests of others when it is infringed upon On the other hand, people also need to be aware of the functions, duties and powers of the Procuracyin this area to come to the right agency for settlement 2.3.2 Provisions of law on the role of the PP in settling complaints and denunciations in CP The rule of law society in order to exist and develop, first of all, needs to have a unified, complete legal system and clearly stipulates the scope, functions and tasks of agencies in the state apparatus in which PP keeps what role in power activities of the State; in operations to settle complaints and denunciations in CP, PP plays what role? Depend on the contents of the law defining the functions, tasks and powers of the Procuracy, legal policies that are not suitable with reality will impact on the role of the PP 2.3.3 Quality of theofficers of the PP advising the settlement of complaints and denunciations and supervising the settlement of complaints and denunciations in CP President Ho Chi Minh once pointed out: “Officers are the root of all works; Whether success or failure is due to good or poor staff.” The quality of the officers performing the functions, tasks of handling and supervising the settlement of complaints and denunciations in the CP is the ability to complete the tasks assigned in this field based on the following criteria: Firstly, the political qualities expressed in absolute loyalty to the Country and people, a strong political stance, a thorough grasp of the Party's guiding views related to the field of assigned work; Secondly, the professional quality is reflected in the deep understanding and proper application of the provisions of law, especially the provisions of law related to the assigned tasks, with high sense of responsibility in performing functions and duties of the Country; Thirdly, the ethical qualities 13 reflected in the strict observance of the ethical standards of officers and civil servants in general and officers of the Procuracy in particular, with the spirit of serving the people and protecting the public, reason and live a life of integrity and simple 2.3.4 Facilities and working means in service of settlement and control of settling complaints and denunciations in CP Material resources to serve professional activities, such as: training expenses, professional training for officials; apply electronic media, build software to manage complaints and denunciations in the whole sector of Procuracy to create favorable conditions for timely monitoring, management and settlement In addition, the remuneration for professional workers All of the above material conditions, requires the State and society to make appropriate investments in material resources for the Procuracy to implement the role of Procuracyin settlement of complaints and denunciations in judicial activities in general and in CP particular 2.3.5 Implementing legally effective decision on settlement of complaints and denunciations in criminal law Implementing legally effective complaints and denunciations is the final stage of the exercise of state power Thus, the power in the settlement of complaints and denunciations that stops at promulgating the decisions and conclusions of right and wrong and affirming justice is not enough and the justice that was only "on paper" only, theProcuracy' decisions are only truly valid when they are strictly enforced 2.4 Basic criteria for assessing the role of the PP in settling complaints and denunciations in CP 2.4.1 Criteria to evaluate view point of the Party, State and people’s awareness about the role of the People's Procuracyin settling complaints and denunciations in CP - The degree of agreement between the Party's guidelines and policies and the State's laws on the role of the PP in the activities of controlling and settling complaints and denunciations in CP; - The practicality suitable of the Party's guidelines and policies, the State's policies and the functions and tasks of controlling and settling complaints and denunciations in the CP of the PP; - The degree of assurance of the power of the PP during the process of the Party leading settlement and control the settlement of complaints and denunciations in CP; - The people's awareness of complaints and denunciations and the significance of the settlement and control of the settlement of complaints and denunciations in CP; - The degree of trust of the people in the fairness and ensuring the justice is enforced of the settlement and control of the settlement of complaints and denunciations in the CP of the PP 14 2.4.2 Criteria to evaluate the lawrecognizes the role of the PP in settling complaints and denunciations in CP - The completeness and comprehensiveness of the law recognizes the Procuracy's functions and duties on settling and supervising the settlement of complaints and denunciations in CP; - The degree of uniformity of law in assuring the Procuracy's power in settling and supervising the settlement of complaints and denunciations in CP; - Law ensuring the Procuracy carries out activities of settling and supervising the settlement of complaints and denunciations in CP 2.4.3 Criteria to evaluate the efficiency of activities of settling complaints and denunciations in CPof the PP The document of settling complaints and denunciations accurately reflects the nature of the case, ensuring its justice andlegalty, and achieving objective truths are the basic criterions for evaluating the role of PP in settling complaints and denunciations in CP In addition, in order to ensure a comprehensive assessment of the Procuracy's role in this field, it is necessary to consider the timeliness of the settlement of complaints and denunciations within the prescribed time limit Conclusion Chapter Chapter CURRENT SITUATION OF THE ROLE OF THE PEOPLE'S PROCURACY IN THE SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS IN CRIMINALPROCEEDINGS OF VIETNAM 3.1 The reality of the law acknowledges the role of the PP in settling complaints and denunciations in CP 3.1.1 From the Party's policy to the State's enactment of laws showing the role of the Procuracyin complaints and denunciations The Fourth Conference of the IXCentral Committee of the Party issued a conclusion on the amendments and supplements to a number of articles of the 1992 Constitution, which clearly states: “It is necessary to amend and supplement functions and tasks of the PP in the direction of: The PP shall only exercise the right to prosecute and control judicial activities, not perform the function of control in compliance with the law of organizations and individuals” Institutionalizing the views and policies of the XIII Party and National Assembly passed the 2013 Law and judicial laws, including the Law on Organization of the People's Committee of 2014; Role of PP to settle and supervise the settlement of complaints and denunciations in judicial activities are recorded as a separate item In line with the 2014 Law on Organization of the PP, the CPCode in 2015 has made new changes in the role of the People 's Procuracy in resolving complaints and denunciations compared to the 2003 Law on CP as assigned to practice prosecution rights amd supervision of the law observance in CP , the deputy head of the Procuracyare competent to settle 15 complaints and denunciations under the Procuracy’sauthority, except for complaints and denunciations of their own decisions and acts; The superior Procuracy is responsible for inspecting and examining the settlement of complaints and denunciations of the lower Procuracies The supreme PP inspects and exams the settlement of complaints and denunciations of the Procuracies of all levels 3.1.2 The law recognizes the Procuracy's role in settling complaints and denunciations in the current CP Pursuant to the provisions of the 2013 Constitution, the 13th National Assembly passed the Law on Organization of People's Procuracyin 2014; The 2015 CP Code, which acknowledged the Procuracy's role in settling complaints and denunciations in CP 3.2 Actual situation of implementing the role of the PP in settling complaints and denunciations in CP 3.2.1 Actual situation of the Procuracy's role in directly settling complaints and denunciations in CP Table Statistics of complaint settlement in CP Under the jurisdiction of PP in 10 years (From 2009 to 2018) Complain Year Acceptance Solved (cases) Pass (%) number (cases) 2009 854 562 66% 2010 798 487 61% 2011 958 617 64% 2012 570 561 98% 2013 596 582 98% 2014 970 955 98% 2015 855 881 99% 2016 1191 1190 99% 2017 1516 1212 79.9% 2018 1672 1592 95.2% Total 9980 8639 86.5% Source: Statistical reports of results of the PP 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017 and 2018 16 Table Statistical data of denunciations settlement in CP under the jurisdiction of PP in 10 years ( from 2009 to 2018) Denounce Year Acceptance Solved (cases) Pass (%) number (cases) 2009 39 30 77% 2010 36 23 64% 2011 39 28 72% 2012 76 72 95% 2013 39 35 90% 2014 52 48 92% 2015 33 30 91% 2016 43 41 95% 2017 125 113 90.4% 2018 102 92 90.1% total 584 512 87.6% Source: Statistical reports of results of the People's Procuracy' in settling complaints and denunciations in 2009, 2010, 2011 , 2012, 2013, 2014, 2015, 2016, 2017 and 2018 3.2.2 Situation of performing the role of supervising the compliance with laws on settlement of complaints and denunciations in CP Table Statistical data of supervising the settlement of complaints and denunciations in CP of PP in 10 years (from 2009 to 2018) Year Total number of control measures taken 2009 2010 2011 2012 550 464 635 731 2013 2014 2015 2016 724 1072 749 863 Modes of conducting the Control inspection results Dir Reque Requ Request to Pettiti App provide on ectl st a est a eal records y writte selfand sup n test documents ervi settle sio ment n 373 56 101 20 146 310 34 93 27 219 14 389 36 177 33 289 517 41 112 sixty 432 one 585 51 70 18 469 497 301 226 48 410 459 45 181 64 359 475 61 227 100 369 Check the implementa tion of petition and appeal 15 17 2017 2018 total 986 1039 7813 471 554 463 149 142 916 296 249 1732 70 94 535 411 329 3433 1 48 22 Source: Statistical Report on results of supervising the settlement of complaints and denunciations in CP of the PP in 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 3.3 Assess the role of the PP in settling complaints and denunciations in Vietnam's criminal procedures today 3.3.1 Awareness of the Procuracy's role in settling complaints and denunciations in CP - The Party's views and the State's policies on the Procuracy's role in settling complaints and denunciations in CP - People's awareness of the Procuracy's role in settling complaints and denunciations in CP 3.3.2 The legal mechanism for the Procuracy's role in settling complaints and denunciations in CP is incomplete - The law has not yet provided punishment that the Procuracyis able to apply in case the competent authorities not comply with the Procuracy's requests and decisions in the process of settling complaints and denunciations in CP - The law has not regulated that the settlement of complaints and denunciations is a compulsory proceeding - The time limit for settling complaints in CP is too short, difficult to ensure the quality and results of settlement by competent agencies - The law recognizes the Procuracy's right to supervise the settlement of complaints and denunciations against agencies that are assigned to conduct a number of investigative activities but not grant the authority to settle denunciations to these agencies 3.3.3 The Procuracy's effectiveness in supervising and settling complaints and denunciations in CP From 2009 to 2018, Procuracies at all levels accepted the settlement of 9.151/10.564 complaints and denunciations in the criminal procedure that reached about 86,6 %, the remaining unresolved cases were still in effect, or complicated cases took time to verify and conclude; in the same above period,Procuracies at all levelsconducted investigations of 7.813 times for competent entities to settle complaints and denunciations in the CP Of which, directly investigated 4.630 events; applied indirect methods of control: 3,183 times End of investigating methods,Procuracies at all levelsissued 3,481 petitions and appeal written document (3433 written petitions, 48 written appeals) requesting the competent authority to settle complaints and denunciations in CP to fix, surmountviolations, reaching 44.5 %, confirming the important role of PP on settlement of complaints and denunciations in CP ; at the same time, confirming the 18 position of the Procuracy as an agency that directly settle complaints and denunciations within its competence and has the function of supervising the settlement of complaints and denunciations in the CP 3.3.3.1 Restrictions on settling complaints and denunciations in criminal procedures under jurisdiction - Firstly, regarding the reception of citizens: There are head of local Procuracieshave not yet fully received citizens as prescribed; someofficers have limited capacity; responsibility in receiving citizen has not been emphasized - Secondly, regarding the settlement of complaints and denunciations: The time limit for settlement is still extended; the quality of handling a number of cases is not in accordance with the law, and not the true nature of the case - Thirdly, in terms of management, direction and administration: Leader of a local Procuracy still underestimates the work of complaints and denunciations making lack of regular and timely supervision and urging 3.3.3.2 Restrictions on supervision of compliance with laws on settlement of complaints and denunciations in CP against other competent entities - Regarding indirect method: Some local Procuracies apply too many measures to request a written settlement without applying other effective control measures, leading to the quality of theindirect controlmethod is mainly in paper and ineffective; - Regarding direct method:Having information of violation before conducting direct inspection is limited, so when entering the inspection, it is still scattered and not focusing immediately on the violations of the supervised agencies; In general, direct and indirect inspections stop at detecting violations in the form of settling complaints and denunciations; The detection of violations in the content is limited and thus not confirming the important role of PP on settlement of complaints and denunciations in CP 3.3.4 The basic causes of limitations in the activities of supervising and settling complaints and denunciations in criminal procedures 3.3.4.1 Objective reasons - Policies on economic management and social management are incomplete, not synchronous, and overlapping, making awareness and application of legal provisions in this field to resolve criminal cases of the judicial agencies are inconsistent, leading to wrongconviction; prolonged complaints are mainly related to these policies - The independence of inspection activities and settlement of complaints and denunciations of the Procuracy has not been assured - The officers and procurators performing the function of controlling and settling complaints and denunciations are insufficient in quantity and limited in professional qualifications and ethical qualities - Due to the limited qualifications of a number of officers who are in charge of receiving citizens and settling complaints and denunciations, lack of 19 experience, knowledge in both professional and social knowledge, leading to the reception of people and settling complaints and denunciationsdoes not meet requirements - Awareness of citizens about the role of the Procuracyin supervision of the settlement of complaints and denunciations isincomplete - The awareness of the judicial authorities about the functions, missions and powers to supervise the compliance of laws on settling complaints and denunciations is insufficient; making the Procuracy's role in settlement of complaints and denunciations in the CP has not been promoted 3.3.4.2 Subjective causes - The Party's leadership in settling complaints and denunciations in CP has not been given due attention; priority is mainly given to the goals of economic, cultural, security and defense development; leadership, investment in facilities, training to build a team of in-depth professionalprocurators in this field are limited, which is partly the reason why the Procuracy has not fulfilled its role in resolving complaints and denunciations in CP - Some leaders of the local Procuracies lack of focus on directing the inspection, urging the control and settlement of complaints and denunciations; the professional training and guidance of the superior for lower officers have not been conducted on a regular basis; a number of officers who directly handle complaints and denunciations also show irresponsibility, have not fully implemented the order and procedures for settling complaints and denunciations or don’t take and avoid the tasks - A number of Procuracies have not actively coordinated with other judicial agencies in managing and resolving complaints and denunciations in the CP, so the settlement of complicated complaints and denunciations related to many levels and sectors is still confused and passive - The leadership, management, direction and administration of the control of the settlement of complaints and denunciations in the criminal procedures are lack of regularity in some places and some times, so this work is only formal, not come close to the content and quality - Many professional units of PP at all levels still underestimate the task of controlling and settling complaints and denunciations in the CP - The role of advising and proposing of functional units to help leaders of the Institute to manage, direct and administer this work is not really active and profound; still afraid of collision; The urging, coordination, grasping the situation in the professional units are not high efficiency Conclusion of Chapter 20 Chapter SOLUTIONS TO ENSURE THE ROLE OF THE PEOPLE’S PROCURACY ON SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS IN VIETNAMESE CRIMINAL PROCEDURES 4.1 Necessity and requirements to ensure the role of the PP in settling complaints and denunciations in CP 4.1.1 The need to ensure the role of the Procuracy in settling complaints and denunciations in CP 4.1.1.1 Regarding the direct role of settling complaints and denunciations in CP under its jurisdiction 4.1.1.2 Regarding the role of supervising the compliance with law on settlement of complaints and denunciations in CP by other competent subjects 4.2 Requirements to ensure the role of the PP in settling complaints and denunciations in CP 4.2.1 Requirements to build a socialist rule of law state 4.2.1.1 Promote the direct democratic right of the people to participate in supervising the activities of state agencies 4.2.1.2 Renovate the judiciary to build the socialist rule of law state 4.2.2 Requirements for improving the efficiency and effectiveness of state agencies' operations 4.2.3 Requirements of integration and globalization trends 4.3 Ensure the role of the PP in settling complaints and denunciations in criminal procedures 4.3.1 Ensuring the Party's leadership in controlling and settling complaints and denunciations in criminal procedures 4.3.2 Ensuring the supervision of settlement of complaints and denunciations 4.3.3 Promote the advantages gained in implementing the role of the PP in settling complaints and denunciations in criminal procedures 4.3.4 Improve the law 4.3.3.1 Perfecting the law on complaints and denunciations in criminal procedures * Regarding complaints: - Expand the right to appeal in Article 471 of the Criminal Procedure Code to promote the protection of human rights Specifically, for cases having expired effective time but there are clear basis for an injustice, wrong conviction or omission of crimes, the competent agencies must accept them for settlement - Amending and supplementing the provisions of Articles 475, 476, 477 of the Criminal Procedure Code to increase the effective time for the subsequent appeal from days to days ; amending the regulations on time-limit for settling a 21 complaint (from the date the complaint is received) instead of from the date the complaint is accepted; at the same time , increase the time limit for settling complaints of the next competent person (second time) and for some complicated cases, it takes time for verification and clarification - It is necessary to decentralize and clearly define the responsibility to directly receive citizens and settle complaints of the Head of Procuracy, Deputy Head of Procuracy, Procurators, Heads of complained proceeding professional units in order to avoid tasks or appointing incompetent officers who is unable to receive citizens to handle cases, leading to pressing and prolonged complaints * Regarding denunciations: - Amend and supplement Article 481 of the Criminal Procedure Code in the following direction: Set a shorter time limit for settling denunciations to suit the legal proceedings (from 30 days to 20 days; from 60 days to 30 days for the complex case); Particularly, the time limit for settling denunciations related to acts of arrest, custody and temporary detention needs to be increases from to days to ensure the verification and conclusion of the case - Need to develop a Law on Complaints and Denunciations on Justice - Additional provisions on complaints and denunciations and settlement of complaints and denunciations to those who have not had judiciary titles who join with judicial officers to examine the crime scene and interrogate ; 4.3.3.2 Completing the law recognizing the role of the PP in settling complaints and denunciations in CP Firstly, the aspect of directly settling complaints and denunciations in CP falls under its jurisdiction - Supplement to the Criminal Procedure Code provides that the Procuracy has the right to propose handling of responsibility to the direct superior agency of the complainant, who is the Head of the investigating body; The head of the agency assigned with the task of conducting a number of investigating activities in case of non-performance, or inadequate or untimely implementation of the settlement of complaints by a competent Procuracy - Codification of the reappraisal of legally effective decisions on complaint settlement decisions in a number of cases specified in Decision No 51 / QDVKSTC-V12 of February 2, 2016 of the PP's Head of The Supreme Court is attached to the Regulation on reception of citizens, settlement of complaints and denunciations and control of the settlement of complaints and denunciations in judicial activities 22 Secondly is the aspect of supervising the compliance with law on settlement of complaints and denunciations in CP by other competent subjects - Developing criteria to determine the ultimate purpose of resolving complaints and denunciations is not merely a "complaint" resolution, but a form of reviewing the objectivity and basis of the decision and acts in CP - Criminal Procedure Code needs to be supplemented regulations in the direction that the competent entities settling complaints and denunciations receive complaints and denunciations within their competence must concurrently notify the Procuracy to check Supervise the settlement of such complaints and denunciations; at the same time , set a time limit for these subjects to fulfill their responsibilities to the Procuracy’s requests - Removing the provision that the Procuracy is responsible for supervising the settlement of denunciations by the agency tasked to conduct a number of investigating activities (Article 483 of the Criminal Procedure Code in 2015); because the law does not stipulate that the agency assigned to conduct certain investigative activities deal with the accusation of legal proceedings committed by the person assigned to conduct a number of investigating activities 4.3.5 Ensure the independence in the activities of supervising and settling complaints and denunciations in criminal procedures; at the same time, reform the organizational structure of the advisory unit for supervising and settling complaints and denunciations in a specialized manner, ensuring objectivity 4.3.6 Invest in material facilities, consolidate the organization of inspection and settle complaints and denunciations of the People's Procuracy - About consolidating the organization and apparatus - About investment in material facilities 4.3.7 Strengthen inspection and examination of responsibilities for carrying out supervision and settlement of complaints and denunciations in criminal procedures Inspection and examination of responsibility for supervision and settlement of complaints and denunciations should be carried out by the following measures: Firstly, the superior Procuracy builds up inspection programs, plans on subordinate Procuracies by the form of comprehensive inspection, specialized inspection or irregular inspection Secondly, direct thoroughly the implementation of conclusions and decisions after inspection and examination in the following aspects: handling or petitioning to strictly handle those who violate the law on complaints and denunciations in the CP; at the same time, taking measures to orient and 23 overcome existing problems to strictly implement the legislation on complaints and denunciations in the CP 4.3.8 Raise awareness of Procecuratorial officers about the importance of supervision and settlement of complaints and denunciations in CP Due to incomplete awareness about the importance of the work of supervising and settling complaints and denunciations in CP, the inspection of superior Procuracy to the subordinate procuracies shows some Procuracies usually focuses on other tasks other than really pays attention to the supervision and settlement of complaints and denunciations Lack of close direction of the leader of Procuracy leads to letters moving around and around or advoid settlement, especially in case requiring cooperation of function units or the superior to subordinates 4.3.9 Strengthening the coordination between the PP and other judicial agencies in settling complaints and denunciations in CP Conclusion of Chapter CONCLUSION The Constitution and laws of our State that recognize the rights of citizens to complain and denounce and the responsibility of the State agencies to consider and settle, demonstrated the good nature of the socialist regime in Vietnam in assuring human rights and democratic rights Although the law of our country has recognized the right to lodge complaints and denunciations and the responsibility of competent agencies to settle complaints and denunciations, and the responsibility to inspect and supervise the settlement of functional agencies, theoretical and practical bases have not been scientifically and systematically studied, leading to no effective mechanism for making complaints and denunciations and settling complaints and denunciations into real life to ensure efficiency Complaints, denunciations and settlement of complaints and denunciations in the CP are not exceptional from that general situation PP with functional right to prosecute and control judiciary activities, which plays a very important role in the settlement of complaints and denunciations in CP is expressed in terms of the direct settlement of complaints, denunciations in legal proceedings within the scope and control of the compliance with the law on settlement of complaints and denunciations in the CP of other competent entities in order to protect the law and ensure the serious and unified observance of the law During the time, PP played well its role in settling complaints and denunciations in CP that contributed in stabilizing the political situation, social order and security, activley serving the innovation path of the Party However, 24 besides the results, activities of supervision and settlement of complaints and denunciations in CP of PP also exposed some shortcomings and restrictions such as: Reception of citizens in a number of units in the Procuracy sector has not been really appreciated; the classification and handling of applications are still confused leading to the settlement of applications which are not under their jurisdiction or not accepting and handling applications under their jurisdiction; the quality of handling a number of cases is not good, the application of law to handle is not correct in some places and some times; some cases are left prolonged, officers avoid responsibility; The management, direction and administration still face many shortcomings, in some places, the leaders lack supervising and urging, even give all authority to the inferior Supervising the activities of compliance with the law on the settlement of complaints and denunciations in CP has not achieved required purposes and requirements; The quality of the inspections is not high, and is still in formal The causes of shortcomings and limitations are a lot, including both subjective and objective causes Therefore, it is necessary to further improve the effectiveness and efficiency of the activities of inspection and settlement of complaints and denunciations in criminal procedures of the PP In this context, the thesis researches both theoretical and practical aspects in order to clarify the concept and characteristics of complaints and denunciations; concepts and characteristics of supervisory activities and of settling complaints and denunciations in the CP Since then, introduces the concept of the role of PP on settlement of complaints and denunciations in CP The thesis analyzed the current status of the law recognizing the role of the PP in settling complaints and denunciations in CP ; at the same time stated the status of implementing the role of the PP in settling complaints and denunciations in CP in 10 years (2009-2018 ); assessed the role of the PP in this area, proposed systematic scientific solutions to ensure the role of the PP in settling complaints and denunciations in the CP, meeting the requirements of the judicial reform process as pointed out in the Political Report at the 11th Congress of the Party: "Promote the implementation of the judicial reform strategy by 2020, build a clean and strong judicial system, defend justice, respect and protect human rights " LIST OF PUBLISHED WORKS BY AUTHOR Scientific papers published: Dinh Van Son (2012), "Basic skills for settling complaints and denunciations within the jurisdiction of the PP" ,Procuratorate Magazine, No 14/2012 Dinh Van Son (2014), "Responsibility to coordinate in the reception of citizens to settle complaints and denunciations" , Journal of Inspection, No 4/2014 Dinh Van Son - Ha NhuKhue (2014), "About innovation of complaints" , Journal of Procuratorial Science, No 4/2014 Dinh Van Son (2015), "Renovating the task of advising and settling complaints and denunciations in judicial activities of the PP of all levels", Procuratorate Magazine, No 12/2015 Dinh Van Son (2015), "Renewing the reception of citizens by the PP at all levels", Procuracy Magazine, No 18/2015 ... on settling complaints and denunciations in Criminal Procedure in Vietnam Chapter Current situation of the role of the People's Procuracyin settling complaints and denunciations in Vietnam's... settlement no more than days) 2.1.2.3 Concept of settling denunciations in CP Settlement of denunciations in CP is the process of examining, accepting, verifying and issuing decisions to settle... Procuracy's power in settling and supervising the settlement of complaints and denunciations in CP; - Law ensuring the Procuracy carries out activities of settling and supervising the settlement of complaints