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THE
NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
19/2003/QH11
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Hanoi,
November 26, 2003
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CRIMINAL PROCEDURE CODE
(No. 19/2003/QH11 of November 26, 2003)
Pursuant
to the 1992 Constitution of the Socialist Republic of Vietnam, which was
amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001
of the Xth National Assembly, the 10th session;
This Code prescribes the order and procedures of instituting, investigating,
prosecuting and adjudicating criminal cases and executing criminal judgments.
Part One
GENERAL PROVISIONS
Chapter I:TASKS AND EFFECT OF THE CRIMINAL PROCEDURE CODE
Article 1.- Tasks of the Criminal Procedure Code
The
Criminal Procedure Code prescribes the order and procedure of instituting,
investigating, prosecuting and adjudicating criminal cases and executing
criminal judgments; functions, tasks and powers of, as well as relationships
among procedure-conducting bodies; tasks, powers and responsibilities of procedure-conducting
persons; rights and obligations of participants in the procedure and of various
agencies, organizations and citizens; international cooperation in the criminal
procedure, in order to take initiative in preventing and precluding crimes, detecting
accurately and quickly and handling justly and in time all criminal acts, not
leaving criminals unpunished and the innocent punished unjustly.
The
Criminal Procedure Code contributes to protecting the socialist regime,
safeguarding the interests of the State, the legitimate rights and interests of
citizens, organizing and protecting the socialist legal order, and at the same
time educating all people in the sense of law observance, struggling to prevent
and fight crimes.
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All
criminal proceedings on the territory of the Socialist Republic of Vietnam must
be conducted in accordance with the provisions of this Code.
Criminal
proceedings against foreigners who commit offenses on the territory of the
Socialist Republic of Vietnam and who are citizens of the member states of the
international agreements which the Socialist Republic of Vietnam has signed or
acceded to shall be carried out in accordance with the provisions of such
international agreements.
For
foreigners committing offenses on the territory of the Socialist Republic of
Vietnam, who are entitled to diplomatic privileges or consular preferential
treatment and immunities in accordance with Vietnamese laws, international
agreements which the Socialist Republic of Vietnam has signed or acceded to or
in compliance with international practices, their cases shall be settled
through diplomatic channels.
Chapter II: FUNDAMENTAL PRINCIPLES
Article 3.- Guarantee of the socialist legislation in the criminal
procedure
All
criminal proceedings of procedure-conducting bodies and persons and
participants in the procedure must be carried out in accordance with the
provisions of this Code.
Article 4.- Respect for, and defense of, fundamental rights of
citizens
When
conducting the procedure, the heads and deputy heads of investigating bodies,
investigators, chairmen and deputy chairmen of procuracies, procurators,
presidents and vice-presidents of courts, judges and jurors must, within the
scope of their respective responsibilities, respect and protect the legitimate
rights and interests of citizens, regularly examine the lawfulness and
necessity of the applied measures, promptly cancel or change such measures if
deeming that they are in violation of law or no longer needed.
Article 5.- Guarantee of all citizens’ right to equality before
law
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Article 6.- Guarantee of citizens’ right to body inviolability
Nobody
shall be arrested without a court decision, decision made or approved by the
procuracies, except for cases where offenders are caught red-handed.
Arrest
and detention of people must comply with the provisions of this Code.
All forms
of coercion and corporal punishment are strictly forbidden.
Article 7.- Protection of life, health, honor, dignity and
property of citizens
Citizens
have the right to have their life, health, honor, dignity and property
protected by law.
All acts
of infringing upon the life, health, honor, dignity and/or property shall be
handled according to law.
Victims,
witnesses and other participants in the procedure as well as their relatives,
when their life and health are endangered, their honor, dignity and/or property
are infringed upon, shall be protected by competent procedure-conducting bodies
through applying necessary measures according to law.
Article 8.- Guarantee of the citizens’ right to residence
inviolability, safety and confidentiality of correspondence, telephone
conversations and telegraphs
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While
conducting the procedure, the search of residence, search, seizure and
forfeiture of correspondence and telegraphs must comply with the provisions of
this Code.
Article 9.- No person shall be considered guilty until a court
judgment on his/her criminality takes legal effect
No person
shall be considered guilty and be punished until a court judgment on his/her
criminality takes legal effect.
Article 10.- Determination of facts of criminal cases
Investigating
bodies, procuracies and courts must apply every lawful measure to determine the
facts of criminal cases in an objective, versatile and full manner, to make
clear evidences of crime and evidences of innocence, circumstances aggravating
and extenuating the criminal liabilities of the accused or defendants.
The
responsibility to prove offenses shall rest with the procedure-conducting
bodies. The accused or defendants shall have the right but not be bound to
prove their innocence.
Article 11.- Guarantee of the right to defense of detainees,
accused and defendants
The
detainees, accused and defendants shall have the right to defend by themselves
or ask other persons to defend them.
Investigating
bodies, procuracies and courts shall have the duty to ensure that the
detainees, accused and defendants exercise their right to defense under the
provisions of this Code.
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In the
course of conducting the procedure, the procedure-conducting bodies and persons
must strictly implement law provisions and take responsibility for their acts
and decisions.
Those who
act against law in making arrest, detention, seizure, instituting,
investigating, prosecuting and/or adjudicating criminal cases and/or executing
judgments shall, depending on the nature and seriousness of their violations,
be disciplined or examined for penal liability.
Article 13.- Responsibility to institute and handle criminal cases
Upon
detecting criminal signs, the investigating bodies, procuracies or courts
shall, within the scope of their respective tasks and powers, have to institute
criminal cases and apply measures provided for by this Code to determine
offenses and handle offenders.
Criminal
cases must not be instituted except on the grounds and in the order provided
for by this Code.
Article 14.- Guarantee of the impartiality of persons conducting
or participating in the procedure
The heads
and deputy heads of investigating bodies, investigators, chairmen and
vice-chairmen of procuracies, procurators, presidents and vice-presidents of
courts, judges, jurors and court clerks must not conduct the procedure or
interpreters and experts must not participate in the procedure if there are
plausible grounds to believe that they may not be impartial while performing
their duties.
Article 15.- Implementation of the regime of trial with the
participation of jurors
The trial
by people’s courts or military courts shall be participated by people’s jurors
or military jurors respectively in accordance with the provisions of this Code.
In the course of trial, jurors shall be equal in rights to judges.
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During
trial, judges and jurors are independent and abide by law only.
Article 17.- Courts conduct trial collectively
Courts
shall conduct trial collectively and make decisions by majority.
Article 18.- Public trial
Courts
shall conduct trial in public, everybody shall have the right to attend such
trial, unless otherwise prescribed by this Code.
In
special cases where State secrets should be kept or the fine national customs
and practices should be preserved or the involved parties’ secrets must be kept
at their legitimate requests, courts shall conduct trial behind closed door but
must pronounce the judgments publicly.
Article 19.- Guarantee of equal right before court
Procurators,
defendants, defense counsels, victims, civil plaintiffs, civil defendants,
persons with interests and obligations related to the cases and their lawful
representatives and defense counsels of interests of the involved parties shall
all have the equal rights to present evidences, documents and objects, make
claims and argue democratically before court. Courts shall have to create
conditions for them to exercise these rights with a view to clarifying the
objective truths of the cases.
Article 20.- To implement the two-level trial regime
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First-instance
judgments and decisions of courts may be appealed or protested against under
the provisions of this Code.
First-instance
judgments and decisions, if not appealed or protested against within the time
limits prescribed by this Code, shall be legally valid. For first-instance
judgments or decisions which are appealed or protested against, the cases must
be brought to appellate trial. Appellate judgments and decisions shall be
legally valid.
2. For
legally valid court judgments and decisions, if law violations are detected or
new circumstances emerge, they shall be reviewed according to the cassation or
re-opening procedures.
Article 21.- Trial supervision
Superior
courts shall supervise the trial by subordinate courts. The Supreme People’s
Court shall supervise the trial by people’s courts and military courts at all
levels in order to ensure the strict and uniform application of laws.
Article 22.- Guarantee of the validity of court judgments and
decisions
1.
Legally valid court judgments or decisions must be executed and respected by
agencies, organizations and all citizens. The concerned individuals, agencies
and organizations must, within the scope of their respective responsibilities,
strictly execute or serve the court judgments and decisions and take
responsibility before law for their execution or serving.
2. Within
the scope of their respective responsibilities, State agencies, commune, ward
and township administrations, organizations and citizens must coordinate with
the agencies and organizations tasked to execute court judgments and decisions
in the execution thereof.
State
agencies and commune, ward and township administrations shall have to create
conditions for, and comply with the requests of, agencies and organizations
tasked to execute court judgments and decisions in the execution thereof.
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1.
Procuracies shall exercise their right to prosecute in the criminal procedure
and decide to prosecute offenders before court.
2.
Procuracies shall supervise the law observance in the criminal procedure and
have the duty to detect in time law violations committed by
procedure-conducting bodies or persons as well as participants in the
procedure, and apply measures prescribed by this Code to preclude law
violations by these bodies or individuals.
3.
Procuracies shall exercise their right to prosecute and supervise the law
observance in the criminal procedure in order to ensure that all criminal acts
be handled in time; the institution, investigation, prosecution and trial of
criminal cases as well as execution of judgments be conducted against the right
persons and right offenses, not omitting offenses and offenders, not letting
injustice be done on the innocent.
Article 24.- Spoken and written language used in the criminal
procedure
Spoken
and written language used in the criminal procedure is Vietnamese. Participants
in the criminal procedure may use spoken and written languages of their own
nationalities; in this case, interpreters shall be required.
Article 25.- Responsibilities of organizations and citizens in the
struggle to prevent and fight crimes
1.
Organizations and individuals shall have the right as well as obligation to
detect and denounce criminal acts; participate in the struggle to prevent and
fight crimes, contributing to protecting the interests of the State, the
legitimate rights and interests of citizens and organizations.
2.
Procedure-conducting bodies shall have to create conditions for organizations
and citizens to participate in the criminal procedure; must inform the results
of processing the reported information on and denunciations of crimes to the
reporting organizations or denouncers.
3.
Organizations and citizens shall have to abide by the requests of, and create
conditions for, the procedure-conducting bodies and persons to perform their
duties.
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1. Within
the scope of their respective responsibilities, State agencies must apply
measures to prevent crimes; coordinate with investigating bodies, procuracies
and courts in the struggle to prevent and fight crimes.
State
agencies must constantly examine and inspect the performance of their assigned
functions and tasks; detect in time law violation acts for handling and
immediately inform the investigating bodies or procuracies of all criminal acts
committed in their agencies and in their management domains; have the right to
propose and send related documents to the investigating bodies and procuracies to
consider and initiate criminal proceedings against persons committing criminal
acts.
The heads
of State agencies shall take responsibility for their failure to report
criminal acts happening in their agencies and in their management domains to
the investigating bodies or procuracies.
State
agencies shall have to comply with the requests of, and create conditions for,
the procedure-conducting bodies and persons to perform their duties.
All acts
of obstructing the activities of the procedure-conducting bodies and persons
while performing their duties are strictly forbidden.
2.
Inspection agencies must coordinate with investigating bodies, procuracies and
courts in detecting and handling crimes. When detecting cases with criminal
signs, they must immediately transfer related documents to and propose
investigating bodies or procuracies to consider and institute criminal cases.
3. Within
the scope of their responsibilities, investigating bodies and procuracies must
consider and settle reported information on crimes, propose the institution of
criminal cases and must inform the settling results to the reporting or
proposing State agencies.
Article 27.- Detection and remedy of causes and conditions for
crime commission
In the
course of carrying out the criminal procedure, investigating bodies,
procuracies and courts shall have to find out crime commission causes and
conditions; request the concerned agencies and organizations to apply remedial
and preventive measures.
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Article 28.- Settlement of civil matters in criminal cases
The
settlement of civil matters in criminal cases shall be carried out together
with the settlement of criminal cases. Where a criminal case involves the
compensation or indemnification matter which cannot be proved yet and does not
affect the settlement of the criminal case, such civil matter may be separated
and settled according to civil procedures.
Article 29.- Guarantee of the right to damage compensation and
restoration of honor and interests of unjustly handled persons
Persons
who have been unjustly handled by competent persons in criminal proceedings
shall have the right to damage compensation and restoration of their honor and
interests.
The
competent bodies which have handled persons unjustly in criminal proceedings
shall have to pay damage compensation to, and restore the honor and interests
of, the unjustly punished persons; persons who have caused damage shall have to
reimburse the compensated amounts to the competent bodies according to law.
Article 30.- Guarantee of the right to damage compensation of
persons suffering from damage caused by the criminal procedure-conducting
bodies or persons
Persons suffering
from damage caused by competent bodies or persons in criminal proceedings shall
have the right to damage compensation.
The
bodies competent in criminal proceedings shall have to pay compensation to the
damaged persons; the damage-causing persons shall have to reimburse the
compensated amounts to the competent bodies according to law provisions.
Article 31.- Guarantee of the right to complain and denounce in
the criminal procedure
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Competent
bodies must receive, consider and settle in a timely and lawful manner
complaints and denunciations, then send notices on the settlement results to
the complainants and denouncers for knowledge and taking remedial measures.
The
order, procedures and competence to settle complaints and denunciations are
provided for by this Code.
Article 32.- Supervision by agencies, organizations and
people-elected deputies of activities of the procedure-conducting bodies and
persons
State
agencies, the Vietnam Fatherland Front Committees, the Front’s member organizations
and people-elected deputies shall have the right to supervise activities of the
procedure-conducting bodies and persons; supervise the settlement of complaints
and denunciations by such bodies and persons.
If
detecting any illegal acts committed by the procedure-conducting bodies or
persons, the State agencies and people-elected deputies shall have the right to
request, or the Vietnam Fatherland Front Committees and the Front’s member
organizations shall have the right to propose, the competent procedure-conducting
bodies to consider and settle them in accordance with the provisions of this
Code. The competent procedure-conducting bodies must consider, settle and reply
such proposals or requests according to law.
Chapter III : PROCEDURE-CONDUCTING BODIES, PROCEDURE-CONDUCTING
PERSONS AND THE CHANGE OF PROCEDURE-CONDUCTING PERSONS
Article 33.- Procedure-conducting bodies and procedure-conducting
persons
1.
Procedure-conducting bodies include:
a/
Investigating bodies;
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c/
Courts.
2. Procedure-conducting
persons include:
a/ The
heads and deputy heads of investigating bodies, investigators;
b/
Chairmen, vice-chairmen of procuracies, procurators;
c/
Presidents and vice-presidents of courts, judges, jurors, court clerks.
Article 34.- Tasks, powers and responsibilities of heads and
deputy heads of investigating bodies
1. The
heads of investigating bodies shall have the following tasks and powers:
a/ To
directly organize and direct the investigating activities of investigating
bodies;
b/ To decide
to assign tasks to their deputies and investigators in investigating criminal
cases;
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d/ To
decide to change or cancel ungrounded and illegal decisions of their deputies
and investigators;
e/ To
decide to change investigators;
f/ To
settle complaints and denunciations falling under the competence of
investigating bodies.
When the
head of an investigating body is absent, one deputy authorized by such head
shall perform the tasks and exercise the powers of the latter. Deputy heads
shall be accountable to their heads for their assigned tasks.
2. When
investigating criminal cases, the heads of investigating bodies shall have the
following tasks and powers:
a/ To
decide to institute criminal cases and initiate criminal proceedings against
the accused, to decide not to institute criminal cases; to decide to
incorporate or separate criminal cases;
b/ To
decide to apply, change or cancel deterrent measures ;
c/ To
decide to pursue the accused, to search, forfeit, seize, distrain properties,
and handle exhibits;
d/ To
decide to solicit expertise and exhume corpses;
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f/ To
decide to suspend investigation, to decide to cease investigation, to decide
resume investigation;
g/ To
directly carry out investigating measures; to grant or withdraw defense
counsel’s certificates; to issue other decisions and carry out other
proceedings falling under the competence of investigating bodies.
3. When
being assigned to investigate criminal cases, the deputy heads of the
investigating bodies shall have the tasks and powers defined in Clause 2 of
this Article.
4. The
heads, deputy heads of investigating bodies shall take responsibility before
law for their acts and decisions.
Article 35.- Tasks, powers and responsibilities of investigators
1. The
investigators assigned to investigate criminal cases shall have the following
tasks and powers:
a/ To
compile files of criminal cases;
b/ To
summon and interrogate the accused; to summon and take testimonies from
witnesses, victims, civil plaintiffs, civil dependants and persons with
interests and obligations related to the cases;
c/ To
decide to escort the accused, decide to escort witnesses;
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e/ To
conduct scene examination, autopsy, confrontation, identification and
investigative experiments;
f/ To
conduct other investigating activities falling under the competence of
investigating bodies according to the assignment of the heads of investigating
bodies.
2.
Investigators shall take responsibility before law and the heads of
investigating bodies for their acts and decisions.
Article 36.- Tasks, powers and responsibilities of chairmen,
vice-chairmen of procuracies
1. The
chairmen of procuracies shall have the following tasks and powers:
a/ To
organize and direct activities of exercising the right to prosecute and
supervise the law observance in criminal proceedings;
b/ To
decide to assign their vice-chairmen and procurators to exercise the right to
prosecute and supervise the law observance in criminal proceedings for criminal
cases;
c/ To
examine their vice-chairmen and procurators in activities of exercising the
right to prosecute and supervise their law observance in criminal proceedings;
d/ To
protest according to cassation or reopening procedures the legally valid court
judgments or decisions in accordance with law;
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f/ To
decide to withdraw, suspend or cancel ungrounded and illegal decisions of the
subordinate procuracies;
g/ To
decide to change procurators;
h/ To
settle complaints and denunciations falling under the competence of
procuracies.
When the
chairman of a procuracy is absent, one vice-chairman authorized by the chairman
shall perform the chairman’s tasks and powers. Vice-chairmen shall be
accountable to their chairmen for their assigned tasks.
2. When
exercising the right to prosecute and supervising the law observance in the
proceedings for criminal cases, the chairmen of procuracies shall have the
following tasks and powers:
a/ To
decide to institute criminal cases, to decide not to institute criminal cases,
to decide to initiate criminal proceedings against the accused; to request
investigating bodies to institute criminal cases or change decisions to
institute criminal cases or initiate criminal proceedings against the accused in
accordance with this Code;
b/ To
request the heads of investigating bodies to change investigators;
c/ To
decide to apply, change or cancel deterrent measures; to decide to extend the
investigation period; to decide to prolong the temporary detention period; to
request investigating bodies to pursue the accused;
d/ To
decide to approve or disapprove decisions of investigating bodies;
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f/ To
decide to transfer cases;
g/ To
decide to prosecute, to decide to return the files for additional
investigation; to decide to solicit expertise;
h/ To
decide to suspend or cease criminal cases, to decide to resume investigation;
to decide to handle exhibits;
i/ To
protest according to appellate procedures court judgments and decisions;
j/ To
grant and withdraw the defense counsel’s certificates; to issue other decisions
and conduct other proceedings falling under the competence of procuracies.
3. When
being assigned to exercise the right to prosecute and supervise the law
observance in the proceedings for criminal cases, vice-chairmen of procuracies
shall have the tasks and powers defined in Clause 2 of this Article.
4. The
chairmen and vice-chairmen of procuracies shall take responsibility before law
for their acts and decisions.
Article 37.- Tasks, powers and responsibilities of procurators
1.
Procurators assigned to exercise the right to prosecute and supervise the law
observance in the proceedings for criminal cases shall have the following tasks
and powers:
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b/ To set
investigation requirements;
c/ To
summon and interrogate the accused; to summon and take testimonies of
witnesses, victims, civil plaintiffs, civil defendants, and persons with
interests and obligations related to the cases;
d/ To
supervise arrests, custody and temporary detention;
e/ To
participate in court sessions; to read the procuracies’ indictments and
decisions related to the case settlement; to ask questions, present evidences
and make arraignments; to express their views on the case settlement and argue
with the participants in the procedure at court sessions;
f/ To
supervise the law observance by courts in their adjudicating activities, by
participants in the procedure, and to supervise court judgments and decisions;
g/ To
supervise the execution of court judgments and decisions;
h/ To
perform other tasks and exercise other powers falling under the procuracies’
scope of competence as assigned by their chairmen.
2.
Procurators shall take responsibility before law and the chairmen of the
procuracies for their acts and decisions.
Article 38.- Tasks, powers and responsibilities of presidents,
vice-presidents of courts
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a/ To
organize the adjudicating work of their courts;
b/ To
decide to assign their vice-presidents, judges and jurors to settle and
adjudicate criminal cases; to decide to assign court clerks to conduct the
procedure for criminal cases;
c/ To
decide to change judges, jurors and court clerks before opening court sessions;
d/ To
protest according to cassation procedures legally valid court judgments and decisions
in accordance with the provisions of this Code;
e/ To
issue decisions to execute criminal judgments;
f/ To
decide to postpone the serving of imprisonment penalties;
g/ To
decide to suspend the serving of imprisonment penalties;
h/ To
decide to remit criminal records;
i/ To
settle complaints and denunciations falling under the jurisdiction of their
courts.
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2. When
settling criminal cases, the presidents of courts shall have the following
tasks and powers:
a/ To
decide to apply, change or cancel the temporary detention measure; to decide to
handle exhibits;
b/ To
decide to transfer criminal cases;
c/ To
grant, withdraw the defense counsel’s certificates; to issue decisions and
conduct other proceedings falling under the jurisdiction of their courts.
3. When
being assigned to settle or adjudicate criminal cases, vice-presidents of
courts shall have the tasks and powers defined in Clause 2 of this Article.
4.
Presidents and vice-presidents of courts shall take responsibility before law
for their acts and decisions.
Article 39.- Tasks, powers and responsibilities of judges
1. The
judges assigned to settle, adjudicate criminal cases shall have the following
tasks and powers:
a/ To
study the case files before the opening of court sessions;
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c/ To
conduct proceedings and vote on matters falling under the jurisdiction of the
trial panels;
d/ To
conduct other proceedings falling under the jurisdiction of their courts
according to the assignment of the presidents of their courts.
2. The
judges assigned to preside over court sessions shall have, apart from the tasks
and powers defined in Clause 1 of this Article, the following tasks and powers:
a/ To
decide to apply, change or cancel deterrent measures in accordance with the
provisions of this Code;
b/ To
decide to return files for additional investigation;
c/ To
decide to bring cases for trial; to decide to cease or suspend cases;
d/ To
decide to summon persons whom they need to inquire to court sessions;
e/ To
conduct other proceedings falling under the competence of their courts
according to the assignment of the presidents of their courts.
3. The
judges holding the post of president or vice-president of the Court of Appeal
of the Supreme People’s Court shall have the right to grant and withdraw the
defense counsel’s certificates.
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Article 40.- Tasks, powers and responsibilities of jurors
1. When
being assigned to adjudicate criminal cases, jurors shall have the following
tasks and powers:
a/ To
study case files before the opening of court sessions;
b/ To
participate in adjudicating criminal cases according to first-instance or
appellate procedures;
c/ To
conduct proceedings and vote on matters falling under the jurisdiction of the
trial panels.
2. Jurors
shall take responsibility before law for their acts and decisions.
Article 41.- Tasks, powers and responsibilities of court clerks
1. Court
clerks assigned to carry out the procedure for criminal cases shall have the
following tasks and powers:
a/ To
announce the internal rules of court sessions;
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c/ To
write minutes of court sessions;
d/ To
conduct other proceedings falling under the jurisdiction of their courts
according to the assignment by the presidents of their courts.
2. Court
clerks shall take responsibility before law and the presidents of courts for
their acts.
Article 42.- Cases of refusal or change of procedure-conducting persons
Procedure-conducting
persons must refuse to conduct the procedure or be changed if:
1. They
are concurrently victims, civil plaintiffs, civil defendants; persons with
interests and obligations related to the cases; lawful representatives or next
of kin of such persons or of the accused or defendants;
2. They
have participated as defense counsels, witnesses, experts or interpreters in
such cases;
3. There
are explicit grounds to believe that they may not be impartial while performing
their duties.
Article 43.- Right to request to change procedure-conducting
persons
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1.
Procurators;
2. The
accused, defendants, victims, civil plaintiffs, civil defendants and their
lawful representatives;
3.
Defense counsels, defense counsels of interests of victims, civil plaintiffs or
civil defendants.
Article 44.- Change of investigators
1.
Investigators must refuse to conduct the procedure or be changed if:
a/ They
fall into one of the cases prescribed in Article 42 of this Code;
b/ They
have conducted the procedure in such cases in the capacity as procurator,
judge, juror or court clerk.
2. The
change of investigators shall be decided by the heads of investigating bodies.
If the
investigators being the heads of investigating bodies fall into one of the
cases prescribed in Clause 1 of this Article, the investigation of the cases
shall be conducted by the immediate superior investigating bodies.
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1.
Procurators must refuse to conduct the procedure or be changed if:
a/ They
fall into one of the cases prescribed in Article 42 of this Code;
b/ They
have conducted the procedure in such cases in the capacity as investigator,
judge, juror or court clerk.
2. The
change of procurators before the opening of court sessions shall be decided by
the chairmen of the procuracies of the same level.
If the to
be-changed procurators are procuracy chairmen, such change shall be decided by
the chairmen of the immediate superior procuracies.
In cases
where the procurators must be changed at court sessions, the trial panels shall
issue decisions to postpone the court sessions.
The
appointment of other procurators shall be decided by the chairmen of the
procuracies of the same level or the chairmen of the immediate superior
procuracies.
Article 46.- Change of judges, jurors
1. Judges
or jurors must refuse to participate in the trial or be changed if:
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b/ They
sit on the same trial panel and are next of kin;
c/ They
have participated in the first-instance trial or appellate trial, or conducted
the procedure in such cases in the capacity as investigator, procurator or
court clerk.
2. The
change of judges and/or jurors before the opening of court sessions shall be
decided by the presidents of the courts. If the to be-changed judges are the
presidents of the courts, such change shall be decided by the presidents of the
immediate superior courts.
The
change judges and/or jurors at court sessions shall be decided by the trial
panels before starting the inquiry by voting at the deliberation chambers. When
a member is considered, he/she may present his/her opinions; the panels shall
make decisions by majority.
In case
of change of judges and/or jurors at court sessions, the trial panels shall
issue decisions to postpone the court sessions.
The
appointment of new trial panel members shall be decided by the presidents of
the courts.
Article 47.- Change of court clerks
1. Court
clerks must refuse to conduct the procedure or be changed if:
a/ They
fall into one of the cases prescribed in Article 42 of this Code;
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2. The
change of court clerks before the opening of court sessions shall be decided by
the presidents of the courts.
The
change of court clerks at court sessions shall be decided by the trial panels.
In cases
where court clerks must be changed at court sessions, the trial panels shall
issue decisions to postpone the court sessions.
The
appointment of other court clerks shall be decided by the presidents of the
courts.
Chapter IV: PARTICIPANTS IN THE PROCEDURE
Article 48.- Persons held in custody
1. Persons
held in custody are persons arrested in urgent cases, offenders caught
red-handed, persons arrested under pursuit decisions, or confessing or
self-surrendering offenders against whom custody decisions have been issued.
2.
Persons held in custody shall have the following rights:
a/ To be
informed of the reasons for their custody;
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c/ To
present their statements;
d/ To
defend by themselves or ask other persons to defend them;
e/ To
present documents, objects as well as claims;
f/ To
complain about their custody, procedural decisions or acts of the bodies and/or
persons with procedure-conducting competence.
3.
Persons held in custody shall have the obligation to observe the law provisions
on custody.
Article 49.- The accused
1. The
accused are persons against whom criminal proceedings have been initiated.
2. The
accused shall have the following rights:
a/ To be
informed of the offenses which they have been accused of;
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c/ To
present their statements;
d/ To
present documents, objects as well as claims;
e/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with the provisions of this Code;
f/ To
defend by themselves or ask other persons to defend them;
g/ To
receive decisions to institute the criminal cases; decisions to apply, change
or cancel deterrent measures; written investigation conclusions; decisions to
cease investigation or suspend investigation; decisions to cease or suspend the
criminal cases; indictments; decisions on their prosecution; and other
procedural decisions as prescribed by this Code;
h/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence.
3. The
accused must appear in response to the summonses of investigating bodies or
procuracies; in case of non-appearance without plausible reasons, they may be
escorted; if they escape, they shall be pursued.
Article 50.- Defendants
1.
Defendants are persons whom the courts have decided to bring for trial.
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a/ To
receive decisions to bring the cases for trial; decisions to apply, change or
cancel deterrent measures; decisions to cease the cases; judgments and/or
decisions of the courts; and other procedural decisions as prescribed by this
Code;
b/ To
participate in court sessions;
c/ To be
explained on their rights and obligations;
d/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with this Code;
e/ To
present documents, objects as well as claims;
f/ To
defend by themselves or ask other persons to defend them;
g/ To
present opinions, argue at court sessions;
h/ To
have final words before the judgment deliberation;
i/ To
appeal against judgments and decisions of the courts;
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3.
Defendants must appear in response to the subpoenas of the courts; in case of
non-appearance without plausible reasons, they may be escorted; if they escape,
they shall be pursued.
Article 51.- Victims
1.
Victims are persons suffering from physical, spiritual and/or property damage
caused by offenses.
2.
Victims or their lawful representatives shall have the following rights:
a/ To
present documents, objects as well as claims;
b/ To be
informed of the investigation results;
c/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with the provisions of this Code;
d/ To
suggest the compensation levels and measures to secure such compensation;
e/ To
participate in court sessions; present their opinions and arguments at court
sessions in order to protect their legitimate rights and interests;
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3. Where
the criminal cases are instituted at the requests of victims as prescribed in
Article 105 of this Code, the victims or their lawful representatives shall
present their accusations at court sessions.
4.
Victims must appear in response to the summonses of investigating bodies,
procuracies or courts; if they refuse to give testimonies without plausible
reasons, they may bear penal liability according to Article 308 of the Penal
Code.
5. In
cases where victims are deceased, their lawful representatives shall have the
rights defined in this Article.
Article 52.- Civil plaintiffs
1. Civil
plaintiffs are individuals, agencies or organizations suffering from damage
caused by offenses and file claims for damages.
2. Civil
plaintiffs or their lawful representatives shall have the following rights:
a/ To
present documents, objects as well as claims;
b/ To be
informed of the investigation results;
c/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with the provisions of this Code;
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e/ To
participate in court sessions; to present their opinions and arguments at court
sessions in order to protect their legitimate rights and interests;
f/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
g/ To
appeal against court judgments and decisions regarding damage compensation.
3. Civil
plaintiffs must appear in response to the summonses of investigating bodies,
procuracies or subpoenas of courts, and present honestly details related to
their claims for damages.
Article 53.- Civil defendants
1. Civil
defendants are individuals, agencies or organizations prescribed by law to pay
compensation for damage caused by criminal acts.
2. Civil
defendants or their lawful representatives shall have the following rights:
a/ To
complain about the civil plaintiffs’ claims for damages;
b/ To
present documents, objects as well as claims;
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d/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with this Code;
e/ To
participate in court sessions; to present their opinions and arguments at court
sessions to protect their legitimate rights and interests;
f/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
g/ To
appeal against court judgments and decisions regarding damage compensation.
3. Civil
defendants must appear in response to the summonses of investigating bodies,
procuracies or subpoenas of courts, and present honestly details related to the
damage compensation.
Article 54.- Persons with interests and obligations related to
criminal cases
1.
Persons with interests and obligations related to criminal cases or their
lawful representatives shall have the following rights:
a/ To
present documents, objects as well as claims;
b/ To
participate in court sessions; to present their opinions and arguments at court
sessions in order to protect their legitimate rights and interests;
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d/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
2.
Persons with interests and obligations related to criminal cases must be
present in response to the summonses of investigating bodies, procuracies or
subpoenas of courts, and present honestly details directly related to their
interests and obligations.
Article 55.- Witnesses
1. Those
who know details pertaining to criminal cases may all be summoned to give
testimonies.
2. The
following persons shall not be allowed to act as witnesses:
a/
Defense counsels of the accused or defendants;
b/
Persons with physical or mental defects which render them incapable of
perceiving details of the criminal cases or incapable of giving truthful
statements.
3.
Witnesses shall have the following rights:
a/ To ask
the bodies which have summoned them to protect their life, health, honor,
dignity, property and other legitimate rights and interests when participating
in the procedure;
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c/ To be
paid by the summoning agencies the travel and other expenses as prescribed by
law.
4.
Witnesses shall have the following obligations:
a/ To
appear in response to the summonses of investigating bodies, procuracies or
subpoenas of courts; in case of deliberate absence without plausible reasons
and their absence causes impediments to the investigation, prosecution or
trial, they may be escorted;
b/ To
honestly state all details they know about the cases.
Witnesses
who refuse or shirk to testify without plausible reasons shall bear penal
liability according to Article 308 of the Penal Code; if giving false
testimonies, they shall bear penal liabilities according to Article 307 of the
Penal Code.
Article 56.- Defense counsels
1.
Defense counsels may be:
a/
Lawyers;
b/ Lawful
representatives of the persons in custody, the accused or defendants;
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2. The
following persons shall not be allowed to act as defense counsels:
a/
Persons who have conducted the procedure in such cases; are next of kin of
persons who conducted or are conducting the procedure in such cases;
b/
Persons who participate in such cases in the capacity as witness, expert or
interpreter.
3. One
defense counsel may defend many persons in custody, accused or defendants in
the same case provided that the rights and interests of such persons are not
conflicting. Many defense counsels may defend one person held in custody,
accused or defendant.
4. Within
three days counting from the date of receiving the requests of the defense
counsels enclosed with papers related to the defense, the investigating bodies,
procuracies or courts must consider and grant them the defense counsel’s
certificates so that they can perform the defense. If refusing to grant such
certificates, they must state clearly the reasons therefor.
In case
of keeping persons in custody, within 24 hours as from the time of receiving
the requests of the defense counsels enclosed with the papers related to the defense,
the investigating bodies must consider and grant them the defense counsel’s
certificates so that they can perform the defense. If refusing to grant such
certificates, they must state clearly the reasons therefor.
Article 57.- Selection and change of defense counsels
1.
Defense counsels shall be selected by persons kept in custody, the accused,
defendants or their lawful representatives.
2. In the
following cases, if the accused, defendants or their lawful representatives do
not seek the assistance of defense counsels, the investigating bodies,
procuracies or courts must request bar associations to assign lawyers’ offices
to appoint defense counsels for such persons or request the Vietnam Fatherland
Front Committees or the Front’s member organizations to appoint defense
counsels for their organizations’ members:
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b/ The
accused or defendants being minors or persons with physical or mental defects.
In the
cases specified at Point a and Point b, Clause 2 of this Article, the accused
or defendants and their lawful representatives stall have the right to request
the change of, or refuse to have, defense counsels.
3. The
Vietnam Fatherland Front Committees and the Front’s member organizations shall
have the right to appoint people’s advocates to defend the persons kept in
custody, the accused or defendants who are their organizations’ members.
Article 58.- Rights and obligations of defense counsels
1.
Defense counsels shall participate in the procedure from the initiation of
criminal proceedings against the accused. In case of arresting persons under
the provisions of Article 81 and Article 82 of this Code, defense counsels
shall participate in the procedure from the time the custody decisions are
issued. In case of necessity to keep secret the investigation of the crimes of
infringing upon national security, the chairmen of procuracies shall decide to
allow defense counsels to participate in the procedure from the time of
termination of investigation.
2.
Defense counsels shall have the following rights:
a/ To be
present when testimonies are taken from the persons in custody, when the
accused are interrogated, and, ask questions to the persons in custody or the
accused if so consented by investigators; and to be present in other
investigating activities; to read the minutes of the proceedings in which they
have participated, and procedural decisions related to the persons whom they
defend;
b/ To
request investigating bodies to inform them in advance of the time and places
of interrogating the accused so as to be present when the accused are
interrogated;
c/ To
request the change of procedure-conducting persons, experts and/or interpreters
in accordance with the provisions of this Code;
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e/ To
present documents, objects as well as claims;
f/ To
meet the persons kept in custody; to meet the accused or defendants being under
temporary detention;
g/ To
read, take notes of and copy records in the case files, which are related to
their defense, after the termination of investigation according to law
provisions;
i/ To
participate in questioning and arguing at court sessions;
j/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
k/ To
appeal against court judgments or decisions if the defendants are minors or
persons with physical or mental defects as prescribed at Point b, Clause 2 of
Article 57 of this Code.
3.
Defense counsels shall have the following obligations:
a/ To
apply every measure prescribed by law to clarify the details to prove the
innocence of the persons in custody, the accused or defendants as well as
circumstances to mitigate the penal liability of the accused or defendants.
Depending
on each stage of the procedure, when collecting documents and/or objects
related to the cases, defense counsels shall have to deliver them to
investigating bodies, procuracies or courts. The delivery and receipt of such
documents and objects between defense counsels and the procedure-conducting
bodies must be recorded in a minutes according to Article 95 of this Code;
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c/ Not to
refuse to defend the persons in custody, the accused or defendants whom they
have undertaken to defend if they have no plausible reasons therefor.
d/ To respect
truth and law; not to bribe, force or incite other persons to give false
statements or supply untruthful documents;
e/ To
appear in response to court subpoenas;
d/ Not to
disclose investigation secrets they know while performing the defense; not to use
notes taken and/or copied from the case files for the purpose of infringing
upon the State’s interests; the legitimate rights and interests of agencies,
organizations and individuals;
4.
Defense counsels who act against laws shall, depending on the nature and
seriousness of their violations, have their defense counsel’s certificates
revoked, be disciplined, administratively sanctioned or examined for penal
liability; if causing damage, they shall have to pay compensation therefor
according to law provisions.
Article 59.- Defense counsels of interests of involved parties
1.
Victims, civil plaintiffs, civil defendants, persons with interests and
obligations related to criminal cases shall all have the right to ask lawyers,
people’s advocates or other persons, who are accepted by investigating bodies,
procuracies or courts, to protect their interests.
2.
Defense counsels of the interests of the involved parties may participate in
the procedure from the time when criminal proceedings are initiated against the
accused.
3.
Defense counsels of the interests of the involved parties shall have the
following rights:
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b/ After
the investigation completes, to read, take note of and copy documents in the
case files, which are related to the protection of the interests of the
involved parties according to law provisions;
c/ To
participate in questioning and arguing at court sessions; to read the minutes
of court sessions;
d/ To
complain about procedural decisions and acts of the bodies and persons with
procedure-conducting competence.
Defense
counsels of the interests of victims, civil plaintiffs, civil defendants shall
have the right to request the change of procedure-conducting persons, experts
and/or interpreters in accordance with the provisions of this Code.
For
involved parties being minors or persons with physical or mental defects, the
defense counsels of their interests shall have the right to be present when the
procedure-conducting bodies are taking statements from the persons whom they
protect; to appeal parts of court judgments or decisions regarding the
interests and obligations of the persons whom they protect.
4. The
defense counsels of the interests of the involved parties shall have the
following obligations:
a/ To
apply all measures prescribed by law to contribute to clarifying the truths of
the cases;
b/ To
provide the involved parties with legal assistance in order to protect their
legitimate rights and interests.
Article 60.- Experts
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2.
Experts shall have the following rights:
a/ To
study documents of the cases, which are related to the to be-expertized
objects;
b/ To
request the expertise-soliciting bodies to supply documents necessary for the
conclusion;
c/ To
join the interrogation, taking of statements and to ask questions about matters
related to the to be-expertized objects;
d/ To
refuse to expertise in cases if they are not given enough time for the
expertise; are supplied with documents which are inadequate or invalid for
making conclusions; or the contents asked to be expertised are beyond their
expert knowledge;
e/ To
write their own conclusions in the written general conclusions if disagreeing
with the general conclusions in cases where the expertise has been conducted by
a group of experts.
3.
Experts must appear in response to the summonses of investigating bodies,
procuracies or subpoenas of courts; they must not disclose investigation
secrets which they know while participating in the procedure in the capacity as
expert.
Experts
who refuse to make expertise conclusions without plausible reasons shall bear
penal liability under Article 308 of the Penal Code. If making false
conclusions, they shall bear penal liability under Article 307 of the Penal
Code.
4.
Experts must refuse to participate in the criminal procedure or be changed if:
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b/ They
have conducted the procedure in the capacity as head, deputy head of the
investigating body, investigator, chairman or vice-chairman of the procuracy,
procurator, president or vice-president of the court, judge, juror or court
clerk, or have participated in the capacity as defense counsel, witness or
interpreter in such cases.
The
change of experts shall be decided by the expertise-soliciting agencies.
Article 61.- Interpreters
1.
Interpreters shall be required by investigating bodies, procuracies or courts
in cases where the procedures are participated by persons who cannot use
Vietnamese.
2.
Interpreters must appear in response to the summonses of investigating bodies,
procuracies or subpoenas of courts and must interpret truthfully, must not
disclose investigation secrets; if they interpret falsely, the interpreters
shall bear penal liability according to Article 307 of the Penal Code.
3.
Interpreters must refuse to participate in the procedure or be changed if:
a/ They
fall into one of the cases defined in Clause 1 and Clause 3, Article 42 of this
Code;
b/ They
have conducted the procedure in the capacity as head, deputy head of the
investigating body, investigator, chairman or vice-chairman of the procuracy,
procurator, president or vice-president of the court, judge, juror or court
clerk, or have participated in the capacity as defense counsel, witness or
expert in such cases.
The
change of interpreters shall be decided by the requesting agencies.
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Article 62.- Responsibility to explain and guarantee the exercise
of the rights and the performance of obligations of participants in the
procedure
The
procedure-conducing bodies and persons shall have to explain and guarantee the
exercise of the rights and the performance of obligations of participants in
the procedure in accordance with of this Code. The explanation must be recorded
in a minutes.
Chapter V: EVIDENCES
Article 63.- Matters to be proved in criminal cases
When
investigating, prosecuting and adjudicating criminal cases, the investigating
bodies, procuracies and courts must prove:
1.
Whether or not criminal acts have occurred, time, places and other
circumstances of the criminal acts;
2. Who
have committed the criminal acts; being at fault or not, intentionally or
unintentionally, whether or not they have the penal liability capacity;
purposes and motives of the commission of such crimes;
3. Circumstances
aggravating and circumstances extenuating the penal liability of the accused or
defendants, and personal details of the accused or defendants;
4. The
nature and extent of damage caused by the criminal acts.
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1.
Evidences are facts which are collected in the order and procedure prescribed
by this Code, which are used by the investigating bodies, procuracies and
courts as grounds to determine whether or not criminal acts have been
committed, persons committing such acts as well as other circumstances
necessary for the proper settlement of the cases.
2.
Evidences are determined by:
a/
Exhibits;
b/
Testimonies of witnesses, victims, civil plaintiffs, civil defendants, persons
with interests and obligations related to the cases, the arrestees, persons
kept in custody, the accused or defendants;
c/
Expertise conclusions;
d/
Minutes of investigating and adjudicating activities, and other documents and
things.
Article 65.- Collection of evidences
1. In
order to collect evidences, the investigating bodies, procuracies and courts
may summon persons who know about the cases to ask and listen to their
statements on the matters pertaining to the cases, solicit expertise, conduct
searches, examinations and other investigating activities according to the
provisions of this Code; request agencies, organizations and individuals to
supply documents, objects and relate circumstances to clarify the cases.
2.
Participants in the procedure, agencies, organizations or any individuals may
all present documents, as well as matters related to the cases.
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1. Each
evidence must be evaluated in order to determine its legality, authenticity and
relevance to the cases. The collected evidences must be sufficient for the successful
settlement of criminal cases.
2.
Investigators, procurators, judges and jurors shall identify and evaluate all
evidences with a full sense of responsibility after studying generally,
objectively, comprehensively and fully all circumstances of the cases.
Article 67.- Statements of witnesses
1.
Witnesses shall present what they know about the cases, personal details of the
arrestees, persons in custody, the accused or defendants, victims, their
relationships with the arrestees, persons in custody, the accused or
defendants, and/or victims, with other witnesses, and answer questions put to
them.
2.
Circumstances presented by witnesses must not be used as evidences if the
witnesses cannot say clearly why they have known such circumstances.
Article 68.- Statements of victims
1.
Victims shall present circumstances of the cases, their relationships with the
arrestees, persons in custody, the accused or defendants, and answer questions
that are raised.
2.
Circumstances presented by victims must not be used as evidences if they cannot
say clearly why they have known such circumstances.
Article 69.- Statements of civil plaintiffs, civil defendants
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2.
Circumstances presented by civil plaintiffs or civil defendants must not be
used as evidences if they cannot say clearly why they have known such
circumstances.
Article 70.- Statements of persons with interests and obligations
related to criminal cases
1.
Persons with interests and obligations related to criminal cases shall present
circumstances directly related to their interests and obligations.
2.
Circumstances presented by persons with interests and obligations related to
criminal cases must not be used as evidences if they cannot say clearly why
they have known such circumstances.
Article 71.- Statements of arrestees, persons in custody
Arrestees,
persons in custody shall present circumstances related to their being suspected
of having committed criminal acts.
Article 72.- Statements of the accused or defendants
1. The
accused or defendants shall present circumstances of the cases.
2.
Confessions of the accused or defendants shall only be regarded as evidences if
they are consistent with other evidences of the cases.
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Article 73.- Expertise conclusions
1.
Experts shall conclude on the matters required to be expertised and bear
personal responsibility for their conclusions.
Expertise
conclusions must be expressed in writing.
If the
expertise has been conducted by a group of experts, all the group members shall
sign the written general conclusions. In cases where their opinions are
divergent, each person shall write his/her own conclusion therein.
2. In
cases where the procedure-conducting bodies disagree with the expertise
conclusions, they must clearly state the reasons, if such conclusions are
unclear or incomplete, the procedure-conducting bodies shall decide to solicit
additional expertise or re-expertise according to general procedures.
Article 74.- Exhibits
Exhibits
are articles which have been used as tools or means for the commission of
crimes; items carrying traces of crimes, things being the targets of crimes, as
well as money and other things which can be used to prove the crimes and
criminals.
Article 75.- Collection and preservation of exhibits
1.
Exhibits should be collected in time, fully and described according to their
actual conditions in the minutes and inserted in the case files.
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2.
Exhibits must be preserved intact, not letting them be lost, confused or
damaged. The sealing and preservation of exhibits shall be as follows:
a/
Exhibits required to be sealed up must be sealed up immediately after being
collected. The sealing and unsealing must comply with law provisions and
recorded in a minutes to be inserted in the case file;
b/
Exhibits being money, gold, silver, precious metals, gems, antiques,
explosives, inflammables, toxins or radioactive substances must be expertized
immediately after being collected and delivered to banks or other specialized
agencies for preservation;
c/
Exhibits which cannot be taken to the offices of the procedure-conducting
bodies for preservation shall be handed over by the procedure-conducting bodies
to the owners or lawful managers of objects or properties, their relatives or
local administrations, agencies or organizations where the exhibits exist for
preservation.
d/ For
exhibits being easy-to-deteriorate or difficult-to-preserve goods, if they do
not fall into the case prescribed in Clause 3, Article 76 of this Code,
competent bodies defined in Clause 1, Article 76 of this Code shall, within the
scope of their powers, decide to sell them according to law and remit the
proceeds therefrom into their custody accounts at State treasuries for
management;
e/ For
exhibits brought to the offices of the procedure-conducting bodies for
preservation, the police agencies shall have to preserve them at the
investigating and prosecuting stages; the judgment-executing agencies shall
have to preserve them at the adjudicating and judgment-executing stages.
3. If the
persons responsible for preserving exhibits of criminal cases let them lost or
damaged, break the seals, consume, transfer, fraudulently swap, conceal or
destroy them, they shall, depending on the nature and seriousness of their
violations, be disciplined or examined for penal liability according to Article
310 of the Penal Code; if they add, appropriate, modify, fraudulently swap,
destroy or damage exhibits of criminal cases in order to distort the case
files, they shall bear penal liability according to Article 300 of the Penal
Code; if causing damage, they shall have to pay compensation therefor according
to law provisions.
Article 76.- Handling of exhibits
1. The
handling of exhibits shall be decided by investigating bodies if the criminal
cases are ceased at the investigating stage; by the procuracies if the cases
are ceased at the prosecuting stage; or by courts or trial panels at the
adjudicating stage. The execution of decisions on handling exhibits must be
recorded in minutes.
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a/
Exhibits being tools and means used for the commission of crimes, or articles
banned from circulation shall be confiscated and forfeited into the State fund
or be destroyed.
b/
Exhibits being items, money owned by the State, organizations or individuals
but appropriated by offenders or used as tools and means for the commission of
crimes shall be returned to their owners or lawful managers; in cases where
their owners or lawful managers are unidentifiable, they shall be forfeited
into the State fund;
c/
Exhibits being money or property acquired from the commission of crimes shall
be confiscated and forfeited into the State fund;
d/
Exhibits being easy-to-deteriorate or difficult-to-preserve goods may be sold
according to law;
e/
Exhibits of no value or no use shall be confiscated and destroyed.
3. In the
course of investigation, prosecution or adjudication, competent bodies defined
in Clause 1 of this Article shall have the right to decide to return the
exhibits stated at Point b, Clause 2 of this Article to their owners or lawful
managers if they deem that such will not affect the handling of the cases.
4.
Disputes over the right to own exhibits shall be settled according to civil
procedures.
Article 77.- Minutes of investigating and adjudicating activities
The
circumstances recorded in the minutes of arrests, searches, scene examinations,
autopsies, confrontations, identification and investigation experiments, in the
minutes of court sessions and the minutes of other proceedings conducted in
accordance with this Code may be regarded as evidences.
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The
circumstances related to criminal cases, which are recorded in documents as
well as objects supplied by agencies, organizations and individuals may be
regarded as evidences.
Where
these documents and objects show signs specified in Article 74 of this Code,
they shall be regarded as exhibits.
Chapter VI: DETERRENT MEASURES
Article 79.- Grounds for application of deterrent measures
In order
to stave off crimes in time or when there are grounds proving that the accused
or defendants would cause difficulties to the investigation, prosecution or
adjudication, or they would continue committing offenses, as well as when it is
necessary to secure the judgment execution, the investigating bodies,
procuracies or courts, within the scope of their procedural jurisdiction, or
competent persons defined by this Code may apply one of the following deterrent
measures: arrest, custody, temporary detention, ban from travel outside one’s
residence, guaranty, deposit of money or valuable property as bail.
Article 80.- Arresting the accused or defendants for temporary
detention
1. The
following persons shall have the right to order the arrest of the accused or
defendants for temporary detention:
a/
Chairmen and vice- chairmen of people’s procuracies and military procuracies at
all levels;
b/
Presidents, vice-presidents of people’s courts and military courts at all
levels;
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d/ Heads,
deputy heads of investigating bodies at all levels. In this case, arrest
warrants must be approved by the procuracies of the same level before they are
executed.
2. An
arrest warrant must be clearly inscribed with the date, full name and post of
the warrant issuers, the full name, address of the arrestee and the reason for
the arrest. Arrest warrants must be signed by the issuers and stamped.
The
executors of arrest warrants must read the warrants, explain the warrants,
rights and obligations of the arrestees, and make minutes of the arrests.
When
arresting persons at their residences, representatives of the commune, ward or
township administrations and the neighbors of the arrestees must be present as
witnesses. When arresting persons at their working places, representatives of
the agencies or organizations where such persons work must be present as
witnesses. When arresting persons at other places, representatives of the
commune, ward or township administrations of the places where the arrests are
made must be present as witnesses.
3. It is
forbidden to arrest persons at night, except for cases of urgent arrest, arrest
of offenders red-handed or arrest of wanted persons as prescribed in Article 81
and Article 82 of this Code.
Article 81.- Arresting persons in urgent cases
1. In the
following cases, urgent arrests can be made:
a/ When
there exist grounds to believe that such persons are preparing to commit very
serious or exceptionally serious offenses;
b/ When
victims or persons present at the scenes where the offenses occurred saw with
their own eyes and confirmed that such persons are the very ones who committed
the offenses and it is deemed necessary to immediately prevent such persons
from escaping;
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2. The
following persons shall have the right to order the arrest of persons in urgent
cases:
a/ Heads,
deputy heads of investigating bodies at all levels;
b/ Commanders
of independent military units of the regiment or equivalent level; commanders
of border posts in islands or border areas;
c/
Commanders of aircraft, sea-going ships which have left airports or seaports.
3. The
contents of arrest warrants in urgent cases and the execution thereof must
comply with the provisions of Clause 2, Article 80 of this Code.
4. In all
cases, the urgent arrests must be immediately notified in writing to the
procuracies of the same level, enclosed with documents related to the urgent
arrests, for consideration and approval.
The
procuracies must closely supervise the grounds for urgent arrest prescribed in
this Article. In case of necessity, the procuracies must meet and question the
arrestees in person before considering and deciding to approve or not to
approve the arrests.
Within 12
hours after receiving the requests for approval of, and documents related to,
the urgent arrests, the procuracies must issue decisions to approve or not to
approve such arrests. If the procuracies decide not to approve the arrests, the
issuers of arrest warrants must immediately release the arrestees.
Article 82.- Arresting offenders red-handed or wanted offenders
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2. When
arresting offenders red-handed or wanted persons, any persons shall have the
right to deprive the arrestees of their weapons and/or dangerous tools.
Article 83.- Actions to be taken promptly after arresting persons
or receiving arrestees
1.
Immediately after arresting persons in urgent cases or offenders red-handed or
receiving such arrestees, the investigating bodies must take their statements
and must, within 24 hours, issue decisions to keep the arrestee in custody or
release them.
2. For
arrestees being wanted persons, after taking their statements, the
investigating bodies that have received them must immediately notify such to
the bodies which have issued the pursuit decisions for coming to receive the
arrestees.
After
receiving the arrestees, the bodies which have issued the pursuit decisions
must immediately issue decisions to cease the pursuit. In cases where the
investigating bodies which have received the arrestees deem that the bodies which
have issued the pursuit decisions cannot immediately come to receive the
arrestees, they shall, after taking their statements, immediately issue custody
decisions and at the same time immediately notify such to the agencies which
have issued the pursuit decisions.
After
receiving the notices, the agencies which have issued the pursuit decisions and
have jurisdiction to arrest persons for temporary detention must immediately
issue temporary detention warrants and send them, after being approved by the procuracies
of the same level, to the investigating bodies which have received the
arrestees. After receiving the temporary detention warrants, the investigating
bodies which have received the arrestees shall have to escort such persons to
the nearest temporary detention centers.
Article 84.- Arrest minutes
1. The
persons executing arrest warrants must make minutes in all cases.
A minutes
must clearly state the date, hour and place of arrest, minute-making place;
actions already taken, the developments when the arrest warrant is being
executed, objects and documents seized and complaints of the arrestee.
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The
seizure of articles and documents of the arrestees must comply with the
provisions of this Code.
2. When
delivering and receiving the arrestees, the delivering and receiving parties
must make the minutes thereof.
Apart
from the points stated in Clause 1 of this Article, the delivery and receipt
minutes must clearly state the handing of the minutes of the statements,
objects and documents already collected, the health conditions of the arrestees
and all happenings at the time of the delivery and receipt.
Article 85.- Notices on arrests
The
arrest warrant issuers and the arrestee-receiving investigating bodies must immediately
notify the arrests to the arrestees’ families, the administrations of the
communes, wards or townships where the arrestees reside or the agencies or
organizations where they work. If such notification can impede the
investigation, after the impediment no longer exists, the arrest warrant
issuers or the arrestee-receiving investigating bodies must immediately effect
such notification.
Article 86.- Custody
1.
Custody may apply to persons arrested in urgent cases, offenders caught
red-handed, offenders who confessed or surrendered themselves or persons
arrested under pursuit warrants.
2. The
persons with the right to issue urgent arrest warrants, who are defined in
Clause 2, Article 81 of this Code, and regional coast guard commanders shall
have the right to issue custody decisions.
The
executors of custody decisions must explain to the persons kept in custody
their rights and obligations defined in Article 48 of this Code.
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Custody
decisions must clearly state the custody reasons and the custody expiry dates,
and one copy must be handed to the persons kept in custody.
Article 87.- Custody time limits
1. The
custody time limit must not exceed three days, counting from the time the
investigating bodies receive the arrestees.
2. In
case of necessity, the custody decision issuers may extend the custody time
limit but for no more than three days. In special cases, the custody decision
issuers may extend the custody time limit for the second time but for no more
than three days. All cases of extension of the custody time limit must be
approved by the procuracies of the same level; within 12 hours after receiving
the extension requests and documents related to the custody time limit extension,
the procuracies must issue decisions to approve or disapprove such requests.
3. In the
custody period, if there are insufficient grounds to initiate criminal
proceedings against the accused, the persons kept in custody must be released
immediately.
4. The
custody duration shall be subtracted from the temporary detention duration. A
custody day shall be counted as one temporary detention day.
Article 88.- Temporary detention
1.
Temporary detention may apply to the accused or defendants in the following
cases:
a/ The
accused or defendants have committed especially serious offenses or very
serious offenses.
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2. The
accused or defendants being women who are pregnant or nursing children aged
under thirty six months, being old and feeble people, or suffering from serious
diseases and having clear residences shall not be detained but be applied other
deterrent measures, except for the following cases:
a/ The
accused or defendants who escaped but then were arrested under pursuit warrants;
b/ The
accused or defendants who were subject to other deterrent measures but then
continue committing offenses or intentionally seriously obstruct the
investigation, prosecution or adjudication;
c/ The
accused or defendants who committed offenses of infringing upon national
security and there are sufficient grounds to believe that if they are not
detained, they shall be detrimental to national security.
3. The
persons with competence to issue arrest warrants, who are defined in Article 80
of this Code, shall have the right to issue temporary detention warrants.
Temporary detention warrants issued by the persons defined at Point d, Clause
1, Article 80 of this Code must be approved by the procuracies of the same
level before being executed. Within three days after receiving the temporary
detention warrants, requests for consideration and approval, files and
documents related to the temporary detention, the procuracies must issue
decisions to approve or disapprove the temporary detention. The procuracies
must return the files to the investigating bodies immediately after finishing
the consideration and approval.
4. The
bodies which have issued the temporary detention warrants must examine the
detainees’ identity cards and immediately notify such to their families and the
administrations of the communes, wards or townships where such persons reside
or agencies or organizations where they work.
Article 89.- Regime of custody and temporary detention
The
regime of custody and temporary detention is different from the regime
applicable to persons serving imprisonment penalties.
The
temporary detention and custody places, the regimes of daily life, receipt of
gifts, contact with families and other regimes shall comply with the
regulations of the Government.
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1. When
the persons in custody or temporary detention have children aged under 14 years
or relatives being disabled, old and feeble without anyone to look after, the
bodies which have issued the custody decisions or temporary detention warrants
shall assign such persons to their relatives for care. Where the persons in
custody or temporary detention have no relatives, the bodies which have issued
the custody decisions or temporary detention warrants shall assign such persons
to the administrations of the places where they live for care.
2. In
cases where the persons in custody or temporary detention have houses or other
properties guarded or preserved by nobody, the bodies which have issued the
custody decisions or temporary detention warrants shall apply appropriate guard
or preservation measures.
3. The
bodies which have issued the custody decisions or temporary detention warrants
shall notify the persons in custody or temporary detention of the applied
measures.
Article 91.- Ban from travel outside one’s residence place
1. Ban
from travel outside one’s residence place is a measure applicable to the
accused or defendants with clear residence places in order to ensure their
appearance in response to the summonses of investigating bodies, procuracies or
subpoenas of courts.
2. The
persons defined in Clause 1, Article 80 of this Code, judges assigned to
preside over court sessions shall have the right to order the ban from travel
outside one’s residence place.
The
accused or defendants must make written pledges not to travel outside their
residence places, to appear on time and at the place stated in the summonses.
The
persons who have ordered the ban from travel outside one’s residence place must
notify the application of this measure to the administrations of the communes,
wards or townships where the accused or defendants reside and assign the
accused or defendants to the commune, ward or township administrations for
management and supervision. Where the accused or defendants have plausible
reasons to temporarily travel outside their residence places, they must obtain
the consent of the administrations of the communes, wards or townships where
they reside as well as permits of the bodies which have applied such deterrent
measure.
3. The
accused or defendants who violate the orders on ban from travel outside their
residence places shall be subject to the application of other deterrent
measures .
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1.
Guarantee is a deterrent measure to replace the temporary detention measure.
Depending on the criminal acts’ nature and extent of danger to the society and
the personal details of the accused or defendants, the investigating bodies,
procuracies or courts may decide to let them be guaranteed.
2.
Individuals who may stand guarantee for the accused or defendants are their
relatives. For this case at least two persons are required. Organizations may
stand guarantee for the accused or defendants being their members. When
standing guarantee, individuals or organizations must make written pledges not
to let the accused or defendants continue committing offenses and ensure their
appearance in response to the summonses of the investigating bodies, procuracies
or subpoenas of courts. When making such written pledges, the guaranteeing
individuals or organizations shall be informed of the circumstances of the
cases related to their guarantee.
3. The
persons defined in Clause 1, Article 80 of this Code, judges assigned to
preside over court sessions shall have the right to issue decisions on the
guarantee.
4.
Individuals standing guarantee for the accused or defendants must have good
conduct and qualities, and have strictly observed law. The guarantee must be certified
by the local administrations of the places where the guaranteeing persons
reside or the agencies or organizations where they work. For organizations
standing guarantee, the certification of their heads shall be required .
5. If
guaranteeing individuals or organizations violate the pledged obligations, they
must bear responsibility for such pledged obligations and in this case the
guaranteed accused or defendants shall be subject to the application of other
deterrent measures .
Article 93.- Depositing money or valuable property as bail
1.
Depositing money or valuable property as bail is a deterrent measure to replace
the temporary detention measure. Depending on the criminal acts’ nature and
extent of danger to the society, personal details and property status of the
accused or defendants, the investigating bodies, procuracies or courts may
decide to allow them to deposit money or valuable property as security for
their appearance in response to summonses.
2. The
persons defined in Clause 1, Article 80 of this Code, judges assigned to
preside over court sessions shall have the right to issue decisions on the
deposit of money or property as bail. Decisions of the persons defined at Point
d, Clause 1, Article 80 of this Code must be approved by the procuracies of the
same level before being executed.
3. The
bodies which have issued decisions on depositing money or valuable property as
bail must make the minutes clearly stating the sum of money, names and
conditions of property deposited, and hand one copy of the minutes to the
accused or defendants.
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Where the
accused or defendants have fulfilled all pledged obligations, the
procedure-conducting bodies shall have to return to them the deposited money
sum or property.
5. The
order, procedures, the money amounts or value of property required to be
deposited as bail, the custody, return or non-return of the deposited money
sums or property put as bail shall comply with law provisions.
Article 94.- Cancellation or replacement of deterrent measures
1. When
the cases are ceased, all applied deterrent measures shall be canceled.
2.
Investigating bodies, procuracies and courts shall cancel deterrent measures
when they are deemed no longer needed or may be replaced by another one.
For
deterrent measures which have been approved by the procuracies, the
cancellation or replacement thereof must be decided by the procuracies.
Chapter VII: MINUTES, TIME LIMITS, LEGAL COSTS
Article 95.- Minutes
1. When
carrying out proceedings, it is compulsory to make minutes thereon according to
set forms.
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2.
Minutes of court sessions must be signed by the presiding judges and court
clerks. Minutes of other proceedings must be signed by the persons prescribed
by this Code for each specific case. Any corrections made in minutes must be
also confirmed by the signatures of such persons.
Article 96.- Calculation of time limits
1. Time
limits prescribed by this Code shall be counted in hours, days and months.
Night time shall be counted from 22:00 hrs to 6:00 hrs of the following day.
When a
time limit is counted in days, it shall expire at 24:00 hrs of its last day.
When a time limit is counted in months, it shall expire on the same date of the
subsequent month; if that month has no same date, the time limit shall expire
on the last day of that month; if a time limit expires on a holiday, the first
following working day shall be counted as the last day of that time limit.
When
calculating a custody or temporary detention time limit, the expiry date of
that time limit shall be inscribed in the order. If a time limit is counted in
months, a month shall consist of thirty days.
2. Where
applications or papers are sent by post, the time limit shall be counted
according to the postmarks of the sending places. If applications or papers are
sent through the superintendence boards of the temporary detention centers or
prisons, the time limit shall be counted from the date the superintendence
boards of the temporary detention centers or prisons receive such applications
or papers.
Article 97.- Restoration of time limits
For
expired time limits, if plausible reasons do exist, the procedure-conducting
bodies must restore such time limits.
Article 98.- Legal costs
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Article 99.- Responsibility to incur legal costs
1. Legal
costs shall be incurred by the convicts or by the State according to law
provisions.
2. The
convicts must pay legal costs under court decisions.
3. Where
a case is instituted at the request of the victim, if the defendant is
pronounced not guilty by the court or the case is ceased under the provisions
of Clause 2, Article 105 of this Code, the victim shall have to pay legal
costs.
Part Two
INSTITUTION, INVESTIGATION
OF CRIMINAL CASES AND DECISION ON PROSECUTION
Chapter VIII: INSTITUTION OF CRIMINAL CASES
Article 100.- Grounds for instituting criminal cases
Criminal
cases shall be instituted only when criminal signs have been identified. The
identification of criminal signs shall be based on the following grounds:
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2.
Information reported by agencies or organizations;
3.
Information reported on the mass media;
4.
Criminal signs directly detected by investigating bodies, procuracies, courts,
border guard, customs, ranger, coast guard forces and other agencies of the
People’s Police or the People’s Army, which are assigned to conduct a number of
investigating activities;
5.
Confession by offenders.
Article 101.- Denunciations and information on offenses
Citizens
may denounce offenses to investigating bodies, procuracies, courts or other
bodies, organizations. If a denunciation is made orally, the receiving agency
or organization must make a minutes thereof with the signature of the
denouncer.
Agencies,
organizations, when detecting or receiving denunciations of citizens, must
promptly report such information in writing to the investigating bodies.
Article 102.- Confession by offenders
When
offenders come to give confessions, the receiving agencies or organizations
must make minutes thereof, clearly inscribing the full names, ages,
occupations, residences and statements of the confessors. They shall have to
immediately inform the investigating bodies or procuracies thereof.
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1.
Investigating bodies and procuracies shall have the responsibility to receive
all offense denunciations and information from individuals, agencies and
organizations as well as criminal case institution proposals transferred by
State agencies. Procuracies shall have the responsibility to immediately
transfer offense denunciations and information and criminal case institution
proposals enclosed with relevant documents they have received to competent
investigating bodies.
2. Within
twenty days after receiving offense denunciations, information, and/or criminal
case institution proposals, the investigating bodies must, within the scope of
their responsibilities, examine and verify the information sources and decide
to institute or not to institute criminal cases.
In cases
where the denounced events, offense information or criminal case institution
proposals involve many complicated circumstances or where the examination and
verification thereof must be conducted at many different places, the time limit
for settling denunciations and information may be longer, but must not exceed
two months.
3. The
results of settlement of offense denunciations or information or criminal case
institution proposals of State bodies must be sent to the procuracies of the
same level and be notified to the reporting agencies, organizations or the
offense denouncers.
The
investigating bodies must apply necessary measures to protect the offense
denouncers.
4. The
procuracies shall have to supervise the settlement by the investigating bodies
of offence denunciations and information or criminal case institution
proposals.
Article 104.- Decisions to institute criminal cases
1, When
determining that criminal signs have existed, the investigating bodies must
issue decisions to institute criminal cases. The heads of border guard units,
customs or ranger offices, the coast guard force and the heads of other
agencies of the People’s Police or the People’s Army, which are assigned to
conduct a number of investigating activities, shall issue decisions to
institute criminal cases in the cases specified in Article 111 of this Code.
The
procuracies shall issue decisions to institute criminal cases in cases where
they cancel decisions not to institute criminal cases, which have been issued
by the bodies stated in this Clause, and in cases where the trial panels
request to institute the criminal cases.
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2.
Decisions to institute criminal cases must clearly state the time and grounds
for institution, the applicable articles of the Penal Code, and the full names
and positions of the decision issuers.
3. Within
24 hours after issuing decisions to institute criminal cases, the procuracies
must send such decisions to the investigating bodies for investigation;
institution decisions enclosed with documents related to the institution of
criminal cases, which have been issued by the investigating bodies, border
guard, customs and ranger, coast guard force, or other agencies of the People’s
Police or the People’s Army, which are assigned to conduct a number of
investigating activities, must be sent to the procuracies for procuration of
the institution; institution decisions of the trial panels must be sent to the
procuracies for consideration and decision on the investigation; institution
requests of the trial panels shall be sent to the procuracies for consideration
and decision on the institution.
Article 105.- Institution of criminal cases at victims’ requests
1. The
cases involving the offenses prescribed in Clauses 1 of Articles 104, 105, 106,
108, 109, 111, 113, 121, 122, 131 and 171 of the Penal Code shall only be
instituted at the requests of victims or lawful representatives of victims who
are minors or persons with physical or mental defects.
2. In
cases where the criminal case institution requesters withdraws their requests
before the opening of court sessions of first-instance trial, the cases must be
ceased.
Where
exist grounds to determine that the institution requesters have withdrawn their
requests against their own will due to force or coercion, the investigating
bodies, procuracies or courts may, though such institution requesters have
withdrawn their requests, still continue conducting the procedure for the
cases.
Victims
who have withdrawn their criminal case institution requests shall have no right
to file their requests again, except for cases where their withdrawal is due to
force or coercion.
Article 106.- Change or supplementation of decisions to institute
criminal cases
1. When
they have grounds to determine that the instituted criminal cases are not true
to the committed criminal acts or there remain other offences, the
investigating bodies or procuracies shall issue decisions to change or
supplement the decisions to institute the criminal cases.
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Where the
procuracies decide to change or supplement the decisions to institute criminal
cases, within 24 hours after issuing such decisions, the procuracies must send
them to the investigating bodies for investigation.
Article 107.- Grounds for not instituting criminal cases
Criminal
cases shall not be instituted when one of the following grounds exists:
1. There
is no offence;
2. The
committed acts do not constitute an offence;
3. The
persons committing acts dangerous to the society have not yet reached the age
to bear penal liability;
4. The
persons committing criminal acts have got the legally valid judgments or
decisions to cease their cases.
5. The
statute of limitations for penal liability examination has expired;
6. The
offenses have been granted general amnesty;
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Article 108.- Decisions not to institute criminal cases
1. When
there exists one of the grounds prescribed in Article 107 of this Code, the
persons with competence to institute criminal cases shall issue decisions not
to institute criminal cases; if they have instituted criminal cases, they must
issue decisions to cancel such institution decisions and notify the
offense-denouncing or reporting agencies, organizations or individuals of the
reasons therefor; if deeming it necessary to handle the cases by other
measures, they shall send the files thereof to the concerned agencies or
organizations for settlement.
Within 24
hours after their issuance, decisions not to institute criminal cases,
decisions to cancel decisions to institute criminal cases and related documents
must be sent to the procuracies of the same level.
2. The
agencies, organizations or individuals that have denounced or reported on the
offenses shall have the right to complain about the decisions not to institute
criminal cases. The competence and procedures for settling such complaints
shall comply with the provisions of Chapter XXXV: OF THIS CODE.
Article 109.- Powers and responsibilities of procuracies in
instituting criminal cases
1. The
procuracies shall exercise the right to prosecute and supervise the law
observance in the institution of criminal cases, ensuring that criminal cases
be instituted for all detected offenses and the institution of criminal cases
be grounded and lawful.
2. In
cases where the decisions to institute criminal cases, which are issued by
investigating bodies, border guard, customs, ranger, the coast guard force, or
other agencies of the People’s Police or the People’s Army, which are assigned
to conduct a number of investigating activities, are ungrounded, the
procuracies shall issue decisions to cancel such decisions; if the decisions not
to institute criminal cases, which are issued by such agencies, are ungrounded,
the procuracies shall cancel them and issue decisions to institute criminal
cases.
3. Where
the decisions to institute criminal cases, which are issued by the trial
panels, are ungrounded, the procuracies shall file protests against them with
the superior courts.
Chapter IX: GENERAL PROVISIONS ON INVESTIGATION
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1.
Investigating bodies of the People’s Police shall investigate all kinds of offenses,
excluding ones falling under the investigating competence of the investigating
bodies in the People’s Army or the investigating body of the Supreme People’s
Procuracy.
2.
Investigating bodies of the People’s Army shall investigate offenses falling under
the adjudicating competence of military courts.
3. The
investigating body of the Supreme People’s Procuracy shall investigate some
kinds of offenses of infringing upon judicial activities, which are committed
by officials of judicial bodies.
4. Investigating
bodies shall have competence to investigate criminal cases of offenses
occurring in their respective geographical areas. Where the places where the
offenses were committed are unknown, the investigation thereof shall fall under
the competence of the investigating bodies of the places where the offenses
were detected or where the accused reside or are arrested.
The
district-level investigating bodies, regional military investigating bodies
shall investigate criminal cases of offenses falling under the adjudicating
competence of the district-level people’s courts or regional military courts;
the provincial-level and military zone-level military investigating bodies
shall investigate criminal cases of offenses falling under the adjudicating
competence of the provincial-level people’s courts or military zone-level
military courts or cases falling under the investigating competence of the
subordinate investigating bodies, which they deem it necessary to directly
investigate. The central investigating body shall investigate criminal cases of
especially serious and complicated offenses falling under the investigating
competence of the provincial-level investigating bodies or military zone-level
military investigating bodies, which they deem it necessary to directly
investigate such cases.
5. The
apparatus organization and specific competence of investigating bodies shall be
provided for by the National Assembly Standing Committee.
Article 111.- Investigating powers of the border guard, customs,
ranger, the coast guard forces and other agencies of the People’s Police or the
People’s Army, which are assigned to conduct a number of investigating
activities
1. When
detecting criminal acts for which penal liability must be examined in their
respective management domains, the border guard, customs, ranger and the coast
guard forces shall have the competence:
a/ For
less serious offenses committed by offenders who are caught red-handed ,
evidences and the offenders’ personal details are clear, to issue decisions to
institute criminal cases and initiate criminal proceedings against the accused,
conduct investigation and transfer the case files to the competent procuracies
within twenty days after the date of issuing the decisions to institute
criminal cases;
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2. In the
People’s Police and the People’s Army, apart from the investigating bodies
prescribed in Article 110 of this Code, if other agencies assigned to conduct a
number of investigating activities detect cases showing criminal signs while
performing their tasks, they shall have the right to institute criminal cases,
conduct initial investigating activities and transfer the case files to
competent investigating bodies within seven days after issuing the decisions to
institute criminal cases.
3. When
conducting investigating activities, the border guard, customs, ranger, the
coast guard force, and other agencies of the People’s Police or the People’s
Army, which are assigned to conduct a number of investigating activities, must,
within the scope of their respective procedural competence, comply with the
procedural principles, order and proceedings for investigating activities as
prescribed by this Code. The procuracies shall have to supervise the law
observance by these agencies in their investigating activities.
4. The
specific tasks and powers of the border guard, customs, ranger, the coast guard
force, and other agencies of the People’s Police or the People’s Army, which
are assigned to conduct a number of investigating activities, in investigating
activities shall be prescribed by the National Assembly Standing Committee.
Article 112.- Tasks and powers of procuracies in exercising the
right to prosecute at the investigating stage
When
exercising the right to prosecute at the investigating stage, the procuracies
shall have the following tasks and powers:
1. To
institute criminal cases, to initiate criminal proceedings against the accused;
to request the investigating bodies to institute criminal cases or change the
decisions to institute criminal cases or initiate criminal proceedings against
the accused in accordance with this Code;
2. To set
investigation requirements and request the investigating bodies to conduct
investigation; when deeming it necessary, to directly conduct a number of
investigating activities under the provisions of this Code;
3. To
request the heads of investigating bodies to change investigators under the
provisions of this Code; if the investigators’ acts show criminal signs, to
institute criminal cases against such investigators;
4. To
decide to apply, change or cancel arrest, custody, temporary detention and
other deterrent measures; to decide to approve or disapprove the decisions of
investigating bodies under the provisions of this Code. In case of disapproval,
the disapproval decision must clearly state the reasons therefor;
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6. To
decide to prosecute the accused; to decide to cease or suspend criminal cases.
Article 113.- Tasks and powers of procuracies in supervising
investigation
In
performing the work of supervising the investigation, the procuracies shall
have the following tasks and powers:
1. To
supervise the institution of criminal cases, supervise investigating activities
and the compilation of case files by investigating bodies;
2. To
supervise the law observance by participants in the proceeding;
3. To
settle disputes over the investigating competence;
4. To
request the investigating bodies to remedy law violations in their
investigating activities; to request investigating bodies to supply necessary
documents on the law violations committed by investigators; to request the
heads of investigating bodies to strictly handle the investigators who have
committed law violations while conducting investigation;
5. To
propose concerned agencies and organizations to apply measures to preclude
offenses and law violations.
Article 114.- Responsibilities of investigating bodies in
complying with requests and decisions of procuracies
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Article 115.- Responsibilities to comply with decisions and
requests of investigating bodies and procuracies
Decisions
and requests of investigating bodies and procuracies at the stage of
investigating criminal cases must be strictly complied with by agencies,
organizations and citizens.
Article 116.- Transfer of cases for investigation according to
competence
Where
cases do not fall under their investigating competence, the investigating
bodies shall propose the procuracies of the same level to issue decisions to
transfer the cases to the competent investigating bodies for further
investigation; within three days after receiving such proposals of the
investigating bodies, the procuracies of the same level shall have to issue
decisions to transfer the cases.
The
transfer of cases outside the territories of provinces or centrally run cities
or military zones shall be decided by the provincial-level procuracies or
military zone-level military procuracies.
Article 117.- Joinder or separation of criminal cases for
investigation
1.
Investigating bodies may join in the same case for investigation several
offenses committed by a person, several persons together committing an offense
or offenders and other persons harboring or not denouncing the offenses as
prescribed in Article 313 and Article 314 of the Penal Code.
2.
Investigating bodies may only separate cases in case of extreme necessity when
the investigation of all offenses cannot be completed early, provided that such
separation would not affect the determination of the objective and
comprehensive truths of the cases.
3.
Decisions to join or separate criminal cases must be sent to the procuracies of
the same level within 24 hours after their issuance.
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In case
of necessity, investigating bodies may entrust other investigating bodies to
conduct a number of investigating activities. Investigation entrustment
decisions must clearly state the specific requirements. The entrusted
investigating bodies shall have to perform fully the entrusted work within the
time limits set by the entrusting investigating bodies.
Article 119.- Investigation time limits
1. The
time limits for investigating criminal cases shall not exceed two months for
less serious offenses, not exceed three months for serious offenses, not exceed
four months for very serious offenses and especially serious offenses, counting
from the time of institution of criminal cases to the time of termination of
investigation.
2. In
case of necessity to prolong investigation due to the complexity of the cases,
at least ten days before the expiry of the investigation time limit, the
investigating bodies must request in writing the procuracies to extend the
investigation time limit.
The
extension of investigation time limits is prescribed as follows:
a/ For
less serious offenses, the investigation time limit may be extended once for no
more than two months;
b/ For
serious offenses, the investigation time limit may be extended twice, for no
more than three months for the first time and no more than two months for the
second time;
c/ For
very serious offenses, the investigation time limit may be extended twice, for
no more than four months each;
d/ For
especially serious offenses, the investigation time limit may be extended three
times, for no more than four months each.
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a/ For
less serious offenses, the district-level people’s procuracies or regional
Military Procuracies shall extend investigation time limits. Where the cases
are received for investigation at the provincial or military-zone level, the
provincial-level people’s procuracies or military zone-level military
procuracies shall extend investigation time limits;
b/ For
serious offenses, the district-level people’s procuracies or regional military
procuracies shall extend investigation time limits for the first time and the
second time. Where the cases are received for investigation at the provincial
or military-zone level, the provincial-level people’s procuracies or military
zone level military procuracies shall extend investigation time limits for the first
time and the second time;
c/ For
very serious offenses, the district-level people’s procuracies or regional
military procuracies shall extend investigation time limits for the first time;
the provincial-level people’s procuracies or the military zone-level military
procuracies shall extend investigation time limits for the second time. Where
the cases are received for investigation at the provincial or military-zone
level, the provincial-level people’s procuracies or military zone-level
military procuracies shall extend investigation time limits for the first time
and the second time.
d/ For
especially serious offenses, the provincial-level people’s procuracies or
military zone level military procuracies shall extend investigation time limits
for the first time and the second time; the Supreme People’s Procuracy or the
central Military Procuracy shall extend investigation time limits for the third
time
4. Where
the cases are received for investigation at the central level, the extension of
investigation time limits shall fall under the competence of the Supreme
People’s Procuracy or the central Military Procuracy.
5. For
especially serious offenses for which the extended investigation time limit has
expired but, due to the very complicated nature of the cases, the investigation
cannot be completed, the Chairman of the Supreme People’s Procuracy may extend
the investigation time limit once for no more than four months.
For the
offenses of infringing upon national security, the Chairman of the Supreme People’s
Procuracy shall have the right to extend the investigation time limit once more
for no more than four months.
6. Upon
the expiry of the extended investigation time limit but it is impossible to
prove the accused to have committed the offenses, the investigating bodies must
issue decisions to cease the investigation.
Article 120.- Time limits of temporary detention for investigation
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2. Where
the cases involving many complicated circumstances and it is deemed that the
investigation should take a longer time and there exists no ground to change or
cancel the temporary detention measure, at least ten days before the temporary
detention time limit expires, the investigating bodies must send written
requests to the procuracies to extend the such temporary detention time limit.
The
extension of temporary detention time limits is prescribed as follows:
a/ For
less serious offenses, the temporary detention time limit may be extended once
for no more than one month;
b/ For
serious offenses, the temporary detention time limit may be extended twice, for
no more than two months for the first time and no more than one month for the
second time;
c/ For
very serious offenses, the temporary detention time limit may be extended
twice, for no more than three months for the first time and no more than two
months for the second time;
d/ For
especially serious offenses, the temporary detention time limit may be extended
three times, for no more than four months each.
3. The
competence of procuracies to extend temporary detention time limits is
prescribed as follows:
a/ The
district-level people’s procuracies or regional military procuracies shall have
the right to extend temporary detention time limits for less serious offenses,
extend temporary detention time limits for the first time for serious offenses
and very serious offenses. Where the cases are received for investigation at
the provincial or military-zone level, the provincial-level people’s
procuracies or military zone-level military procuracies shall have the right to
extend temporary detention time limits for less serious offenses, extend
temporary detention time limits for the first time for serious offenses, very
serious offenses and especially serious offenses.
b/ In
cases where the first-time extended temporary detention time limits prescribed
at Point a of this Clause have expired but the investigation cannot be
completed and there emerges no ground to change or cancel the temporary
detention measure, the district-level people’s procuracies or the regional
military procuracies may extend the temporary detention time limits for the
second time for serious offenses. The provincial-level people’s procuracies or
military zone-level military procuracies may extend temporary detention time
limits for the second time for serious offenses, very serious offenses or
especially serious offenses.
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5. For
especially serious offenses, in cases where the second-time extended temporary
detention time limits prescribed at Point b, Clause 3 of this Article have
expired and the cases involve many very complicated circumstances while there
emerges no ground to change or cancel the temporary detention measure, the
Chairman of the Supreme People’s Procuracy may extend the temporary detention
time limits for the third time.
In case
of necessity for offenses of infringing upon national security, the Chairman of
the Supreme People’s Procuracy may extend the temporary detention time limits
once more for no more than four months.
6. When
keeping persons in temporary detention, if deeming it unnecessary to continue
the temporary detention, the investigating bodies must propose in time the
procuracies to cancel the temporary detention in order to release the detainees
or shall, if deeming it necessary, apply other deterrent measures.
Upon the
expiry of the temporary detention time limits, the temporary detention order
issuers must release the detainees or shall, if deeming it necessary, apply
other deterrent measures.
Article 121.- Time limits for investigation resumption, additional
investigation and re-investigation
1. In
case of investigation resumption prescribed in Article 165 of this Code, the
time limit for further investigation shall not exceed two months for less
serious offenses, serious offenses or very serious offenses, not exceed three
months for especially serious offenses, counting from the time of issuance of
the investigation resumption decisions to the time of termination of
investigation.
Where it
is necessary to extend investigation time limits due to the complicated nature
of the cases, at least ten days before the investigation time limits expire,
the investigating bodies must send written requests to the procuracies to
extend the investigation time limits. The extension of investigation time
limits is prescribed as follows:
a/ For
serious offenses and very serious offenses, the investigation time limit may be
extended once for no more than two months.
b/ For
especially serious offenses, the investigation time limit may be extended once
for no more than three months.
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2. Where
the cases are returned by the procuracies for additional investigation, the
time limit for additional investigation shall not exceed two months; if the
cases are returned by courts for additional investigation, the time limit for
additional investigation shall not exceed one month. The procuracies or courts
may only return the case files for additional investigation for no more than
twice. The time limit for additional investigation shall be counted from the
date the investigating bodies receive back the case files and investigation
requests.
3. Where
the cases are returned for re-investigation, the investigation time limit and
the extension thereof shall comply with the general procedures prescribed in
Article 119 of this Code.
The
investigation time limit shall be counted from the time when the investigating
bodies receive the files and re-investigation requests.
4. When
resuming investigation, conducting additional investigation or
re-investigation, the investigating bodies shall have the right to apply,
change or cancel the deterrent measures under the provisions of this Code.
In cases
where there exist grounds prescribed by this Code for temporary detention, the
temporary detention time limit for investigation resumption or additional
investigation must not exceed the time limit for investigation resumption or
additional investigation prescribed in Clause 1 and Clause 2 of this Article.
The
temporary detention time limit and the extension thereof in the cases of
re-investigation shall comply with general procedures prescribed in Article 120
of this Code.
Article 122.- Settlement of requests of participants in the
procedure
When
participants in the procedure make requests on matters related to the cases,
the investigating bodies or procuracies shall, within the scope of their
respective responsibilities, settle their requests and inform them of the
settlement results. If rejecting such requests, the investigating bodies or
procuracies must reply, clearly stating the reasons therefor.
If
disagreeing with the settlement results of the investigating bodies or
procuracies, participants in the procedure shall have the right to complain.
Complaints and the settlement thereof shall comply with the provisions of
Chapter XXXV of this Code.
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Witnesses
shall be invited to participate in investigating activities in the cases
prescribed by this Code.
Witnesses
shall have the duty to confirm the contents and results of the work performed
by investigators in their presence and may present their personal opinions.
These opinions shall be recorded in the minutes.
Article 124.- Non-disclosure of investigation secrets
In case
of necessity to keep investigation secrets, investigators and procurators must
notify in advance the participants in the procedure and witnesses not disclose
investigation secrets. Such notification must be recorded in the minutes.
Investigators,
procurators, participants in the procedure or witnesses who disclose
investigation secrets shall, on a case-by-case basis, bear penal liability
under Articles 263, 264, 286, 287, 327 and 328 of the Penal Code.
Article 125.- Investigation minutes
1. In
conducting investigation, the minutes thereof must be made according to Article
95 of this Code.
Investigators
who have made the minutes must read them to the participants in the procedure,
explain to them the right to supplement and give comments on the minutes. Such
comments shall be recorded in the minutes. Participants in the procedure and
investigators shall all sign the minutes.
2. Where
the participants in the procedure refuse to sign the minutes, such refusal must
be written in the minutes with reasons therefor clearly stated.
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Illiterate
persons may put their fingerprints on the minutes.
Chapter X: INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE ACCUSED
AND INTERROGATION OF THE ACCUSED
Article 126.- Initiation of criminal proceedings against the
accused
1. When
having sufficient grounds to determine that persons have committed criminal
acts, the investigating body shall issue decisions to initiate criminal
proceedings against the accused.
2. A
decision to initiate criminal proceedings against the accused shall contain the
time and place of its issuance; full name and position of its issuer; full
name, birth date, occupation and family conditions of the accused; which
offense the accused is charged with, under which articles of the Penal Code;
time and place of commission of the offense, and other circumstances of the
offense.
If the
accused is charged with many different offenses, the decision to initiate
criminal proceedings against him/her must contain the title of each offense and
the applicable articles of the Penal Code.
3. After
initiating proceedings against the accused, investigating bodies must take
photographs and compile personal records of the accused and put them in the
case files.
4. Within
24 hours after issuing the decisions to initiate criminal proceedings against
the accused, the investigating bodies must send them to the procuracies of the
same level for consideration and approval. Within three days after receiving
such decisions, the procuracies must issue decisions to approve or cancel them
and immediately send their decisions to the investigating bodies.
5. Where
they detect that there are offenders against whom criminal proceedings have not
yet been initiated, the procuracies shall request the investigating bodies to
issue the decisions to initiate criminal proceedings against such offenders.
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6. The
investigating bodies must immediately hand their decisions or the procuracies’
decisions to initiate criminal proceedings against the accused or such to the
accused and explain on their rights and obligations prescribed in Article 49 of
this Code. After receiving the procuracies’ decisions to approve or cancel the
decisions to initiate criminal proceedings against the accused, the
investigating bodies must immediately hand them to the persons against whom
criminal proceedings are initiated. The handing and receipt of these decisions
must be recorded in the minutes prescribed in Article 95 of this Code.
Article 127.- Change or supplementation of decisions to initiate
criminal proceedings against the accused
1. While
conducting investigation, if having grounds to determine that the criminal acts
committed by the accused do not constitute the offenses for which criminal
cases have been instituted against them or there remain other criminal acts,
the investigating bodies or procuracies shall issue decisions to change or
supplement the decisions to initiate criminal proceedings against the accused.
2. Within
24 hours after issuing the decisions to change or supplement the decisions to
initiate criminal proceedings against the accused, the investigating bodies
must send their decisions together with documents related to such change or
supplementation to the procuracies of the same level for consideration and
approval. Within three days after receiving the decisions to change or
supplement the decisions to initiate criminal proceedings against the accused,
the procuracies must decide to approve or cancel such decisions.
Within 24
hours after issuing the decisions to change or supplement the decisions to
initiate criminal proceedings against the accused, the procuracies must send
them to the investigating bodies for investigation.
3. The
investigating bodies must immediately hand to the accused the decisions to
change or supplement their decisions to initiate criminal proceedings against
the accused or the procuracies’ decisions to change or supplement their
decisions to initiate criminal proceedings against the accused and explain on
their rights and obligations prescribed in Article 49 of this Code. After
receiving the procuracies’ decisions to approve or cancel the decisions to
change or supplement the decisions to initiate criminal proceedings against the
accused, the investigating bodies must immediately hand them to the accused.
The handing and receipt of the above-said decisions must be recorded in the
minutes prescribed in Article 95 of this Code.
Article 128.- Suspension of the accused from their current
positions
When
deeming that the accused’s continued holding of their positions would cause
difficulties to the investigation, the investigating bodies or procuracies
shall have the right to propose the agencies or organizations with competence
to manage the accused to suspend the accused from their positions. Within seven
days after receiving such proposals, these agencies or organizations must reply
in writing the proposing investigating bodies or procuracies.
Article 129.- Summoning of the accused
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2. The
summonses to the accused shall be sent to the administrations of the communes,
wards or townships where the accused reside or to the agencies or organizations
where they work. The agencies or organizations receiving the summonses shall
have to immediately deliver them to the accused.
Upon
receiving the summonses, the accused must sign for certification of the receipt
thereof, clearly writing the hour and date of receipt thereon. The deliverers
of the summonses must deliver the portions of the summonses containing the
signatures of the accused to the summoning bodies; if the accused refuse to
sign, the minutes thereof must be made and sent to the summoning bodies; if the
accused are absent, the summonses may be handed to an adult member of their
families to sign for certification and hand the summonses to the accused. For
the accused being in temporary detention, they shall be summoned through the
superintending boards of the detention centers.
3. The
accused must appear in response to the summonses. If they are absent without
plausible reasons or show signs of escape, investigators may issue decisions to
escort them.
4. In
case of necessity, procurators may summon the accused. The summoning of the
accused shall comply with the provisions of this Article.
Article 130.- Escort of the accused on bail
1. A
decision to escort the accused shall contain the time and place of its
issuance; full name and position of its issuer; full name, birth date and
residence of the accused; the offense with which the accused has been charged;
the time and the place for the accused to appear;
2.
Executors of the escort decisions must read, explain the decisions, and make
minutes of the escort as prescribed in Article 95 of this Code.
3. It is
forbidden to escort the accused at night.
Article 131.- Interrogation of the accused
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Before
conducting the interrogation, investigators must read the decisions to initiate
criminal proceedings against the accused and clearly explain to the accused
about their rights and obligations prescribed in Article 49 of this Code. This
must be recorded in the minutes.
If a case
involves many accused, each of them shall be questioned separately and they
shall not be allowed to contact one another. The accused may be allowed to
write by themselves their statements.
2. It is
forbidden to conduct interrogation at night, except for cases where
interrogation cannot be delayed, provided that the reasons therefor must be
clearly recorded in the minutes.
3. In
case of necessity, procurators may interrogate the accused. The interrogation
of the accused shall comply with the provisions of this Article.
4.
Investigators or procurators who extort statements from the accused or apply
corporal punishment to the accused must bear penal liability prescribed in
Article 299 or Article 298 of the Penal Code.
Article 132.- Minutes of interrogation of the accused
1. The
minutes of interrogation of the accused must be made according to Article 95
and Article 125 of this Code.
A minutes
must be made for each time of interrogation. It must contain all statements of
the accused, questions and answers. Investigators are strictly forbidden to
add, cut or modify by themselves the statements of the accused.
2. After
the interrogation, investigators shall read the minutes to the accused or let
the accused read them. In case of supplementing or modifying the minutes, the
accused and investigators both sign for certification. If the minutes consist
of many pages, the accused shall sign every page. Where the accused write their
statements by themselves, the investigators and the accused shall sign such
written statements for certification.
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Where the
interrogation of the accused is conducted with the aid of interpreters, the
investigators must explain the interpreters’ rights and obligations, and also
inform the accused of their right to request change of the interpreters. The
interpreters and the accused shall both sign every page of the interrogation
minutes.
3. When
conducting interrogations in the presence of the defense counsels and/or lawful
representatives of the accused, the investigators must explain to these persons
their rights and obligations in the course of interrogation of the accused. The
accused, the defense counsels and/or lawful representatives shall all sign the
interrogation minutes.
Where the
counsel defenses are allowed to question the accused, the minutes must contain
fully the questions of the defense counsels and the answers of the accused.
4. In
cases where procurators interrogate the accused, they must observe the
provisions of this Article.
Chapter XI: TAKING STATEMENTS OF WITNESSES, VICTIMS, CIVIL
PLAINTIFFS, CIVIL DEFENDANTS, PERSONS WITH INTERESTS AND OBLIGATIONS RELATED TO
THE CASES, CONFRONTATION AND IDENTIFICATION
Article 133.- Summoning of witnesses
1. To
summon witnesses, investigators must send to them summonses. Such a summons
must contain the full name and residence of the witness, the date, hour and
place for his/her appearance; the person whom he/she will meet and his/her
responsibility for non-appearance without plausible reasons.
2.
Summonses shall be handed directly to the witnesses or through the
administrations of the communes, wards or townships where they reside or the
agencies or organizations where they work. These agencies or organizations
shall have to create conditions for the witnesses to perform their obligations.
Under all
circumstances, signatures shall be required for the handing and receipt of
summonses.
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4. In
case of necessity, procurators may summon witnesses. The summoning of witnesses
shall comply with the provisions of this Article.
Article 134.- Escort of witnesses
1. Where
witnesses have been summoned by investigating bodies, procuracies or courts but
they deliberately refuse to appear without plausible reasons and their absence
causes obstruction to the investigation, prosecution or adjudication, the
bodies which have summoned them may issue decisions to escort them.
2.
Decisions to escort witnesses must contain the time and place of their
issuance; full names and positions of their issuers; full names, birth dates
and residential places of the witnesses; the time and places for their
appearance.
3. The
executors of escort decisions must read the decisions to the witnesses, explain
their rights and obligations, and make the minutes of the escort as prescribed
in Article 95 of this Code.
4. It is
forbidden to escort witnesses at night.
Article 135.- Taking statements of witnesses
1.
Statements of witnesses shall be taken at the places of investigation or at
their residences or working places.
2. If a
case involves many witnesses, the statements of each witness must be taken
separately and the witnesses shall not be let contact one another in the course
of taking statements.
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4. Before
inquiring into the contents of the cases, investigators should verify the
relationships between the witnesses and the accused, victims and other details
related to the witnesses’ personal identity. Before asking questions,
investigators should request witnesses to relate or write what they know about
the cases. Raising questions of suggestive nature shall not be allowed.
5. When
taking statements of witnesses aged under 16 years, their parents, other lawful
representatives or their teachers must be invited to attend.
6. In
case of necessity, procurators may take statements of witnesses. The taking of
statements of witnesses shall comply with the provisions of this Article.
Article 136.- Minutes of witnesses’ statements
Minutes
of witnesses’ statements must be made according to Articles 95, 125 and 132 of
this Code.
Article 137.- Summoning, and taking statements of, victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
the cases
The
summoning, and taking statements of, victims, civil plaintiffs, civil
defendants and persons with interests and obligations related to the cases
shall comply with the provisions of Articles 133, 135 and 136 of this Code.
Article 138.- Confrontation
1. Where
exist contradictions in the statements of two or more persons, investigators
shall conduct confrontation.
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3. To
begin the confrontation, investigators shall ask about the relationships
between persons participating in the confrontation, then about circumstances
required to be clarified. After hearing statements in the confrontation,
investigators may further put questions to each person.
Investigators
may also let persons participating in the confrontation ask one another and
their questions and answers must be recorded in the minutes.
Only
after persons participating in the confrontation give their statements shall
their previous statements be repeated.
4.
Confrontation minutes must be made according to the provisions of Articles 95,
125 and 132 of this Code.
5. In
case of necessity, procurators may conduct confrontation. Such confrontation
shall comply with the provisions of this Article.
Article 139.- Identification
1. When
necessary, investigators may invite persons or give objects or photos to
witnesses, victims or the accused for identification.
Investigators
must ask in advance the identifying persons about details, traces and
characteristics owing to which they may make identification.
2. The
number of persons, things or photos presented for identification must be at
least three and their appearances must be similar. For identification of
corpses, this principle shall not be applied.
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3. If
witnesses or victims act as identifying persons, before conducting the
identification, investors must explain to them their responsibility for
refusing or shirking to give statements or deliberately giving false
statements. Such explanation must be recorded in the minutes.
4. In the
course of identification, investigators must not put questions of suggestive
nature. After the identifying persons have identified a person, an object or a
photo among those presented for identification, investigators shall request
them to explain which traces or characteristics they have relied on for
identifying such person, object or photo.
Identification
must be conducted in the presence of witnesses.
5.
Identification minutes must be made according to Articles 95, 125 ad 132 of
this Code. Such a minutes should contain the personal details of identifying
persons and persons shown for identification; characteristics of objects or
photos presented for identification; statements and presentations given by
identifying persons.
Chapter XII: SEARCH, FORFEITURE, SEIZURE, DISTRAINMENT OF PROPERTY
Article 140.- Grounds for body search, search of residences,
working places, premises, objects, correspondence, telegraphs, postal parcels
and matters
1. Body
search, search of residences, working places and premises shall be conducted
only when there are grounds to judge that on the bodies, in the residences,
working places and/or premises of persons there are instruments and means of
offense commission, objects and property acquired from offense commission or
other objects and documents related to the cases.
Search of
residences, working places or premises shall also be conducted in case of
necessity to detect wanted persons.
2. In
case of necessity to collect documents and objects related to the cases,
correspondence, telegraphs, postal parcels and matters may be searched.
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1. The
persons defined in Clause 1, Article 80 of this Code shall have the right to
issue search warrants in all cases. Search warrants of the persons defined at
Point d, Clause 1, Article 80 of this Code must be approved by the procuracies
of the same level before they are executed.
2. In
case of urgency, the persons defined in Clause 2, Article 81 of this Code shall
have the right to issue search warrants. Within 24 hours after the completion
of the search, the search warrant issuers must notify in writing the
procuracies of the same level thereof.
Article 142.- Body search
1. To
start a body search, the search warrant must be read and handed to the to
be-searched person for reading; the to be-searched person and other persons
present shall be informed of their rights and obligations.
The
persons conducting the search must request the to be-searched persons to give
out objects and documents related to the cases; if the to be-searched persons
disobey, they shall be searched.
2. The
search of a person must be conducted by a person of the same sex and to the
witness of a person also of the same sex.
3. Body
search may be conducted without a search warrant in case of arrest or when there
are grounds to confirm that the person present at the searched place hides on
his/her body objects and documents required to be seized.
Article 143.- Search of residences, working places, premises
1. Search
of residences, working places or premises shall be conducted in accordance with
the provisions of Articles 140, 141 and 142 of this Code.
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3. Search
of residences must not be conducted at night, except where it cannot be
delayed, provided that the reasons therefor must be clearly stated in the
minutes.
4. Search
of working places must be conducted in the presence of such persons, except
where it cannot be delayed, provided that the reason therefor must be clearly
stated in the minutes.
Search of
working places of persons must be witnessed by the representatives of the
agencies or organizations where such persons work.
5. When
the search of residences, working places or premises is taking place, the
persons present must neither leave the searched places without permission nor
contact, discuss with one another or with other persons until the search
completes.
Article 144.- Forfeiture of correspondence, telegraphs, postal
parcels and matters at post offices
In case
of necessity to forfeit correspondence, telegraphs, postal parcels and matters
at post offices, the investigating bodies shall issue forfeiture warrants.
These warrants must be approved by the procuracies of the same level before
they are executed, except for cases where the execution thereof cannot be
delayed, provided that the reasons therefor must be clearly stated in the minutes
and the forfeiture, once completed, be immediately notified to the procuracies
of the same level.
Before
effecting the forfeiture, the executors of forfeiture warrants must notify such
to the persons in charge of the post offices concerned. The persons in charge
of the post offices concerned must assist the executors of seizure warrants in
fulfilling their tasks.
The
forfeiture of correspondence, telegraphs, postal parcels and matters must be
witnessed by the representatives of the post offices, who shall sign for
certification the minutes thereof.
The
forfeiture warrant-issuing bodies must notify the persons having the to be
forfeited correspondence, telegraphs, postal parcels and/or matters of the
forfeiture warrants. If such notification will impede the investigation,
immediately after such impediment no longer exists, the forfeiture
warrant-issuing bodies must make such notification.
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While
conducting search, investigators may seize objects which are exhibits as well
as documents directly related to the cases. For objects falling into the
categories banned from storage or circulation, they must be forfeited and
immediately delivered to competent management bodies. In case of necessity to seal
objects up, such sealing must be conducted in the presence of the owners of
such objects or their families’ representatives, the administration’s
representatives as well as witnesses.
The
seizure of objects and documents during a search must be recorded in a minutes.
Seizure minutes must be made in four copies, one of which to be handed to the
owner of the objects and/or documents, one to be put in the case files; one to
be sent to the procuracy of the same level, and one to the agency managing the
seized objects and/or documents.
Article 146.- Distrainment of property
1.
Distrainment of property shall only apply to the accused or defendants charged
with offenses which, as prescribed by the Penal Code, may be subject to
property confiscation or fine penalty as well as to persons liable to pay
damage compensation according to law provisions.
The
competent persons defined in Clause 1, Article 80 of this Code shall have the
right to issue property distrainment warrants. Distrainment warrants of persons
defined at Point d, Clause 1, Article 80 of this Code must be immediately
notified to the procuracies of the same level before they are executed.
2.
Distrainment shall be made only of a portion of property corresponding to the
amount likely to be confiscated, to the pecuniary fine or the damage
compensation.
Distrained
property shall be assigned to their owners or their relatives for preservation.
If the persons assigned to preserve such property commit acts of consuming,
transferring, fraudulently swapping, concealing or destroying the distrained
property, they shall bear penal liability under the provisions of Article 310
of the Penal Code.
3.
Property distrainment must be witnessed by the involved persons or their
families’ adult members, representatives of the commune, ward or township
administrations and neighbors. The distraining persons must make the minutes,
clearly stating the name and condition of each distrained property item. Such
minutes must be made according to Articles 95 and 125 of this Code, read to the
involved persons and other present persons, and signed by these persons. Any
complaints of the involved persons shall be recorded in the minutes, with the
signatures for certification of such persons and the distraining persons.
A
distrainment minutes shall be made in three copies, one to be handed to the
involved person immediately after the distrainment is completed, one to be sent
to the procuracy of the same level, and one to be put in the case file.
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Article 147.- Responsibility to preserve objects, documents,
correspondence, telegraphs, postal parcels and/or matters which are forfeited,
seized or sealed up
Objects,
documents, correspondence, telegraphs, postal parcels and/or matters which are
forfeited, seized or sealed up under the provisions of Articles 75, 144 and 145
of this Code must be preserved intact.
If persons
assigned to preserve property break up seals, consume, transfer, fraudulently
swap or destroy such property, they shall bear penal liability under Article
310 of the Penal Code.
Article 148.- Minutes of search, forfeiture, seizure of objects,
documents, correspondence, telegraphs, postal parcels and matters
The
search, forfeiture or seizure of objects, documents, telegraphs, postal parcels
and/or matters must be recorded in the minutes prescribed in Articles 95 and
125 of this Code.
Article 149.- Responsibilities of issuers and executors of
warrants to search, distrain property, forfeit or seize objects, documents,
correspon-dence, telegraphs, postal parcels and matters
Persons
who have illegally issued and persons who have illegally executed warrants to
search or distrain property, forfeiture or seize objects, documents,
correspondence, telegraphs, postal parcels and/or matters shall, depending on
the seriousness of their violations, be disciplined or examined for penal
liability.
Chapter XIII: SCENE EXAMINATION, AUTOPSY, EXAMINATION OF TRACES ON
HUMAN BODIES, INVESTIGATION EXPERIMENTS, EXPERTISE
Article 150.- Scene examination
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2. Scene
examination may be conducted prior to the institution of criminal cases. Under
all circumstances, before conducting the examination, investigators must notify
the procuracies of the same level thereof. Procurators must come to supervise
the scene examination. In the course of examination, there must be witnesses;
the accused, victims and/or witnesses may be allowed to attend, and specialists
may be invited to participate in, the examination.
3. While
conducting scene examination, investigators shall take photos, draw plans
describing the scenes, take measurements, make mock-ups, collect and examine on
spot traces of offense, objects, documents related to the cases; and clearly
write the examination results in the scene examination minutes.
Where the
collected objects and documents cannot be scrutinized immediately, they must be
preserved, kept intact or sealed up and taken to the investigation places.
Article 151.- Autopsy
Autopsy
shall be conducted by investigators with the participation of forensic doctors
and in the presence of eyewitnesses.
In case
of necessity to exhume corpses, decisions of investigating bodies shall be
required and the deceased persons’ families must be notified thereof before the
exhumation starts. The corpse exhumation must be participated by forensic
doctors.
When
necessary, experts may be summoned to and there must be witnesses at the
exhumation.
Under all
circumstances, autopsy must be notified in advance to the procuracies of the
same level. Procurators must come to supervise the autopsy.
Article 152.- Examination of traces on human bodies
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2.
Examination of the body of a person must be conducted by a person of the same
sex and witnessed by a person also of the same sex. In case of necessity,
medical doctors may participate in body examination.
It is
forbidden to infringe upon the honor, dignity or the health of the examined
persons.
Article 153.- Investigation experiments
1. In
order to check and verify documents and circumstances of significance to the
cases, the investigating bodies shall have the right to conduct investigation
experiments by reproducing the scenes, replaying acts, circumstances or all
other details of certain facts, and conduct necessary experiments. They may,
when deeming it necessary, take measurements, photographs, video and draw
plans.
2.
Investigation experiments must be conducted in the presence of witnesses. In
case of necessity, the persons in custody, the accused, victims and/or
witnesses may participate therein.
It is
forbidden to infringe upon the honor and dignity or cause harm to the health of
persons participating in investigation experiments.
3. In
case of necessity, the procuracies may conduct investigation experiments.
Investigation experiments shall be conducted in accordance with the provisions
of this Article.
Article 154.- Minutes of scene examination, autopsy, examination
of traces on human bodies and investigation experiments
Scene
examination, autopsy, examination of traces on human bodies and investigation
experiments must be recorded in the minutes as prescribed in Article 95 and
Article 125 of this Code.
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1. When
arise matters which need to be determined under Clause 3 of this Article or
when deeming it necessary, the procedure-conducting bodies shall issue
decisions to solicit expertise.
2.
Decisions to solicit expertise must clearly state the matters required to be
examined, full names of experts requested to examine or names of the
expertising agencies as well as the rights and obligations of experts as
prescribed in Article 60 of this Code.
3.
Expertise is compulsory when it is necessary to determine:
a/ Causes
of human death, injury nature, degree of harm to the health or working
capability;
b/ The
psychiatric state of the accused or defendants in cases where there is
suspicion about their penal liability capacity;
c/ The
psychiatric state of witnesses or victims in cases where there is suspicion
about their perception capacity and truthful statements on circumstances of the
cases;
d/ The
ages of the accused or defendants or victims if such is significant to the
cases and there are no documents proving their ages or there is suspicion about
the authenticity of such documents;
e/
Noxious substances, narcotics, radioactive substances, counterfeit currencies.
Article 156.- Conducting expertise
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Investigators
and procurators shall have the right to participate in the expertise provided
that they must notify in advance the experts thereof.
2. In
cases where the expertise cannot be conducted within the time limit requested
by the expertise-soliciting agencies, the expertising agencies or experts must
immediately notify such in writing and clearly state the reasons therefor to
the expertise-soliciting agencies.
Article 157.- Contents of expertise conclusions
1.
Expertise conclusions must clearly state the time and place of the conducted
expertise; full names, educational levels and professional qualifications of
experts; participants in the expertise; traces, objects, documents and all
other things already examined, applied methods and answers with specific
grounds to the raised matters.
2. In
order to clarify or supplement expertise conclusions, the expertise-soliciting
agencies may put additional questions to the experts about necessary
circumstances and may decide on additional expertise or re-expertise.
Article 158.- Rights of the accused and participants in the
procedure with regard to expertise conclusions
1. After
the expertise completes, the agencies which have solicited the expertise must
notify the contents of the expertise conclusions to the accused and other
participants in the procedure if the latter so request.
The
accused, other participants in the procedure may express their opinions on the
expertise conclusions and requests for additional expertise or re-expertise.
These opinions and requests shall be recorded in the minutes.
2. Where
the investigating bodies or procuracies reject the requests of the accused or
other participants in the procedure, they must clearly state the reasons
therefor and inform such persons thereof.
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1.
Additional expertise shall be conducted in cases where the contents of the
expertise remain unclear, incomplete or when arise new matters related to the
cases’ circumstances already concluded earlier.
2.
Re-expertise shall be conducted where there is suspicion about the expertise
results or there are contradictions in the expertise conclusions on the same
expertised matter. The re-expertise must be conducted by other experts.
3.
Additional expertise or re-expertise shall be conducted according to general
procedures prescribed in Articles 155, 156, 157 and 158 of this Code.
Chapter XIV: SUSPENSION OF INVESTIGATION AND TERMINATION OF
INVESTIGATION
Article 160.- Suspension of investigation
1. When
the accused suffer from mental diseases or other dangerous ailments with
certification by the forensic examination councils, the investigation may be
suspended ahead of the investigation time limit. In cases where the accused are
not yet identified or their whereabouts are unknown, the investigation shall be
suspended only upon the expiry of the investigation time limit.
Where
expertise has been solicited but the expertise results are not yet available
upon the expiry of the investigation time limit, the investigation shall be
suspended while the expertise shall still continue till its results are
obtained.
Where a
case involves many accused while the reason for suspension of investigation
does not relate to all of the accused, the investigation may be suspended for
each of them.
If the
accused’s whereabouts are unknown, the investigating bodies must issue pursuit
warrants before suspending the investigation.
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Article 161.- Pursuit of the accused
When the
accused abscond or their whereabouts are unknown, investigating bodies shall
issue warrants to pursue them.
A pursuit
warrant must clearly state the date, hour and place of its issuance; full name
and position of its issuer; full name, age and residence of the accused,
characteristics for identification of the accused, affixed with the accused’s
photo, if any; and the offense with which the accused has been charged.
Pursuit
warrants shall be announced on the mass media for everyone to detect, arrest
and detain the wanted persons.
Article 162.- Termination of investigation
1. Upon
the termination of investigation, the investigating bodies must make
investigation conclusion reports
2. The
investigation shall be terminated when the investigating bodies issue
investigation conclusion reports proposing the prosecution or investigation
conclusion reports and decisions to cease the investigation.
3. An
investigation conclusion report must clearly state the date, full name,
position and signature of the conclusion maker.
4. Within
two days after issuing the investigation conclusion reports, the investigating bodies
must send the investigation conclusion reports proposing the prosecution or the
investigation conclusion reports enclosed with the decisions to cease the
investigation together with the case files to the procuracies of the same
level; send the investigation conclusion reports proposing the prosecution or
decisions to cease the investigation to the accused and defense counsels.
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1. When
having sufficient evidences to determine the offenses and the accused, the investigating
bodies shall make investigation conclusion reports proposing the prosecution.
An investigation conclusion report shall describe the development of the
criminal act, evidences proving the offense, proposals on solving the case,
including reasons and grounds for the prosecution proposal.
2. An
investigation conclusion report shall be enclosed with the statement on the
investigation periods, deterrent measures already applied, clearly stating the
duration of custody or temporary detention, exhibits, civil suits, measures to
secure the payment of fines, compensations and confiscation of assets, if any.
Article 164.- Investigation cessation
1. In
case of investigation cessation, the investigation conclusion reports shall
clearly describe the investigation process, reasons and grounds for
investigation cessation.
2. The
investigating bodies shall issue investigation cessation decisions in the
following cases:
a/ There
exists one of the grounds prescribed in Clause 2 of Article 105, and Article
107 of this Code or in Article 19, Article 25 and Clause 2 of Article 69 of the
Penal Code.
b/ The
investigation time limits have expired but it cannot be proved that the accused
have committed the offense.
3. An
investigation cessation decision shall contain the date and place of its
issuance, reasons and grounds for investigation cessation, the cancellation of
the deterrent measure, the return of seized objects, documents, if any, and
other related matters.
If a case
involves many accused while the grounds for investigation cessation are not
related to all of them, the investigation may be ceased for each of them.
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Article 165.- Investigation resumption
1. Where
there exist grounds to cancel the decisions to cease or suspend the
investigation, the investigating bodies shall issue decisions to resume
investigation if the statute of limitations for penal liability examination has
not yet expired. Within two days after issuing the decisions to resume
investigation, the investigating bodies must send them to the procuracies of
the same level.
2. If the
investigation is ceased under Points 5 and 6, Article 107 of this Code but the
accused disagree and request re-investigation, the investigating bodies or
procuracies of the same level shall issue decisions to resume the
investigation.
Chapter XV: PROSECUTION DECISION
Article 166.- Time limit for prosecution decision
1. Within
twenty days for less serious offenses and serious offenses, within thirty days
for very serious offenses and especially serious offenses, after receiving the
case files and investigation conclusion reports, the procuracies must issue one
of the following decisions:
a/ To
prosecute the accused before court by an indictment.
b/ To
return the file for additional investigation;
c/ To
cease or suspend the case.
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Within
three days after issuing one of the above-said decisions, the procuracies must
notify the accused and defense counsels thereof; and hand the indictments,
decisions to cease the cases or decisions to suspend the cases to the accused.
Defense counsels may read the indictments, take notes and copy documents in the
case files related to the defense under the provisions of law and put forward
requests.
2. After
receiving the case files, the procuracies shall be entitled to decide to apply,
change or cancel deterrent measures or to request the investigating bodies to pursue
the accused. The temporary detention duration must not exceed the time limit
prescribed in Clause 1 of this Article.
3. In
case of prosecution, within three days after issuing the prosecution decisions
in the form of indictment, the procuracies must send the files and indictments
to the courts.
4. For
cases not falling under their prosecuting competence, the procuracies shall
immediately issue decisions to transfer them to the competent procuracies.
Article 167.- Indictments
1. An
indictment must contain the date, hour and place of occurrence of the offense;
trick, purpose and motive of the commission of the offense; its consequences
and other important circumstances; evidences for determining the criminality of
the accused, circumstances aggravating and extenuating the penal liability,
personal details of the accused, and all other circumstances of significance to
the case.
The
indictment’s conclusion section shall clearly state the title of the offense
committed and applicable articles and clauses of the Penal Code.
2. An
indictment must contain the date of its making, full name, position and
signature of its maker.
Article 168.- Return of files for additional investigation
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1.
Important evidences of the cases are insufficient, which the procuracies cannot
supplement by themselves;
2. There
are grounds to initiate criminal proceedings against the accused for other
offenses or there are other accomplices;
3. There
are serious violations of the criminal procedure.
The
matters required to be additionally investigated must be clearly stated in the
decisions requesting the additional investigation.
Article 169.- Cessation or suspension of cases
1. The
procuracies shall issue decisions to cease the cases when there exists one of
the grounds prescribed in Clause 2 of Article 105 and Article 107 of this Code
or in Article 19, Article 25, and Clause 2 of Article 69 of the Penal Code.
2. The
procuracies shall issue decisions to suspend the cases in the following cases:
a/ When
the accused suffer from mental diseases or other dangerous ailments, which has
been certified by the forensic examination councils;
b/ When
the accused escape and their whereabouts are unknown; in this case, they must
request the investigating bodies to pursue the accused.
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4. In
cases where the subordinate procuracies have issued ungrounded and illegal
decisions to cease the cases, the chairmen of the superior procuracies shall
have the right to cancel such decisions and request the subordinate procuracies
to issue prosecution decisions.
Part Three
FIRST-INSTANCE TRIAL
Chapter XVI: JURISDICTION OF COURTS AT ALL LEVELS
Article 170.- Adjudicating jurisdiction of courts at all levels
1. The
district-level people’s courts and the regional military courts shall conduct
first-instance trial of criminal cases involving less serious offenses, serious
offenses and very serious offenses, excluding the following offenses:
a/
Offenses of infringing upon national security;
b/
Offenses of undermining peace, against humanity, and war crimes;
c/
Offenses prescribed in Articles 93, 95, 96, 172, 216, 217, 218, 219, 221, 222,
223, 224, 225, 226, 263, 293, 294, 295, 296, 322 and 323 of the Penal Code.
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Article 171.- Territorial jurisdiction
1. The
courts competent to adjudicate criminal cases are the courts of the places
where the offenses were committed. Where an offense is committed in different
places or if the place where an offense was committed is unknown, the court
competent to adjudicate the case shall be the one of the place where the
investigation is completed.
2. For
defendants committing offenses abroad, if they are to be adjudicated in Vietnam, the provincial-level people’s courts of their last residences in the country shall
adjudicate them. If the defendants’ last residences in the country cannot be
determined, the President of the Supreme People’s Court shall on a case-by-case
basis issue decisions to assign the People’s Court of Hanoi city or Ho Chi Minh City to adjudicate such cases.
For
defendants committing offenses abroad, if they fall under the adjudicating
jurisdiction of a military court, they shall be adjudicated by the Military
Court of the military-zone or higher level under decisions of the President of
the Central Military Court.
Article 172.- Jurisdiction to adjudicate offenses committed on
board aircraft or sea-going ships of the Socialist Republic of Vietnam, which
are operating outside the airspace or the territorial sea of Vietnam
Offenses
committed on board aircraft or sea-going ships of the Socialist Republic of
Vietnam which are operating outside the airspace of the territorial sea of
Vietnam shall fall under the jurisdiction of the Vietnamese courts of the
places of the first return airports or seaports or the places where such
aircraft or sea-going ships are registered.
Article 173.- Adjudication of defendants committing many offenses
falling under the jurisdiction of courts at different levels
For
defendants committing many offenses, one of which falls under the adjudicating
jurisdiction of the superior court, the superior court shall adjudicate the
entire cases.
Article 174.- Transfer of cases
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The
transfer of a case to another court shall be effected only when the case has
not been adjudicated yet. In this case, the transfer of the case shall be
decided by the president of the court. If a case which falls under the
jurisdiction of a Military Court or a superior court has been adjudicated, it
must still be transferred to the competent court. In this case, the transfer of
the case shall be decided by the trial panel.
Within
two days after issuing decisions to transfer the cases, the courts must notify
the procuracies of the same level and inform the accused and persons involved
in the cases thereof.
Article 175.- Settlement of disputes over adjudicating jurisdiction
1. The
settlement of disputes over adjudicating jurisdiction shall be decided by the
presidents of the immediate superior courts.
2. The
settlement of disputes over adjudicating jurisdiction between district-level
people’s courts of different provinces or centrally run cities shall be decided
by the presidents of the provincial-level people’s courts of the places where
the investigation is completed.
3. The
settlement of disputes over the adjudicating jurisdiction between people’s
courts and military courts shall be decided by the President of the Supreme
People’s Court.
Chapter XVII: TRIAL PREPARATION
Article 176.- Trial preparation time limits
1. After
receiving the case files, the judges assigned to preside over the court
sessions shall have to study the files, settle complaints and requests of the
participants in the procedure and perform other tasks necessary for opening
court sessions.
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a/ To
bring the case for trial;
b/ To
return the file for additional investigation;
c/ To
cease or suspend the case.
For
complicated cases, the presidents of courts may decide to prolong the trial
preparation time limits for no more than fifteen days for less serious offenses
and serious offenses, and for no more than thirty days for very serious
offenses and especially serious offenses. Such prolongation must be immediately
notified to the procuracies of the same level.
Within
fifteen days after issuing decisions to bring the cases for trial, the courts must
open court sessions; where they have plausible reasons, the courts may open
court sessions within thirty days.
For the
cases returned for additional investigation, within fifteen days after
receiving back the files, the judges assigned to preside over the court
sessions must issue decisions to bring the cases for trial.
Article 177.- Application, change or cancellation of deterrent
measures
After
receiving the case files, the judges assigned to preside over the court
sessions shall have the right to decide to apply, change or cancel deterrent
measures, excluding the application, change or cancellation of the temporary
detention measure, which shall be decided by the presidents or vice-presidents
of courts.
The time
limits for temporary detention for trial preparation shall not exceed the trial
preparation time limits defined in Article 176 of this Code.
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Article 178.- Contents of decisions to bring cases for trial
A
decision to bring a case for trial must contain:
1. The
full name, birth date, birth place, occupation and residence of the defendant;
2. The
title of the offense and articles of the Penal Code applied by the procuracy to
the act committed by the defendant;
3. The
date, hour and venue of opening the court session;
4. Public
or closed-door trial;
5. The
full names of the judge, jurors and court clerk; the full names of alternate
judge and jurors, if any;
6. The
full name of the procurator to participate in the court session; the full name
of the alternate procurator, if any;
7. The
full name of the defense counsel, if any;
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9. The
full names of persons summoned for questioning at the court session;
10.
Exhibits to be presented for examination at the court session.
Article 179.- Decisions to return files for additional
investigation
1. Judges
shall issue decisions to return files to procuracies for additional
investigation in the following cases:
a/ Where
important evidences in the cases need to be further examined, which cannot be
supplemented at the court session;
b/ Where
there are grounds to believe that the defendant has committed another offense
or there is another accomplice;
c/ Where
serious violations of the procedure are detected.
The
matters required to be additionally investigated must be clearly stated in the
decisions requesting the additional investigation.
2. If the
additional investigation results lead to the cessation of the cases, the
procuracies shall issue decisions to cease the cases and notify the courts
thereof.
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Article 180.- Decisions to suspend or cease cases
Judges
shall issue decisions to cease cases when there are grounds prescribed in
Article 160 of this Code; issue decisions to cease cases when there is one of
the grounds prescribed in Clause 2 of Article 105 and Points 3, 4, 5, 6 and 7
of Article 107 of this Code, or when the procuracies withdraw the entire
prosecution decisions before the opening of court sessions.
Where a
case involves many accused or defendants while the grounds for suspension or
cessation of the case do not relate to all of the accused or defendants, the
case may be suspended or ceased for each of them.
A
decision to cease a case must contain the contents specified in Clause 3,
Article 164 of this Code.
Article 181.- Withdrawal of prosecution decisions by procuracies
If
deeming that there is one of the grounds prescribed in Article 107 of this Code
or there are grounds to exempt the accused or defendants from penal liability
under the provisions of Article 19, Article 25, and Clause 2 of Article 69 of
the Penal Code, the procuracies shall withdraw prosecution decisions before the
opening of court sessions and propose the courts to cease the cases.
Article 182.- Handing of court decisions
1.
Decisions to bring the cases for trial must be handed to the defendants, their lawful
representatives and defense counsels at least ten days before the opening of
court sessions.
In case
of adjudicating defendants in absentia, the decisions to bring the cases for
trial and indictments shall be handed to the defendants’ defense counsels or
lawful representatives; such decisions must be also posted up at the head
offices of the administrations of the communes, wards or townships where the
defendants reside or at their last working places.
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3.
Decisions to bring the cases for trial, decisions to cease the cases, decisions
to suspend the cases must be immediately sent to the procuracies of the same
level.
4.
Decisions to apply, change or cancel deterrent measures must be immediately
sent to the accused or defendants, the procuracies of the same level, detention
centers where the accused or defendants are being held.
Article 183.- Summoning of persons to be questioned at court
sessions
Basing
themselves on the decisions to bring the cases for trial, judges shall summon
persons who need to be questioned at court sessions.
Chapter XVIII: GENERAL PROVISIONS ON PROCEDURES AT COURT SESSIONS
Article 184.- Direct, oral and uninterrupted trial
1. The
courts must directly determine the circumstances of the cases by asking
questions and listening to opinions of the defendants, victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
the cases, witnesses and experts, examine exhibits and listen to the opinions
of the procurators and defense counsels. Judgments shall be based only on the
evidences examined at court sessions.
2. The
trial must be conducted uninterruptedly, excluding break time.
Article 185.- Composition of first-instance trial panels
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For cases
where the defendants brought for trial are charged with offenses punishable by
death as the highest penalty, the trial panel shall be composed of two judges
and three jurors.
The
judges presiding over court sessions shall conduct the trial and maintain the
court order.
Article 186.- Replacement of trial panel members in special cases
1. The
members of trial panels must hear the cases from the beginning to the end.
2. In the
course of trial, if a judge or juror discontinues hearing the case, the court
may still hear the case with the alternate judge or juror. Only alternate
judges and jurors who are present at the court sessions from the beginning may
participate in adjudicating the cases. Where a trial panel consists of two
judges but the judge presiding over the court session cannot continue hearing
the case, the judge being member of the trial panel shall preside over the
court session and the alternate judge shall be added to the trial panel as a
member.
3. Where
there is no alternate judge or juror for replacement or if the presiding judge
of a court session must be replaced while there is no substitute judge as
prescribed in Clause 2 of this Article, the case must be re-tried from the
beginning.
Article 187.- Appearance of defendants at court sessions
1.
Defendants must appear at court sessions in response to court summonses; if
they are absent without plausible reasons, they shall be escorted according to
the procedure prescribed in Article 130 of this Code; if they are absent for
plausible reasons, the court sessions must be postponed.
If the
defendants suffer from mental diseases or other dangerous diseases, the trial
panels shall suspend the cases till the defendants recover from their
illnesses.
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2. Courts
may try the defendants in absentia in the following cases:
a/ The
defendant has escaped and his/her pursuit has been in vain;
b/ The
defendant stays abroad and cannot be summoned to the court session;
c/ The
absence of the defendant causes no obstacle to the trial and he/she has been
handed the summons properly.
Article 188.- Supervision of defendants at court sessions
1.
Defendants being held in temporary detention, when appearing at court sessions,
shall only be allowed to meet with their defense counsels. Their contacts with
other persons must be permitted by the presiding judges of the court sessions.
2.
Defendants who are not held in temporary detention must be present at the court
sessions throughout the period of adjudication.
Article 189.- Appearance of procurators
1.
Procurators of the procuracies of the same level must participate in court
sessions. For serious and complicated cases, two procurators may together
participate in court sessions. In case of necessity, there may be alternate
procurators.
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Article 190.- Appearance of defense counsels
Defense
counsels shall be obliged to participate in court sessions. They may send in
advance their written defenses to the courts. If defense counsels are absent,
the courts shall still open the court sessions.
Where
defense counsels are compulsorily required under the provisions of Clause 2,
Article 57 of this Code but they are absent, the trial panels must postpone the
court sessions.
Article 191.- Appearance of victims, civil plaintiffs, civil
defendants, persons with interests and obligations related to the cases or
their lawful representatives
1. If
victims, civil plaintiffs, civil defendants, persons with interests and
obligations related to the cases or their lawful representatives are absent,
the trial panels shall decide, on a case by-case basis, to postpone the court
session or proceed with the trial.
2. If
deeming that the absence of victims, civil plaintiffs or civil defendants would
cause obstacles only to the settlement of compensation questions, the trial
panels may sequester the compensation for later trial according to civil
procedures.
Article 192.- Appearance of witnesses
Witnesses
shall participate in court sessions in order to clarify the circumstances of
the cases. If an witness is absent but has earlier given his/her statements at
the investigating body, the judge presiding the court session shall announce
such statements. If a witness to important matters is absent, the trial panel
shall decide, on a case-by-case basis, to postpone the court session or proceed
with the trial.
If an
witness has been subpoenaed by the court but deliberately refuses to appear
without plausible reasons and their absence impedes the trial, the trial panel
may issue an escort decision. The procedure for escorting witnesses shall
comply with the provisions of Article 134 of this Code.
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1. When
being subpoenaed by courts, experts shall participate in court sessions.
2. If
experts are absent, the trial panel shall decide, on a case-by-case basis, to
postpone the court session or proceed with the trial.
Article 194.- Time limit for postponement of court sessions
For the
cases where court sessions must be postponed under Articles 45. 46, 47, 187,
189, 190, 191, 192 and 193 of this Code, the time limit for postponement of
court sessions of first-instance trial shall not exceed thirty days, counting
from the date of issuance of the decisions to postpone the court sessions.
Article 195.- Withdrawal of prosecution decisions or conclusion on
lesser offenses by procurators at court sessions
During
court sessions, after inquiring, procurators may withdraw part or whole of the
prosecution decsions or conclude on lesser offenses, but the trial panels must
try the whole cases.
Article 196.- Limits of trial
Courts
shall only adjudicate defendants and acts of the offenses which have been
prosecuted by the procuracies and decided by the courts to be brought for
trial.
Courts
may adjudicate defendants according to clauses other than those in the same
articles which the procuracies have applied to prosecute them, or for other
offenses equal to or lesser than the ones prosecuted by the procuracies.
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1. Before
starting court sessions, the court clerks must announce the internal rules of
the court sessions.
2. All
people in the courtrooms must show respect for the trial panels, keep order and
obey the instructions of the presiding judges.
3. All
people in the courtrooms must stand up when the members of the trial panels
enter the courtrooms. Those who have been summoned for inquiry may present
their opinions provided that their presentation is permitted by the presiding
judges. The persons presenting opinions must stand while being questioned,
except where they are permitted by the presiding judges to sit and present
their statements due to their poor health.
4. Persons
aged under 16 years shall not be allowed to enter the courtrooms, except where
they are summoned by the courts for inquiry.
Article 198.- Measures against persons violating order at court
sessions
Persons
who violate order at court sessions shall be warned, fined, forced to leave the
court rooms by the presiding judges or arrested on a case-by-case basis.
The
security guards of court sessions shall have to keep order at court sessions
and execute the orders of the presiding judges to force the persons disturbing
order at court sessions to leave the courtrooms or arrest them.
Article 199.- Making court judgments and decisions
1. Court
judgments shall decide on whether or not the defendants have committed the
offenses, penalties and other judicial measures. Judgments must be discussed
and adopted in the deliberation chambers.
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3.
Decisions on other matters shall be discussed and adopted by the trial panels
at the courtrooms, are not required to be made in writing but must be recorded
in the minutes of the court sessions.
Article 200.- Minutes of court sessions
1. The
minutes of a court session must contain the date, hour and venue of the court
session and all developments thereat from commencement of trial to
pronouncement of judgment. Apart from being recorded in the minutes,
developments at a court session may be audio- and/or video-recorded,
2. All
questions and answers must be recorded in the minutes.
3. At the
end of court sessions, the judges presiding over the court sessions must
examine the minutes and sign them together with the court clerks.
4.
Procurators, defendants, defense counsels, victims, civil plaintiffs, civil
defendants, persons with interests and obligations related to the cases, defense
counsels of the interests of the involved persons or lawful representatives of
such persons may read the minutes of the court sessions and have the right to
request the writing of amendments and/or supplements in such minutes and
certify them with their signatures.
Chapter XIX: PROCEDURES FOR OPENING COURT SESSIONS
Article 201.- Procedures for opening court sessions
To open a
court session, the presiding judge shall read the decision to bring the case
for trial.
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Where a
defendant has not yet been handed the indictment under the provisions of Clause
2, Article 49 and decision to bring the case for trial within the time limit
defined in Clause 1, Article 182 of this Code, and if he/she requests, the
trial panel must postpone the court session.
Article 202.- Settlement of requests for change of judges, jurors,
procurators, court clerk, experts and/or interpreters
Procurators
and participants in the procedure must be asked by the presiding judges whether
or not they request to change judges, jurors, procurators, court clerks, experts
and/or interpreters. If any of them makes such a request, the trial panel shall
consider it and make a decision thereon.
Article 203.- Explanation of the rights and obligations of
interpreters and experts
If there
are interpreters and/or experts participating in the court sessions, the
presiding judges shall introduce their full names, occupations or positions and
clearly explain their rights and obligations. These persons must pledge to
properly perform their tasks.
Article 204.- Explanation of the rights, obligations of witnesses,
and isolation of witnesses
1. After
asking the full name, age, occupation and residence place of each witness, the
presiding judges shall clearly explain their procedural rights and obligations.
Witnesses must pledge not to give false testimonies. Particularly, minor
witnesses shall not be required to make such pledge.
2. Before
witnesses are questioned about the cases, the presiding judges may decide to
apply various measures in order to prevent witnesses from hearing each other’s
testimonies or meeting with other concerned persons. In cases where the
testimonies of defendants and witnesses may influence one another, the
presiding judges may decide to separate defendants from witnesses before
questioning witnesses.
Article 205.- Settlement of requests for examination of evidences
and postponement of court sessions due to the absence of persons concerned
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Chapter XX: PROCEDURES FOR INQUIRY AT COURT SESSIONS
Article 206.- Reading of indictments
Before
inquiring, procurators shall read the indictments and present additional
opinions, if any.
Article 207.- Inquiring order
1. The
trial panels must determine fully all circumstances of each fact and each
offense in the cases in a rational inquiring order.
2. When
inquiring each person, the presiding judge shall put questions first, then
procurators, defense counsels and defense counsels of interests of the involved
persons. Participants in the court sessions shall also have the right to
request the presiding judges to ask more questions about the circumstances
required to be clarified. Experts may ask questions about matters related to
the expert examination.
3. While
inquiring, the trial panels shall examine related exhibits in the cases.
Article 208.- Announcement of statements at investigating bodies
1. If the
persons inquired are present at the court sessions, the trial panels and
procurators must not repeat or announce their statements at the investigating
bodies before they give their statements on the circumstances of the cases at
the court sessions.
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a/
Statements of the persons inquired at the court sessions are contradictory to
theirs at the investigating bodies;
b/
Inquired persons refuse to give statements at the court sessions;
c/ The
persons to be inquired are absent or deceased.
Article 209.- Inquiry of defendants
1. The
trial panels must inquire each defendant separately. If the statements of this
defendant may affect those of another, the presiding judge must isolate them.
In this case, the isolated defendants shall be informed of the statements of
the previous defendants and have the right to put questions to such defendants.
2.
Defendants shall present their opinions on the indictments and circumstances of
the cases. The trial panels shall further inquire about insufficient or
contradictory points in the defendants’ statements.
3.
Procurators shall inquire about circumstances of the cases which are related to
the accusation or exculpation of defendants. Defense counsels shall inquire
about circumstances related to the defense, defense counsels of the interests
of the involved parties shall inquire about circumstances related to the
protection of interests of the involved parties. Participants at court sessions
shall have the right to propose the presiding judges to further ask about
circumstances related to them.
4. If
defendants refuse to answer questions, the trial panels, procurators, defense
counsels and defense counsels of the interests of the involved parties shall
continue to inquire other persons and examine exhibits and documents related to
the cases.
Article 210.- Inquiry of victims, civil plaintiffs, civil
defendants, persons with interests and obligations related to the cases or
their lawful representatives
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Article 211.- Inquiry of witnesses
1. The
trial panels must inquire each witness separately and not let other witnesses
know the contents of such inquiry.
2. While
inquiring witnesses, the trial panels must ask questions to clarify their
relationships with the defendants and involved parties in the cases. The
presiding judges shall request witnesses to state clearly the circumstances of
the cases they know, then inquire further about those insufficient or
contradictory points in their testimonies. Procurators, defense counsels,
defense counsels of the interests of the involved parties then may further ask
the witnesses.
3. If
witnesses are minor, the presiding judges may seek the help of their parents,
mentors or teachers in inquiring them.
4. After
giving their testimonies, witnesses shall stay on in the courtrooms for
possible further inquiry.
5. In
case of necessity to ensure safety for witnesses and their relatives, the trial
panels must decide to apply measures to protect them according to law.
Article 212.- Examination of exhibits
1.
Exhibits, photos or minutes certifying exhibits shall be presented for
examination at court sessions.
When
necessary, the trial panels may together with procurators, defense counsels and
other participants in court sessions, come to examine on the spot exhibits
which cannot be brought to the court sessions. The on-spot examination must be
recorded in a minutes according to the provisions of Article 95 of this Code.
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Article 213.- On-spot examination
When
deeming it necessary, the trial panels may together with procurators, defense
counsels and other participants in court sessions come to examine the scenes of
offenses or other places related to the cases. Procurators, defense counsels
and other participates at court sessions shall have the right to present their
remarks on the scenes of offenses or other places related to the cases.
The trial
panels may inquire other participants in court sessions further about matters
related to such places.
The
on-spot examination must be recorded in a minutes according to general
procedures prescribed in Article 95 of this Code.
Article 214.- Presentation and announcement of documents of the
cases and comments and reports of agencies or organizations
Comments
and reports of agencies or organizations on circumstances of the cases shall be
presented by the representatives of such agencies or organizations; if no
representatives of such agencies or organizations are present, the trial panels
shall announce such comments and reports at the court sessions.
Documents
contained in the case files or just presented during the inquiry shall all have
to be announced at court sessions.
Procurators,
defendants, defense counsels and other participants in court sessions shall
have the right to give their remarks on such documents and inquire further
about related matters.
Article 215.- Inquiry of experts
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2. At
court sessions, experts shall have the right to give additional explanations on
the basis of the expertise conclusions.
3. If
experts are absent, the presiding judges shall announce the expertise
conclusions.
4.
Procurators, defense counsels and other participants in court sessions shall
have the right to give remarks on the expertise conclusions, inquire about
unclear or contradictory matters in such conclusions.
5. When
deeming it necessary, the trial panels shall decide to solicit additional expertise
or re-expertise.
Article 216.- Termination of inquiry
When
deeming that all circumstances of the cases have been examined fully, the
presiding judges shall ask procurators, defendants, defense counsels and other
participants in the court sessions whether they request to inquire about any
matters. If any of them makes such a request and deeming that such request is
justifiable, the presiding judges shall decide to continue the inquiry.
Chapter XXI: ARGUMENT AT COURT SESSIONS
Article 217.- Order of presentation of arguments
1. At the
end of the inquiry at the court sessions, procurators shall present the
arraignments, proposing the charges against the defendants on the basis of the
whole or part of the indictments or conclusions on lesser offenses; if deeming
that there are no grounds for conviction, they shall withdraw the whole
prosecution decisions and propose the trial panels to pronounce the defendants
not guilty.
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2.
Defendants shall present their defense, if they have defense counsels, such
defense counsels shall defend the defendants. Defendants shall have the right
to add defense opinions.
3.
Victims, civil plaintiffs, civil defendants and persons with interests and
obligations related to the cases or their lawful representatives may present
their opinions to protect their rights and interests; if they have defense
counsels of their interests, such defense counsels shall have the right to
present and add opinions.
Article 218.- Counter-argument
Defendants,
defense counsels and other participants in the procedure shall have the right
to present their opinions on the arraignments made by procurators and put
forward their requests. Procurators must present their arguments on each
opinion.
Participants
in the arguing process shall have the right to respond to opinions of others.
The presiding judges must not restrict the arguing time, must create conditions
for participants in the arguing process to present all opinions, but they
shall, however, have the right to cut out opinions irrelevant to the cases.
The
presiding judges shall have the right to request procurators to respond to
opinions related to the cases, which are presented by defense counsels and
other participants in the procedure but have not yet been touched upon by
procurators in their arguments.
Article 219.- Reopening of inquiry
If,
through the arguing process, they deem it necessary to further examine
evidences, the trial panels may decide to reopen the inquiry. The arguing
process must be continued once the inquiry ends.
Article 220.- Final words of defendants
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Defendants
shall then be allowed to say their final words. Questions must not be put while
the defendants are saying their final words. The trial panels shall have the
right to request the defendants not to dwell on matters irrelevant to the cases
but must not restrict the time for them to say.
If, in
their final words, the defendants additionally present new circumstances of
important significance to the cases, the trial panels must decide to re-open
the inquiry.
Article 221.- Consideration of withdrawal of prosecution decisions
or conclusions on lesser offenses
1. When
procurators withdraw part of their prosecution decisions or conclude on lesser
offenses, the trial panels shall still continue adjudicating the cases.
2. Where
procurators withdraw the whole of the prosecution decisions, the trial panels,
before deliberating the judgments, shall request the participants in the
procedure at the court sessions to give their opinions on such withdrawal.
Chapter XXII: DELIBERATION AND PRONUNCIATION OF JUDGMENTS
Article 222.- Deliberation of judgments
1. Only
judges and jurors shall have the right to deliberate judgments. Members of the
trial panels must settle all matters of the cases by majority vote on each
matter. Judges shall vote last. Persons holding minority opinions shall have
the right to present their opinions in writing for inclusion in the case files.
2. Where
procurators withdraw the whole prosecution decisions, the trial panels shall
still settle matters of the cases in the order prescribed in Clause 1 of this
Article. If there are grounds to confirm that defendants are not guilty, the
trial panels shall declare the defendants not guilty; if deeming that the
withdrawal of the prosecution decisions is ungrounded, they shall decide to
cease the cases and make proposals to the immediate superior procuracies.
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4. All
opinions and decisions of the trial panels made in the process of deliberating
judgments must be recorded in the minutes. Judgment deliberation minutes must
be signed by all members of the trial panels at the deliberation chambers
before the judgments are pronounced.
Article 223.- Reopening of inquiry and argument
If they
find, through judgment deliberation, that some circumstances of the cases have
not yet been inquired into or have been insufficiently inquired into, the trial
panels shall decide to reopen the inquiry and argument.
Article 224.- Judgments
1. The
courts shall hand down judgments in the name of the Socialist Republic of
Vietnam.
2. A
judgment should contain the date, hour and venue of the court session; full
names of members of the trial panel and court clerk; full names of procurators;
full name, birth date, birth place, residence, occupation, educational level,
social status and previous criminal records of the defendant; the date the defendant
is held in custody and/or temporary detention; full name, age, occupation,
birth place and residence of the defendant’s lawful representative; full name
of the defense counsel; full names, ages, occupations, residences of the
victim, civil plaintiff, civil defendant, persons with interests and
obligations related to the case, and their lawful representatives.
3. A
judgment must describe the commission of the offense by the defendant, analyze
evidences arraigning and exculpating the defendant, determine where or not the
defendant is guilty, and if guilty, which offense he/she has committed under
which article and clause of the Penal Code, circumstances aggravating and
extenuating his/her penal liability and how should they be handled. If the
defendant is not guilty, the judgment must clearly state the grounds to confirm
that the defendant is not guilty and deal with the restoration of his/her
honor, legitimate rights and interests. The last part of a judgment shall
contain the court’s decisions and the right to appeal against the judgment.
Article 225.- Proposal to remedy mistakes in the managerial work
1.
Together with handing down judgments, the courts shall issue proposals to the
concerned agencies and organizations to apply necessary measures to overcome
crime causes and conditions at their agencies and organizations. Within thirty
days after receiving the courts’ proposals, such agencies and organizations
must notify in writing the courts of the measures already applied.
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Article 226.- Pronouncement of judgments
All
people present in the courtrooms must stand up when a judgment is pronounced.
The presiding judge or another member of the trial panel shall read the
judgment and may, after reading, explain further the execution of the judgment
and the right to appeal.
If the
defendant does not know Vietnamese, after the judgment is pronounced, the
interpreter must read to the defendant the whole judgment in the language which
the defendant knows.
Article 227.- Release of defendants
In the
following cases, the trial panels must declare the immediate release at the
court sessions of the defendants who are temporarily detained, provided that
they are not temporarily detained for another offense:
1. The
defendants are not guilty;
2. The
defendants are exempt from penal liability or from serving the penalty;
3. The
defendants are punished with penalties other than imprisonment.
4. The
defendants are entitled to suspended judgments;
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Article 228.- Arrest of defendants for temporary detention after
the pronouncement of judgments
1. For
defendants who are being temporarily detained and sentenced to imprisonment but
their temporary detention time limits expire on the date the court sessions
end, the trial panels shall issue decisions to hold the defendants in temporary
detention in order to secure the judgment execution, except for the cases
prescribed in Clause 4 and Clause 5 of Article 227 of this Code.
2. Where
the defendants who are not held in temporary detention are sentenced to
imprisonment, they shall only be arrested for temporary detention in order to
serve the penalties when the judgments become legally valid. The trial panels
may issue decisions to immediately arrest the defendants for temporary
detention if they have grounds to believe that the defendants may escape or
continue to commit other offenses.
3. The
time limit for temporary detention of defendants prescribed in Clause 1 and
Clause 2 of this Article is forty five days as from the date of pronouncement
of the judgments.
4. For
defendants punished by capital punishment, the trial panels shall decide in the
judgments on the continued temporary detention of the defendants to secure the
execution of the judgments.
Article 229.- Handing of judgments
Within
ten days after the date of pronouncement of the judgments, the first-instance
courts must hand copies of the judgments to the defendants, the procuracies of
the same level, and defense counsels, send them to persons tried in absentia
and the police agencies of the same level; notify such in writing to the
administrations of the communes, wards or townships where the defendants reside
or the agencies or organizations where they work.
In case
of trying defendants in absentia under the provisions of Point a or Point b,
Clause 2, Article 187 of this Code, within the above-said time limit, copies of
the judgments must be posted up at the offices of the administrations of the
communes, wards or townships where the defendants last reside or of the
agencies or organizations where they last work.
Victims,
civil plaintiffs, civil defendants, persons with interests and obligations
related to the cases or their lawful representatives shall have the right to
request the courts to provide them extracts or copies of the judgments.
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APPELLATE TRIAL
Chapter XXIII: NATURE OF APPELLATE TRIAL AND RIGHTS TO APPEAL AND
PROTEST
Article 230.- Nature of appellate trial
Appellate
trial means the re-trial of the cases or the review of first-instance decisions
by immediate superior courts when the first-instance judgments or decisions in
such cases are appealed or protested against before they become legally valid.
Article 231.- Persons entitled to appeal
Defendants,
victims and their lawful representatives shall have the right to appeal against
first-instance judgments or decisions.
Defense
counsels shall have the right to appeal in order to protect the interests of
minors or persons with physical or mental defects.
Civil
plaintiffs, civil defendants and their lawful representatives shall have the
right to appeal against part of the judgments or decisions, which is related to
damage compensation.
Persons
with interests and obligations related to the cases and their lawful
representatives shall have the right to appeal against part of the court
judgment or decisions, which is related to their interests and obligations.
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Persons
who are declared not guilty by the courts shall have the right to appeal
against part the first-instance judgments declaring them not guilty regarding
the reasons for such declaration.
Article 232.- Protests by procuracies
The
procuracies of the same level and the immediate superior procuracies shall have
the right to protest against first-instance judgments or decisions.
Article 233.- Procedures for lodging appeals and protests
1.
Appellants must send their written appeals to the courts which have conducted
first-instance trial or to the courts of appeal. If the defendants are under
temporary detention, the superintendence boards of the detention centers must
guarantee the defendants to exercise their right to appeal.
Appellants
may also present their appeals directly to the courts which have conducted
first-instance trials. The courts must make minutes of such appeals as
prescribed in Article 95 of this Code.
2. The
procuracies of the same level or immediate higher procuracies shall lodge
written protests, clearly stating the reasons therefor. Written protests shall
be addressed to the courts which have conducted first-instance trials.
Article 234.- Time limits for lodging appeals and protests
1. The
time limit for lodging appeals is fifteen days after the date of pronouncement
of judgments. For defendants or involved parties absent at the court sessions,
the time limit for lodging appeals is counted from the date the copies of the
judgments are handed to them or posted up.
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2. If
written appeals are sent by post, the date of such appeals shall be the date of
the postmarks affixed by the sending post offices on the envelops. Where
written appeals are sent via the superintendence boards of the detention
centers, the date of such appeals shall be the date the superintendence boards
of the detention centers receive such written appeals.
Article 235.- Late appeals
1. Late
appeals may be accepted if plausible reasons can be given.
2. The
courts of appeal shall set up trial panels each consisting of three judges to
consider the reasons for late appeals. Such trial panels shall have the right
to decide to accept or reject late appeals.
Article 236.- Notification of appeals or protests
1.
Appeals and protests must be notified in writing by the courts of first instance
to the procuracies of the same level and participants in the procedure within
seven days after their receipt.
2.
Persons notified of the appeals or protests shall have the right to send their
written opinions on the contents of such appeals or protests to the courts of
appeal. Their opinions shall be included in the case files.
Article 237.- Consequences of appeals and protests
1. Parts
of the judgments, which are appealed or protested against, shall not be
executed, except for the cases prescribed in Clause 2, Article 255 of this
Code. When the whole judgments are appealed or protested against, the whole
judgments shall not be executed.
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Article 238.- Supplementation, change and withdrawal of appeals or
protests
1. Before
the opening of or during the appellate-court sessions, the appellants or
procuracies shall have the right to supplement or change their appeals or
protests, provided that such supplementation or change must not aggregate the
situation of the defendants; or to withdraw part or the whole of their appeals
or protests.
2. In
cases where the whole appeals or protests are withdrawn at the court sessions,
the appellate trial must be ceased. First-instance judgments shall become
legally valid from the date the courts of appeal issue decisions to cease the
appellate trial.
Article 239.- Appeals and protests against decisions of the courts
of first instance
1. The
time limit for the procuracies of the same level to protest against decisions
of the courts of first instance is seven days and for immediate higher
procuracies fifteen days, counting from the date of issuance of such decisions.
2.
Decisions of the courts of first instance to suspend or cease the cases may be
appealed against within seven days, counting from the date the persons with the
right to appeal receive such decisions.
Article 240.- Validity of courts’ first-instance judgments or
decisions which are not appealed or protested against
The
courts’ first-instance judgments and decisions and parts thereof which are not
appealed or protested against, shall become legally valid from the expiry date
of the time limit for lodging appeals or protests.
Chapter XXIV: APPELLATE TRIAL PROCEDURES
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The court
of appeal shall consider the contents of appeals or protests. If deeming it
necessary, they may examine other parts of the judgments, which are not
appealed or protested against.
Article 242.- Time limit for appellate trial
The
provincial-level people’s courts and the military zone-level military courts
must open appellate court sessions within sixty days; the Court of Appeal of
the Supreme People’s Court or the Central Military Court must open appellate
court sessions within ninety days after receiving the case files.
At least
fifteen days before opening court sessions, the courts of appeal must notify in
writing the procuracies of the same level and participants in the procedure of
the time and venue of the appellate trial of the cases.
Article 243.- Application, change or cancellation of deterrent
measures by courts of appeal
1. After
receiving the case files, the courts of appeal shall have the right to decide
to apply, change or cancel deterrent measures. The application, change or
cancellation of the temporary detention measure shall be decided by the
presidents or vice-presidents of the provincial-level people’s courts or the
military zone-level military courts or by the judges holding the post of
president or vice-president of the Court of Appeal of the Supreme People’s
Court.
The
temporary detention time limit must not exceed the time limit for appellate
trial prescribed in Article 242 of this Code.
2. For
defendants being under temporary detention whose detention periods end on the
date of opening the appellate court sessions, if deeming it necessary to
continue their temporary detention in order to complete the trial, the courts
shall issue orders to keep them in temporary detention until the end of the
court sessions.
3. For
defendants being under temporary detention and sentenced to imprisonment and
whose temporary detention periods end on the date of completion of the court
sessions, the trial panels shall issue decisions to keep them in temporary
detention in order to secure the execution of their judgments, except for the
cases prescribed in Clause 4 and Clause 5, Article 227 of this Code.
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The temporary
detention time limit shall be forty five days after the date of pronouncement
of the judgments.
Article 244.- Composition of the appellate trial panels
An
appellate-trial panel shall be composed of three judges and possibly added two
jurors in case of necessity.
Article 245.- Participants in appellate court sessions
1. At
appellate court sessions, the participation by procurators of the procuracies
of the same level is compulsory, if they do not appear, the court sessions must
be postponed.
2.
Defense counsels, defense counsels of the interests of the involved parties,
appellants, persons with interests and obligations related to the appeals or
protests shall be summoned to attend the court sessions. If any of them is
absent for plausible reasons, the trial panels may still proceed with the trial
but shall refrain from issuing judgments or decisions unfavorable to the absent
defendant or involved party. Court sessions must be postponed in other cases.
The time
limit for postponing a court session as prescribed in Clause 1 or Clause 2 of
this Article or in Articles 45, 46 and 47 of this Code shall not exceed thirty
days, counting from the date of issuance of the decision to postpone the court
session.
3. The
participation in court sessions by other persons shall be decided by the courts
of appeal if they deem their appearance necessary.
Article 246.- Supplementation and examination of evidences at the
courts of appeal
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2.
Previous evidences, new evidences, newly added materials and/or objects must
all be examined at the court sessions. Judgments of the courts of appeal must
be based on both previous and new evidences.
Article 247.- Procedures at appellate court sessions
Appellate
court sessions shall be conducted like first-instance ones but before the
inquiry, one trial panel member must briefly present the case contents,
decision(s) of the first-instance judgment, contents of the appeal or protest.
In the arguing process, procurators must present the procuracies’ viewpoints on
the settlement of the cases.
Article 248.- Appellate judgments and jurisdiction of courts of
appeal
1. The
courts of appeal shall hand down the judgments in the name of the Socialist
Republic of Vietnam. A judgment should contain the date, hour and venue of the
court session; full names of the members of the trial panel and the court
clerk; the full names of the procurators; the full name, birth date, birth
place, residence, occupation, educational level, social status and previous
criminal records of the defendant; the date of custody or temporary detention
of the defendant; the full name of the defense counsel; full names, ages,
occupations and residences of the victim, civil plaintiff, civil defendant,
persons with interests and obligations related to the case, and their lawful
representatives.
A
judgment must contain the brief content of the case, the process of settling
the case, decisions of the first-instance judgment, the contents of the appeal
or protest, and grounds to make one of the decisions defined in Clause 2 of
this Article. The last part of a judgment shall contain the court decisions.
2. The
courts of appeal shall have the right to decide:
a/ To
reject the appeal or protest and keep the first-instance judgment unchanged;
b/ To
amend the first-instance judgment;
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d/ To
cancel the first-instance judgment and cease the case.
3.
Appellate judgments shall become legally valid from the date of their
pronouncement.
Article 249.- Amendment of first-instance judgments
1. The
courts of appeal shall have the right to amend the first-instance judgments as
follows:
a/ To
exempt defendants from penal liability or penalty;
b/ To
apply the Penal Code’s article and clauses on lesser offenses;
c/ To
commute penalties for defendants;
d/ To
reduce the levels of damage compensation and amend decisions on handling exhibits;
e/ To
shift to lighter penalties; to retain the imprisonment term and hand down
suspended sentences.
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3. Where
the protesting procuracies or the appealing victims request, the courts of
appeal may also increase penalties, apply the Penal Code’s articles and clauses
on more serious offenses; increase the damage compensation levels; if the
procuracies protest or the victims, civil plaintiffs or civil defendants
appeal; if having grounds, the courts may also commute penalties, apply the
Penal Code’s articles and clauses on lesser offenses, shift to lighter
penalties; retain the imprisonment terms and hand down suspended sentences, or
reduce the damage compensation levels.
Article 250.- Dismissal of first-instance judgments for
re-investigation or re-trial
1. The
courts of appeal shall dismiss the first-instance judgments when they find that
the investigation at the first-instance level is insufficient and cannot be
supplemented at the appellate level.
2. The
courts of appeal shall dismiss the first-instance judgments for re-trial at the
first-instance level with a new composition of the trial panel in the following
cases:
a/ The
composition of the first-instance trial panel did not conform to law provisions
or showed other serious violations of the criminal procedure.
b/ There
are grounds to believe that the persons who were declared not guilty by the
first-instance courts had committed offences.
3. When
dismissing the first-instance judgments for re-investigation or re-trial, the
courts of appeal must clearly state in writing the reasons therefor.
4. When
dismissing the first-instance judgments for re-trial, the courts of appeal
shall neither decide in advance on evidences which the courts of first instance
must accept or reject nor decide in advance on the Penal Code’s articles and
clauses as well as penalties the courts of first instance must apply.
5. In
case of dismissing the first-instance judgments for re-investigation or
re-trial but the defendants’ temporary detention period has expired and if
deeming it necessary to continue holding the defendants in temporary detention,
the appellate trial panels shall issue decisions to continue keeping the
defendants in temporary detention till the procuracies or the courts of first
instance re-handle the cases.
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Article 251.- Dismissal of first-instance judgments and cessation
of cases
When
having one of the grounds prescribed at Points 1 and 2, Article 207 of this
Code, the courts of appeal shall dismiss the first-instance judgments, declare
the defendants not guilty and cease the cases; if having one of the grounds
prescribed at Points 3, 4, 5, 6 and 7, Article 107 of this Code, they shall
dismiss the first-instance judgments and cease the cases.
Article 252.- Re-investigation or re-trial of criminal cases
After the
courts of appeal dismiss the first-instance judgments for re-investigation or
re-trial, the investigating bodies shall re-investigate, the procuracies
re-institute and courts of first instance re-try the cases according to general
procedures.
Article 253.- Appellate trial of decisions of courts of first
instance
1. For
appealed or protested decisions of the courts of first instance, the courts of
appeal shall not have to open court sessions but may, if deeming it necessary,
summon the necessary participants in the procedure and listen to their opinions
before issuing decisions.
2. The
courts of appeal shall have to issue decisions to settle appeals or protests
within ten days after receiving the case files.
3. When
examining the appealed or protested decisions of the courts of first instance,
the courts of appeal shall have the powers defined in Article 248 of this Code.
4.
Appellate decisions shall become legally valid from the date of their issuance.
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Within
ten days counting from the date of pronouncing the judgments or issuing the
decisions, the courts of appeal must hand copies of the appellate judgments or
decisions to the appellants, the courts, procuracies and police agencies of
places where the cases were tried at the first-instance level, and to persons
with interests and obligations related to the appeals or protests or their
lawful representatives, the competent civil judgment-executing agencies in
cases where the appellate judgments pronounce penalties of pecuniary fines,
property confiscation and civil decisions; and notify in writing the
administrations of the communes, wards or townships where the defendants reside
or the agencies or organizations where they work. Where the appellate trial is
conducted by the Court of Appeal of the Supreme People’s Court, this time limit
may be longer but must not exceed twenty five days.
Victims,
civil plaintiffs, civil defendants, persons with interests and obligations
related to the cases or their lawful representatives shall have the right to
request the courts to provide them with extracts or copies of the judgments.
Part Five
EXECUTION OF COURT
JUDGMENTS AND DECISIONS
Chapter XXV: GENERAL PROVISIONS ON EXECUTION OF COURT JUDGMENTS
AND DECISIONS
Article 255.- Judgments and decisions to be executed
1.
Judgments and decisions to be executed are those which have become legally
valid, including:
a/
Judgments and decisions of the courts of first instance, which are not appealed
or protested against according to the appellate procedures;
b/
Judgments and decisions of the courts of appeal;
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2. For
cases where defendants are kept in temporary detention but the courts of first
instance decide to cease the cases, not to convict them, exempt them from penal
liability or penalty, to hand down non-custodial penalties or suspended
sentences or where the imprisonment terms are equal to or shorter than the
temporary detention periods, the court judgments or decisions shall be
immediately executed though they may be protested or appealed against.
Article 256.- Procedures for execution of court judgments and
decisions
1. Within
seven days after the court judgments or decisions become legally valid or after
receiving the appellate judgments or decisions, the cassation-trial or
reopening trial decisions, the presidents of the courts which have conducted
the first-instance trials shall have to issue decisions to execute the
judgments or entrust other courts of the same level to issue decisions to
execute the judgments.
2. A
decision to execute a judgment must contain the full name of its issuer; the
name of the agency tasked to execute the judgment or decision; the full name,
birth date and residence of the convict; the judgment or decision the convict
must serve.
Where the
convicts are on bail, the decisions to execute the imprisonment sentences must
clearly state that within seven days after receiving the decisions, the
convicts must appear at the police offices to serve their sentences.
3.
Decisions to execute judgments and judgment or decision extracts must be sent
to the procuracies of the same level of the places where the judgments are to
be executed, the judgment-executing agencies and the convicts.
4. If the
persons on bail escape after being sentenced to imprisonment, the presidents of
the courts which have issued the decisions to execute the judgments shall
request the investigating bodies of the same level to issue pursuit warrants.
Article 257.- Agencies, organizations tasked to execute court
judgments and decisions
1. The
police agencies shall execute the penalties of expulsion, termed imprisonment,
life imprisonment and join the councils for execution of death penalties as
prescribed in Article 259 of this Code.
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3. The
execution of penalties of probation, residence ban, deprivation of a number of
civic rights, ban from holding certain positions, ban from practicing certain
occupations or doing certain jobs shall be undertaken by the commune, ward or
township administrations or agencies or organizations, where the judgments are
executed.
4.
Specialized medical establishments shall execute decisions on compulsory
medical treatment.
5. Civil
judgment-executing agencies shall execute penalties of pecuniary fine or
property confiscation and civil decisions in criminal cases. The commune, ward
or township administrations or agencies or organizations shall be tasked to
assist executors in executing the judgments. If it is necessary to apply
forcible measures to execute the judgments, the police and other concerned
agencies shall have to coordinate therein.
6. The
execution of judgments and decisions of military courts shall be undertaken by
organizations in the army, except for the penalty of expulsion.
7. Judgment-executing
agencies must report to the presidents of the courts which have issued
decisions to execute the judgments on the execution of the judgments or
decisions; and state clearly the reasons if they cannot execute them yet.
Chapter XXVI: EXECUTION OF DEATH PENALTY
Article 258.- Procedures for consideration of death judgments
before execution
1. After
the death judgments become legally valid, the case files must be immediately
sent to the President of the Supreme People’s Court and the judgments must be
immediately sent to the Chairman of the Supreme People’s Procuracy.
Within
two months after receiving the judgments and case files, the President of the
Supreme People’s Court and the Chairman of the Supreme People’s Procuracy shall
have to decide to protest or not to protest against the judgments according to
cassation or reopening procedures.
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2. Death
judgments shall be executed if they are not protested against by the President
of the Supreme People’s Court and the Chairman of the Supreme People’s
Procuracy according to cassation or reopening procedures.
Where the
death judgments are protested against according to cassation or reopening
procedures but the cassation trial panel or the reopening trial panel of the
Supreme People’s Court decides to reject such protests and retain the death
judgments, the Supreme People’s Court must immediately notify the convicts
thereof so that the latter can make petitions for commutation of their death
penalties.
Where the
convicts have made petitions for commutation of their death penalties, the
death penalties shall be executed after the State President rejects their
petitions.
Article 259.- Execution of death penalty
1. The
presidents of the courts which have conducted first-instance trials shall issue
execution decisions and set up the councils for execution of death penalty,
each consisting of representatives of the court, procuracy and police. The
judgment-executing councils must check the identity cards of the convicts
before executing the judgments.
Where the
convicts are women, before issuing decisions to execute the judgments, the
presidents of the courts which have conducted first-instance trials shall have
to examine the conditions for non-application of death penalty, prescribed in
Article 35 of the Penal Code. If there are grounds that the convicts meet the
conditions prescribed in Article 35 of the Penal Code, the presidents of the courts
which have conducted first-instance trial shall not issue decisions to execute
the judgments and report such to the President of the Supreme People’s Court
for consideration and commutation of the death penalty to life imprisonment for
the convicts.
Before
executing women convicts, the judgment-executing councils shall, apart from
checking their identity cards, have to check the documents related to the
conditions for non-application of the death penalty prescribed in Article 35 of
the Penal Code.
Where the
judgment-executing councils detect that the convicts meet the conditions
prescribed in Article 35 of the Penal Code, they shall postpone the execution
and report such to the presidents of the courts which have conducted
first-instance trial for reporting to the President of the Supreme People’s
Court for consideration and commutation of the death penalty to life
imprisonment for the convicts.
2. Before
the execution, the convicts must be handed and read the decisions to execute
the judgments, decisions not to protest against the judgments, made by the
President of the Supreme People’s Court and decisions not to protest against
the judgments, made by the Chairman of the Supreme People’s Procuracy; if the
convicts have made petitions for commutation of their death penalty, they must
be handed and read the State President’s decisions to reject their commutation
petitions.
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4. The
execution of death penalty must be recorded in a minutes which must clearly state
the handing of decisions to the convicts for reading, their words,
correspondence and articles they have left to their relatives.
5. In
special circumstances, the judgment-executing councils shall postpone the
execution and report such to the presidents of the courts which have issued the
execution decisions for further reporting to the President of the Supreme
People’s Court.
Chapter XXVII: EXECUTION OF IMPRISONMENT PENALTIES AND OTHER
PENALTIES
Article 260.- Execution of imprisonment penalties
1. If the
convicts are under temporary detention, the police agencies must permit them to
meet their relatives before serving their sentences at the requests of the
convicts’ relatives.
The
superintendence boards of the prisons must notify the convicts’ families of the
places where such convicts shall serve their penalties.
2. Where
the convicts are on bail, past the time limit if they do not appear at the
police offices to serve their penalties, they shall be escorted.
3. The
presidents of the courts which have issued judgment execution decisions must
monitor the execution of the judgments. The police agencies must notify the
courts of the arrest of the convicts for execution of the judgments or of the
reasons for failure to arrest them and measures to be taken to ensure the
execution of the judgments.
4. Where
the persons who are serving their imprisonment penalties escape from the
prisons, the police agencies shall issue pursuit warrants.
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1. For persons
who are sentenced to imprisonment but on bail, the presidents of the courts
which have issued judgment execution decisions may permit on their own or at
the requests of the procuracies or police agencies of the same level or the
convicts to postpone the serving of imprisonment penalties in the cases
prescribed in Clause 1, Article 61 of the Penal Code.
2. At
least seven days before the expiry of the period of postponement of the serving
of imprisonment penalties, the presidents of the courts which have permitted
the postponement must issue judgment execution decisions and immediately send
them together with the copies of the legally valid imprisonment judgments
and/or decisions to the police agencies of the same level and the convicts
before the expiry of the period of postponement of the serving of imprisonment
penalties.
Past
seven days after the expiry of the period of postponement of the serving of
imprisonment penalties, if the convicts do not appear at the police offices
without plausible reasons in order to go to serve their imprisonment penalties,
the police agencies shall have to escort them to go to serve their imprisonment
penalties.
Article 262.- Suspension of serving of imprisonment penalties
1. At the
requests of the procuracies or the superintendence boards of the prisons where
the convicts are serving their imprisonment penalties:
a/ The
presidents of the provincial-level courts of the places where the convicts are
serving their imprisonment penalties may allow such convicts to temporarily
stop serving their imprisonment penalties in the cases prescribed at Point a,
Clause 1 of Article 61, and in Article 62 of the Penal Code.
b/ The
presidents of the courts which have issued judgment execution decisions may
allow the persons serving their imprisonment penalties to temporarily stop
serving their imprisonment penalties in the cases prescribed at Points b, c and
d, Clause 1 of Article 61, and in Article 62 of the Penal Code.
At least
seven days before the expiry of the period of suspension of imprisonment
penalties, the presidents of the courts which have permitted the suspension of
serving of imprisonment penalties must issue judgment execution decisions with
regard to the remaining part of their penalties and immediately send such
decisions to the police agencies of the same level in the same places of the
courts which have issued the suspension decisions and to the convicts.
Past
seven days after the expiry of the period of suspension of the serving of
imprisonment penalties, if the convicts do not appear at the police offices
without plausible reasons in order to go to serve their imprisonment penalties,
the police agencies shall have to escort them to go to serve their imprisonment
penalties.
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Article 263.- Management of persons enjoying postponement or
suspension of serving of imprisonment penalties
1.
Persons enjoying the postponement or suspension of the serving of imprisonment
penalties shall be assigned to the commune, ward or township administrations of
the places where they reside or the agencies or organizations where they work
for management. They must not go elsewhere without the permission of the
commune, ward or township administrations or the agencies or organizations that
manage them.
2. During
the period of postponement or suspension of the serving of imprisonment
penalties, if the convicts commit serious law violations or there emerge
grounds to believe that they may abscond, the presidents of the courts which
have permitted the postponement or suspension of the serving of imprisonment
penalties shall cancel such decisions then issue judgment execution decisions
to force them to serve their imprisonment penalties. Such judgment execution
decisions shall be sent to the police agencies of the same level in the same
localities of the decision-issuing courts. Immediately after receiving the
judgment execution decisions, the police agencies must organize the arrest and
escort of the convicts to go to serve their imprisonment penalties.
Article 264.- Execution of suspended sentences and non-custodial
reform penalty
Persons
subject to suspended sentence and persons subject to non-custodial reform
penalty shall be assigned to the commune, ward or township administrations of
the places where they reside or the agencies or organizations where they work
for supervision and education.
Article 265.- Execution of expulsion penalty
Persons
subject to expulsion must get out of the territory of the Socialist Republic of
Vietnam within fifteen days after the execution decisions are issued. Where the
persons subject to expulsion penalty must also serve other penalties or perform
other obligations, the time limit for them to get out of the territory of the
Socialist Republic of Vietnam shall be prescribed by law.
Article 266.- Execution of probation or residence ban penalty
For
persons subject to probation, after they have completely served their
imprisonment penalties, they shall be assigned to the commune, ward or township
administrations of the places where they reside for execution of the probation
penalty. Persons subject to residence ban shall not be allowed to temporarily
or permanently reside in the localities where they are banned from residing in.
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Decisions
to execute fine or property confiscation judgments must be sent to the procuracies
of the same level, executors, convicts and the administrations of the communes,
wards or townships where the convicts reside.
Property
confiscation shall be conducted under the provisions of Article 40 of the Penal
Code.
Chapter XXVIII: REDUCTION OF PENALTY TERMS OR EXEMPTION FROM
SERVING PENALTIES
Article 268.- Conditions for reduction of penalty terms or
exemption from serving penalties
1.
Persons who are serving imprisonment, non-custodial reform, residence ban or
probation penalties may have the terms of serving such penalties reduced under
the provisions of Articles 57, 58, 59 and 76 of the Penal Code; if they have
not yet served their penalties, they may be exempt from serving the whole
penalties under the provisions of Clauses 1, 2, 3 and 5, Article 57 of the
Penal Code.
Persons
who are allowed to temporarily stop serving their imprisonment penalties may be
exempt from serving the remainder of their penalties under the provisions of
Clause 4, Article 57 of the Penal Code.
Persons
who have served part of their fine penalties may be exempt from paying the
remaining amounts of fine under the provisions of Clause 2, Article 58 and
Clause 3, Article 76 of the Penal Code.
2.
Persons subject to suspended sentence may have their testing periods shortened
under the provisions of Article 60 of the Penal Code.
Article 269.- Procedures for reduction of penalty terms or
exemption from serving penalties
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The
courts competent to decide on the exemption from serving imprisonment penalties
shall be provincial-level people’s courts or military zone-level military
courts of the places where the convicts reside or work.
The
reduction of the terms of, or exemption from serving, other penalties or
reduction of the testing periods shall be decided by the district-level
people’s courts or the regional military courts of the places where the
convicts are serving their penalties or undergoing the test.
2.
Dossiers of application for exemption from serving non-custodial reform
penalties, exemption from serving the whole or remainder of imprisonment
penalties, exemption from paying remaining fine amounts must contain the
proposals of the chairmen of the procuracies of the same level.
Dossiers
of application for reduction of imprisonment terms must contain the proposals
of the agencies executing the imprisonment penalties.
Dossiers
of application for reduction of the terms of non-custodial reform penalties
must contain the proposals of the agencies, organizations or local
administrations assigned to directly supervise and educate the convicts.
Dossiers
of application for reduction of, or exemption from serving, other penalties or
shortening of the testing periods of suspended sentences must contain the
proposals or comments of the agencies or organizations tasked to execute the
judgments as prescribed in Article 257 of this Code.
3. While
a court considers the reduction of penalty terms or exemption from serving
penalties, one member of the court shall present the matters to be considered,
then a representative of the procuracy shall express his/her opinions. The court
shall issue a decision to accept or reject the application for reduction of
penalty terms or exemption from serving penalties or for shortening of the
testing period.
Chapter XXIX: REMISSION OF CRIMINAL RECORDS
Article 270.- Automatic remission of criminal records
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Article 271.- Remission of criminal records by court decisions
1. In the
cases prescribed in Article 65 and Article 66 of the Penal Code, the remission
of criminal records shall be decided by courts. The convicts must file their
applications with the courts which have conducted the first-instance trial of
their cases together with the comments of the commune, ward or township
administrations of the places where they reside or the agencies or
organizations where they work.
2. The
presidents of the courts which have conducted the first-instance trial shall
transfer the case files to the procuracies of the same level for the latter to
state in writing their opinions on the applications for remission of criminal
records. If deeming that all conditions are satisfied, the presidents shall
issue decisions to remit the criminal records; if conditions are not fully met,
the presidents of the courts shall decide to reject such applications.
Part Six
REVIEW OF LEGALLY VALID
JUDGMENTS AND DECISIONS
Chapter XXX: CASSATION PROCEDURES
Article 272.- Nature of cassation procedures
Cassation
mean the review of a legally valid judgment or decision which is protested
against because of serious law violations detected in the handling of the case.
Article 273.- Grounds to lodge protests according to cassation
procedures
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1. The
inquiry at the court session is one-sided or insufficient;
2. The
conclusion in the judgment or decision does not suit the objective
circumstances of the case;
3.
Serious violations of criminal procedures are committed in the investigation,
prosecution or trial;
4.
Serious mistakes are made in the application of the Penal Code.
Article 274.- Discovery of legally valid judgments or decisions
which need to be reviewed according to cassation procedures
The
convicts, agencies, organizations and all citizens shall have the right to
discover law violations in legally valid court judgments and decisions and
notify them to the persons with the right to protest as prescribed in Article
275 of this Code.
If
discovering law violations in the legally valid court judgments or decisions,
the procuracies or courts must notify such to the persons with the right to
protest as prescribed in Article 275 of this Code.
Article 275.- Persons with the right to protest according to
cassation procedures
1. The
President of the Supreme People’s Court and the Chairman of the Supreme
People’s Procuracy shall have the right to protest according to cassation
procedures against the legally valid judgments or decisions of the courts of
different levels, except for decisions of the Judges’ Council of the Supreme
People’s Court.
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3. The
presidents of the provincial-level people’s courts and the chairmen of the
provincial-level people’s procuracies, the presidents of the military
zone-level military courts and the chairmen of the military zone-level military
procuracies shall have the right to protest according to cassation procedures
against legally valid judgments or decisions of their respective subordinate
courts.
Article 276.- Suspension of execution of judgments or decisions
which have been protested against according to cassation procedures
Those who
have protested against legally valid judgments or decisions shall have the
right to decide to suspend the execution of such judgments or decisions.
Decisions
to suspend the execution of judgments must be sent to the courts and
procuracies which have been in charge of the first-instance trial and the
competent judgment-executing agencies.
Article 277.- Protests according to cassation procedures
1.
Protests according to cassation procedures must clearly state the reasons and
sent to:
a/ The
courts which have issued the protested judgments or decisions;
b/ The
courts which will conduct the cassation trial;
c/ The
convicts, and the persons with rights and interests related to the protests.
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3. Before
the start of a court session of cassation, the protestors shall have the right
to supplement their protests provided that the time limit for lodging protests
prescribed in Article 278 of this Code has not yet expired, or withdraw their
protests.
Article 278.- Time limit for lodging protests according to
cassation procedures
1.
Protests unfavorable to the convicts must be lodged only within one year
counting from the date the judgments or decisions become legally valid.
2.
Protests favorable to the convicts may be lodged at any time, even in the cases
where the convicts are deceased and it is necessary to prove their innocence.
3. Civil
protests in criminal cases against civil plaintiffs, civil defendants or
persons with interests and obligations related to the cases shall be lodged in
accordance with the provisions of civil procedure legislation.
Article 279.- Jurisdiction to review cases according to cassation
procedures
1. The
Judges’ Committees of the provincial-level people’s courts shall review
according to cassation procedures legally valid judgements or decisions of the
district-level people’s courts. The Judges’ Committees of the military
zone-level military courts shall review according to cassation procedures
legally valid judgements or decisions of the regional military courts.
2. The
Criminal Tribunal of the Supreme People’s Court shall review according to
cassation procedures legally valid judgments or decisions of the
provincial-level people’s courts. The Central Military Court shall review
according to cassation procedures legally valid judgements or decisions of the
military zone-level military courts.
3. The
Judges’ Council of the Supreme People’s Court shall review according to
cassation procedures legally valid judgements or decisions of the Central Military Court, of the Criminal Tribunal or the courts of appeal of the Supreme
People’s Court, which have been protested against.
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Article 280.- Participants in court sessions of cassation
A court
session of cassation must be participated by the procuracy of the same level.
When
deeming it necessary, the court must summon the convict, defense counsel and
possibly persons with interests and obligations related to the protest to
participate in the court session of cassation
Article 281.- Composition of cassation panels
1. The
cassation panel of the Criminal Tribunal of the Supreme People’s Court or the Central Military Court shall consist of three judges. If the Judges’ Committees of the
provincial-level people’s courts, the Judges’ Committees of the military
zone-level military courts or the Judges’ Council of the Supreme People’s Court
review the cases according to cassation procedures, at least two thirds of the
total numbers of the Judges’ Committees or Judges’ Council shall participate in
the trial.
Cassation
decisions of the Judges’ Committees or Judges’ Council must be approved by more
than half of the total number of members of the Judges’ Committees or Judges’
Council.
2. At the
court sessions of cassation conducted by the Judges’ Committees of the
provincial-level people’s courts, the Judges’ Committees of the military
zone-level military courts, of the Judges’ Council of the Supreme People’s
Court, the voting on the contents of the protests must be in the order that
opinions for the protests are followed by opinions against the protests. If
neither opinions for or against are approved by more than half of the total
number of the Judges’ Committees or Judges’ Council, the court sessions must be
postponed. Within thirty days after the issuance of the decisions to postpone
the court sessions, the Judges’ Committees or Judges’ Council must open court
sessions to re-try the cases with the participation of all of their members.
Article 282.- Preparation for and proceedings at court sessions of
cassation
1. The
president of the court shall assign one judge to make a presentation on the
case at the court session. The presentation shall summarize the contents of the
case, judgments and decisions of the courts at different levels, and the
contents of the protest. The presentation must be sent to the members of the
panel at least seven days before the date of opening the court session of
cassation.
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If the
convict, defense counsel, persons with interests and obligations related to the
protests are summoned, these persons shall present their opinions before the
representative of the procuracy. If they are absent, the cassation panel may
still conduct the trial.
Article 283.- Time limit for cassation
Court
sessions of cassation must be conducted within four months counting from the
date of receipt of the protests.
Article 284.- Scope of cassation
The
cassation panels must examine the whole cases without restricting the review to
the contents of the protests.
Article 285.- Competence of cassation panels
The
cassation panels shall have the right to issue decisions:
1. To
reject the protests and retain the legally valid judgments or decisions;
2. To
dismiss the legally valid judgments or decisions and cease the cases;
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Article 286.- Dismissal of judgments or decisions and cessation of
cases
The
cassation panels shall dismiss legally valid judgments or decisions if they
have one of the grounds prescribed in Article 107 of this Code.
Article 287.- Dismissal of legally valid judgments or decisions
for re-investigation or re-trial
The
cassation panels shall dismiss legally valid judgments or decisions which are
protested against for re-investigation or re-trial if they have one of the
grounds prescribed in Article 273 of this Code. If they find re-trial
necessary, the cassation panels may, on a case-by-case basis, decide on the
re-trial from the first-instance level or at the appellate level.
In case
of dismissing the protested judgments or decisions for re-investigation or
re-trial, if deeming it necessary to continue the temporary detention of
defendants, the cassation panels shall issue orders to keep such defendants in
temporary detention until the procuracies or courts re-handle the cases.
Article 288.- Effect of cassation decisions and handing of
cassation decisions
1.
Decisions of the cassation panels shall become legally valid as from the date
of their issuance.
2. Within
ten days as from the date of issuing the cassation decisions, the cassation
panels must send them to the convicts, protestors, courts and police agencies
which have been involved in the first-instance trial, persons with interests
and obligations related to the protests or their lawful representatives, and
competent judgment-executing agencies; and send notices thereon to the
administrations of the communes, wards or townships where the convicts reside
or the agencies or organizations where they work.
Article 289.- Re-investigation, re-trial of cases after the
cassation panels dismiss judgments or decisions
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If the
cassation panels decide to dismiss legally valid judgments or decisions for
re-trial of the cases at the first-instance level or appellate level, within
fifteen days after the date of issuance of such decisions, the case files must
be transferred to the competent courts for re-trial according to general
procedures.
Chapter XXXI: REOPENING PROCEDURES
Article 290.- Nature of reopening procedures
Reopening
procedures shall be applied to legally valid judgments or decisions which are
protested against due to newly discovered new circumstances which may
substantially change the contents of such judgments or decisions but were
unknown to the courts when they issued such judgments or decisions.
Article 291.- Grounds to protest according to reopening procedures
Circumstances
to be used as grounds to protest according to reopening procedures include:
1.
Statements of witnesses, expertise conclusions, oral interpretations of
interpreters contain important contents discovered to be untruthful;
2.
Investigators, procurators, judges or jurors made incorrect conclusions, thus
leading to the wrong trial of the cases;
3.
Exhibits, investigation records, records of other proceedings or other
documents in the cases are forged or not truthful;
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Article 292.- Notification and verification of newly discovered
circumstances
1. The
convicts, agencies, organizations and all citizens shall have the right to
discover new circumstances of the cases and report them to the procuracies or
courts. The chairmen of the procuracies competent to protest according to
reopening procedures shall issue decisions to verify such circumstances.
2. If
there exists one of the grounds prescribed in Article 291 of this Code, the
chairmen of the procuracies shall issue decisions to protest according to
reopening procedures and transfer the case files to the competent courts. If
none of such grounds exists, the chairmen of the procuracies shall reply the
discovering agencies, organizations or persons, clearly stating the reasons for
not lodging protests.
Article 293.- Persons with the right to protest according to
reopening procedures
1. The
Chairman of the Supreme People’s Procuracy shall have the right to protest
according to reopening procedures against legally valid judgments or decisions
of courts of different levels, except for decisions of the Judges’ Council of
the Supreme People’s Court.
2. The
Chairman of the Central Military Procuracy shall have the right to protest
according to reopening procedures against legally valid judgments or decisions
of subordinate military courts.
3. The
chairmen of the provincial-level people’s procuracies shall have the right to
protest according to reopening procedures against legally valid judgments or
decisions of the district-level people’s courts. The chairmen of the military
zone-level military procuracies shall have the right to protest according to
reopening procedures against legally valid judgments or decisions of the
regional military courts.
4.
Written protests of the persons prescribed in this Article must be sent to the
convicts and persons with interests and obligations related to the protests.
Article 294.- Suspension of execution of judgments or decisions
which are protested against according to reopening procedures
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Article 295.- Time limit for lodging protests according to
reopening procedures
1. Review
according to reopening procedures unfavorable to the convicts must be conducted
within the statute of limitations for penal liability examination prescribed in
Article 23 of the Penal Code and the time limit for lodging such protests shall
not exceed one year after the date the procuracies receive information on newly
discovered circumstances.
2. Review
according to reopening procedures favorable to the convicts shall not be
restricted temporally and shall be conducted even in the cases where the
convicts are deceased and it is necessary to prove their innocence.
3. Civil
protests in criminal cases against civil plaintiffs, civil defendants or
persons with interests and obligations related to the cases shall be lodged in
accordance with the provisions of civil procedure legislation.
Article 296.- Jurisdiction to review cases according to reopening
procedures
1. The
Judges’ Committees of the provincial-level people’s courts shall review
according to reopening procedures legally valid judgements or decisions of the
district-level people’s courts. The Judges’ Committees of the military
zone-level military courts shall review according to reopening procedures
legally valid judgements or decisions of the regional military courts.
2. The
Criminal Tribunal of the Supreme People’s Court shall review according to
reopening procedures legally valid judgments or decisions of the
provincial-level people’s courts. The Central Military Court shall review
according to reopening procedures legally valid judgements or decisions of the
military zone-level military courts.
3. The
Judges’ Council of the Supreme People’s Court shall review according to
reopening procedures legally valid judgements or decisions of the Central
Military Court, of the Criminal Tribunal or the court of appeal of the Supreme
People’s Court.
Article 297.- Conducting of reopening procedures
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Article 298.- Jurisdiction of reopening procedure panels
The
reopening procedure panels shall have the right to issue decisions:
1. To
reject the protests and retain the legally valid judgments or decisions;
2. To
dismiss the protested judgments or decisions for re-investigation or re-trial.
3. To
dismiss the protested judgments or decisions and cease the cases;
Article 299.- Effect of reopening procedure decisions and handing
of reopening procedure decisions
1.
Decisions of the reopening procedure panels shall take legal effect as from the
date of their issuance.
2. Within
ten days after issuing the reopening procedure decisions, the reopening
procedure panels must send them to the convicts, protestors, courts and police
agencies which have been involved in the first-instance trial, persons with
interests and obligations related to the protests or their lawful
representatives, and competent judgment-executing agencies; and send notices
thereon to the administrations of the communes, wards or townships where the
convicts reside or the agencies or organizations where the convicts work.
Article 300.- Re-investigation, re-trial of cases
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2. If the
reopening procedure panels decide to dismiss legally valid judgments or
decisions for first-instance re-trial of the cases, within fifteen days as from
the date of issuance of such decisions, the case files must be transferred to
the competent courts for re-trial according to general procedures.
Part Seven
SPECIAL PROCEDURES
Chapter XXXII: PROCEDURES APPLICABLE TO MINORS
Article 301.- Scope of application
The
criminal procedure applicable to arrestees, persons kept in custody, accused
and defendants, who are minors, shall comply with the provisions of this
Chapter, and concurrently with other provisions of this Code which are not
contrary to those of this Chapter.
Article 302.- Investigation, prosecution and trial
1.
Investigators, procurators and judges who carry out the criminal procedure
towards minor offenders must possess necessary knowledge about the psychology
and education of minors as well as activities of preventing and fighting crimes
committed by minors.
2. In the
process of investigation, prosecution and trial, the following information must
be clarified:
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b/ Living
and education conditions;
c/
Whether or not they are incited by adults;
d/ Causes
and conditions of the commission of offenses.
Article 303.- Arrest, custody and temporary detention
1.
Persons aged between full 14 years and under 16 years may be arrested, held in
custody or temporary detention if there are sufficient grounds prescribed in
Articles 80, 81, 82, 86, 88 and 120 of this Code, but only in cases where they
commit very serious offenses intentionally or commit especially serious
offenses.
2.
Persons aged between full 16 years and under 18 years may be arrested, held in
custody or temporary detention, if there are sufficient grounds prescribed in
Articles 80, 81, 82, 86, 88 and 120 of this Code, but only in cases where they
commit serious offenses intentionally or commit very serious or especially serious
offenses.
3. The
bodies ordering the arrest, custody or temporary detention of minors must
notify their families or lawful representatives thereof immediately after the
arrest, custody or temporary detention is effected.
Article 304.- Supervision of minor offenders
1. The
investigating bodies, procuracies or courts may issue decisions to assign minor
offenders to their parents or guardians for supervision so as to secure their
appearance in response to the summonses of the procedure-conducting bodies.
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Article 305.- Defense
1. Lawful
representatives of persons kept in custody, the accused or defendants who are
minors may select defense counsels to defend or defend by themselves the
persons kept in custody, the accused or defendants.
2. Where
the accused or defendants are minors or their lawful representatives refuse to
select defense counsels for them, the investigating bodies, procuracies or
courts must request bar associations to assign lawyers’ offices to appoint
defense counsels for them or propose the Vietnam Fatherland Front Committee or
the Front’s member organizations to appoint defense counsels for their organizations’
members.
Article 306.- Participation in the procedure by families, schools
and organizations
1.
Representatives of the families of the persons kept in custody, the accused or
defendants, teachers or representatives of schools, the Ho Chi Minh Communist
Youth Union or other organizations where the persons kept in custody, the
accused or defendants study, work and live shall have the right as well as
obligation to participate in the procedure under decisions of the investigating
bodies, procuracies or courts.
2. Where
the persons kept in custody or the accused are between full 14 years and under
16 years old or minors with mental or physical defects, or in other necessary
cases, the taking of their statements and interrogation must be attended by
their families’ representatives, except for the cases where their families’
representatives are deliberately absent without plausible reasons. The
families’ representatives may inquire the persons kept in custody or the
accused, if the investigators so agree; they may produce documents, objects,
make requests or complaints, and read the case files upon the termination of
the investigation.
3. At the
court sessions to try minor defendants, the presence of their families’
representatives, except for the cases where their families’ representatives are
deliberately absent without plausible reasons, of their schools’ and/or
organizations’ representatives is compulsory.
Representatives
of the defendants’ families and representatives of their schools and/or
organizations attending the court sessions shall have the rights to produce
documents, exhibits, to request or propose to change the procedure-conducting
persons; to join in the arguing process, and lodge complaints about procedural
acts of the persons with procedure-conducting competence, and court decisions.
Article 307.- Trial
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In case
of necessity, the courts may decide to conduct the trial behind closed door.
2. In the
course of trial, if deeming it unnecessary to impose penalties on the
defendants, the courts may apply one of the judicial measures prescribed in
Article 70 of the Penal Code.
Article 308.- Serving of imprisonment penalties
1. Minor
offenders shall serve their imprisonment penalties according to a separate
detention regime prescribed by law.
It is
forbidden to keep minor offenders together with adult offenders.
2. The
minor convicts must be provided with job training or general education while
they are serving their imprisonment penalties.
3. If the
minors reach the age of full 18 years while serving their imprisonment
penalties, they shall be shifted to be subject to the imprisonment regime
applicable to adults.
4. For
minors who have completely served their imprisonment penalties, the
superintendence boards of their prisons shall have to coordinate with the
administrations and social organizations in the communes, wards or townships in
helping them to lead a normal life in the society.
Article 309.- Termination of serving of judicial measures,
commutation of penalties or exemption from serving of penalties
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Article 310.- Remission of criminal records
The
remission of criminal records for minor offenders who fully meet the conditions
specified in Article 77 of the Penal Code shall comply with general procedures.
Chapter XXXIII: PROCEDURES FOR APPLICATION OF THE COMPULSORY
MEDICAL TREATMENT MEASURE
Article 311.- Conditions for application of, and competence to
apply, the compulsory medical treatment measure
1. Where
there are grounds to believe that the persons having committed acts dangerous
to the society have no capacity for penal liability as provided for in Article
13 of the Penal Code, depending each particular proceeding stage, the
investigating bodies, procuracies or courts must solicit forensic examination.
2. Basing
themselves on the conclusions of the forensic examination councils, the
procuracies shall decide to apply the compulsory medical treatment measure at
the investigation and prosecution stages; the courts shall decide to apply the
compulsory medical treatment measure at the trial and judgment execution
stages.
Article 312.- Investigation
1. For
the cases involving grounds specified in Clause 1, Article 311 of this Code,
the investigating bodies must clarify:
a/
Committed acts dangerous to the society;
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c/
Whether or not the persons having committed acts dangerous to the society have
lost their capacity to perceive or control their acts.
2. When
conducting the procedure, the investigating bodies must ensure the
participation by defense counsels in the procedure from the time it is
determined that the persons having committed acts dangerous to the society
suffer from mental diseases. In case of necessity, lawful representatives of
such persons may participate in the proceedings.
Article 313.- Decisions of procuracies upon termination of
investigation
After
receiving the case files and the written investigation conclusions, the
procuracies may issue one of the following decisions:
1. To
suspend or cease the case;
2. To
cease the case and decide to apply the compulsory medical treatment measure.
3. To
prosecute the accused before court.
Article 314.- Trial
1. The
courts may issue one of the following decisions:
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b/ To
cease the case and decide to apply the compulsory medical treatment measure;
c/ To suspend
the case and decide to apply the compulsory medical treatment measure;
d/ To
return the file for re-investigation or additional investigation.
2. Apart
from deciding to apply the compulsory medical treatment measure, the courts may
settle the issue of damage compensation or other matters related to the cases.
Article 315.- Application of the compulsory medical treatment
measure to persons serving imprisonment penalties
Where
there are grounds to believe that the persons who are currently serving imprisonment
penalties suffer from mental diseases or other ailments which have deprived
them of the capacity to perceive or control their acts, at the requests of the
imprisonment penalty-executing agencies, the presidents of the provincial-level
people’s courts or the presidents of the military zone-level military courts in
the localities where the convicts are serving their penalties must solicit
forensic examination.
Basing
themselves on the conclusions of the forensic examination councils, the
presidents of the provincial-level people’s courts or the presidents of the
military zone-level military courts in the localities where the convicts are
serving their penalties may decide to send them into specialized medical
establishments for compulsory medical treatment. After recovery, such persons
shall have to continue serving their penalties if they have no reasons for
exemption from serving their penalties.
Article 316.- Complaints, protests, appeals
1. When
the procuracies’ decisions to apply the compulsory medical treatment measure
are complained about, the cases must be brought for first-instance trial by the
courts of the same level.
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3.
Despite complaints, protests or appeals, the courts’ decisions to apply the
compulsory medical treatment measure shall still take implementation effect.
Article 317.- Implementation, suspension of implementation of the
compulsory medical treatment measure
1. The
compulsory medical treatment measure shall be implemented at specialized
medical establishments designated by the procuracies or courts.
2. When
there are reports of the medical treatment establishments and written requests
of the relatives of the persons subject to compulsory medical treatment or
requests of the procuracies, on the basis of the conclusions of the forensic
medicine examination councils, the procuracies or courts which have issued the decisions
to apply the compulsory medical treatment measure may issue decisions to cease
the implementation of the compulsory medical treatment measure and may
concurrently decide to resume the suspended proceedings.
Chapter XXXIV: SUMMARY PROCEDURES
Article 318.- Scope of application of summary procedures
The
summary procedures for investigation, prosecution as well as first-instance
trial shall be applied under the provisions of this Chapter, and concurrently
under other provisions of this Code which are not contrary to those of this
Chapter.
Article 319.- Conditions for application of summary procedures
Summary
procedures shall be applied only when the following conditions are fully met:
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2. The
offenses are simple with obvious evidences;
3. The
committed offences are less serious ones;
4. The
offenders have clear personal identifications and records.
Article 320.- Decisions to apply summary procedures
1 After
the criminal cases are instituted, at the requests of the investigating bodies
or if deeming that the cases fully meet the conditions prescribed in Article
319 of this Code, the procuracies may issue decisions to apply summary
procedures.
2.
Decisions to apply summary procedures must be sent to the investigating bodies
and the accused or their lawful representatives within 24 hours after their
issuance.
3.
Decisions to apply summary procedures may be complained about. The accused or
their lawful representatives shall have the right to complain about the
decisions to apply summary procedures; the statute of limitations for lodging
such complaints is three days after the decisions are received. Complaints
shall be sent to the procuracies which have issued the decisions to apply
summary procedures and must be settled within three days after they are
received.
Article 321.- Investigation
1. The
time limit of investigation according to summary procedures is twelve days
after the issuance of the decisions to institute the criminal cases.
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Article 322.- Custody and temporary detention for investigation
and prosecution
1. The
grounds, competence and procedures for custody and temporary detention shall
comply with the provisions of this Code.
2. The
time limit for custody shall not exceed three days as from the date the
investigating bodies receive the arrestees.
3. The
time limit for temporary detention for investigation and prosecution shall not
exceed sixteen days.
Article 323.- Decision on prosecution
1. Within
four days after receiving the case files, the procuracies shall have to issue one
of the following decisions:
a/ To
prosecute the accused before court by a prosecution decision;
b/ To
return the file for additional investigation;
c/ To
suspend the case;
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2. In
case of returning the files for additional investigation or suspending the
cases prescribed at Point b or c, Clause 1 of this Article, the procuracies
must issue decisions to cancel the decisions to apply the summary procedures
and the cases shall then be settled according to general procedures
Article 324.- Trial
1. Within
seven days after receiving the case files, the judges assigned to preside over
the court sessions shall have to issue one of the following decisions:
a/ To
bring the case for trial;
b/ To
return the file for additional investigation;
c/ To
suspend the case;
d/ To
cease the case.
2. In
case of issuing decisions to bring the cases for trial prescribed at Point a,
Clause 1 of this Article, within seven days as from the date of issuing such
decisions, the courts must open court sessions to try the cases. The
first-instance trial shall be conducted according to general procedures.
3. In
case of returning the files for additional investigation or suspending the
cases as prescribed at Point b or c, Clause 1 of this Article, the courts shall
transfer the files to the procuracies and the cases shall then be settled
according to general procedures.
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5. The
appellate trial, the review according to cassation or reopening procedures of
the cases which underwent first-instance trial according to summary procedures,
shall be conducted according to general procedures.
Chapter XXXV: COMPLAINTS, DENUNCIATIONS IN CRIMINAL PROCEDURE
Article 325.- Persons with the right to complain
Agencies,
organizations and individuals shall have the right to complain about procedural
decisions and acts of bodies and persons with procedure-conducting competence
when they have grounds to believe that such decisions or acts are contrary to
law, infringe upon their legitimate rights and interests.
Appeals
against legally valid first-instance judgments or decisions, complaints about
legally valid judgments or decisions shall not be settled under the provisions
of this Chapter but under the provisions of Chapters XXIII, XXIV, XXX and XXXI
of this Code.
Article 326.- Rights and obligations of complainants
1.
Complainants shall have the following rights:
a/ To
lodge complaints by themselves or through their lawful representatives;
b/ To
lodge complaints at any stage of the process of settling criminal cases;
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d/ To
receive written replies on the settlement of their complaints;
e/ To
have their infringed legitimate rights and interests restored; and receive
damage compensation in accordance with law.
2.
Complainants shall have the following obligations:
a/ To
present truthfully the facts, supply information and documents to the complaint
settlers; to take responsibility before law for such presentation and supply of
information and documents.
b/ To
abide by the complaint settlement results.
Article 327.- Rights and obligations of complained persons
1.
Complained persons shall have the following rights:
a/ To
produce evidences on the lawfulness of their procedural decisions or acts which
are complained about;
b/ To
receive documents on the settlement of complaints about their procedural
decisions or acts.
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a/ To
explain the complained procedural decisions or acts, supply relevant
information and documents when competent bodies, organizations or individuals
so request;
b/ To
abide by the complaint settlement results;
c/ To pay
compensation for damage and overcome consequences caused by their illegal
procedural decisions or acts according to law provisions.
Article 328.- Statute of limitations for complaining
The
statute of limitations for complaining is fifteen days after the complainants
receive or know about the procedural decisions or acts which they deem
unlawful.
In case
where due to illness, natural calamities, enemy sabotage, working or studying
in distant places or other objective obstacles the complainants cannot exercise
their right to complain within the prescribed statute of limitations, the
period when such obstacles exist shall not be included in the statute of
limitations for complaining.
Article 329.- Competence and time limit for settling complaints
against investigators, deputy heads and heads of investigating bodies
Complaints
about procedural decisions and acts of investigators, deputy heads of
investigating bodies shall be considered and settled by the heads of the
investigating bodies within seven days after receiving the complaints. If
disagreeing with the settlement results, the complainants shall have the right
to lodge further complaints with the procuracies of the same level. Within
seven days after receiving the complaints, the procuracies of the same level
must consider and settle them. The procuracies of the same level shall have the
competence to make final settlement.
Complaints
about procedural decisions or acts of the heads of investigating bodies and
procedural decisions of investigating bodies, which have been approved by the
procuracies of the same level, shall be settled by the procuracies of the same
level within seven days after receiving the complaints. If disagreeing with the
settlement results, the complainants shall have the right to lodge further
complaints with the immediate superior procuracies. Within fifteen days after
receiving the complaints, the immediate superior procuracies must consider and
settle them. The immediate superior procuracies shall have the competence to
make final settlement.
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Complaints
about procedural decisions and acts of vice-chairmen of procuracies or
procurators shall be settled by the chairmen of the procuracies within seven
days after receiving the complaints. If disagreeing with the settlement
results, the complainants shall have the right to lodge further complaints with
the immediate superior procuracies. Within fifteen days after receiving the
complaints, the immediate superior procuracies must consider and settle them.
The immediate superior procuracies shall have the competence to make final
settlement.
Complaints
about procedural decisions or acts of chairmen of procuracies shall be settled
by the immediate superior procuracies within fifteen days after receiving the
complaints. The immediate superior procuracies shall have the competence to
make final settlement.
Article 331.- Competence and time limits for settling complaints
against judges, vice-presidents and presidents of courts
Complaints
about procedural decisions and acts of judges or vice-presidents of courts
before the opening of court sessions shall be settled by the presidents of
courts within seven days after receiving the complaints. If disagreeing with
the settlement results, the complainants shall have the right to lodge further
complaints with the immediate superior courts. Within fifteen days after
receiving the complaints, the immediate superior courts must consider and
settle them. The immediate superior courts shall have the competence to make
final settlement.
Complaints
about procedural decisions or acts of presidents of courts shall be settled by
the immediate superior courts within fifteen days after receiving the
complaints. The immediate superior courts shall have the competence to make
final settlement.
Article 332.- Competence and time limits for settling complaints
against persons with competence to conduct a number of investigating activities
Complaints
about procedural decisions and acts of persons with competence to conduct a
number of investigating activities shall be considered and settled by the
procuracies with prosecuting competence within seven days after receiving the
complaints. If disagreeing with the settlement results, the complainants shall
have the right to lodge further complaints with the immediate superior
procuracies. Within fifteen days after receiving the complaints, the immediate
superior procuracies must consider and settle them. The immediate superior
procuracies shall have the competence to make final settlement.
Complaints
about procedural decisions or acts which have been approved by the procuracies
shall be settled by such procuracies within seven days after receiving the
complaints. If disagreeing with the settlement results, the complainants shall
have the right to lodge further complaints with the immediate superior
procuracies. Within fifteen days after receiving the complaints, the immediate
superior procuracies must consider and settle them. The immediate superior
procuracies shall have the competence to make final settlement.
Article 333.- Time limits for settling complaints related to the
application of arrest, custody and temporary detention measures
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Article 334.- Persons with the right to denounce
Citizens
shall have the right to denounce to competent bodies or individuals law
violation acts of any persons with procedure-conducting competence, which cause
damage or threaten to cause damage to the interests of the State, the
legitimate rights and interests of citizens, agencies or organizations.
Article 335.- Rights and obligations of denouncers
1.
Denouncers shall have the following rights:
a/ To
send written denunciations or denounce in person to competent bodies or
individuals;
b/ To
request the confidentiality of their full names, addresses and autographs;
c/ To
request to be notified of the denunciation settlement results;
d/ To
request the bodies with procedure-conducting competence to protect them when
they are intimidated, harassed or revenged.
2.
Denouncers shall have the following obligations:
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b/ To
clearly state their full names and addresses;
c/ To
take responsibility before law for untruthful denunciation.
Article 336.- Rights and obligations of denounced persons
1.
Denounced persons shall have the following rights:
a/ To be
informed of the denunciation contents;
b/ To
produce evidences to prove that the denunciation contents are untruthful;
c/ To
have their infringed legitimate rights and interests restored, their honor
restored, and to receive compensation for damage caused by untruthful
denunciation;
d/ To
request competent bodies, organizations or individuals to handle slanderers.
2.
Denounced persons shall have the following obligations:
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b/ To
abide by the denunciation-handling results of competent bodies or individuals;
c/ To pay
compensation for damage and overcome consequences caused by their illegal acts.
Article 337.- Competence and time limit for settling denunciations
1. For
denunciations of law violation acts of persons with procedure-conducting
competence of an agency with procedure-conducting competence, the head of such
agency shall have the responsibility to settle them.
Where the
denounced persons are heads of investigating bodies, chairmen of procuracies or
presidents of courts, the immediate superior investigating bodies, procuracies
or courts shall have the responsibility to settle them. Denunciations of
procedural acts of persons with competence to conduct a number of investigating
activities shall be considered and settled by the procuracies with prosecuting
competence.
The time
limit for settling denunciations is sixty days counting from the date of
receipt of denunciations; for complicated cases, it may be longer but must not
exceed ninety days.
2.
Denunciations of law violation acts with criminal signs shall be settled under
the provisions of Article 103 of this Code.
3.
Denunciations related to arrest, custody or temporary detention must be
immediately considered and settled by the procuracies. If further verification
is required, the time limit shall not exceed three days.
Article 338.- Responsibilities of persons with competence to
settle complaints or denunciations
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Persons
who are competent to settle complaints or denunciations but fail to settle
them, have settled irresponsibly or illegally such complaints or denunciations
shall, depending on the nature and seriousness of their violations, be
disciplined or examined for penal liability; if causing damage, they must pay
compensation therefor according to law.
Article 339.- Tasks and powers of procuracies in supervising the
settlement of complaints and denunciations in the criminal procedure
1. The
procuracies shall request the investigating bodies and courts of the same and
subordinate levels, the border guard, customs, ranger and coast guard forces,
and other agencies of the people’s police and people’s army, which are assigned
to conduct a number of investigating activities:
a/ To
issue written settlements of complaints or denunciations according to the
provisions of this Chapter;
b/ To
examine the settlement of complaints or denunciations by their level and
subordinate levels; notify the examination results to the procuracies;
c/ To
supply dossiers and documents related to the settlement of complaints and
denunciations to the procuracies.
2. The
procuracies shall directly supervise the settlement of complaints and
denunciations at the investigating bodies, courts, border guard, customs,
ranger offices, coast guard offices and other agencies of the people’s police
and army’s police, which are assigned to conduct a number of investigating
activities.
Part Eight
INTERNATIONAL COOPERATION
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Article 340.- Principles for international cooperation in criminal
proceedings
International
cooperation in criminal proceedings between the bodies with
procedure-conducting competence of the Socialist Republic of Vietnam and
foreign authorities with corresponding competence shall be effected on the
principles of respect for each other’s national independence, sovereignty and
territorial integrity, non-intervention in each other’s internal affairs,
equality and mutual benefit, compliance with the Constitution of the Socialist
Republic of Vietnam and fundamental principles of international laws.
International
cooperation in criminal proceedings shall be carried out in conformity with the
international agreements which the Socialist Republic of Vietnam has signed or
acceded to and the laws of the Socialist Republic of Vietnam.
Where the
Socialist Republic of Vietnam has not yet signed or acceded to relevant
international agreements, the international cooperation in criminal proceedings
shall be effected on the principle of reciprocity but in contravention of the
laws of the Socialist Republic of Vietnam, international laws and international
practices.
Article 341.- Provision of judicial assistance
When
rendering judicial assistance, the bodies as well as persons with
procedure-conducting competence of the Socialist Republic of Vietnam shall
apply the provisions of relevant international agreements which the Socialist
Republic of Vietnam has signed or acceded to and the provisions of this Code.
Article 342.- Refusal to implement judicial assistance requests
The
bodies with procedure-conducting competence of the Socialist Republic of
Vietnam may refuse to implement judicial assistance requests in criminal
proceedings in one of the following cases:
1.
Judicial assistance requests fail to comply with the international agreements
which the Socialist Republic of Vietnam has signed or acceded to and the laws
of the Socialist Republic of Vietnam;
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Chapter XXXVII:EXTRADITION AND TRANSFER OF DOSSIERS, DOCUMENTS AND
EXHIBITS OF CASES
Article 343.- Extradition in order to examine penal liability or
execute judgments
Basing
themselves on the international agreements which the Socialist Republic of
Vietnam has signed or acceded to on the principle of reciprocity, the bodies
with procedure-conducting competence of the Socialist Republic of Vietnam may:
1.
Request the foreign authorities with corresponding competence to extradite
persons who have committed criminal acts or convicted under legally valid
judgments to the Socialist Republic of Vietnam for being examined for penal
liability or serving their penalties.
2.
Extradite foreigners who have committed criminal acts or convicted under
legally valid judgments, who are being in the territory of the Socialist
Republic of Vietnam, to the requesting nations for being examined for penal
liability or serving their penalties.
Article 344.- Refusal to extradite
1. The
bodies with procedure-conducting competence of the Socialist Republic of
Vietnam may refuse to extradite persons in one of the following cases:
a/ The
persons requested to be extradited are citizens of the Socialist Republic of
Vietnam;
b/ Under
the provisions of the laws of the Socialist Republic of Vietnam, the persons
requested to be extradited cannot be examined for penal liability or serve
penalties as the statute of limitations therefor has expired or for other
lawful reasons.
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d/ The
persons requested to be extradited are residing in Vietnam for reasons of being
possibly ill-treated in the extradition-requesting countries on the grounds of
racial discrimination, religion, nationality, ethnicity, social status or
political views.
2. The
bodies with procedure-conducting competence of the Socialist Republic of
Vietnam may refuse to extradite in one of the following cases:
a/ Under
the criminal legislation of the Socialist Republic of Vietnam, the acts taken
by the persons requested to be extradited do not constitute offenses;
b/ The
persons requested to be extradited are being examined for penal liability in Vietnam for the acts stated in the extradition requests.
3. The
bodies with procedure-conducting competence of the Socialist Republic of
Vietnam which refuse to extradite under the provisions of Clause 1 and Clause 2
of this Article shall have to notify such to the foreign authorities with
corresponding competence, which have sent the extradition requests.
Article 345.- Transfer of files and exhibits of criminal cases
1. For
cases involving foreigners who have committed offenses on the territory of the
Socialist Republic of Vietnam, if the procedure cannot be conducted because
such persons have left the country, the bodies with procedure-conducting
competence which are handling the cases may transfer the case files to the
Supreme People’s Procuracy for carrying out the procedures to transfer them to
the foreign authorities with corresponding competence.
2. When
transferring the case files to the foreign authorities with corresponding
competence, the bodies with procedure-conducting competence of the Socialist
Republic of Vietnam may transfer also exhibits of the cases.
Article 346.- Delivery, receipt and transfer of documents, objects
and money related to criminal cases
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2. The
transfer of objects and money related to criminal cases out of the territory of
the Socialist Republic of Vietnam shall comply with the laws of the Socialist
Republic of Vietnam.
This Code
was adopted on November 26, 2003 by the XIth National Assembly of
the Socialist Republic of Vietnam at its 4th session.
Chairman of the National Assembly