NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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Law
No. 101/2015/QH13
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Hanoi,
27 November 2015
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CRIMINAL
PROCEDURE CODE
Pursuant to the Constitution of
the Socialist Republic of Vietnam;
National Assembly issues the
Criminal Procedure Code
PART ONE
GENERAL
Chapter I
SCOPE OF REGULATION, OBJECTIVES AND EFFECT OF THE
CRIMINAL PROCEDURE CODE
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Criminal procedure code prescribes
the procedures and formalities for lodging and processing of criminal
information, filing of charges, investigation, prosecution, adjudication, and
certain courses of action for the enforcement of criminal judgments.
Furthermore, the Law regulates the missions, authority and liaisons of authorities
and individuals given authority to institute proceedings (referred to as
competent procedural authorities and persons), the rights and duties of
entities engaging in proceedings, other authorities and entities, and
international cooperation in criminal procedure.
Article 2.
Objectives of the Criminal procedure code
Criminal procedure code is intended
to expose and settle every criminal act in precise, just and timely manners, to
preclude, protest and combat crime for omission of no infractions, to protect
guiltless people from unjust conviction, to uphold justice, to defend human
rights and citizenship rights, to conserve socialism, to secure the
Government's benefits, to protect the legitimate rights and interests of
organizations and individuals, to educate people to consciously conform to the
laws.
Article 3.
Effect of Criminal procedure code
1. Criminal procedure code governs
every activity of criminal procedures in territories of the Socialist Republic
of Vietnam.
2. International agreements, which
the Socialist Republic of Vietnam has signed, or the principles of reciprocity
shall govern the criminal procedure against aliens committing offences in
territories of the Socialist Republic of Vietnam.
If diplomatic or consular immunity
is conferred on an alien according to the laws of Vietnam, international
treaties, which the Socialist Republic of Vietnam observes, or international
practices, such international treaties or practices shall prevail. If relevant
international treaties or practices do not exist, matters shall be resolved
through diplomacy.
Article 4.
Terminology
1. In this Law, words and phrases
below are construed as follows:
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b) Individuals given authority
to institute proceedings (referred to as authorized procedural persons) include
presiding officers and those assigned to carry out certain activities of
investigation.
c) Participants in legal
proceedings refer to persons, authorities, and organizations participating
in legal proceedings according to this Law.
d) Criminal information includes
denouncement, provision of criminal information, entities' requisitions for
charges, perpetrators' confessions, and criminal information directly gathered
by competent procedural authorities.
dd) Accused persons include
those arrest, detainees, suspects, defendants.
e) Kindred of persons engaging
in or commission to institute proceedings is composed of individuals having
relationships with persons participating or authorized to conduct proceedings.
Such individuals include spouse, biological and adoptive parents, parents in
law, biological and adopted children, paternal and maternal grandparents,
biological siblings, maternal and paternal great grandparents, biological
uncles and aunts, biological nephews and nieces.
g) Litigants include civil
plaintiffs, civil defendants and persons incurring interests and duties from a
criminal lawsuit.
h) Confession means that a
perpetrator voluntarily gives statements on his offences to authorities prior
to the happening of such offences or after the exposure of the perpetrator.
i) Surrender refers to a
perpetrator, after exposed, voluntarily turning himself in and giving
statements on his offences to competent authorities.
k) Coercive delivery refers
to competent authorities’ compulsion of the attendance of persons who are held
in emergency custody, apprehended or temporarily detained, or suspects and
defendants at a place of investigation, prosecution or adjudication.
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m) Full record of identity
refers to the document summarizing a suspect’s profile, identity with photos of
three postures and two thumbprints, made and retained by competent authorities.
n) Basic record of identity refers
to the document summarizing a suspect’s profile with all fingerprints, made and
retained by competent authorities.
o) Serious breach of legal
proceedings means that authorities and persons given authority to institute
proceedings have not executed or have implemented improperly and inadequately
the formalities and procedures, as defined by this Law, have infringed severely
the legitimate rights and benefits of entities engaging in proceedings, and
have influenced the identification of equitable and comprehensive truths of a
lawsuit.
2. In this Law, the following
abbreviations apply to phrases below:
a) Police investigation authorities
in districts, communes, provincial cities and centrally-affiliated cities’
metropolis are referred to as district investigation authorities.
b) Police investigation authorities
in provinces and centrally-affiliated cities are referred to as
provincial-level investigation authorities.
c) Military investigation
authorities in military zones and equivalents are referred to as military
investigation authorities of military zone.
d) People’s Procuracy in districts,
communes, provincial cities and centrally-affiliated cities’ metropolis is
referred to as district People’s Procuracy.
dd) People’s Procuracy in provinces
and centrally-affiliated cities is referred to as provincial-level People’s
Procuracy.
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g) People’s Courts in districts,
communes, provincial cities, centrally-affiliated cities’ metropolis are
referred to as district People’s Courts.
h) People’s Courts in provinces and
centrally-affiliated cities are referred to as provincial-level People’s
Courts.
i) Military Courts in military
zones and equivalents are referred to as military Courts of military zone.
Article 5.
Responsibilities of governmental authorities and entities in precluding and
combating crime
1. Governmental authorities, as per
the range of their responsibilities, must adopt measures to forestall crime and
cooperate with competent procedural authorities for the preventive fight
against crime.
Governmental authorities must
regularly inspect the performance of functions and assignments, detect and
handle violations of laws in timely manner and make prompt reports to
investigation authorities and Procuracy about every criminal act happening
inside such authorities and sectors under their management. Moreover, state
authorities must propound and adduce relevant documents to investigation
authorities and Procuracy for the latters' inspection and filing of charges
against perpetrators of criminal acts.
Heads of governmental authorities
must be held liable for providing investigation authorities and Procuracy with
false or no information on criminal acts committed inside their premises and
sectors under their management.
2. Entities are entitled to and
responsible for exposing, denouncing, reporting, and combating crime.
3. Competent procedural authorities
are responsible for supporting governmental authorities and entities to fight
against crime.
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5. Inspectorate and governmental
audit agencies are responsible for cooperating with competent procedural
authorities in exposing and tackling crime. Upon detecting signs of criminal
activities, governmental authorities must promptly propound relevant documents
and items to investigation authorities and Procuracy for inspection and filing
of criminal charges.
6. Every action of obstructing
competent procedural authorities and persons’ completion of duties is
inhibited.
Article 6.
Exposure and correction of justifications and factors for crime
1. Competent procedural
authorities, when taking criminal proceedings, are responsible for uncovering
reasons and elements leading to crime and proposing concerned entities to
enforce measures of correction and preclusion.
2. Concerned entities must fulfill
such requests by competent procedural authorities. In 15 days upon receiving
requests, concerned parties must respond in writing to such propositions by
competent procedural authorities.
Chapter II
FUNDAMENTAL PRINCIPLES
Article 7.
Upkeep of socialist law enforcement regarding criminal procedures
Every activity of criminal
procedures must abide by this Law. The processing of criminal information,
filing of charges, investigation, prosecution and adjudication shall abide only
by the grounds, procedures and formalities as defined by this Law.
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Competent procedural authorities
and persons, when instituting legal proceedings within their duties and
authority, must respect and protect human rights and individuals’ legitimate
rights and interests. Measures imposed, whose validity and requisite are
regularly inspected, shall be removed or altered if violating laws or deemed
unessential.
Article 9.
Conservation of legal equality
Criminal procedure occurs on the
principle under which all people are subject to the same laws of justice,
regardless of race, gender, belief, religion, social class and status. Every
person committing crime is treated under the law.
Every juridical person is equal
before the law, regardless of its form of ownership and economic class.
Article 10.
Sustainment of bodily integrity
Every person is entitled to
inviolability of the physical body. No person is arrested without a Court’s
warrant or Procuracy's decision or approval, except for acts in flagrante.
Emergency custody, arrest,
temporary detainment or detention must abide by this Law. Torture, extortion of
deposition, corporal punishment or any treatments violating a person’s body,
life and health are inhibited.
Article 11.
Protection of individuals’ life, health, honor, dignity and belongings and
juridical persons’ reputation and property
Life, health, honor, dignity and
belongings of every person are protected by the laws.
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Vietnamese citizens cannot be
deported or handed to another government.
Article 12.
Alimentation of inviolability of residence, privacy, personal secrecy, family
secrets, safety and confidentiality of personal mail, telephone and telegraph
No person can illegally violates
others’ residence, privacy, personal secrecy, family secrets, safety and
confidentiality of mail, telephone, telegraph and other forms of personal
communication.
Search of residence, search and
seizure or temporary confiscation of mails, phones, telegraphs, electronic data
and other forms of private communication must abide by this Law.
Article 13.
Presumption of innocence
A accused person is deemed innocent
until his guilt is evidenced according to the procedures and formalities as
defined in this Law and a Court passes a valid conviction.
If grounds for conviction, as per
the procedures and formalities in this Law, do not suffice, competent
procedural authorities and persons shall adjudge the accused person to be not
guilty.
Article 14.
Double jeopardy
A person is not charged,
investigated, prosecuted or tried on an act, for which a Court's effective
conviction has been passed, unless that person commits another act
jeopardizing the society and deemed criminal by the Criminal Code.
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Competent procedural authorities
are held liable for proving guilt. A accused person is entitled to but is
not obliged to prove his innocence.
Competent procedural authorities,
within their duties and authority, must use legitimate measures to determine
the facts of a lawsuit in unbiased, thorough and complete ways, to clarify the
evidences of guilt and innocence, aggravation and mitigation of criminal
liabilities of the accused person.
Article 16.
Guarantee of right of defense for accused persons and protection of legal
rights and benefits of defendants and litigants
A accused person is entitled to
defend himself or be defended by a lawyer or another person.
Competent procedural authorities
and persons are responsible for informing accused persons, defendants and
litigants of all of their rights of defense, legitimate rights and benefits
according to this Law. Moreover, competent procedural authorities and persons
shall provide explanations and guarantee the implementation of all of such rights
and benefits.
Article 17.
Responsibilities of authorities and persons given authority to institute
proceedings
Competent procedural authorities
and persons, when instituting proceedings, must strictly conform to the laws
and shall be held liable for their actions and decisions.
An individual violating legal
regulations on emergency custody of people, arrest, imprisonment, custody,
charge, investigation, prosecution, adjudication, sentence enforcement, by
nature and level of such violations, shall be disciplined or face criminal
charges according to the laws.
Article 18.
Responsibilities for filing of charges and handling of criminal cases
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Filing of charges and lawsuits
shall only conform to the grounds, procedures and formalities as defined by
this Law.
Article 19.
Legal compliance in investigative activities
Investigation authorities and
authorities assigned to perform certain activities of investigation must
observe the laws when conducting investigation as per this Law.
Every activity of investigation
must attend to truths and occur in unbiased, thorough and complete ways to
swiftly and precisely uncover all guilty acts and indicate evidences of guilt
and innocence, aggravation and mitigation of criminal liabilities, reasons,
conditions for crime and other facts essential to handle the cases.
Article 20.
Responsibilities for exercising the right of prosecution and overseeing legal
compliance in criminal procedure
The procuracy exercises the right
of prosecution and oversees legal compliance in criminal procedure, renders
decisions on conviction, expose violations of laws to have all guilty acts,
persons and juridical persons committing crime and violating laws exposed and
penalized in timely and stringent manners. It must assure that charges,
investigation, prosecution, adjudication and sentence enforcement apply to the
exact entities precisely for what they commit according to the laws. It must
assure that omission of crime and criminals or misjudgment does not occur.
Article 21.
Assurance of impartiality of persons given authority to institute or engaging
in legal proceedings
Persons given authority to
institute proceedings, interpreters, translators, expert witnesses, valuators
and witnesses are not permitted to engage in proceedings if they may not be
impartial, for any reasons, to carry out duties.
Article 22.
Trial participated by lay assessors
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Article 23.
Independence of Judge and lay assessors and sole compliance to the laws
Judge and lay assessors adjudicate
independently and comply solely with the laws. Authorities and entities are
forbidden to interfere the adjudication by Judge and lay assessors.
Authorities and entities
interfering the adjudication by Judge and lay assessors in any manners shall be
disciplined, face administrative fines or criminal charges, by nature and level
of their violations, according to the laws.
Article 24.
Collective adjudication
A Court tries collectively and
renders decisions under majority rule, except for summary procedures according
to this Law.
Article 25.
Timely, just and public trial
A Court holds trials in timely
manner by the regulated deadline and upholds fairness.
A Court tries publicly and every
person is entitled to attend the trial, unless otherwise stated in this Law.
For special cases involved in state secrets, national traditions, protection of
persons aged below 18 or personal privacy as per litigants’ rational requests,
a Court may try in closed session but must pronounce its judgments publicly.
Article 26.
Assurance of oral arguments in adjudication process
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Documents and evidences from the
case file, brought to The procuracy to the Court for trial, must be sufficient
and legitimate. All relevant persons, as defined by this Law, must attend a
criminal Court. Absence must be because of force majeure or objective obstacles
or other situations according to this Law. The Court is responsible for
supporting prosecutors, defendants, defense counsels and other participants in
legal proceedings to exercise all of their rights and duties and provoke oral
arguments in democratic and equal manners before the Court.
All evidences of guilt and
innocence, aggravation and mitigation of criminal liabilities, citation of
Points, Sections or Articles in the Criminal Code for determination of
defendants’ crimes, sentences, compensations, and handling of proofs and other
facts essential to the lawsuit must done, argued and specified in court.
The Court’s judgments and rulings
must be subject to the inspection and assessment of evidences and oral
arguments in court.
Article 27.
Affirmation of first-instance and appellate procedure
1. Trial by
first-instance and appellate Courts is affirmed.
A first-instance Court’s judgments
or rulings may be appealed according to this Law. A first-instance Court's
judgments or rulings, if not appealed by the deadline as defined in this Law,
shall come into effect.
A first-instance Court's judgments,
if appealed, shall be reheard by an appellate Court. The appellate Court’s
judgments or rulings shall come into force.
2. A Court’s
effective judgments or rulings, if such is found to make a serious error of law
or new facts emerge as per this Law, shall be reviewed through the procedures
of cassation or reopening, respectively.
Article 28.
Warranty of the effect of Court’s judgments and rulings
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2. Authorities
and entities, under their missions, authority and duties, are responsible for
cooperating, supporting and fulfilling requests from authorities and entities
liable for enforcing a Court's judgments and rulings.
Article 29.
Spoken and written language for criminal procedure
Vietnamese is the spoken and
written language for criminal procedure. Participants in proceedings are
permitted to speak and write in their native languages, in the mandatory
presence of a translator.
Article 30.
Civil matters in criminal cases
Civil matters in criminal cases are
resolved during the settlement of criminal cases. If a criminal lawsuit deals
with damage claims backed by insufficient evidences and causing little effect
on the settlement of such case, civil matters may be separated and settled
through civil procedure.
Article 31.
Guarantee of compensations for crime victims in criminal cases
1. Persons
held in emergency custody, arrested, temporarily detained or held in detention,
charged, investigated, prosecuted, tried and sentenced incorrectly or illegally
shall be compensated for physical and spiritual damage and restoration of
dignity.
The government is held liable for
compensating persons, held in emergency custody, arrested, temporarily detained
or held in detention, charged, investigated, prosecuted, tried and sentenced
incorrectly or illegally by competent procedural authorities and persons,
damage and recovery of dignity and interests.
2. Other
persons suffering from damage caused by competent procedural authorities and
persons are entitled to the Government’s compensations.
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Individuals are permitted to file
complaints or denouncement, while organizations are allowed to file complaints,
against violations of legal regulations on criminal procedure by competent
procedural authorities and persons or personnel of such entities.
Competent authorities and persons
must receive, hear and settle complaints and denouncements in timely and lawful
manners. Results of their hearings and solutions shall be given in writing to
persons and organizations filing accusations or complaints.
Procedures, formalities and
authority for the settlement of complaints and accusations are governed by this
Law.
It is inhibited to take vengeance
on persons filing complaints or accusations or to abuse rights of complaint and
denouncement to vilify others.
Article 33.
Inspection and supervision of criminal procedure
1. Competent
procedural authorities and persons must regularly inspect the activities of
criminal procedure within their powers and manage units receiving, handling
criminal information, pressing charges, conducting investigations, prosecuting,
adjudicating and enforcing sentences.
2. Governmental
authorities, Committee of Vietnam Fatherland Front and its members units, and
elective representatives of people are sanctioned to supervise competent
procedural authorities and persons’ activities and settlement of complaints and
denouncement.
If competent procedural authorities
and persons are found to violate laws, governmental authorities and elective
people’s representatives can propose and the Committee of Vietnam Fatherland
Front can propose competent procedural authorities to consider and resolve such
matters according to this Law. Competent procedural authorities must analyze,
handle and respond to the said propositions and request as per the laws.
Chapter III
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Article 34.
Presiding authorities and presiding officers
1. Presiding
authorities are:
a) Investigation authorities;
b) Procuracy;
c) Courts.
2. Presiding
officers are:
a) Heads and vice heads of
investigation authorities and investigators and investigation officers;
b) Heads and vice heads of The
procuracy, procurators and checkers;
c) Court presidents, Vice court
presidents, judges, lay assessors, Court clerks, verifiers.
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1. The
authorities assigned to perform certain activities of investigation are:
a) Border protection force’s units;
b) Customs authorities;
c) Forest ranger’s units;
d) Maritime police force’s units;
dd) Fisheries resources
surveillances units;
e) People’s police force’s units
assigned to perform certain activities of investigation (referred to as units
assigned to investigate);
g) Other units in the People’s
Army, as assigned to perform certain activities of investigation.
Authorities assigned to perform
certain activities of investigation in this Section are stipulated in the Law
on the organization of criminal investigation authorities.
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a) Personnel of the Border
protection force, as assigned to performed certain activities of investigation,
include heads and vice heads of Border reconnaissance department, Drug and
crime department; heads and vice heads of Special service against drug and
crime; captains and vice captains of Border protection units in provinces and
centrally-affiliated cities; commanding officers and deputies in Border
protection posts; commanders and deputies of Border protection units at border
gates;
b) Personnel of Customs
authorities, as assigned to perform certain activities of investigation, are
heads and vice heads of Anti-smuggling and investigation department; heads and
vice heads of Post clearance audit department; heads and vice heads of
provincial and inter-provincial Departments of customs and those in
centrally-affiliated cities; heads and ice heads of Customs departments at
border gates;
c) Personnel of Forest ranger, as
assigned to perform certain activities of investigation, include heads and vice
heads of Forest protection department, heads and vice heads of Forest ranger
departments; heads and vice heads of Forest ranger stations;
d) Personnel of Maritime police
force, as assigned to perform certain activities of investigation, include
commanders, vice commanders, zone commanders and vice zone commanders of
Maritime police force; heads and vice heads of Specialized and legal
department; heads and vice heads of Special service of drug enforcement; heads
and vice heads of Naval battalions, Naval flotilla; captains and deputies of
Maritime police force’s special task units;
dd) Personnel of Fisheries
resources surveillances, as assigned to perform activities of investigation,
include heads and vice heads of Bureau of fisheries resources surveillances,
heads and vice heads of zonal Bureaus of fisheries resources surveillances;
e) Personnel of other units of
People's Police force, as assigned to perform certain activities of
investigation, include directors and vice directors of Fire Police; heads, vice
heads, managers and vice managers of People's Police force’s units assigned to
investigate; warders and vice warders of prisons according to the Law on the
organization of criminal investigation authorities;
g) Personnel of other units of
People’s Army, as assigned to perform certain activities of investigation
include warders and vice warders of prisons; heads of independent regiment
units and similar ones.
h) Investigation officers in the
authorities and units as defined in Section 1 of this Article.
Article 36.
Duties, authority and responsibilities of Heads and vice heads of Investigation
authorities
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a) Organize and direct the
processing of criminal information, charges and investigation by investigation
authorities;
b) Make decisions on the
appointment or replacement of vice heads of investigation authorities and units
handling criminal information, inspect criminal charges and investigation done
by vice heads, make decisions on amendments or abolishment of unfounded and
illegal decisions made by vice heads.
c) Make decisions on the
appointment or replacement of investigators and investigation officers, inspect
the processing of criminal information, criminal charges and investigation done
by investigators or investigation officers, and make decisions on amendments or
invalidation of unsubstantiated and unlawful decisions made by investigators.
d) Handle complaints and
accusations within the powers of investigation authorities.
The head of the investigation
authority, upon his absence, delegates a vice head to carry out the head’s
missions and power. Vice heads are held liable before the Head for the
assignments.
2. Heads of
investigation authorities, when instituting criminal proceedings, bear the
following duties and power:
a) Make decisions on suspending the
processing of denunciations, criminal information disclosed and requisitions
for charges (referred to as denunciations, information and requisitions);
decisions on pressing or not filing charges, amendments or alterations of
decisions on filing lawsuits or charges against suspects; decisions on
combining or dividing lawsuits; decisions on mandating investigations;
b) Make decisions on implementing,
changing or terminating preventive measures, coercive actions, and means for
special investigation and proceedings according to this Law;
c) Make decisions on issuing and
annulling warrants on arrest, search, seizure, impoundment and handling of
evidences;
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dd) Directly inspect and verify
criminal information and carry out investigation measures;
e) Draw conclusions on
investigations;
g) Make decisions on suspending or
terminating or resuming investigations into cases or against suspects;
h) Make orders and decisions and
perform other activities of legal proceedings within the powers of
investigation authorities.
3. Vice
heads of investigation authorities, when mandated to file charges or
investigate criminal cases, bear the duties and power as stated in Section 1
and Section 2 of this Article, save Point b, Section 1 of this Article. Vice
heads of investigation authorities cannot handle complaints or accusations
against their actions and decisions.
4. Heads
and vice heads of investigation authorities shall be held liable for their
actions and decisions. Heads and vice heads of investigation authorities cannot
mandate investigators to carry out their duties and power.
Article 37.
Duties, authority and responsibilities of investigators
1. Investigators,
as assigned to file charges and investigate criminal cases, have the following
duties and authority:
a) Directly inspect, verify and
document criminal information;
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c) Request or recommend the
designation and replacement of defense counsels, interpreters and translators;
d) Summon and interrogate suspects;
convene denouncers, informants, persons denounced or facing position of
charges, legal representatives of juridical persons to obtain their statements;
take statements from persons held in emergency custody, arrested, temporarily
detained; convoke witness testifiers, crime victims and plaintiffs for their
statements;
dd) Make decisions on delivering by
force persons held in emergency custody, arrested, temporarily detained,
suspects; escorting by force witness testifiers, persons denounced or charged,
crime victims; make decisions on transferring persons under 18 to entities
responsible for supervision; decide changes of supervisors of perpetrators
under 18;
e) Enforce emergency custody
orders, decisions or orders of arrest, temporary detainment or detention,
search, seizure, withholding, distrainment of property, freezing of accounts,
handling of evidences;
g) Search crime scenes, unearth and
dissect corpses, examine traces on bodies, confront persons involved,
facilitate identifications, conduct experimental investigations;
h) Perform other duties and
authority of legal proceedings within the powers of investigation authorities
as per assignments by the head according to this Law.
2. Investigators
shall be held liable under the laws and before the head and vice heads of the
investigation authority for their actions and decisions.
Article 38.
Duties, authority and responsibilities of Investigation officers of
investigation authorities
1. Investigation
officers, as per assignments given by Investigators, perform the following
duties and authority:
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b) Deliver and convey orders,
decisions and other documents on proceedings as per this Law;
c) Support investigators to prepare
documents on criminal information, case files and perform other activities of
legal proceedings.
2. Investigation
officers are held liable under the laws and before the head, vice heads,
investigators for their actions.
Article 39.
Duties, authority and responsibilities of chiefs, deputies, investigation
officers, in Border protection force, Customs, Forest ranger, Maritime police
force and Fisheries Surveillance, on assignments of certain activities of
investigation.
1. Chiefs
of units assigned to investigate as per Points a, b, c, and dd, Section 2,
Article 35 of this Law bear the following duties and authority:
a) Direct the processing of intra
vires criminal information, charges and criminal investigation;
b) Decide the appointment or
replacement of deputies and investigation officers for the handling of criminal
information, charges and investigation;
c) Inspect deputies’ and
investigation officers’ processing of criminal information, charges and
investigation;
d) Decide changes and abrogation of
unproven and illicit decisions made by deputies and investigation officers;
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The chief, upon his absence,
mandates a deputy to perform his duties and authority. The deputy is held
liable before the chief for the duties assigned. Chiefs and deputies are not
permitted to mandate investigation officers to perform their duties and
authority.
2. When
conducting criminal proceedings against perpetrators of misdemeanors in flagrante
and having clear evidences and culprits' profile, the persons as defined in
Points a, b, c, d and dd, Section 2, Article 35 of this Law bear the following
duties and authority:
a) Collect evidences, documents and
items from concerned individuals to check and verify criminal information;
b) Decide to suspend the processing
of denunciations, criminal information disclosed; requisitions for charges,
decisions on filing or not pressing charges, amendments to decisions on filing
lawsuits; decisions on pressing charges or amendments to decisions of filing
charges against suspects;
c) Directly organize and command
the examinations of the scenes;
d) Make decisions on requisitioning
expert examinations, valuation or on search, seizure, impoundment and maintenance
of evidences and materials directly related to the lawsuits;
dd) Summon and interrogate
suspects; convene crime victims and litigants for statements; convoke
denouncers, informants, persons denounced or facing requisitions for charges
for extraction of statements; call in witness testifiers for statements; take
statements from persons held in emergency custody;
e) Decide to implement preventive
and coercive measures as per this Law;
g) Conclude investigations, propose
charges or conclusions from investigations and decide to terminate or suspend
or resume investigations.
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a) Collect evidences, documents and
items from concerned people to inspect and verify criminal information;
b) Decide to suspend the processing
of accusations and criminal information disclosed, propose charges, decide to
file or not press charges, alter decisions on filing charges;
c) Decide to search, seize,
temporarily withhold and maintain evidences and documents directly related to
the lawsuits;
d) Convene witness testifiers,
crime victims and litigants for statements.
4. Investigation
officers have the following duties and authority:
a) Document criminal information,
extract statements from concerned persons to inspect and verify criminal
information;
b) Prepare criminal case files;
c) Interrogate suspects; obtain
statements from denouncers, informants, persons denounced or facing
requisitions for charges, persons held in emergency custody, arrested or
temporarily detained, witness testifiers, crime victims, litigants;
d) Investigate the scenes, enforce
warrants of search, seizure, impoundment and maintenance of evidences and
documents directly related to the cases.
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Article 40.
Duties, authority and responsibilities of chiefs, deputies and investigation
officers of other units in People’s Police Force and People’s Army on
assignments of certain activities of investigation
1. Chiefs
of units assigned to investigate as per Point e and Point g, Section 2, Article
35 of this Law bear the following duties and authority:
a) Direct intra vires activities of
charge filing and criminal investigation;
b) Decide to appoint or replace
deputies and investigation officers for filing of charges and criminal
investigation;
c) Inspect deputies' and
investigation officers' processing of criminal information, pressing of charges
and criminal investigation;
d) Decide to redress or annul baseless
and illegitimate decisions made by deputies and investigation officers.
A deputy, upon the absence of the
chief, shall be mandated to perform the chief’s duties and authority and assume
liabilities before the chief for the duties mandated.
2. When instituting
criminal proceedings, the persons as defined in Point e and Point g, Section 2,
Article 35 of this Law bear the following duties and authority:
a) Collect evidences, documents and
items from concerned persons to check and attest criminal information;
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c) Direct and command the
examination of crime scenes;
d) Decide to search, seize,
temporarily withhold and maintain evidences and documents related directly to
the cases;
dd) Summon denouncers, informants,
persons denounced or facing requisitions for charges, witness testifiers, crime
victims and litigants for statements.
3. Investigation
officers have the following duties and authority:
a) Document criminal information,
acquire statements from relevant persons to inspect and verify criminal
information;
b) Prepare criminal case files;
c) Gather statements from
denouncers, informants, persons denounced or facing requisitions for charges,
witness testifiers, defendants and litigants;
d) Investigate crime scenes,
enforce orders of search, seizure, impoundment and maintenance of evidences and
documents related directly to the lawsuits;
dd) Convey and send orders,
decisions and other documents on legal proceedings as per this Law.
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Article 41.
Duties, authority and responsibilities of Heads and Vice heads of The procuracy
1. Heads of
The procuracy bear the following duties and authority:
a) Directly organize and command
the activities of exercising rights of prosecution and manage legal compliance
of criminal procedure;
b) Decide to appoint or replace
vice heads of The procuracy, inspect vice heads’ activities of exercising
rights of prosecution and manage legal compliance of criminal procedure, decide
to redress or annul groundless and lawless decisions made by vice heads;
c) Decide to appoint or replace
procurators and checkers, inspect and manage procurators’ and checkers’
activities of exercising rights of prosecution and legal compliance in criminal
proceedings, decide to redress or vacate unfounded and illegal decisions made
by procurators;
d) Decide to remove, terminate or
annul unproven and illicit decisions made by an inferior Procuracy;
dd) Handle complaints and
accusations within the powers of The procuracy.
The head of The procuracy, upon his
absence, mandates a vice head to perform his duties and authority and assume
liabilities before the head for the duties mandated.
2. When
exercising rights of prosecution and managing legal compliance in criminal
proceedings, the head of The procuracy bears the following duties and
authority:
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b) Decide to suspend the handling
of criminal information; decide to file or not to press charges, amend
decisions on filing lawsuits; decide to press charges against suspects and
amend such decisions; decide to join or separate cases;
c) Decide to enforce, alter or
terminate preventive and coercive measures, and special investigation methods
and proceedings; decide to extend the inspection and verification of criminal
information, detention, investigation, temporary imprisonment, prosecution;
d) Decide to search, seize,
temporarily withhold, and handle evidences;
dd) Decide the request, addition or
repetition of expert examination, experimental investigation; change or demand
to replace expert witnesses. Request valuation, re-valuation, and demand to
change valuators;
e) Request heads of investigation
authorities, chiefs of units assigned to investigate to change investigators
and investigation officers;
g) Approve or disapprove decisions
and orders made by investigation authorities and units assigned to investigate;
h) Decide to abrogate unproven and
unlawful decisions and orders made by investigation authorities and units
assigned to carry out certain activities of investigation;
i) Settle disputes over the
authority to handle criminal information, file charges, conduct investigation;
and decide to transfer cases;
k) Decide to enforce or terminate
obligatory medical treatment measures;
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m) Decide to press charges against
suspects and return documents to further or reset investigations;
n) Request the restoration of
investigation works, decide to adjourn or dismiss charges or lawsuits against
suspects; decide to annul the decision to suspend the processing of criminal
information; decide to resume investigations of cases or defendants and to
retake cases and lawsuits against suspects;
o) Make appeals through appellate
Courts, reopening and cassation procedures against a Court’s judgments and
rulings as per this Law;
p) Exercise the right to express
proposition as per the laws;
q) Issue decisions and orders, and
carry out other activities of prosecution within the powers of The procuracy.
3. Vice heads
of The procuracy, when assigned to exercise rights of prosecution and manage
legal compliance in criminal proceedings, bear the following rights and duties
as per Section 1 and Section 2 of this Article, except for Point b, Section 1
of this Article. Vice heads of The procuracy is not permitted to handle
complaints and accusations against their own actions and decisions.
4. The head
and vice heads of The procuracy shall be held liable for their actions and
decisions. The head and vice heads of The procuracy cannot mandate procurators
to perform their duties and authority.
Article 42.
Duties, authority and responsibilities of Procurators
1. Procurators,
when assigned to exercise rights of prosecution and manage legal compliance in
criminal proceedings, have the following duties and authority:
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b) Directly manage and prepare
documents on criminal information;
c) Administer the processing of
criminal information and charges, implement preventive and coercive measures;
administer the competent investigation entities’ documentation of criminal
information and lawsuits; manage activities of prosecution and investigation
done by investigation authorities and units assigned to investigate;
d) Directly administer scene
investigation, autopsy, confrontation, identification, voice recognition,
experimental investigation and search;
dd) Administer the temporary
suspension and resumption of the processing of criminal information;
suspension, adjournment, resumption and closure of investigations;
e) Propose requirements for
investigation and request investigation authorities to issue or terminate
wanted notices against suspects;
g) Summon and interrogate suspects,
convene denouncers, informants, persons denounced or facing requisitions for
charges, juridical persons’ legal representatives, witness testifiers,
litigants for statements; extract statements from persons held in emergency
custody;
h) Make decisions on the coercive
delivery of arrestees, suspects; and on the forced escort of witness
testifiers, persons denounced or facing requisitions for charges, crime
victims; on the entrustment of persons under 18 to authorities and entities in
charge of supervision; on the replacement of supervisors of perpetrators under
18;
i) Directly perform certain
activities of investigation as per this Law;
k) Request the replacement of
persons authorized to institute legal proceedings; request and propose the
appointment or replacement of defense counsels; request the appointment and
replacement of translators and interpreters;
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m) Administer legal compliance of
the Court's adjudication and participants in legal proceedings; supervise the
Court's judgments, rulings and other documents of legal procedure;
n) Supervise the enforcement of the
Court’s judgments and rulings;
o) Exercise rights to express
requests and proposition as per the laws;
p) Perform other duties and
authority of prosecution within the powers of The procuracy as per the
assignments by the head of The procuracy as per this Law.
2. Procurators
shall be held liable under the laws and before the head and vice heads of The
procuracy for their decisions and actions.
Article 43.
Duties, authority and responsibilities of Checkers
1. Checkers
perform the duties and exercise power below as per the assignments from the
procurators:
a) Make written records of
statements and interrogation and other records of criminal proceedings;
b) Deliver and convey orders,
decisions and other documents of legal procedure as per this Law;
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2. Checkers
shall be held liable under the laws and before the head, vice heads and
checkers of The procuracy for their actions.
Article 44.
Duties, authority and responsibilities of Court president and Vice court
president
1. The
court president bears the following duties and authority:
a) Directly organize the
adjudication of criminal cases; make decisions on the settlement of disputes
over the jurisdiction;
b) Decide to assign Vice court
presidents, judges, lay assessors to hear criminal cases; to assign Court
clerks to institute legal proceedings on criminal cases; to assign verifiers to
verify criminal case files;
c) Decide to replace judges, lay
assessors and Court clerks prior to the start of a trial;
d) Decide the enforcement of
criminal sentences;
dd) Decide to postpone jail
sentences;
e) Decide to suspend prison
sentences;
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h) Handle complaints and
accusations within the powers of the Court.
The court president, upon his
absence, must mandate a vice presiding judge to carry out the judge's duties
and power. Vice court president shall be held liable before The court president
on the duties mandated.
2. When
hearing criminal cases, The court president bears the following duties and
authority:
a) Decide to enforce, alter or
terminate measures for handling of evidences and detention;
b) Decide to implement or terminate
civil commitment;
c) Decide to enable and deactivate
summary procedures;
d) Propose and make appeal for
cassation procedures against the Court‘s judgments and rulings in effect;
dd) Decide and perform other
activities of legal proceedings within the Court’s powers;
e) Engage in other activities of
legal proceedings as per this Law.
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4. The
court president and Vice court presidents are held liable under the laws for
their actions and decisions. The court president and Vice court presidents are
not permitted to mandate judges to carry out their duties and powers.
Article 45.
Duties, authority and responsibilities of Judge
1. A judge,
when assigned to hear criminal cases, bears the following duties and authority:
a) Examine case files prior to the
start of a trial;
b) Hear cases;
c) Engage in other activities of
legal procedure and vote on matters within the powers of the Trial panel;
d) Transact other activities of
legal procedure within the Court’s powers as per The court president’s
assignments.
2. The
presiding judge has the duties and powers as stipulated in Section 1 of this
Article and below:
a) Decide to implement, alter and
abort preventive and coercive measures, save those for detention;
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c) Decide to have cases heard; to
dismiss or adjourn lawsuits;
d) Manage the hearing of cases,
oral arguments in court;
dd) Decide to have expert
examinations started newly or afresh or extended, to perform experimental
investigations; to change or have expert witnesses replaced; to order valuation
or have valuators changed;
e) Order or requisition the
appointment or change of defense counsels; change of supervisors for
perpetrators under 18; request the appointment and replacement of translators
and interpreters;
g) Decide to summon witness
testifiers to the Court;
h) Engage in other duties and
powers of legal procedure within the Court’s powers as per The court
president’s assignments according to this Law.
3. Judges
shall be held liable under the laws for their actions and decisions.
Article 46.
Duties, authority and responsibilities of lay assessors
1. The lay
assessors on assignments to hear criminal cases bears the following duties and
authority:
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b) Hear cases;
c) Engage in activities of legal
procedure and vote on the Trial panel’s intra vires matters.
2. The lay
assessors shall be held liable under the laws for their actions and decisions.
Article 47.
Duties, authority and responsibilities of Court clerk
1. Court
clerks on assignments to handle criminal proceedings have the following duties
and authority:
a) Verify the presence of persons
receiving the Court’s subpoena; and specify excuses of those absent;
b) Announce the Court’s rules;
c) Report to the Trial panel about
the list of persons convened and absent;
d) Record the Court’s proceedings
in writing;
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2. Court
clerks are held liable under the laws and before the judge for their actions.
Article 48.
Duties, authority and responsibilities of Verifier
1. Verifies on
assignment to engage in criminal proceedings have the following duties and
authority:
a) Examine files of lawsuits on
which a Court has passed sentences in binding force, as per the assignments by
The court president or Vice court presidents;
b) Conclude activities of
verification and report to the tribunal president or Vice court presidents;
c) Verifiers facilitate The court
president’s enforcement of sentences within the Court's powers and other
assignments from The court president or Vice court presidents.
2. Verifiers
shall be held liable under the laws and before The court president and Vice
court presidents for their actions.
Article 49.
Disapproval or replacement of persons given authority to institute legal
proceedings
Persons given authority to
institute legal procedure must refuse to engage in proceedings or submit to
replacement in the following events:
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2. They have
acted as defense counsels, witness testifiers, verifiers, valuators,
interpreters or translators in the lawsuits;
3. Clear
grounds of their potential bias at work are found.
Article 50.
Individuals having the right to propose change of persons given authority to
institute legal proceedings
1. Procurators.
2. Detainees,
suspects, defendants, crime victims, civil plaintiffs, civil defendants and
their representatives.
3. Defense
counsels and protectors of legitimate rights and benefits for crime victims,
civil plaintiffs and defendants.
Article 51.
Replacement of investigators and investigation officers
1. Investigators
and investigation officers must decline to engage in legal proceedings or
submit to replacement in the following events:
a) As per stipulations in Article
49 of this Law;
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2. The head or
vice heads of the investigation authority shall decide the replacement of
investigators and investigation officers.
If the replaced investigator is the
head of the investigation authority according to Section 1 of this Article, the
superior investigation authority shall directly investigate the case.
Article 52.
Replacement of Procurators and Checkers
1. Procurators
and checkers must reject their engagement in legal proceedings or submit to
replacement in the following events:
a) As per Article 49 of this Law;
b) They have engaged in legal
proceedings in the lawsuit as investigators, investigation officers, judges,
lay assessors, verifiers or Court clerks.
2. The head or
vice heads of The procuracy assigned to settle lawsuits shall decide the
replacement of procurators at equal level of hierarchy prior to the start of a
trial.
If the replaced procurator is the
head of The procuracy, the head of the superior Procuracy shall give direct
decisions on relevant matters.
If a procurator must be changed
during the Court's proceedings, the Trial panel shall adjourn the trial.
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1. Judges and
lay assessors must repudiate their hearing of trials or submit to replacement
in the following events:
a) As per Article 49 of this Law;
b) They appear in the same trial
panel and biologically related to each other;
c) They have heard cases in
first-instance or appellate Courts or engaged in legal proceedings in such
Courts as investigators, investigation officers, procurators, checkers,
verifiers or Court clerks.
2. The court
president or Vice court presidents assigned to settle the lawsuit shall decide
the replacement of judges and lay assessors prior to the start of the trial.
If the replaced judge is The court
president, the president of the immediate superior Court shall decide relevant
matters.
The Trial panel decides the
replacement of the judge or lay assessors by voting in the lay assessors’ room
prior to the stage of interrogation. The lay assessors consider opinions of the
lay assessors to be replaced and make decisions under majority rule.
If the judge or lay assessors are
changed during the Court's proceedings, the Trial panel shall adjourn the
trial.
Article 54.
Replacement of Court clerks
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a) As per Article 49 of this Law;
b) They have engaged in legal
proceedings of the lawsuit as procurators, checkers, investigators,
investigation officers, judges, lay assessors, verifiers or Court clerks.
2. The
tribunal president or Vice court presidents assigned to settle lawsuits shall
decide to replace Court clerks prior to the start of the trial.
The Trial panel decides the
replacement of Court clerks during the Court's proceedings.
If Court clerks in court must be
changed, the Trial panel shall suspend the trial.
Chapter IV
PARTICIPANTS IN LEGAL PROCEEDINGS
Article 55.
Participants in legal proceedings
1. Denouncers,
informants and individuals proposing charges.
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3. Persons
held in emergency custody.
4. Arrestees.
5. Temporary
detainees.
6. Suspects.
7. Defendants.
8. Crime
victims.
9. Civil
plaintiffs.
10. Civil
defendants.
11. Individuals
bearing duties and interests from the lawsuits.
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13. Witnesses.
14. Expert witnesses.
15. Valuators.
16. Interpreters
and translators.
17. Defense
counsels.
18. Protectors
of legitimate rights and benefits of crime victims and litigants.
19. Protectors
of lawful rights and benefits of persons denunciated or facing requisitions for
charges.
20. Legal
representatives of juridical persons committing crime and other delegates as
per this Law.
Article 56.
Denouncers, informants and individuals proposing charges
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a) Request competent authorities to
maintain confidentiality of denunciation, crime reports, propose charges, to
protect their life, health, honor, dignity, prestige, property, legitimate
rights and benefits and kindred from existing menaces;
b) Be informed of the final
settlement of denunciations, information and requisitions;
c) Complain about competent
procedural authorities and persons’ decisions and legal procedure of receiving
and handling accusations, criminal information and requisitions for charges.
2. Entities as
defined in Section 1 of this Article must present themselves at the requests
for authorities empowered to handle criminal information, and must present
facts to their knowledge in honesty.
Article 57.
Persons denunciated or facing requisitions for charges
1. Persons
denunciated or facing requisitions for charges are entitled to:
a) Be informed of their acts
denounced or against which charges are proposed;
b) Be informed and explained about
their rights and duties according to this Article;
c) Give statements and opinions;
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dd) Confer on relevant evidences,
documents and items and ask authorized procedural persons to inspect and
evaluate such;
e) Defend or have their legitimate
rights and benefits defended;
g) Be informed of the final
settlement of accusations and requisitions for charges;
h) Complain about competent
procedural authorities and persons’ decisions and legal procedure.
2. Persons
denounced or facing requisitions for charges must appear at the requests for
authorities empowered to handle accusations and requisitions for charges.
Article 58.
Persons held in emergency custody and arrestees
1. Persons
held in emergency custody or arrested for criminal acts in flagrante and wanted
notices are entitled to:
a) Hear and obtain the warrants of
emergency custody, emergency arrest, written approvals of emergency custody and
wanted notices;
b) Be informed of reasons of their
temporary detainment and arrest;
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d) Give statements and opinions,
and have no obligation to testify against themselves or admit to guilt;
dd) Present evidences, documents,
items and requests;
e) Confer on relevant evidences,
documents and items and request authorized procedural persons to inspect and
evaluate such;
g) Defend themselves or be
defended;
h) Complain about competent
procedural authorities and persons’ decisions and legal procedure on detainment
and arrest.
2. Persons held
in emergency custody and arrestees bear the duty to conform to detainment
orders and arrest warrants and requests by entities authorized to detain and
arrest people according to this Law.
Article 59.
Temporary detainees
1. Temporary
detainees are held in emergency captivity or arrested for criminal acts in
flagrante or wanted notices or those confessing or surrendering and facing
existing orders of temporary detainment.
2. Temporary
detainees are entitled to:
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b) Be informed and explained about
their duties and rights as per this Article;
c) Give statements and opinions,
and have no obligation to testify against themselves or admit to guilt;
d) Defend themselves or be
defended;
dd) Present evidences, documents,
items and request;
e) Confer on relevant evidences,
documents and items and request authorized procedural persons to verify and
assess such;
g) File complaints about competent
procedural authorities and persons’ decisions and legal procedure on temporary
detainment.
3. Temporary
detainees are liable for conforming to this Law and the Law on temporary
detainment and detention.
Article 60.
Suspects
1. Suspects
are physical persons or juridical persons facing criminal charges. The rights
and duties of juridical persons as suspects are executed by their legal
representatives according to this Law.
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a) Be informed of reasons for
charges against them;
b) Be informed or explained about
their rights and duties as per this Article;
c) Acquire decisions on charges
against suspects and amendments to such decisions; written approvals of such
decisions or amendments; decisions on enforcement, change or termination of
preventive and coercive measures; final reports of investigation; decisions on
suspension and suspension of investigations; decisions of suspension and
suspension of lawsuits; charges, decisions on prosecution and other decisions
on legal proceedings according to this Law;
d) Give statements and opinions and
bear no obligation to testify against themselves or admit to guilt;
dd) Present evidences, documents,
items and requests;
e) Confer on relevant evidences,
documents and items and request authorized procedural persons to check and
evaluate such;
g) Requisition expert examinations,
valuation; changes of authorized procedural persons, expert witnesses,
valuators, interpreters and translators;
h) Defend themselves or be
defended;
j) Read and write digital documents
or copies of such regarding charges and vindication or other copies related to
their defense, upon requests, after the end of investigations;
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3. Suspects bear these duties:
a) Be present as per subpoenas by
persons given authority to institute legal proceedings. If suspects are absent
due to any but not force majeure or objective obstacles, they may be delivered
by force. Fugitives shall be sought;
b) Comply with competent procedural
authorities and persons’ decisions and requests.
4. Minister of Public Security
leads and cooperates with the head of the Supreme People’s Procuracy, Court president
of the Supreme People’s Court and Minister of Defense to regulate details of
sequence, formalities, time limit and location for suspects’ reading and
writing of digital documents and copies of such regarding charges, vindication
or other copies regarding suspects' pleading, if requested, according to Point
i, Section 2 of this Article.
Article 61.
Defendants
1. Defendants are physical persons
or juridical persons tried as per a Court’s decision. The rights and duties of
defendants as suspects are executed by their legal representatives according to
this Law.
2. Defendants are entitled to:
a) Obtain decisions on hearing of
lawsuits; decisions on enforcement, change or termination of preventive and
coercive measures; decisions on case suspension; judgments, Court's rulings and
other decisions on legal proceedings as per this Law;
b) Attend the trial;
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d) Petition for expert
examinations, valuation, change of authorized procedural persons, expert
witnesses, valuators, interpreters, translators, summoning of witness
testifiers, crime victims, individuals having duties and interests from the
lawsuit, expert witnesses, valuators, other participants in legal proceedings
and authorized procedural persons to the Court;
dd) Present evidences, documents,
items and requests;
e) Confer on relevant evidences,
documents, items and request authorized procedural persons to inspect and
assess such;
g) Defend themselves or be
defended;
h) Give statements and opinions,
bear no obligation to testify against themselves or admit to guilt;
i) Inquire and request Court
presidents to question courtroom participants with the Court president’s
consent; engage in oral arguments in court;
k) Give final statement prior to
the deliberation of judgments;
l) Read the Court's report and
request amendments to the Court's report;
m) Appeal against the Court’
judgments and rulings;
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o) Other rights as per the laws.
3. Defendants
bear these duties:
a) Appear as per the Court’s
subpoena. b) If defendants are absent due to any but not force majeure or
objective obstacles, they shall be delivered by force. Fugitives shall be sought;
b) Conform to the Court’s decisions
and requests.
Article 62.
Crime victims
1. Crime
victims are physical persons suffering from direct damage to physical body,
mentality and property, or organizations whose property and reputation are
impaired or threatened.
2. Crime
victims or their legal representatives are entitled to:
a) Be informed and explained about
their rights and duties as per this Article;
b) Present evidences, documents,
items and requests;
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d) Requisition expert examinations
and valuation as per the laws;
dd) Be informed of results of
investigations and lawsuits;
e) Request the change of authorized
procedural persons, expert witnesses, valuators, interpreters and translators;
g) Recommend punitive measures,
compensation level and guarantees of compensation;
h) Attend the trial; provide
opinions, request Court president to question defendants and attendees in
court; engage in oral arguments in court to defend their legitimate rights and
benefits; read the Court’s reports;
i) Defend or have their legitimate
rights and benefits defended;
k) Engage in other activities of
legal procedure as per this Law;
l) Request competent procedural
authorities to protect their life, health, honor, dignity, property, legitimate
rights and benefits, kindred against menaces;
m) Appeal against the Court’s
judgments and rulings;
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o) Other rights as per the laws.
3. If a
lawsuit is brought at the requests for crime victims, they or their legal
representatives shall state accusations in court.
4. Crime
victims bear these duties:
a) Be present as per authorized
procedural persons’ subpoena. If they are absent due to any but not force
majeure or objective obstacles, they may be escorted by force;
b) Abide by competent procedural
authorities and persons' decisions and request.
5. If an
entity is murdered, missing, bereaved of legal capacity, its representative
shall execute its rights and duties as per this Law.
Organizations as crime victims, if
divided, separated, consolidated or merged, shall have their rights and duties
as per this Article possessed by their legal representatives or entities
inheriting such duties and rights.
Article 63.
Civil plaintiffs
1. Civil
plaintiffs are persons and organizations suffering from damage caused by
criminal acts and filing damage claim.
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a) Be informed and explained about
their rights and duties as per this Article;
b) Present evidences, documents,
items and request;
c) Confer on relevant evidences,
documents and items and request authorized procedural persons to check and
evaluate such;
d) Be informed of results of
investigations and lawsuits;
dd) Requisition expert examinations
and valuation as per the laws;
e) Request changes of authorized
procedural persons, expert witnesses, valuators, interpreters and translators;
g) Recommend level and guarantee
measures of compensation;
h) Attend the trial; provide
opinions, request Court presidents to question attendees in court; engage in
oral arguments in court to defend plaintiffs' legitimate rights and benefits;
read the Court’s reports;
i) Defend or have their legitimate
rights and benefits defended;
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l) Appeal against the Court’s
judgments and rulings on compensations;
m) Other rights as per the laws.
3. Civil
plaintiffs bear these duties:
a) Appear as per authorized
procedural persons’ subpoena;
b) Present facts for damage claims
in honesty;
c) Comply with competent procedural
authorities and persons’ decisions and requests.
Article 64.
Civil defendants
1. Civil
defendants are persons and organizations incurring liabilities for
compensations as per the laws.
2. Civil
defendants or their legal representatives are entitled to:
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b) Accept or reject all or parts of
civil plaintiffs’ claims;
c) Present evidences, documents,
items and requests;
d) Confer on relevant evidences,
documents and items and request authorized procedural persons to inspect and
assess such;
dd) Requisition expert examinations
and valuation as per the laws;
e) Be informed of results of
investigations and lawsuits in connection with damage claims;
g) Request change of authorized
procedural persons, expert witnesses, valuators, interpreters and translators;
h) Attend the trial; provide
opinions, request the Court president to question attendees in court; engage in
oral arguments to protect defendants’ legitimate rights and benefits; read the
Court’s reports;
i) Defend or have their legitimate
rights and benefits defended;
k) Complain about competent
procedural authorities and persons’ decisions and legal proceedings;
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m) Other rights as per the laws.
3. Civil
defendants bear these duties:
a) Be present as per authorized
procedural persons’ subpoena;
b) Present facts related to
compensations in honesty;
c) Conform to competent procedural
authorities and persons’ decisions and requests.
Article 65.
Parties with interests and duties related to the lawsuit
1. Parties
with interests and duties in connection with the lawsuit are individuals and
organizations holding benefits and duties pertaining to criminal lawsuits.
2. Parties
with interest and duties relating to the lawsuit or their representatives are
entitled to:
a) Be informed and explained about
their rights and duties as per this Article;
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c) Requisition expert examinations
and valuation as per the laws;
d) Attend the trial; provide
opinions, request the Court president to question attendees in court; engage in
oral arguments in court to defend their legitimate rights and benefits; read
the Court's reports;
dd) Defend or have their legitimate
rights and benefits defended;
e) Confer on relevant evidences,
documents and items and request authorized procedural persons to verify and
assess such;
g) Appeal against the Court's
judgments and rulings on matters directly pertaining to their benefits and
duties;
h) Complain about competent
procedural authorities and persons’ decisions and legal proceedings;
i) Other rights as per the laws.
3. Parties
with interests and duties relating to the lawsuit bear these duties:
a) Appear as per authorized
procedural persons’ subpoena;
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c) Abide by competent procedural
authorities and persons’ decisions and requests.
Article 66.
Witness testifiers
1. Witness
testifiers possess knowledge of facts relating to the crime and lawsuit and
receive competent procedural authorities' subpoena to testify.
2. The
following persons cannot testify:
a) Defense counsels of accused
persons;
b) Persons not conscious of facts
pertaining to criminal information and lawsuit or not capable of giving
judicious testimonies due to their mental or physical impairment.
3. Witness
testifiers are entitled to:
a) Be informed or explained about
their rights and duties as per this Article;
b) Request summoning authorities to
protect their life, health, honor, dignity, property, legitimate rights and
benefits and kindred against menaces;
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d) Have their expenditure of travel
and other expenses covered by summoning authorities as per the laws.
4. Witness
testifiers bear these duties:
a) Be present as per competent
procedural authorities’ subpoena. If their absence due to any but not force
majeure or objective obstacles hinders the handling of criminal information,
charges, investigations, prosecution, adjudication, they may be escorted by
force;
b) Present facts to their knowledge
on criminal information and lawsuits and reasons leading to such knowledge in
honesty.
5. If witness
testifiers give false testimonies, decline or elude testification for any
excuses not relating to force majeure or objective obstacles, they shall incur
criminal liabilities as per the Criminal Code.
6. Organizations
where witness testifiers work or pursue education are responsible for
supporting their testification.
Article 67.
Witnesses
1. Witnesses
are requested by competent procedural authorities to witness legal proceedings
according to this Law.
2. The
following persons cannot be a witness:
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b) Persons deprived of judicious
consciousness due to mental or physical impairment;
c) Persons less than 18 years old;
d) There are evidences of a person’s
bias.
3. Witnesses
are entitled to:
a) Be informed and explained about
their rights and duties as per this Article;
b) Request authorized procedural
persons to abide by the laws and protect their life, health, honor, dignity,
property, legitimate rights and benefits, and kindred against menaces;
c) Read reports of legal
proceedings, and give opinions on legal proceedings that they witness;
d) Complain about competent
procedural authorities and persons’ decisions and legal proceedings pertaining
to matters that they witness;
dd) Have expenses covered by
summoning authorities as per the laws.
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a) Appear as per competent
procedural authorities’ subpoena;
b) Witness all legal proceedings as
requested;
c) Sign records of activities that
they witness;
d) Maintain confidentiality of
investigative activities that they witness;
dd) Present facts that they witness
in honesty at the requests for competent procedural authorities.
Article 68.
Expert witnesses
1. Expert
witnesses possess professional knowledge of matters requiring examinations for
experts, who are consulted by competent procedural authorities or
requested by participants in legal proceedings to conduct expert examinations
as per the laws.
2. Expert
witnesses are entitled to:
a) Read case files in connection
with the subjects of expert examination;
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c) Participate in sessions of
interrogation, extraction of statements and inquiry of matters related to the
subjects of expert examination;
d) Refuse to conduct expert
examinations without adequate time for relevant tasks, sufficient documents or
substantial grounds to reach a conclusion or decline to expert examinations
surpassing the extent of their professional knowledge;
dd) Put their own opinions in the
joint final report if they do not agree to the joint findings from a team of
expert witnesses;
e) Other rights as per the Law on
expertise.
3. Expert
witnesses bear these duties:
a) Be present as per competent
procedural authorities’ subpoena;
b) Maintain confidentiality of
investigation findings grasped during expert examinations;
c) Other duties as per the Law on
judicial expert examination.
4. If expert
witnesses fabricate findings or object to conclude examinations for any reasons
but neither force majeure nor objective obstacles, they shall face criminal
liabilities as per the Criminal Code.
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a) They are concurrently crime
victims, litigants, or representatives or kindred of crime victims, litigants,
suspects or defendants;
b) Having performed the role of
defense counsels, witness testifiers, interpreters, translators or valuators in
the lawsuit;
c) Having engaged in legal
proceedings of the lawsuit.
6. The
entities consulting experts shall decide to replace expert witnesses.
Article 69.
Valuators
1. Valuators
possess professional knowledge of pricing, who are consulted by competent
procedural authorities and requested by participants in legal proceedings to
valuate property as per the laws.
2. Valuators
are entitled to:
a) Study case files in connection
with the subjects of valuation;
b) Request the entities
requisitioning valuation or participants in legal proceedings, who request
valuation, to provide documents necessary for valuation;
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d) Put their own findings in the
joint final report if disagreeing with the conclusions by the Panel of
valuation;
dd) Other rights as per the laws.
3. Valuators
bear these duties:
a) Appear as per competent
procedural authorities’ subpoena;
b) Maintain confidentiality of
investigation facts grasped during their activities of valuation;
c) Other duties as per the laws.
4. If
valuators provide false findings or decline to valuate property for any reasons
but neither force majeure nor objective obstacles, they shall face criminal
liabilities as per the Criminal Code.
5. Valuators
must repudiate their engagement in legal proceedings or submit to replacement
in the following events:
a) They are concurrently crime
victims, litigants, or representatives, kindred of crime victims, litigants or
suspects, defendants;
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c) Having engaged in legal
proceedings of the lawsuit.
6. The
entities demanding valuation shall decide the replacement of valuators.
Article 70.
Interpreters and translators
1. Interpreters
and translators are capable of interpreting and translating languages, whose
services are demanded by competent procedural authorities when participants in
legal proceedings do not speak Vietnamese or documents are made in foreign
languages.
2. Interpreters
and translators are entitled to:
a) Be informed and explained about
their duties and rights as per this Article;
b) Request entities demanding their
services to protect their life, health, honor, dignity, property, legitimate
rights and benefits and kindred against menaces;
c) Complain about competent
procedural authorities and persons’ decisions and legal proceedings regarding
oral and written translation;
d) Receive payments for interpretation
and translation from authorities demanding their services and other benefits as
per the laws.
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a) Be present as per competent
procedural authorities’ subpoena;
b) Perform tasks of oral and
written translation in honesty. If interpreters and translators provide
deceitful services, they shall face criminal liabilities as per the Criminal
Code;
c) Maintain confidentiality of
investigation secrets grasped during their tasks of oral and written
translation;
d) Guarantee the execution of their
duties before the authorities demanding their services.
4. Interpreters and translators
must decline to engage in legal proceedings or submit to replacement in the
following events:
a) They are concurrently crime
victims, litigants; or representatives, kindred of crime victims, litigants or
suspects, defendants;
b) Having performed the role of
defense counsels, witness testifiers, expert witnesses, and valuators in the
lawsuit;
c) Having engaged in legal
proceedings of the lawsuit.
5. The
authorities demanding services of oral and written translation shall decide the
replacement of interpreters and translators.
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Article 71.
Responsibilities for announcement and explanation of rights and duties of
participants in proceedings and assurance of their execution of such
obligations and rights
1. Competent
procedural authorities and persons are responsible for announcing and
explaining the rights and duties of persons participating in legal proceedings
and for assuring the latters' execution of such obligations and grants
according to this Law.
If a accused person or aggrieved is
entitled to legal aid as per the Law on legal aid, competent procedural
authorities and persons are responsible for elucidating their right of legal
aid. If such person petitions for legal aid, competent procedural authorities
and persons shall promptly inform a Governmental legal aid centers.
2. Announcement
and explanation must be recorded in writing.
Chapter V
DEFENSE OF LEGITIMATE RIGHTS AND BENEFITS OF CRIME
VICTIMS AND LITIGANTS
Article 72.
Defense counsels
1. Defense
counsels are enabled by persons facing charges or appointed by competent
procedural authorities to perform activities of pleading, the registration of
which has been approved by competent procedural authorities and persons/
2. Defense
counsels may be:
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b) Representatives of persons
facing charges;
c) People’s advocates;
d) Legal assistants for charged
persons given legal aid.
3. People’s
advocates are Vietnamese citizens from 18 years of age, pledging allegiance to
the Nation, possessing good moral quality, having legal knowledge and sound
health to fulfill assignments. Such advocates are assigned by the Committee or
affiliations of the Vietnam Fatherland Front to defend their personnel facing
charges.
4. The
following individuals cannot plead:
a) Having engaged in legal proceedings
of the lawsuit; or being kindred of persons having engaged in legal procedure
of the lawsuit;
b) Having attended the lawsuit as
witness testifiers, expert witnesses, valuators, translators, interpreters;
c) Persons sentenced with criminal
records sustained, facing criminal prosecution, or sent to mandatory
rehabilitation or education centers through administrative measures.
5. A defense
counsel may defend various persons facing charges in one lawsuit if such
persons' rights and benefits do not come into collision.
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Article 73.
Rights and duties of defense counsels
1. Defense
counsels are entitled to:
a) Meet and inquire about persons
facing charges;
b) Be present during the extraction
of statements from arrestees and temporary detainees or the interrogation of
suspects, and question arrestees, temporary detainees and suspects with the
consent of individuals authorized to acquire statements or conduct
interrogation. After authorized individuals end a session of statement
extraction or interrogation, defense counsels may raise questions to
arrestees, temporary detainees and suspects;
c) Engage in the activities of
confrontation, identification, recognition of voice and other investigative
activities as per this Law;
d) Be informed by competent
procedural authorities of timing and location for taking statements or
interrogating, and schedule and venue for other activities of investigation as
per this Law;
dd) Read the records of legal
proceedings, in which they have participated, and decisions on legal procedure
against persons whom they defend;
e) Request the replacement of
persons given authority to institute legal proceedings, expert witnesses,
valuators, interpreters and translators; and request the changes or termination
of preventive and coercive measures;
g) Petition for legal proceedings
according to this Law; for summoning of witness testifiers, other participants
in legal procedure or authorized procedural persons;
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i) Inspect, assess and confer on
relevant evidences, documents and items and request authorized procedural
persons to check and evaluate such;
k) Request competent procedural
authorities to collect evidences, add or repeat expert examinations or
revaluate property;
l) Read, transcribe and photocopy
documents from case files related to their activities of pleading upon the end
of investigations;
m) Engage in debates and
questioning sessions in court;
n) File complaints about competent
procedural authorities and persons’ decisions and legal proceedings;
o) Lodge appeals against the
Court’s judgments and rulings if defendants are less than 18 years old or have
mental or physical defects as per this Law.
2. Defense
counsels bear these duties:
a) Implement all measures as
defined by the laws to clarify facts absolving persons facing charges or
mitigating criminal liabilities of suspects and defendants;
b) Provide legal assistance to
protect legitimate rights and benefits of persons facing charges;
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d) Respect the truth and be
inhibited to bribe, coerce or incite other people to provide false statements
or documents;
dd) Appear as per the Court’s
subpoena; or, if defense counsels are appointed according to Point 1, Article
76 of this Law, as per a subpoena by investigation authorities or The
procuracy;
e) It is inhibited to disclose
investigation secrets perceived during their activities of pleading; or exploit
documents transcribed or copied from case files to violate the government’s
interests, public benefits, legitimate rights and benefits of authorities and
entities;
g) It is forbidden to divulge
information on the lawsuit and charged person, which they attain when pleading,
unless otherwise agreed by the accused person. It is inhibited to exploit such
information to infringe the Government’s interests, public benefits, legitimate
rights and benefits of authorities and entities.
3. If defense
counsels break laws, their registration of pleading shall become void and they
shall face disciplinary or administrative penalties or criminal prosecution
according to the nature and severity of their violations. Moreover, they shall
incur amends for damages, if caused, according to the laws.
Article 74.
Time of defense counsels' participation in legal proceedings
Defense counsels engage in legal
proceedings upon the prosecution of suspects.
Defense counsels for arrestees and
temporary detainees engage in legal proceedings upon the arrestees’ appearance
in an office of investigation authorities or units assigned to carry out
certain activities of investigation or upon the release of a decision on
temporary detainment.
The head of the Procuracy is
authorized, when confidentiality of investigations into national security
breach is vital, to sanction defense counsels' engagement in legal proceedings
after investigations end.
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1. Defense
counsels are selected by the accused person, his representative or kindred.
2. In 12 hours
upon receiving a written request for defense counsel(s) from an arrestee or
temporary detainee, competent authorities managing such arrestee and temporary
detainee are responsible for conveying such request to the defense counsel(s),
their representatives or kindred. If an arrestee or temporary detainee does not
specify a defense counsel, competent authorities managing such arrestee or
temporary detainee must impart his written request to a representative or
kindred, who shall seek defense counsel(s).
In 24 hours upon receiving a
written request for defense counsel(s) from a person held in detention,
competent authorities managing such person are responsible for conveying such
request to defense counsel(s), their representative or kindred. If a person in
detention does not specify a defense counsel, competent authorities managing
such person shall give his written request to a representative or kindred, who
shall seek defense counsel(s).
3. If a
representative or kin of arrestees, temporary detainees or persons in detention
lodge a written request for defense counsel(s), competent authorities are
responsible for promptly informing such persons in custody to attain their
opinions on soliciting defense counsels.
4. Personnel
of the Committee or affiliations of Fatherland Front in districts, communes,
provincial cities or centrally-affiliated cities' metropolis, or their
representatives or kindred request the said authorities to assign people’s
advocate(s) to defend such personnel, who face charges.
Article 76.
Appointment of defense counsels
1. Competent
procedural authorities shall appoint defense counsels, who are not sought by
accused persons, their representative or kin in the following events:
a) Suspects or defendants facing
charges that may lead to the harshest sentence of 20 years in prison, life
imprisonment or death as per the Criminal Code;
b) Persons facing charges and not
capable of defending themselves due to physical defects; those with mental
disabilities or those under 18 years of age.
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a) A bar association assigns a law
firm to appoint defense counsel(s);
b) A governmental legal aid center
appoints a legal assistant or lawyer to defend persons qualified for legal aid;
c) The committee or affiliations of
Vietnam Fatherland Front appoint people's advocate(s) for their personnel who
face charges.
Article 77.
Replacement or rejection of defense counsels
1. The
following persons are entitled to reject or request the replacement of defense
counsels:
a) Persons facing charges;
b) Representatives of persons
facing charges;
c) Kin of persons facing charges.
All rejections or replacements of
defense counsels must be approved by persons facing charges, executed in
writing and inputted in case files, unless otherwise stated in Point b, Section
1, Article 76 of this Law.
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3. If a
defense counsel is appointed according to Point 1, Article 76 of this Law, the
accused person and his representative or kin shall preserve the right to
petition for the replacement or rejection of such defense counsel.
If a defense counsel is replaced, a
new defense counsel shall be appointed according to Point 2, Article 76 of this
Law.
If a defense counsel is rejected,
competent procedural authorities shall record in writing such rejection by
accused persons or their representatives or kindred according to Point b,
Section 1, Article 76 of this Law, shall terminate the appointment of defense
counsels.
Article 78.
Procedures for registration of defense counsel
1. In all
legal proceedings, a defense counsel must register his activities of pleading.
2. A defense
counsel, when registering activities of pleading, must present these documents:
a) A lawyer shall present his
lawyer registration card with a certified copy of such, and the letter of
application for defense counsel by representatives or kin of accused persons;
b) A representative of accused
persons must present identity card or citizen identification card with
certified copies of such, and the letter of confirmation by competent
authorities of their relationship with the accused persons;
c) A people’s advocate must present
his identity card or citizen identification card with certified copies of such,
and the letter of appointment b the Committee and affiliations of Vietnam
Fatherland Front;
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3. If a
defense counsel is appointed as per Article 76 of this Law, the following
papers must be presented:
a) A lawyer shall present his
lawyer registration card with certified copy of such and the letter of
appointment by the law firm at which such lawyer practices law, or the letter
of assignment by the bar association for individual lawyers;
b) A people's advocate shall
present his identity card or citizen identification card with certified copy of
such and the letter of appointment by the Committee or affiliations of Vietnam
Fatherland Front;
c) A legal assistant or solicitor
providing legal aid shall present his legal assistant’s card or lawyer
registration card, respectively, with certified copy of such and the letter of
appointment by a governmental legal aid center.
4. In 24 hours
upon receiving sufficient documents as stated in Point 2 or Point 3 of this
Article, competent procedural authorities must verify such papers and the
absence of an application for rejection of defense counsel as stated in Point 5
of this Article. Competent procedural authorities, upon completing its
verification, shall enter information into a written record for registration of
defense counsel, promptly send a notice of defense counsel to the entities
registering such defense counsel, and retain papers regarding the registration
of defense counsel in the case file. If requirements are not satisfied, denial
of registration of defense counsel and reasons shall be informed in writing.
5. Competent
procedural authorities deny the registration of defense counsel in one of the
following events:
a) As per Point 4, Article 72 of
this Law;
b) The accused person and qualified
for defense counsel appointment rejects a defense counsel.
6. The written
notice of defense counsel takes effect during legal proceedings, save the
following events:
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b) A representative or kin of the
accused person, according to Point b, Section 1, Article 76 of this Law, reject
or request to have the defense counsel replaced;
7. Competent
procedural authorities remove the registration of defense counsel and inform
the defense counsel and detention facility in one of the following events:
a) The defense counsel falls to
circumstances as defined in Point 4, Article 72 of this Law;
b) The laws are violated during the
progress of pleading.
Article 79.
Responsibilities for informing defense counsels
1. Competent
procedural authorities must give the defense counsel an advanced notice in
rational time on the schedule and location for legal proceedings that they are
permitted to engage in according to this Law.
2. If the
defense counsel fails to appear despite of the advance notice by competent
procedural authorities, legal proceedings shall occur, unless otherwise defined
in Article 291 of this Law.
Article 80.
Rendezvous with arrestees, temporary detainees and suspects or defendants in
detention
1. The defense
counsel, to meet the arrestee, temporary detainees and suspects or defendants
in detention, must present the written notice of defense counsel, the lawyer
registration card or the legal assistant’s card or the identity card or the
citizen identification card.
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Article 81.
Gathering and submitting evidences, documents and items related to activities
of pleading
1. The defense
counsel gathers evidences, documents, items and facts for pleading according to
Point 2, Article 88 of this Law.
2. In each
stage of legal proceedings, the defense counsel shall promptly submit
evidences, documents and items for pleading, which he has collected, to
competent procedural authorities for the latter's input of such into the case
file. The submission and receipt of evidences, documents and items must be
executed in writing as per Article 133 of this Law.
3. If the
defense counsel fails to gather evidences, documents and items for pleading, he
may request competent procedural authorities to collect such.
Article 82.
Read, transcribe and photocopy documents from case files
1. If the
defense counsel needs to read, transcribe and photocopy documents from case
files for activities of pleading upon the end of investigations, competent
procedural authorities are responsible for arranging time and location for the
defense counsel to read, transcribe and photocopy documents from case files.
2. The defense
counsel, after reading, transcribing and photocopying documents, must return
case files in original conditions to the authorities providing such files. If
documents and case files go astray or become ruined, penalties shall be imposed
as per the nature and severity of violations according to the laws.
Article 83.
Defenders of legitimate rights and benefits of persons facing accusations or
requisitions for charges
1. Defenders
of legitimate rights and benefits of persons facing accusations or requisitions
for charges are sought by individuals accused or facing requisitions for
charges to protect their legitimate rights and benefits.
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a) Lawyer;
b) People's advocate;
c) Representative;
d) Legal assistant.
3. Defenders
of legitimate rights and benefits of accused persons or facing request for
prosecution are entitled to:
a) Present evidences, documents,
items and requests;
b) Verify, assess and confer on
relevant evidences, documents and items and request authorized procedural
persons to inspect and evaluate such;
c) Be present during the extraction
of statements from accused persons or facing requisitions for charges or, with
the consent of the investigators or procurators, question such persons. After
competent individuals end a session of statement extraction, the defender of
legitimate rights and benefits of accused persons or facing requisitions for
charges is entitled to question such persons.
d) Be present during a session of
confrontation, identification, recognition of voice of accused persons or
facing requisitions for charges;
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4. Defenders
of legitimate rights and benefits of accused persons or facing requisitions for
charges bear these duties:
a) Implement measures as stated by
the laws to contribute to the clarification of objective truths of the case;
b) Providing legal aid to accused
persons or facing requisitions for charges to protect their legitimate rights
and benefits.
Article 84.
Defenders of legitimate rights and benefits of crime victims or litigants
1. Defenders
of legitimate rights and benefits of crime victims or litigants are sought by
such persons to protect their legitimate benefits and rights.
2. Defenders
of legitimate rights and benefits of crime victims and litigants may be:
a) Lawyer;
b) Representative;
c) People’s advocate;
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3. Defenders
of legitimate rights and benefits of crime victims and litigants are entitled
to:
a) Present evidences, documents,
materials and requests;
b) Verify, assess and confer on
relevant evidences, documents and items and request authorized procedural
persons to inspect and evaluate such;
c) Petition for expert examination
and valuation;
d) Be present during competent
procedural authorities' extraction of statements, confrontation, identification
and recognition of voice of individuals whom they defend; read, transcribe and
photocopy documents from case files, upon the end of investigations, in
connection with the protection of crime victims' and litigants' rights and
interests;
dd) Engage in questioning session
and oral arguments in court; read the Court’s reports;
e) File complaints about competent
procedural authorities and persons' decisions and legal proceedings;
g) Petition for the replacement of
authorized procedural persons, expert witnesses, valuators, interpreters and
translators;
h) Appeal against parts of the
Court's judgments and rulings related to the rights, interests and duties of
defended persons under 18 years of age or having physical or mental defects.
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a) Implement measures as defined by
the laws to contribute to the clarification of objective truths of the case;
b) Provide legal aid to crime
victims and litigants to protect their legitimate rights and benefits.
Chapter VI
ATTESTATION AND EVIDENCE
Article 85.
Attestation in criminal lawsuits
Competent procedural authorities,
when investing, prosecuting and hearing criminal lawsuits must attest:
1. The
existence of the crime, time, space and facts of the crime;
2. The
perpetrator of the crime; the presence of guilt, intentional or unintentional
acts; the existence of criminal capacity; purposes and motive of the crime;
3. Facts
aggravating and mitigating criminal liabilities of suspects, defendants and
identity traits of suspects and defendants;
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5. Reasons and
conditions leading to the crime;
6. Other facts
in connection with the exclusion or exemption of criminal liabilities and
impunity.
Article 86.
Evidences
Evidences are de facto and
collected as per the sequence and formalities defined by this Law. Evidences
are grounds for the determination of a crime, perpetrators of such crime and
other valuable facts for the settlement of the case.
Article 87.
Sources of evidences
1. Evidences
are collected and determined from these sources:
a) Exhibits;
b) Statements, presentations;
c) Electronic data;
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dd) Records of legal proceedings,
investigation, prosecution, adjudication, sentence enforcement;
e) Results of judicial delegation
and other international cooperations;
g) Other documents and items.
2. Palpable
things not collected as per the sequence and formalities as per this Law bear
no legal effect and are not evidences for the settlement of criminal lawsuits.
Article 88.
Collection of evidences
1. Competent
procedural authorities, to collect evidences, are entitled to perform
activities of evidence collection as per this Law, and to request other
authorities and entities to provide evidences, documents, items, electronic
data and facts that solve the case.
2. Defense
counsels, to collect evidences, are entitled to meet persons whom they defend,
crime victims, witness testifiers and other individuals knowledgeable about the
case to put questions and hear such persons’ stories related to the case; to
request authorities and entities to provide documents, items and electronic
data for pleading.
3. Other
participants in legal proceedings, authorities and entities can provide
evidences, documents, items, electronic data and relate matters of the case.
4. Competent
procedural authorities, when receiving evidences, documents, items and
electronic data related to the case from individuals as stated in Point 2 and
Point 3 of this Article, shall make written records of submission, verify and
assess such as per this Law.
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Article 89.
Evident materials
Exhibits include tools and means of
crimes, objects with criminal traces, criminals' targets, money or other items
as satisfactory evidences of crimes and malefactors or of significance to the
settlement of cases.
Article 90.
Preservation of exhibits
1. Exhibits
must be preserved intact and protected from loss, disorder and deterioration.
Exhibits are preserved as follows:
a) Sealing of exhibits that must be
stored in sealed containers shall be done upon the acquisition of such items.
Sealing and removal of seal are executed in writing and inputted in case
files. Sealing and removal of seal on exhibits abide by the government's
regulations;
b) Exhibits including money, gold,
silver, precious metals, precious stones, antiques, explosives, inflammables,
toxic, radioactive substances and military arms must undergo expert examination
upon the acquisition of such items and must be subsequently transferred in
prompt manner to the State Treasury or specialized units for storage. If
exhibits are money, gold, silver, precious metals, precious stones and antiques
with criminal traces, they shall be put in sealed containers as per Point a of
this Section. If exhibits are harmful bacteria, body parts, tissue samples,
blood samples and other samples from human body, they shall be preserved at
specialized authorities according to the laws.
c) If exhibits cannot be
transported to competent procedural authorities for preservation, competent
procedural authorities shall give them to lawful owners or managers of such
items or to their kindred or to local authorities or organizations adjacent to
the said exhibits;
d) If exhibits are susceptible to
damage or subject to difficult process of preservation, competent authorities
within their powers shall sanction the sale of such items as per the laws and
transfer earnings to a temporary account of a competent authority in the State
Treasury for management;
dd) If exhibits are preserved by
competent procedural authorities, the units in people's police force, People’s
Army force and other units assigned to investigate are responsible for
preserving such exhibits during the stage of investigation and prosecution
while authorities for civil sentence enforcement are liable for preserving them
during the stage of adjudication and sentence enforcement.
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If exhibits are inserted, dwindled,
modified, swapped, disposed or broken to falsify case files, criminal
liabilities shall be imposed. Amends for damage of exhibits are mandatory as
per the laws.
Article 91.
Deposition by witness testifiers
1. Witness
testifiers depose their knowledge of the crimes, cases, kin and their
relationship with accused persons or aggrieved, other witness testifiers and
respond to questions.
2. If witness
testifiers state facts whose origin cannot be clarified, such facts shall not
become evidence.
Article 92.
Deposition by crime victims
1. Crime
victims depose the facts on the crimes, cases, their relationship with accused
persons and respond to inquiries.
2. If
circumstances leading to crime victims’ knowledge of certain facts cannot be
clarified, such facts shall not be deemed as evidence.
Article 93.
Deposition by civil plaintiffs and civil defendants
1. Civil
plaintiffs and civil defendants state facts on amends for damage caused by
crimes.
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Article 94.
Deposition by individuals having interests and duties related to the lawsuit
1. Individuals
having duties and interests in connection with the lawsuit state facts directly
related to their duties and benefits.
2. If such
individuals fail to explain the origin of their acquisition of certain facts,
such facts shall not be qualified as evidence.
Article 95. Deposition
by emergency detainees, accused persons or facing requisitions for charges,
offenders confessing or surrendering, arrestees and temporary detainees
Emergency detainees, accused
persons and facing requisitions for charges, offenders confessing and
surrendering, arrestees and temporary detainees state facts directly related to
their alleged acts of crime.
Article 96.
Statements by denouncers and informants
Denouncers and informants state
facts related to their denunciation and information of the crimes.
Article 97.
Deposition by witnesses
Witnesses state facts that they
perceive from legal proceedings.
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1. Suspects
and defendants state facts of the cases.
2. The
admission of crimes by suspects or defendants, if matching other evidences,
shall be valid evidence.
The admission of crimes by suspects
or defendants shall not be the sole evidence for conviction.
Article 99.
Electronic data
1. Electronic
data is composed of signals, letters, numbers, images, sound or similar
elements created, stored and transmitted or acquired through electronic media.
2. Electronic
data is collected through electronic media, computer networks,
telecommunication networks, transmission lines and other electronic sources.
3. Electronic
data constitutes evident values according to the methods of its creation,
storage or transmission; the methods for assurance and maintenance of the
entirety of electronic data; and the methods for identifying creators and other
proper factors.
Article 100.
Results of expert examination
1. Results of
a expert examination are produced by entities conducting such examination in
writing to give final professional findings on matters examined as per
requisition or petition.
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If a team of expert witnesses carry
out a expert examination, all of its members shall affix signatures on the
final report. Each person, if providing different opinions, shall have their
findings presented in the final report.
3. If
competent procedural authorities disagree with the results of a expert
examination, their reasons must be specified. If results are found unclear or
inadequate, expert examinations shall be furthered or repeated according to
this Law.
4. Findings
given by expert witnesses who must decline to perform examinations or submit to
replacement shall be deemed null and invalid for the settlement of the case.
Article 101.
Results of valuation
1. Results of
valuation are produced by the Panel of valuation in writing to conclude values
of property as per requests.
The Panel of valuation is held
liable for its findings on property values.
2. All members
of the Panel of valuation must affix signatures on the written conclusion of
valuation. A member of the Panel, if debating property values determined by the
Panel, shall present his findings in the final report.
3. If
competent procedural authorities disagree with the findings on valuation, their
reasons must be specified. If findings are found obscure, valuation process
shall be repeated according to this Law.
4. If findings from the Panel of
valuation violate this Law or other laws, they shall be invalid and not usable
for the settlement of the case.
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The facts on inspection and
verification of criminal information, charges, investigations, prosecution and
adjudication, which are established and recorded in writing according to this
Law, shall be evidences.
Article 103.
Results of legal delegation and international cooperation
The results of legal delegation and
international cooperation from competent foreign authorities, if matching other
evidences, shall become evidences.
Article 104.
Other documents and items in the case
Case facts available in documents
and items from authorities and entities may become evidences. If such documents
and items possess traits as defined in Article 89 of this Law, they shall be
exhibits.
Article 105.
Acquisition of exhibits
Exhibits must be acquired promptly
and fully and their actual conditions must be described precisely in writing
and in case files. If exhibits cannot be put in case files, they shall be
photographed and recorded by camcorder to be stored in case files. Exhibits
must be sealed or preserved as per the laws.
Article 106.
Handling of exhibits
1. Investigation
authorities and units assigned to investigate make decisions on the handling of
exhibits if the case is dismissed at the stage of investigation. The procuracy
decides the handling of exhibits if the case is dismissed at the stage of
prosecution. The court president governs the handling of exhibits if the case
if dismissed at the preliminary stage of adjudication. The Trial panel make
decisions on the handling of exhibits if the case is heard.
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2. Exhibits
are handled as follows:
a) Exhibits including tools or
means of crime, objects prohibited from storage and trading shall be seized,
confiscated into the state budget or disposed;
b) Exhibits including money or
property gained through criminal acts shall be seized and confiscated into the
state budget.
c) Exhibits that are not valuable
and usable shall be seized and disposed.
3. During the
processes of investigation, prosecution and adjudication, the competent
authorities and individuals as stated in Section 1 are entitled to
a) Return property seized and
detained but not deemed as evidences to legitimate owners or managers of such
in promptly manner;
b) Return evidences to legitimate
owners or managers if such return is deemed not to affect the settlement of the
case and the enforcement of sentences;
c) Evidences susceptible to damage
or subject to strenuous preservation may be sold as per the laws. If they are
not salable, disposal shall occur;
d) Evidences including wild animals
and exotic plants shall be handled by competent specialized control units
immediately after the release of findings of expert examinations as per the
laws.
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Article 107.
Acquisition of electronic means and data
1. Electronic media must be
obtained promptly and fully, described precisely by actual conditions and
sealed upon acquisition. Sealing and unsealing shall abide by the laws.
If electronic data storing means
cannot be seized, competent procedural authorities shall copy electronic data
into another electronic medium for storage of evidence. Moreover, relevant
authorities and entities shall be requested to store and preserve the entirety
of electronic data that competent procedural authorities have copied, and
assume legal liabilities for storage and preservation of such data.
2. Competent procedural
authorities, when attaining, intercepting and copying electronic data from
electronic media, computer networks or transmission lines, must execute written
records for case files.
3. Upon receiving competent
procedural authorities’ requisition for expert examination, entities deemed
responsible shall restore, search and examine electronic data.
4. Only copies of electronic data
shall be restored, sought and examined. Results from restoration, search and
expert examination must be converted to readable, audible or visible formats.
5. Electronic media and data are
preserved as evidences according to this Law. Electronic data, when displayed
as evidences, must come with its storage means or copies.
Article 108.
Inspection and evaluation of evidences
1. Each
evidence must be inspected and evaluated to verify its validity, authenticity
and connection with the case. The verification of evidences acquired must be
adequate to settle criminal cases.
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Chapter VII
PREVENTIVE AND COERCIVE MEASURES
Heading I.
PREVENTIVE MEASURES
Article 109.
Preventive measures
1. Competent procedural authorities
and persons within their powers can implement measures of emergency custody,
arrest, temporary detainment, detention, bail, surety, residential confinement,
exit restriction, in order to preclude crime, to prevent accused persons from
evidently obstructing investigations, prosecution, adjudication or from
committing other crimes, or to assure the enforcement of sentences.
2. The apprehension of persons
refers to emergency custody, arrest of perpetrators of crimes in flagrante or
wanted fugitives, capture of suspects and defendants for detention, and arrest
of persons for extradition.
Article 110.
Emergency custody
1. Emergency custody of a person is
permitted in one of the following events:
a) There are substantial evidences
that such person is going to commit a horrific or extremely severe felony;
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c) A person carrying criminal
traces or a suspect whose residence, workplace or tools contain criminal traces
must be obstructed promptly from escaping or disposing evidences.
2. The following individuals are
entitled to issue an order of emergency custody:
a) Head and vice heads of
investigation authorities;
b) Heads of independent units at
regiment level and equivalent ones, commanding officers of border protection
posts; commanders of border protection units at border gates, captains of
border protection units in provinces and centrally-affiliated cities, heads of
border reconnaissance departments and drug and crime departments of the border
protection force, heads of special services against drug and crime of the
border protection force; zone commanders of maritime police force, heads of
specialized and legal departments of the maritime police force, heads of
special service of drug enforcement of the maritime police force; heads of
zonal bureaus of fisheries resources surveillances;
c) Commanding pilots and captains
of aircrafts and ships leaving airports or sea ports.
3. The order for emergency custody
must specify full name and address of the detainee, reason and grounds for
detainment according to Section 1 of this Article and other stipulations in
Section 2, Article 132 of this Law. The enforcement of a emergency custody
order must abide by Section 2, Article 113 of this Law.
4. Upon holding persons in
emergency custody or taking in emergency detainees, investigation authorities
and units assigned to investigate, within 12 hours, must take statements
promptly, and individuals as stated in Point a and Point b, Section 2 of this
Article must issue a temporary detainment order, arrest warrant and discharge
order on the detainee. The emergency custody order and relevant documents must
be delivered promptly to the equivalent Procuracy or competent ones for
ratification.
Individuals as per Point c, Section
2 of this Article, after holding persons in emergency custody, must deliver by
force detainees and bring emergency custody documents to investigation
authorities adjacent to the first airport or sea port where the airplane or
ship lands or docks, when returning.
Upon taking in detainees,
investigation authorities must take statements promptly within 12 hours, and
individuals as per Point a, Section 2 of this Article must issue a temporary
detainment order, arrest warrant or release order on the emergency detainee.
The emergency custody order and relevant documents must be delivered to the
equivalent Procuracy for approval.
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5. A written request for the
Procuracy's approval of an emergency custody order is composed of:
a) The letter of request for the
Procuracy’s approval of the emergency custody order;
b) The written order for emergency
custody, arrest warrant against emergency detainees, temporary detainment
order;
c) The written record of emergency
custody;
d) The written record of emergency
detainee’s deposition;
dd) Evidences, documents and items
related to emergency custody.
6. The procuracy must strictly administer
the grounds for detainment as per Section 1 of this Article. The procurator, if
necessary, shall meet the emergency detainee before approving or denying the
order for emergency custody. The written record of the emergency detainee’s
deposition, as made by the procurator, must be retained in the case file.
Upon receiving the written request
for approval of emergency custody order, the Procuracy must decide to approve
or deny such order in 12 hours. If The procuracy denies the emergency custody
order, the individual making such order and investigation authority taking in
the detainee must immediately discharge the detainee.
Article 111.
Arrest of perpetrators of crimes in flagrante delicto
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2. Everyone is permitted to disarm
the detainee when capturing a person caught in the act of coming a crime.
3. If communal, ward or town police
unit or police station detects, arrests and detains a perpetrator of a crime in
flagrante, it shall temporarily seize weaponry, retain relevant documents and
items, make written record of arrest, take initial statements, protect crime
scene as per the laws, deliver by force the detainee or report to competent
investigation authorities in prompt manner.
Article 112.
Apprehension of wanted persons
1. Everyone is permitted to capture
and deliver by force a wanted person to the nearest police station, Procuracy
or People’s committee. The said authorities, when taking in the arrestee, must
make written record of the incident and deliver by force the arrestee and
report to competent authorities in prompt manner.
2. Everyone, when capturing a
wanted person, is permitted to disarm such person.
3. If communal, ward or town police
unit or police station detects, arrests or takes in, it shall temporarily seize
weaponry, retain relevant documents and items, make written record of arrest,
take initial statements, protect crime scene as per the laws, deliver by force
the arrestee or report to competent investigation authorities in prompt manner.
Article 113.
Apprehension of suspects and defendants for detention
1. The following individuals are
entitled to order and decide the apprehension of suspects and defendants for
detention:
a) Heads and vice heads of
investigation authorities. In this event, the arrest warrant must be approved
by the equivalent Procuracy prior to apprehension;
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c) Court presidents, Vice court
presidents of People’s Courts, and Court presidents and Vice court presidents
of Courts-martial; trial panel.
2. The arrest warrant and written
approval of the arrest warrant must specify full name and address of the
arrestee, reasons and other details as per Point 2, Article 132 of this Law.
Enforcers of an arrest warrant must
read out the warrant, explain its content, arrestee's duties and rights, make
written record of the arrest, and give the warrant to the arrestee.
The apprehension of a person at his
place of residence must be witnessed by a representative of communal, ward or
town authorities and other individuals. The apprehension of a person at his
place of work or education must be witnessed by a representative of the place
of work or education. The apprehension of a person at other places must be
witnessed by a representative of communal, ward or town authorities.
3. Apprehension must not occur at
night, except for criminals in flagrante or wanted persons.
Article 114.
Essential actions upon emergency custody, arrest or intake of arrestees and
detainees
1. Upon holding a person in
emergency custody, arresting persons or taking in arrestees and detainees,
investigation authorities and units assigned to investigate must take
statements promptly and, within 12 hours, make decisions on temporary
detainment or discharge of the arrestee.
2. Investigation authorities, after
taking in and acquiring statements from wanted arrestees, must inform the
authority issuing the wanted notice for the transfer of the arrestee. After
taking in the arrestee, the authority issuing the wanted notice must promptly
issue a decision on terminating the wanted notice.
If the authority issuing the wanted
notice fails to attain the arrestee promptly, the authority taking in the
arrestee, after taking statements, shall issue a decision on temporary
detainment and inform the former. If the authority issuing the wanted notice
still does not acquire the arrestee upon the end of the temporary detainment,
the latter shall extend the time of detainment and submit the written extension
of the time of detainment and relevant documents to the equivalent Procuracy
for approval.
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3. If several wanted notices are
issued against an arrestee, the authority taking in the arrestee transfers such
arrestee to the nearest authority that issued a wanted notice.
Article 115.
Written records of emergency custody and arrest
1. Enforcers of detainment orders
or arrest warrants must execute all matters in writing.
The written record must specify
time, date and location of detainment or arrest and where the record is made.
It must indicate actions, circumstances during the enforcement of the
detainment order or arrest warrant, documents and items seized, health
conditions and opinions or complaints of detainees and arrestees and other
details as per Article 133 of this Law.
The record shall be read out to the
detainee or arrestee and the witnesses. The detainee, arrestee, enforcers of
the detainment order or arrest warrant and witnesses must affix signatures onto
the record. If a person as stated above has different opinions or disagrees
with the record, he is permitted to enter such opinions or disagreement into
the record and affix signature below.
The temporary seizure of documents
and items from detainees and arrestees must abide by this Law.
2. A written record shall be made
upon the transfer of the detainee or arrestee.
Apart from details as defined in
Section 1 of this Article, the written record must elaborate the transfer of
the deposition record, documents and items acquired, health condition of
detainees and arrestees and facts occurring upon the transfer.
Article 116.
Notice of emergency custody and arrest
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Investigation authorities, in 24
hours after taking in detainees and arrestees, must inform their family
members, workplace, educational facility, local authorities in the commune,
ward or town where he resides. If detainees and arrestees are foreigners,
Vietnamese diplomatic authorities must be informed to deliver notices to
diplomatic missions of countries whose citizens are detained or arrested.
If such notice obstructs the
pursuit of suspects or investigative activities, investigation authorities
taking in detainees and arrestees shall release notices after such obstructions
suspend to exist.
Article 117.
Temporary detainment
1. Temporary detainment may apply
to persons held in emergency custody or arrested against crimes in flagrante,
malefactors confessing or surrendering or persons arrested as per wanted
notices.
2. The individuals authorized to
issue detainment orders as per Section 2 of Article 110 of this Law are entitled
to decide temporary detainment.
A decision on temporary detainment
must specify full name and address of the person on temporary detainment,
reason, time, starting and final date of temporary detainment and details as
per Point 2, Article 132 of this Law. The decision on temporary detainment must
be given to the person on temporary detainment.
3. Enforcers of decisions on
temporary detainment must inform persons on temporary detainment and explain
their duties and rights as per Article 59 of this Law.
4. The individual issuing the
decision on temporary detainment, in 12 hours upon making such decision, must
send the decision and supporting documents to the equivalent Procuracy or a
competent Procuracy. If the temporary detainment is found unjustified or
unnecessary, the Procuracy issues a decision on annulling the decision on
temporary detainment. The individual issuing the decision on temporary
detainment must immediately discharge the person on temporary detainment.
Article 118.
Time spent in temporary detainment
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2. The individual deciding
temporary detainment, if necessary, can extend the time limit for temporary
detainment for at most 03 more days. The individual deciding temporary detainment,
in special events, can give second extension of the time limit for temporary
detainment for at most 03 more days.
Extension of temporary detainment
must be approved by the equivalent Procuracy or a competent Procuracy. The
procuracy, in 12 hours upon receiving a written request for temporary
detainment extension, must approve or deny such request.
3. If grounds for prosecution do
not suffice during the period of temporary detainment, investigation
authorities and units assigned must promptly discharge the detainees on
temporary detainment. Otherwise, the Procuracy, which has extended temporary
detainment, shall discharge such detainees in prompt manner.
4. The time spent in detainment
shall be subtracted from the time spent in detention. One day spent in
detainment gives one day’s credit toward the time passed in detention.
Article 119.
Detention
1. Detention may apply to suspects
and defendants perpetrating a horrific or extremely severe felony.
2. Detention may apply to suspects
or defendants committing a felony or misdemeanor punishable with incarceration
for more than 02 years as per the Criminal Code if grounds show that:
a) Such persons commit crimes
despite of existing preventive measures against them;
b) No definite place of residence
is known or a defendant's identity is unidentified;
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d) Such persons continue criminal
acts or are evidently going to continue crimes;
d) Such persons commit acts of
bribing, coercing or inciting other individuals to give false statements or
documents, destroying or forging case evidences, documents and item, shifting
property related to the case away, threatening, repressing or avenging witness
testifiers, crime victims, denouncers and their kin.
3. Detention may apply to suspects
or defendants committing a misdemeanor punishable with maximum 02-year
imprisonment as per the Criminal Code if they continue criminal acts or are
fugitives arrested as per wanted notices.
4. If suspects or defendants have
clear information of residence and identity and are gestating, raising a child
less than 36 months of age, suffering from senility or serious diseases,
detention shall be replaced by other preventive measures, except that:
a) They abscond and get arrested as
per wanted notices;
b) They continue criminal acts;
d) They commit acts of bribing,
coercing or inciting other individuals to give false statements or documents,
destroying or forging case evidences, documents and item, shifting property
related to the case away, threatening, repressing or avenging witness
testifiers, crime victims, denouncers or their kin.
d) Suspects or defendants breach
national security and detention evidently prevents them from transgressing national
security.
5. Authorized individuals as
defined in Section 1, Article 113 of this Law are entitled to issue orders and
decisions on detention. Detention orders made by individuals as defined in
Point a, Section 1, Article 113 of this Law must be approved by the equivalent
Procuracy prior to the enforcement of such orders. The procuracy, in 03 days
upon receiving a detention order, written request for approval and relevant
documents, must approve or deny such request. The procuracy must return documents
to investigation authorities upon the former’s completion of the ratification
process.
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Article 120.
Attention to kindred and preservation of property for persons in temporary
detainment or detention
1. If persons on temporary
detainment or in detention live with disabled, senile or mentally ill
individuals left unattended, the authorities deciding temporary detainment or
detention shall assign other relatives to provide them with care. If no
relative exists, the authorities deciding temporary detainment or detention
shall put them into care by local authorities in the commune, ward or town
where they reside. The care of children of persons on temporary
detainment or in detention shall comply with the Law on enforcement of
temporary detainment and detention.
2. If persons in temporary
detainment or detention own houses or property left unattended, the authorities
deciding temporary detainment or detention shall implement methods of
preservation.
3. The authorities deciding
temporary detainment or detention shall give persons on temporary detainment or
in detention a notice of the attention to their kindred and property. Such
notice shall be executed in writing and stored in case files.
Article 121.
Bail
1. Surety is a preventive measure
in lieu of detention. Investigation authorities, procuracies and Courts shall
consider the nature and severity of acts against the society and suspects’ or
defendants’ personal records and decide to approve or refuse bail.
2. Organizations may bail suspects
or defendants, who are their employees. An organization undertaking bail shall
present a written promise that bears the signature of its head.
Individuals who are at least 18
years of age, have good records, abide strictly by the laws, gain stable
incomes and are capable for overseeing persons on bail can undertake bail for
suspects or defendants who are their kin. In this event, bail must be
undertaken by at least 02 individuals. An individual undertaking bail must
present a written promise endorsed by his workplace or educational facility or
local authorities in the commune, ward or town where he resides.
The written promise from
organizations or individuals undertaking bail must guarantee to prevent
suspects or defendants from violating duties as prescribed in Section 3 of this
Article. Organizations and individuals undertaking bail shall be informed of
case facts in connection with their undertaking of bail.
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a) Appear as per a subpoena, unless
force majeure or objective obstacles occur;
b) Not to abscond or continue
criminal acts;
d) Not to commit acts of bribing,
coercing or inciting other individuals to give false statements or documents,
destroying or forging case evidences, documents and item, shifting property
related to the case away, threatening, repressing or avenging witness
testifiers, crime victims, denouncers and their kin.
If suspects and defendants violate
duties guaranteed in this Section, they shall be put in detention.
4. Authorized individuals as
defined in Section 1, Article 113 of this Law, and Presiding judges are
entitled to make decisions on bail. The decisions made by individuals as
defined in Point a, Section 1, Article 113 of this Law shall be ratified by the
equivalent Procuracy prior to the enforcement of such decisions.
5. The length of bail time shall
not exceed the time of investigation, prosecution or adjudication as per this
Law. Bail time for persons sentenced to imprisonment shall not exceed the time
from conviction to enforcement of incarceration sentence.
6. Organizations and individuals
undertaking bail but failing to make suspects or defendants conform to duties
guaranteed shall incur fines subject to the nature and severity of violations
as per the laws.
Article 122.
Surety
1. Surety is a preventive measure
in lieu of detention. Investigation authorities, procuracies and Courts shall
consider the nature and severity of acts against the society and suspects’ or
defendants’ personal records and decide to allow them or their kin to undertake
surety.
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a) Appear as per a subpoena, unless
force majeure or objective obstacles occur;
b) Not to abscond or continue
criminal acts;
d) Not to commit acts of bribing,
coercing or inciting other individuals to give false statements or documents,
destroying or forging case evidences, documents and item, shifting property
related to the case away, threatening, repressing or avenging witness
testifiers, crime victims, denouncers and their kin.
If suspects and defendants violate
duties guaranteed in this Section, they shall be put in detention and the
amount of money as surety shall be confiscated into the state budget.
3. Authorized individuals as
defined in Section 1, Article 113 of this Law, and Presiding judges are
entitled to make decisions on surety. The decisions made by individuals as
defined in Point a, Section 1, Article 113 of this Law shall be ratified by the
equivalent Procuracy prior to the enforcement of such decisions.
4. The length of surety time shall
not exceed the time of investigation, prosecution or adjudication as per this
Law. Surety time for persons sentenced to imprisonment shall not exceed the
time from conviction to enforcement of incarceration sentence. The
procuracy or Court is liable for returning the money as surety to suspects and
defendants abiding by all duties guaranteed.
5. Kindred of suspects and
defendants permitted by investigation authorities, procuracies or Courts to
undertake surety must engage in a written promise to restrain suspects and
defendants from violating duties as per Section 2 of this Article. If
violations occur, the surety money shall be confiscated into the state budget.
Such individuals, upon making written promises, shall be informed of case facts
related to suspects or defendants.
6. Minister of Public Security
leads and cooperates with Head of Supreme People’s Procuracy, Court president
and Minister of Defense to regulates details of sequence, formalities, level of
surety money, impoundment, return, confiscation of surety money into the state
budget.
Article 123.
Residential confinement
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2. Suspects and defendants confined
to a specific place of residence must guarantee their execution of these duties
in writing:
a) Not to be absent from the
specified place of resident without the permission by the authority issuing
residential confinement orders;
b) Be present as per a subpoena,
unless force majeure or objective obstacles occur;
b) Not to abscond or continue
criminal acts;
d) Not to commit acts of bribing,
coercing or inciting other individuals to give false statements or documents,
destroying or forging case evidences, documents and item, shifting property
related to the case away, threatening, repressing or avenging witness testifiers,
crime victims, denouncers and their kin.
If suspects and defendants violate
duties guaranteed in this Section, they shall be put in detention.
3. Authorized individuals as
defined in Section 1, Article 113 of this Law, Presiding judges and commanding officers
of border protection posts are entitled to issue residential confinement
orders.
4. The length of time of
residential confinement shall not exceed the time of investigation, prosecution
or adjudication as per this Law. The length of time of residential confinement
against persons sentenced to imprisonment shall not exceed the time from
conviction to enforcement of incarceration sentence.
5. The individuals issuing
residential confinement orders must inform local authorities in the commune,
ward or town where suspects or defendants reside, or military units that manage
them of the enforcement of the measure. Moreover, suspects and defendants shall
be transferred to such local authorities or military units to oversee and
supervise them.
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6. If suspects and defendants
violate duties guaranteed, local authorities near their place of residence or
military units managing them must report to the authority issuing residential
confinement orders for intra vires measures.
Article 124.
Exit restriction
1. Exit restriction may apply to
the following persons when there are evident grounds that their exit from the
country denotes evasion:
a) Persons denounced or facing
requisitions for charges are suspected of crimes according to sufficient
grounds and must be detained from absconding or destroying evidences
b) Suspects and defendants.
2. Authorized individuals as
defined in Section 1, Article 113 of this Law, and Presiding judges are
entitled to make decisions on exit restriction. Decisions on exit restriction
made by individuals as defined in Point a, Section 1, Article 113 of this Law
shall be ratified by the equivalent Procuracy prior to the enforcement of such
decisions.
3. The length of exit restriction
time must not exceed the time limit for processing of criminal information,
pressing of charges, investigation, prosecution and adjudication as per this
Law. Exit restriction time against persons sentenced to imprisonment shall not
exceed the time from conviction to enforcement of custodial sentence.
Article 125.
Termination or alteration of preventive measures
1. Every preventive measure in
effect must be terminated in one of the following events:
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b) Terminate investigation and
dismiss lawsuit;
b) Terminate investigation and
lawsuit against suspects;
d) The Court declares a defendant
not guilty, exempt from criminal liability, penalty or custodial sentence but
imposes a suspended sentence or warning penalty, fine, non-custodial
rehabilitation.
2. Investigation authorities,
procuracies, and Courts shall terminate or replace preventive measures, if
deemed superfluous, with other preventive measures.
The procuracy decides to terminate
or replace preventive measures that it has approved during the stage of
investigation. The authority requesting approval of a preventive measure
excluding temporary detainment sanctioned by The procuracy, in 10 days prior to
its loss of effect, must inform The procuracy of such expiration to have it
terminated or replaced.
Heading II.
COERCIVE MEASURES
Article 126.
Coercive measures
Competent procedural authorities
and persons can implement measures of coercive delivery, forced escort, property
distrainment or freezing of accounts, in order to maintain intra vires
activities of charge filing, investigation, prosecution, adjudication, sentence
enforcement.
Article 127.
Coercive delivery and forced escort
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2. Forced escort may apply to:
a) Witness testifiers absent
despite of subpoenas not due to force majeure or objective obstacle;
b) Crime victims, not due to force
majeure or objective obstacles, refusing expert examination postulated by
competent procedural authorities;
c) Persons facing denunciation or
requisitions for charges and, through sufficient evidences, found involved in
criminal acts leading to charges, but resisting subpoena not because of force majeure
or objective obstacle.
3. Investigators, heads of units
assigned to investigate, procurators, Presiding judges, and trial panel are
entitled to make decisions on coercive delivery and forced escort.
4. A decision on coercive delivery
or forced escort must specify full name, date of birth, residential place of
the person delivered or escorted by force; time and location for the appearance
of such person and other details as stated in Section 2, Article 132 of this
Law.
5. Enforcers of decisions on coercive
delivery or forced escort shall read and explain such decisions and execute
written records of coercive delivery or forced escort as per Article 133 of
this Law.
Competent people’s police force and
people’s military force shall be responsible for enforcing the decisions on
coercive delivery and forced escort.
6. The coercive delivery or forced
escort of people must not commence at night. Senile or seriously ill persons
with medical facilities’ affirmation shall not be delivered and escorted by
force.
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1. Distrainment of property only
applies to suspects and defendants whose offences are punishable by mulct or
confiscation of property as per the Criminal Code, or applies to guarantee
compensations over damage.
2. Authorized individuals as
defined in Section 1, Article 113 of this Law, and Presiding judges are
entitled to make decisions on distrainment of property. Such decisions made by
individuals as defined in Point a, Section 1, Article 113 of this Law shall be ratified
by the equivalent Procuracy prior to the enforcement of decisions.
3. Only parts of property
proportionate to probable degree of fine, seizure or compensation for damage
shall be distrained. The property distrained shall be preserved by owners or their
kin or legitimate managers. Persons, if consuming, transferring, swapping,
concealing or destroying distrained property assigned to them, shall incur
criminal liabilities as per the Criminal Code.
4. Distrainment of property must be
done in the presence of:
a) Suspects or defendants or their
representatives or family members at least 18 years of age;
b) Representatives of local
authorities in the commune, ward or town where distrained property are located;
c) Witnesses.
Individuals distraining property shall
execute written records, specify names and conditions of each property
distrained. Such written records shall be made according to Article 178 of this
Law, read out to those present and bear their signatures. Opinions and
complaints by persons stated in Point a of this Section against distrainment
shall be entered into written records and undersigned by such persons and
individuals distraining property.
A record of distrainment shall be
executed in four originals. One is given to persons stated in Point a of this
Section immediately after distrainment completes. One is given to the local
authority at the commune, ward or town where distrained property are located.
One is delivered to the equivalent Procuracy. One is stored in the case file.
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1. Account freeze only applies to
suspects and defendants whose offences are punishable by mulct or confiscation
of property as per the Criminal Code, or applies to guarantee compensations
over damage upon the detection of such persons’ accounts in a credit
institution or state treasury. Account freeze also applies to other people’s
accounts evidently found to hold amounts involved in criminal acts of accused
persons.
2. Authorized individuals as
defined in Section 1, Article 113 of this Law, and Presiding judges are
entitled to make decisions on account freeze. Such decisions made by
individuals as defined in Point a, Section 1, Article 113 of this Law shall be
ratified by the equivalent Procuracy prior to the enforcement of decisions.
3. Only amounts proportionate to
probable degree of fine, seizure or compensation for damage shall be frozen.
Persons assigned to freeze and manage accounts but defreezing such accounts
shall incur criminal liabilities as per the Criminal Code.
4. Competent presiding authorities,
when freezing accounts, must give written decisions on account freeze to the
credit institution or state treasury managing the accounts of accused persons
or other people’s accounts involved in criminal acts of persons facing charges.
The delivery of the account freeze order must be executed in writing according
to Article 178 of this Law.
The credit institution or state
treasury managing accounts of arrestees, detainees, suspects, defendants or
other people's accounts involved in criminal acts of arrestees, detainees or
defendants, upon receiving the order of account freeze, shall immediately
freeze such accounts and execute written records.
A written record of account freeze
shall be executed in five originals. One is given to the person facing charges.
One is given to other people involved in the accused person. One is given the
equivalent Procuracy. One is stored in the case file. One is retained by the
credit institution or state treasury.
Article 130.
Termination of property distrainment and account freeze
1. Property distrainment and
account freeze in force must be terminated in one of the following events:
a) Suspension of investigation or
lawsuit;
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c) The Court declares defendants
not guilty;
d) Suspects are not penalized to
incur fine, property distrainment or compensation for damage.
2. Investigation authorities,
procuracies and Courts terminate property distrainment and account freeze
deemed unnecessary.
The procuracy must be informed of
the termination or replacement of measures for property distrainment or account
freeze during the stage of investigation and prosecution prior to the issuance
of decisions.
Chapter VIII
CASE FILE, PROCEDURAL DOCUMENT, TIME LIMIT AND
PROCEDURAL EXPENSES
Article 131.
Case file
1. Investigation authorities, when
filing charges, must establish case files.
2. The case file comprises:
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b) Procedural records made by
investigation authorities and procuracies;
c) Evidences and documents related
to the case.
3. Evidences and documents acquired
by The procuracy or Court during the stage of prosecution and adjudication must
be put into the case file.
4. Documents enclosed to the case
file must be summarized. Summarization of such documents must specify names,
numbers and properties of documents (if available). Documents added to the case
file shall be summarized. The case file must be managed, retained and used as
per the laws.
Article 132.
Procedural documents
1. Procedural documents include
orders, decisions, requests, investigation findings, charges, judgments and
other procedural documents universally formatted for procedural activities.
2. Procedural documents must bear:
a) Number, issue date and issuing
place of the procedural document;
c) Grounds for the issuance of the
procedural document;
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d) Full name, position and
signature of the individual issuing the procedural document and official seal.
Article 133.
Records
1. Procedural activities must
executed in written records universally formatted.
A written record shall specify
location, time, date , starting and ending time, details of the procedural
activity, individuals authorized to institute legal procedure, participants or
persons involved in legal proceedings, their complaints, petitions or
recommendations.
2. The record must bear signatures
of the individuals as defined in this Law. Such individuals affix signatures to
endorse the record’s details modified, added, removed or erased.
If participants in legal
proceedings do not sign the record, the individual making such record shall
write down reasons and ask witnesses to sign the record.
If participants in legal proceedings
are illiterate, the individual making the record shall read it out in the
presence of witnesses. The record must bear fingerprints of participants in
legal proceedings and signatures of witnesses.
If a participant in legal
proceedings cannot sign the record due to their mental or physical defects or
other reasons, the individual making the record shall read it out in the
presence of witnesses and other participants. The record must bear signatures
of witnesses.
Article 134.
Timing
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A day-based time limit ends at 24
o’clock on the final day of such limit.
A month-based time limit ends on
the repeated date in the following month or, if the starting date does not
reappear, on the final date of the month. If the final date falls in a
regulated day-off, the immediate succeeding work day shall be the final date of
the time limit.
A time limit for temporary
detainment or detention ends on the date as specified in the order or decision.
A month in a month-based time limit has 30 days.
2. A time limit for a petition or
document sent by post shall commence on the date shown in the postmark of the
sender's postal service provider. A time limit for a petition or document
sent to a detention facility shall commence when the head of the detainment
facility or the chief supervisor of the detainment cells in a border protection
post or the warder of a temporary or permanent detention facility receives such
petition or document.
Article 135.
Procedural expenses
1. Procedural expenses are composed
of Court fee, administrative fees and procedural expenditure.
2. Court fee includes fees for
criminal and civil first-instance and appellate Courts hearing criminal cases.
3. Administrative fees include
payables for copies of judgments, decisions and other documents from competent
procedural authorities and other payables as per the laws.
4. Procedural expenditure
comprises:
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b) Payables for expert examination
and valuation;
c) Other payables as per the laws.
Article 136.
Responsibilities for settling procedural expenditure and administrative fees
1. The expenditure as defined in
Section 4, Article 135 of this Law is paid by authorities or individuals
requisitioning activities or assigned to make payments. If a governmental legal
aid center appoints a defense counsel, it shall cover relevant expense.
2. The person convicted or the
government incurs the Court fee as per the laws. The person convicted must
incur the Court fee according to the Court’s rulings. The amount of Court fee
and calculation grounds shall be specified in the Court’s judgments and rulings.
3. The crime victim, if petitioning
for the lawsuit, shall incur the Court fee upon the Court’s declaration of the
defendant’s innocence or upon the suspension of the lawsuit as per the
stipulations in Section 2, Article 155 of this Law.
4. The coverage of administrative
fees and expenses for procedural activities requested by participants in legal
proceedings abides by the laws.
Article 137.
Issuance, transfer, delivery, posting or announcement of procedural documents
1. Procedural documents are issued,
delivered, posted or announced in the following manners:
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b) By post;
c) At public places;
d) Through mass media.
2. The issuance, delivery, posting
or announcement of procedural documents must abide by this laws.
Article 138.
Procedures for issuing and delivering procedural documents by hand
1. The individuals issuing and
delivering procedural documents shall directly pass such documents to the
recipients. The recipients must sign a record or delivery journal. The time
limit for legal procedure commences on the date of the recipient’s affixture of
signature onto the record or delivery journal.
2. If the recipient is absent,
procedural procedures may be given to his family members with adequate legal
capacity and such persons must undertake to hand over documents to the
recipient promptly. The date of the family member’s affixture of signature is
the issue date or sending date of the procedural documents.
If procedural documents cannot be
delivered to the recipient as stipulated in this Section, such documents may be
handed to local authorities in the commune, ward or town where the recipient
resides or his workplace or education facility and forwarded to the recipient.
The authorities and organizations concerned must report to the competent procedural
authorities making requests about the outcome of the issuance and delivery of
procedural documents. The date of the family member’s affixture of signature is
the issue date or sending date of the procedural documents.
3. If the recipient is absent or his
address is unknown, the individuals issuing or delivering documents must
execute a written record of their failure confirmed by the representative of
authorities near the recipient’s dwelling, or his workplace or educational
facility.
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4. If procedural documents are
delivered to an organization, they shall be handed to the representative of
such organization, who affixes his signature. The time limit for legal
procedure commences on the date of the said representative's affixture of
signature onto the record or delivery journal.
Article 139.
Procedures for mailing procedural documents
Procedural documents sent by post
must be delivered via registered mail with the recipient's endorsement.
The documents endorsed shall be forwarded to competent procedural authorities.
The time limit for legal procedure commences on the date of the recipient’s
endorsement of his receipt of procedural documents.
Article 140.
Procedures for posting procedural documents publicly
1. Proclamation of procedural
documents is done when the recipient’s address or location is unknown.
2. Procedural documents are
publicly posted at the People’s committee at the commune, ward or town where
the recipient’s last known dwelling is situated or his last known workplace or
educational facility.
Procedural documents must be
publicly posted in at least 15 days from the initial date of proclamation.
Proclamation shall be executed in a written record that specifies the date of
posting.
The time limit for legal procedure
commences on the final date of proclamation.
Article 141.
Procedures for announcing procedural documents through mass media
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2. Documents announced through mass
media shall be posted on 03 consecutive issues of a daily newspaper run by the
state and broadcasted by a governmental radio or television station three times
per day in 03 continuous days.
The time limit for legal procedure
commences on the final date of announcement.
Article 142.
Responsibilities for issuing, delivering, posting and announcing procedural
documents
1. Competent
procedural authorities and persons shall issue, deliver, post or announce
procedural documents to participants in legal proceedings and concerned
authorities and entities according to this Law.
2. If an
individual does not fulfill or complete his assignments to issue deliver, post
or announce procedural documents as per this Law, he shall incur disciplinary
or administrative penalties according to the nature and severity of his
violations as per the laws.
PART TWO
CRIMINAL CHARGE AND INVESTIGATION
Chapter IX
CRIMINAL CHARGE
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A charge shall only be filed upon
the ascertainment of signs of criminal activities. Signs of criminal activities
are ascertained by:
1. A person’s
denunciation;
2. Information
disclosed by an organization or individual;
3. Information
provided through mass media;
4. A
governmental authority’s requisitions for charges;
5. Competent
procedural authorities' direct exposure of signs of criminal activities;
6. A
perpetrator’s confession.
Article 144.
Denunciations, criminal information disclosed and requisitions for charges
1. Denunciation
refers to an individual’s detection and denouncement of activities denoting
crimes to competent authorities.
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3. Requisitions
for charges refers to a competent governmental authority's written requisition
enclosed with relevant evidences and documents to investigation authorities and
procuracies authorized to consider and settle cases with signs of criminal
activities0}
4. Denunciation
or criminal information may be made or given verbally or in writing.
5. If a person
makes or provides false denunciation or criminal information, he shall incur
disciplinary or administrative penalties or face criminal prosecution subject
to the nature and severity of violations as per the laws.
Article 145.
Responsibilities and authority to receive and process denunciations, criminal
information disclosed and requisitions for charges
1. All
denunciations, information and charge requests must be fully acquired and
processed in timely manner. The authorities shall be responsible for receiving
and not rejecting denunciations, information and requisitions.
2. The
authorities responsible for receiving denunciations, criminal information
disclosed and requisitions for charges shall include:
a) Investigation authorities and
procuracies that obtain denunciations, information and requisitions;
b) Other authorities that take in
denunciations and criminal information disclosed.
3. The
authority to handle denunciations, information and charge requests is given to:
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b) Units assigned to investigate
process denunciations and criminal information disclosed within its powers;
c) The procuracy processes
denunciations, information and charge requests when investigation authorities
or units assigned to performed certain activities of investigation are found to
commit serious violations of the laws during their inspection and verification
of denunciations, criminal information disclosed, requisitions for charges or
omission of crimes. Furthermore, such issues have not been settled despite the
Procuracy’s written requests.
4. The
authorities empowered to process denunciations, information and charge requests
are responsible for informing authorities and entities making denunciations,
disclosing criminal information and requisitioning for charges of the results
of the former's tasks.
Article 146.
Procedures for receiving denunciations, criminal information and requisitions
for charges
1. When
authorities and entities make direct denunciations, disclose criminal
information and requisition for charges, investigation authorities, procuracies
and units assigned to investigate are authorized as per Section 2, Article 145
of this Law to execute written records of receipt and enter data into a receipt
journal. The acquisition of such information may be recorded by sound or
sound-and-visual means.
If denunciations, criminal
information and requisitions for charges are delivered by post, by telephone or
by other means of communication, entries shall be made into a receipt journal.
2. Investigation
authorities and units assigned to investigate, if considering certain
denunciations, criminal information disclosed and requisitions for charges
ultra vires, shall be held responsible for transferring such information and
relevant documents to a competent investigation authority in prompt manner.
The procuracy is responsible for
promptly transferring denunciations, information and charge requests and
relevant documents to a competent investigation authority.
In the events as defined in Point
c, Section 3, Article 145 of this Law, competent authorities processing
denunciations, information and charge requests shall, in 05 days upon the
Procuracy’s requests, transfer relevant documents to The procuracy for consideration
and settlement.
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Ward police units shall be
responsible for acquiring denunciations and criminal information disclosed,
making written records of receipt, taking preliminary statements and
transferring such information and relevant documents and items to competent
investigation authorities.
4. Other
authorities and organizations, upon obtaining denunciations and criminal
information disclosed, shall transfer such information to competent
investigation authorities. In emergency events, information may be given to
investigation authorities by phone or other forms of communication. However,
such information must subsequently be documented.
5. Investigation
authorities and units assigned to investigate, in 03 days upon receiving
denunciations, information and requisitions, shall be held responsible for
informing the equivalent Procuracy or competent Procuracy of their receipt of
information in writing.
Article 147.
Time limit and procedures for processing denunciations, criminal information
disclosed and requisitions for charges
1. Investigation
authorities and units assigned to investigate, in 20 days upon receiving
denunciations, information and requisitions, shall inspect and verify such
information and issue one of the following decisions:
a) Decision to press criminal
charges;
a) Decision not to file criminal
charges;
c) Decide to suspend the processing
of denunciations, information and requisitions.
2. If
denunciations, criminal information disclosed or requisitions for charges
contain complex facts or the verification of such information must be done in
several locations, the time limit for processing such information may be
extended but shall not exceed 02 months. If activities of investigation and
verification cannot end within the time limit as stated in this Section, the
head of the equivalent Procuracy or competent Procuracy can sanction one
extension of 02 months at most.
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3. Competent
authorities, when processing denunciations, information and requisitions, shall
perform these activities:
a) Collect data, documents and
items from relevant authorities and entities to verify the information;
b) Examine the scenes;
c) Conduct autopsy;
d) Requisition expert examinations
and valuation.
4. The
sequence, formalities and time limit for the Procuracy's processing of
denunciations, information and charge requests are governed by this Article.
Article 148.
Suspension of the processing of denunciations, criminal information disclosed
and requisitions for charges
1. Competent
authorities, upon the expiration of the time limit as defined in Article 147 of
this Law, shall decide to suspend the processing of denunciations, information
and charge requests in one of the following events:
a) Expert examination, valuation
and foreign judicial assistance have been requisitioned to no avail;
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2. Investigation
authorities and units assigned to investigate, in 24 hours upon the decision to
suspend the processing of denunciations, information and requisitions, must
send such decision and relevant documents to the equivalent Procuracy or
competent Procuracy, which administer and forward such decision to the
authorities and entities making denunciations, disclosing criminal information
and requisitioning charges.
If a suspension decision is
unsubstantiated, the Procuracy shall annul such decision to have investigative
activities continued. The procuracy, in 24 hours upon its decision to abrogate
the suspension, must send its decision to investigation authorities and units
assigned to investigate, and authorities and entities making denunciations,
disclosing criminal information or requisitioning charges. The time limit for
the continued processing of denunciations, information and charge requests
shall not exceed 01 month after investigation authorities and units assigned to
investigate receive the decision to invalidate the suspension.
3. If the
processing of denunciations, information and charge requests is suspended,
expert examination, valuation or judicial assistance shall persist until final
findings are available.
Article 149.
Resumption of the processing of denunciations, criminal information disclosed
and requisitions for charges
1. When the
vindication for the suspension of the processing of denunciations, information
and charge requests languishes, investigation authorities and units assigned to
investigate shall decide to resume the processing of denunciations, information
and requisitions. The time limit for the continued processing of denunciations,
information and charge requests shall not exceed 01 month upon the decision on
resumption.
2. Investigation
authorities and units assigned to investigate, in 03 days upon their decision
to resume the processing of denunciations, information and requisitions, must
send such decision to the equivalent Procuracy or competent Procuracy, and
authorities and entities making denunciations, disclosing criminal information
or requisitioning charges.
Article 150.
Settlement of disputes over the authority to process denunciations, criminal
information disclosed and requisitions for charges
1. The
immediate superior Procuracy shall settle disputes over the authority to
process denunciations, information and requisitions. The competent Procuracy
shall settle disputes over the authority to process denunciations, information
and charge requests among units assigned to investigate.
2. The Supreme
People’s Procuracy or the Central military procuracy shall settle disputes over
the authority to process denunciations, information and charge requests among
provincial investigation authorities or among military investigation units in
military zones, respectively. The provincial People’s Procuracy or Military
procuracy related to the authority or military zone that first receive
denunciations, information and charge requests shall settle disputes over the authority
to process denunciations, information and charge requests among district
investigation authorities from various provinces or centrally-affiliated cities
or among military investigation units from different military zones.
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Article 151.
Settlement of cases exhibiting signs of crime uncovered directly by authorities
given authority to institute legal proceedings
Competent procedural authorities,
when directly exposing signs of crime, shall decide to press charges within
their powers or transfer the cases to competent investigation authorities.
Article 152.
Offenders confessing or surrendering
1. The
authorities taking in an offender confessing or surrendering must execute
written records of his full name, age, occupation, residential address and
statements. The authorities taking in offenders confessing or surrendering
shall be responsible for informing investigation authorities or procuracies of
such matter in prompt manner.
2. Investigation
authorities taking in ultra vires offenders confessing or surrendering shall
inform competent investigation authorities that handle such offenders.
3. Competent
investigation authorities, in 24 hours upon their acceptance of offenders
confessing or surrendering, must inform the equivalent Procuracy in writing.
Article 153.
Authority to press criminal charges
1. Investigation
authorities shall make decisions on pressing criminal charges against all
matters exhibiting criminal signs, save those handled by units assigned to
investigate, procuracies or juries as per Section 2, 3 and 4 in this Article.
2. Units
assigned to investigate shall make decisions on pressing criminal charges in
the events as defined in Article 164 of this Law.
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a) The procuracy decides to rescind
a decision not to press criminal charges from investigation authorities or
units assigned to investigate;
b) The procuracy directly processes
denunciations, information and requisitions;
c) The procuracy directly exposes
signs of crime or respond to a requisition for charges by the Trial panel.
4. The Trial
panel decides to press charges or request The procuracy to press criminal
charges if omission of crimes is detected during the trial.
Article 154.
Decision to press criminal charges
1. A decision
to press criminal charges must specify grounds for charges, quote relevant
Articles and clauses from the Criminal Code and present details as required in
Section 2, Article 132 of this Law.
2. The
procuracy, in 24 hours upon its decision to press criminal charges, shall send
such decision to competent investigation authorities that carry out
investigative activities.
Investigation authorities and units
assigned to investigate, in 24 hours upon their decision to press criminal
charges, shall deliver such decision and relevant documents to the competent
Procuracy that administers the charges.
A Court, in 24 hours upon its
decision to press criminal charges, must have such decision and relevant
documents delivered to the equivalent Procuracy.
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1. Only
criminal charges against offences as defined in Section 1 of Article 134, 135,
136, 138, 139, 141, 143, 155, 156 and 226 of the Criminal Code can be pressed
at the requests for the crime victim or the representative of the crime victim
less than 18 years of age or having mental or physical defects or passing away.
2. If the
petitioner withdraws his petition for charges, the lawsuit shall be dismissed.
If such person is evidently found to withdraw the petition against his will out
of coercion or duress, the investigation authority, Procuracy or Court shall
maintain the charges regardless of the petition for withdrawal.
3. The crime
victim or its representative is not permitted to resubmit a petition withdrawn,
unless such withdrawal results from coercion or duress.
Article 156.
Amendments to the decision on pressing criminal charges
1. Investigation
authorities, units assigned to investigate or procuracies shall amend their decisions
to press criminal charges when gaining justifications that charges deviate from
actual criminal acts. Moreover, they shall add criminal charges when
identifying other criminal acts left uncharged.
2. Investigation
authorities and units assigned to investigate, in 24 hours upon their decisions
to amend or add criminal charges, must send such decisions to the equivalent
Procuracy or competent Procuracy that administers such charges.
The procuracy, in 24 hours upon the
decision to amend or add criminal charges, must send such decision to
investigation authorities for investigative activities.
Article 157.
Justifications of the decision not to press criminal charges
A criminal charge shall not be
filed in the presence of one of these justifications:
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2. Acts do not
constitute crime;
3. Persons
committing dangerous acts against the society have not reached the age of
criminal responsibility;
4. Persons
whose criminal acts have been sentenced or lawsuits have been dismissed validly;
5. The
prescriptive period for criminal prosecution passes;
6. General
amnesty has been granted;
7. The person
causing peril against the society is deceased, unless other persons must
undergo reopening procedure;
8. The crime
victim or its representative does not petition for charges against offences as
defined in Section 1 of Article 134, 135, 136, 138, 139, 141, 143, 155, 156 and
226 of the Criminal Code.
Article 158.
Decision not to press or to drop criminal charges
1. When one of
the justifications as stated in Article 157 of this Law exists, the individuals
authorized to press charges shall decide not to file or to drop criminal
charges, if filed, and send notices of reasons to the authority or entities
making denunciations, disclosing criminal information or requisition charges.
If different measures are deemed necessary, the case shall be transferred to
competent authorities for settlement.
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2. The
authority or entities making denunciations or disclosing criminal information
are permitted to file complaints against the decision not to press criminal
charges. The authority and procedures for the settlement of such complaints are
defined in Chapter XXXIII of this Law.
Article 159.
Duties and authority of The procuracy exercising prosecution rights to handle
criminal information
1. Approve or
deny an order on emergency custody, extension of temporary detainment, and
other measures that restrict human rights and citizen rights in connection with
the handling of criminal information as per this Law.
2. Propose to
inspect and verify information, when necessary, and request authorities
empowered to process criminal information to conduct inspection and
verification.
3. Decide to
extend the time limit for the processing of denunciations, criminal information
disclosed and requisitions for charges; decide to press criminal charges.
4. Request
investigation authorities and units assigned to investigate to press criminal
charges.
5. Directly
process denunciations, criminal information disclosed or requisitions for
charges in the events as defined in the Law.
6. Annul
decisions on temporary detainment, decisions to or not to press criminal
charges, decisions to suspend the processing of criminal information and other
unlawful procedural decisions from investigation authorities and units assigned
to investigate.
7. Carry out
other duties and powers to exercise prosecution rights as per this Law to
prevent omission of crimes and unjust conviction against guiltless people.
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1. Receive all
denunciations, criminal information disclosed and requisitions for charges from
authorities and entities, take in and transfer offenders confessing or
surrendering to competent authorities for treatments.
2. Administer
the acquisition of information, administer the verification of information and
the documentation of criminal information by investigation authorities and
units assigned to investigate; administer the suspension of the processing of
criminal information; administer the resumption of the processing of criminal
information.
3. Request
investigation authorities and units assigned to investigate to perform the
following activities upon the detection of deficiency or violations in the
acquisition and processing of criminal information:
a) Receive, inspect, verify and
decide the processing of criminal information in adequate and legitimate
manners;
b) Inspect the acquisition and
processing of criminal information and report to The procuracy;
c) Provide documents on breach of
laws on the acquisition and processing of criminal information;
d) Correct violations of laws and
impose strict penalties against the violators;
dd) Request the replacement of
investigators and investigation officers.
4. Settle
disputes over the authority to handle criminal information.
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6. Perform
other duties and powers to administer the acquisition and processing of criminal
information as per this Law.
Article 161.
Duties and authority of The procuracy exercising prosecution rights and
administering the pressing of criminal charge
1. The
procuracy, when exercising prosecution rights of criminal charges, bears the
following duties and authority:
a) Request investigation
authorities and units assigned to investigate to press charges or amend or add
criminal charges;
b) Annul groundless and unlawful
decisions to press charges, decisions to amend or add criminal charges, decisions
not to file criminal charges;
c) Appeal to the Court immediately
superior to the trial panel that issues an unjustified decision to press
criminal charges;
d) Press charges, amend or add
criminal charges in the events as defined in this Law;
dd) Perform other duties and
authority to exercise prosecution rights of criminal charge as per this Law.
2. The
procuracy, when administering the filing of criminal charges, bears the
following duties and authority:
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b) Request investigation
authorities and units assigned to investigate to provide relevant documents for
the administration of criminal charges;
c) Perform other duties and
authority to administer criminal charges as per this Law.
Article 162.
Responsibilities of investigation authorities and units assigned to investigate
for fulfilling requests and decisions by The procuracy on filing of charges
1. Investigation
authorities and units assigned to investigate must execute the requests and
decisions to charge from The procuracy.
2. Investigation
authorities and units assigned to investigate, despite their protests, bear the
obligation to execute decisions as defined in Section 1 and Section 6, Article
159, and Point b, Section 1, Article 161 of this Law and preserve the right to
address their angles to the immediate superior Procuracy. The immediate
superior Procuracy, in 20 days upon receiving motions from investigation
authorities or in 05 days upon obtaining standpoints from units assigned to
investigate, shall consider such angles and respond to such authorities and
units.
Chapter X
GENERAL REGULATIONS ON CRIMINAL INVESTIGATION
Article 163.
The authority to investigate
1. Investigation
authorities of the people’s police force shall delve into every crime, save
those falling into the powers of investigation authorities of the People’s Army
or of the Supreme People’s Procuracy.
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3. Investigation
authorities of Supreme People’s Procuracy or Central military procuracy shall
probe violations of judicial activities, corruption, and breach of positions in
the sector of justice, as defined in chapter XXIII and chapter XXIV of the
Criminal Code, against offenders as officials and employees of investigation
authorities, Courts, procuracies, law enforcement authorities and against
individuals empowered to engage in judicial activities.
4. Investigation
authorities are authorized to investigate criminal cases that occur in their
assigned territories. If crimes occur in various or unidentified places, the
investigation authority adjacent to the offender's place of exposure, of
residence or of capture shall conduct investigative activities.
5. The
hierarchy of investigation is composed of:
a) District investigation
authorities and local military investigation authorities shall conduct criminal
investigations into crimes within juridisction of a district Court or local
military Court;
b) Provincial investigation
authorities shall carry out criminal investigations into crimes within the
jurisdiction of a provincial Court. Provincial investigation authorities shall,
if their direct involvement is deemed vital, inquire into cases within the
investigative powers of district investigation authorities, which happen in
various district, towns, provincial cities, cities under centrally-affiliated
cities or denote foreign elements.
Military investigation authorities
of military zones shall conduct criminal investigations into crimes within the
jurisdiction of a military Court of a military zone or, if their direct engagement
is deemed essential, within the powers of local investigation authorities.
c) Investigation authorities of the
Ministry of Public Security or Ministry of Defense shall conduct criminal
investigations into severe felonies, which were dismissed by orders of the
judges' panel of the Supreme People’s Court for re-investigation. Moreover,
such authorities, if their direct involvement is deemed imperative, shall
conduct criminal investigations into severe and complex felonies involving
several provinces and centrally-affiliated cities or many countries.
Article 164.
Duties and authorities of units, as assigned to investigate, under border
protection force, customs, forest ranger, maritime police force, fisheries
resources surveillances and people’s police force, People’s Army
1. Units of
border protection force, customs, forest ranger, maritime police force and
fisheries resources surveillances, when exposing acts that exhibit signs of
crime as per their assignments to investigate, shall bear these duties and
authority:
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b) Decide to press criminal
charges, initiate preliminary investigations and transfer case files to the
competent Procuracy in 07 days upon the issuance of a decision to press criminal
charges against serious crimes, felonies, severe felonies or complex
misdemeanors;
2. Apart from
investigation authorities of the people’s police force and People’s Army as per
Article 163 of this Law, other units assigned to investigate, if unmasking
events that exhibit signs of crime, shall be authorized to file criminal
charges, institute preliminary investigations and pass case files to the
competent investigation authorities in 07 days upon the issuance of a decision
to file criminal charge.
3. Units of
the border protection force, customs, forest ranger, maritime police force,
fisheries resources surveillances and other units of the people's police force
and People’s Army, when assigned to investigate, must perform execute precise
duties and powers as defined in Article 39 and Article 40 of this Law and
implement exact principles, sequence and procedure for investigation according
to this Law. The procuracy shall be responsible for exercising prosecution
rights and administering legal compliance of the said authorities'
investigative activities.
4. The Law on
the organization of criminal investigation authorities shall govern particular
investigative powers of units under the border protection force, customs,
forest ranger, maritime police force, fisheries resources surveillances and
people's police force, People’s Army.
Article 165.
Duties and authorities of The procuracy exercising prosecution rights during
the stage of criminal investigation
1. Request
investigation authorities and units assigned to investigate to file charges,
amend or add criminal charges and legal proceedings against defendants.
2. Approve
decisions to charge and decisions to amend or supplement charges against
defendants or annul baseless and illegal ones.
3. Press
charges, amend or increase criminal charges and legal proceedings against
defendants in the events as stated in this Law.
4. Approve or
reject emergency custody orders, extension of temporary detainment, detention,
bail, surety, search warrant, seizure, impoundment of items, mails, telegraphs,
postal packages, special investigation methods and proceedings; ratify
procedural decisions by investigation authorities and assigned to investigate
according to this Law or deny groundless and illicit ones; annul flimsy and illegal
decisions on legal proceedings from investigation authority and units assigned
to investigate. A decision to reject or annul matters must specify reasons.
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6. Make
requests for investigation and request investigation authorities and units
assigned to investigate to inquire into crimes and offenders; request
investigation authorities to hunt down suspects and implement special
investigation methods and proceedings.
7. Directly
perform certain activities of investigation to verify and add documents and
evidences for the decision to charge or for the ratification of orders and
decisions made by investigation authorities and units assigned to investigate,
or to respond to unjust cases, omission of crimes or breach of laws that have
not been settled despite the Procuracy’s written requests.
8. Press
criminal charges or request investigation authorities to file criminal charges
upon the revelation of signs of crimes committed by authorized individuals
handling denunciations, information and charge requests or filing charges or
investigating;
9. Decide to
extend the time limits for investigation or detention; to transfer cases,
implement summary procedures or civil commitment; nullify decisions to join or
separate cases.
10. Carry out
other duties and powers to exercise prosecution rights as per this Law.
Article 166.
Duties and authority of The procuracy administering criminal investigations
1. Administer
legal compliance of charges, investigation and documentation by investigation
authorities and units assigned to investigate.
2. Administer
criminal proceedings by participants; requisition from competent authorities
and entities strict actions towards participants in legal proceedings, who
violate laws.
3. Settle
disputes over the authority to investigate.
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5. Request
investigation authorities and units assigned to investigate to perform these
activities upon the exposure of inadequate investigations or violations of
laws:
a) Conduct investigations that
abide by the laws;
b) Inspect the investigations and
report to The procuracy;
c) Provide documents on deeds and
decisions to charge in violation of investigative laws.
6. Request
investigation authorities and units assigned to investigate to correct
violations of charge and investigation.
7. Request
heads of investigation authorities and units assigned to investigate to replace
investigators and investigation officers and to impose strict actions towards
such individuals violating procedural laws.
8. Request
concerned authorities and organizations to implement measures that preclude
crimes and breach of laws.
9. c) Perform
other duties and authority to administer criminal investigations as per this
Law.
Article 167.
Responsibilities of investigation authorities and units assigned to investigate
for fulfilling requests and decisions by The procuracy during the stage of
investigation
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2. Investigation
authorities and units assigned to investigate, despite their protests, bear the
obligation to execute decisions as defined in Section 4 and Section 5, Article
165 of this Law and preserve the right to address such matters to the immediate
superior Procuracy. The immediate superior Procuracy, in 20 days upon receiving
a motion from investigation authorities or in 05 days upon obtaining
standpoints from units assigned to investigate, shall consider such angles and
inform such authorities and units of final decisions.
Article 168.
Responsibilities of authorities, organizations and individuals for fulfilling
requests and decisions by procuracies, investigation authorities and units
assigned to investigate
Authorities and entities must strictly
implement decisions and requests by procuracies, investigation authorities and
units assigned to investigate during the stage of criminal investigation.
Failure to comply not due to force majeure or objective obstacles shall be
punishable according to the laws.
Article 169.
Transfer of cases for investigation
1. An
equivalent Procuracy shall decide to transfer a case for investigation in one
of the following events:
a) An equivalent investigation
authority considers the case beyond its investigative powers and requests case
transfer;
b) A superior investigation
authority withdraws the case for investigation;
c) The investigator replaced is the
head of the investigation authority;
d) The procuracy requests case
transfer but the investigation authority does not respond.
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3. A case is
transferred for intra vires investigation through the following formalities:
a) The competent Procuracy shall,
in 03 days upon receiving a request from the investigation authority, decide to
transfer the case;
b) The procuracy shall, in 24 hours
upon making a decision on case transfer, deliver such decision to the
investigation authority inquiring into the case, the investigation authority
authorized to continue investigation, suspect or his representative, defense
counsel, crime victim and competent Procuracy.
4. The
investigation authority inquiring into the case shall, in 03 days upon
receiving the decision on case transfer, be held responsible for transferring
the case to the investigation authority authorized to continue investigation.
5. The time
limit for investigation resumes upon the investigation authority's receipt of
the case file and continues to the end of the time limit as defined in this
Law. If the investigation is incomplete at the end of its time limit, the
competent Procuracy shall consider and decide an extension of the investigation
according to general stipulations in this Law.
Article 170.
Joinder or separation in criminal cases for investigation
1. Investigation
authorities can join multiple issues for intra vires investigation of a single
case in one of the following events:
a) The suspect commits multiple
crimes;
b) The suspect commits a crime in
multiple times;
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2. Investigation
authorities shall only be permitted to separate issues from a case, if such
separation is neccesary because investigations into all crimes present cannot
be finished in timely manner and such separation does not affect the
determination of entire objective truths of the case.
3. A decision
on joinder or separation must be sent to the equivalent Procuracy in 24 hours
upon the issuance of such decision. The procuracy, if disagreeing with the
investigation authority’s decision on joinder or separation, shall decide to
annul such decision and state reasons.
Article 171.
Mandate of investigation
1. An
investigation authority shall mandate another investigation authority, if
deemed necessary, to conduct certain investigations. The decision to mandate
investigation must specify requests and be sent to the investigation authority
mandated and its equivalent Procuracy.
2. The
investigation authority mandated must fulfill every task mandated in a period
set by the mandating investigation authority and shall be held liable for the
results of the former's implementation of the mandate. The authority mandated,
if failing the assignments, shall promptly inform in writing the mandating
investigation authority of reasons of such failure.
3. The
procuracy at equivalent level of the investigation authority mandated shall be
held responsible for exercising prosecution rights and administer the mandated
authority's investigative activities and for reporting the results of such
tasks to The procuracy mandating the enforcement of prosecution rights and
administration of investigations.
Article 172.
Time limit for investigation
1. The time
limit for a criminal investigation shall not exceed 02 months for misdemeanors,
03 months for felonies and 04 months for horrific and extremely severe
felonies. The time limit applies from the filing of charges to the end of the
investigation.
2. If an
investigation must be extended due to the case’s complexity, the investigation
authority shall, within 10 days prior to the expiry date of the time limit,
requisition the Procuracy’s extension of investigation.
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a) An investigation into
misdemeanors may be extended once for 02 more months;
b) An investigation into felonies
may be extended twice, for 03 more months in the first time or for 02 more
months in the second time;
c) An investigation into horrific
felonies may be extended twice, for 04 more months each time;
d) An investigation into extremely
severe felonies may be extended thrice, for 04 more months each time.
3. If the
investigation into extremely severe felonies is incomplete, despite the
expiration of its time limit, due to the case’s complexity, the head of the
Supreme People’s Procuracy may sanction one extension for at most 04 more months.
The head of the Supreme People’s
Procuracy is entitled to extend an investigation into breach of national
security once for at most 04 more months.
4. If a
decision to press criminal charges or to join issues into one lawsuit is
amended, the total time limit for investigation shall not exceed the limits as
defined in Section 1, 2 and 3 of this Article.
5. The
procuracy's authority to extend an investigation:
a) An investigation into
misdemeanors is extended by a district People’s Procuracy or local Military
procuracy. If a provincial investigation authority or military investigation
authority of a military zone handles the investigation, the equivalent
provincial People’s Procuracy or Military procuracy of the military zone shall
decide the extension of investigation;
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c) A district People’s Procuracy or
local Military procuracy shall ratify the first extension of an investigation
into horrific felonies while the provincial People’s Procuracy or Military
procuracy of a military zone shall decide the second extension. If a provincial
investigation authority or military investigation authority of a military zone
handles the investigation, the equivalent provincial People’s Procuracy or
Military procuracy of the military zone shall decide the first and second
extensions of such investigation;
c) A provincial People’s Procuracy
or Military procuracy of a military zone shall ratify the first and second
extensions of an investigation into extremely severe felonies while the Supreme
People’s Procuracy or central military People’s Procuracy shall decide the
third extension;
6. If an
investigation authority of the Ministry of Public Security, Ministry of Defense
or People’s Supreme Procuracy handles the investigation, the Supreme People’s
Procuracy or Central military procuracy shall decide to extend the
investigation.
Article 173.
Time limit for detention for investigation
1. The time
limit for temporary detention of suspects for investigation shall not exceed 02
months for misdemeanors, 03 months for felonies and 04 months for horrific and
extremely severe felonies.
2. If an
investigation must be prolonged due to a variety of complex facts in the case
and no grounds for change or termination of detention exist, the investigation
authority shall, within 10 days prior to the expiration of the time limit,
request The procuracy to extend the detention.
Detention is extended as follows:
a) Detention of offenders of
misdemeanors may be extended once for 01 more month;
b) Detention of offenders of
felonies may be extended once for 02 more month;
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d) Detention of offenders of
extremely severe felonies may be extended twice, for 04 more months each time.
3. The
procuracy's authority to extend detention:
b) A district People’s Procuracy or
local Military procuracy is entitled to extend detention of offenders of
misdemeanors, felonies and horrific felonies. If a provincial investigation
authority or a military zone’s investigation authority handles the
investigation, the equivalent provincial People’s Procuracy or Military
procuracy of the military zone is entitled to extend detention of offenders of
misdemeanors, felonies, horrific felonies and to decide the first extension of
detention of offenders of extremely severe felonies;
b) If the investigation is
incomplete despite the expiration of the first extension as stated in Point a
of this Section and no grounds for change or termination of temporary detention
exist, the provincial People’s Procuracy or Military procuracy of the military
zone may decide the second extension against offenders of extremely severe
felonies.
4. If an
investigation authority of the Ministry of Public Security, Ministry of Defense
or People’s Supreme Procuracy handles the investigation, the Supreme People’s
Procuracy or Central military procuracy shall decide to extend the
investigation.
5. The head of
the Supreme People’s Procuracy is entitled to extend the detention of violators
of national security once for at most 04 more months. If the investigation is
incomplete despite the expiration of the extension(s) as stated in this Section
and no grounds for change or termination of temporary detention exist, the head
of the Supreme People’s Procuracy is entitled to ratify 1-month extension
against felonies, 2-month extension against horrific felonies, and 4-month extension
against extremely severe felonies. If no grounds for termination of detention
exist in a special case of extremely severe felony of national security breach,
the head of the Supreme People’s Procuracy shall decide to maintain detention
until the investigation closes.
6. If no
grounds for change or termination of detention exist in a special case of
horrific felonies not related to national security breach, the head of the
Supreme People’s Procuracy is entitled to sanction one 4-month extension. If no
grounds for termination of detention against a special case, the head of the
Supreme People’s Procuracy shall decide to extend the detention by the entire
length of time of the investigation.
7. If
detention in force is deemed unnecessary, the investigation authority must
request The procuracy to terminate the detention to discharge the detainee in
timely manner or implement other measures, if necessary.
The detainee must be discharged
when the detention expires. Competent procedural authorities, if necessary,
shall implement other preventive measures.
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1. If an
investigation resumes as per Article 235 of this Law, the time limit for the
continued investigation shall not exceed 02 months for misdemeanors and
felonies and 03 months for horrific and extremely severe felonies. Such time
limit applies from the issue date of the decision to resume investigation to
the closure of the investigation.
If an investigation must be
extended due to the case’s complexity, the investigation authority shall,
within 10 days prior to the expiry date of the time limit, requisition the
Procuracy’s extension of investigation.
An investigation is extended as
follows:
a) An investigation into
misdemeanors may be extended once for 01 more month;
b) An investigation into felonies
and horrific felonies may be extended once for 02 more months;
c) An investigation into extremely
severe felonies may be extended once for 03 more months.
The authority to extend
investigations into each type of crime is defined in Section 5, Article 172 of
this Law.
2. If The
procuracy returns case files for further investigation, the time limit for the
additional investigation shall not exceed 02 months. If a Court returns case
files for further investigation, the time limit added shall not exceed 01
month. The procuracy can return case files for further investigation twice. The
presiding judge of a Court can return case files for further investigation once
and the Trial panel can return case files for additional investigation once.
The time limit for an additional
investigation commences upon the investigation authority’s retrieval of case
files and request for further investigation/
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The time limit for investigation
commences upon the investigation authority’s retrieval of case files and
request for re-investigation.
4. The
investigation authority, when resuming, furthering and resetting an
investigation, is entitled to implement, alter or terminate preventive and
coercive measures as per this Law.
If a detention is deemed necessary
as per the grounds defined in this Law, the time limit for detention for
resumption or furthering of the investigation shall not exceed the relevant
time limit as defined in Section 1 and Section 2 of this Article.
The time limit and extension of
detention for re-investigation are governed by Article 173 of this Law.
Article 175.
Settlement of requisitions from participants in legal proceedings
1. When
participants in legal proceedings lodge requisitions related to the case,
investigation authorities, units assigned to investigate, and procuracies within
their powers shall process such requisitions and have petitioners informed of
results. Investigation authorities, units assigned to investigate or
procuracies, if rejecting such requisitions, must respond and state reasons.
2. Participants
in legal proceedings, if disagreeing with feedbacks from investigation
authorities, units assigned to investigate or procuracies, shall be permitted
to lodge complaints. Lodging and settlement of complaints are defined in
chapter XXIII of this Law.
Article 176.
Witnesses' attendance
Witnesses shall be summoned to
observe activities of investigation in the events stated in this Law.
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Article 177.
Non-disclosure of investigation secrets
If an investigation must be kept
confidential, investigators, investigation officers, procurators and checkers
shall demand participants in legal proceedings not to disclose investigation
secrets. Such demands shall be recorded in writing.
If investigators, investigation
officers, procurators, checkers or participants in legal proceedings disclose
investigation secrets, they shall incur disciplinary or administrative
penalties or face criminal prosecution according to the nature and degree of
their violations as per the laws.
Article 178.
Investigation records
Authorized procedural persons, when
investigating, must execute their investigations in writing as per Article 133
of this Law.
Investigators and investigation
officers, who make written records, must read out such records to the
participants in legal proceedings and explain participants’ rights to add their
notions and remarks about the records. Additional notions and remarks shall put
into the records. If additional notions are rejected, reasons must be specified
in the records. Participants in legal proceedings, investigators and
investigation officers shall affix signatures onto the records.
If the records are made by
procurators or checkers, such records shall be governed by this Article. The
records shall be promptly sent to investigators who shall put them in case
files.
The making of such records during
the stage of charge shall be governed by this Article.
Chapter XI
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Article 179.
Filing of charges against suspects
1. When a
person or juridical person is found on sufficient evidences to commit an act
defined by the Criminal Code as a crime, investigation authorities shall decide
to file charges against suspects.
2. A decision
to charge a suspect shall specify time and location for the issuance of such
decision; full name and position of the issuer; date of birth, nationality,
ethnicity, religion, gender, residential place, occupation of the suspect;
crimes against which the suspect is charged, Articles and Sections quoted from
the Criminal Code; time, location and other facts of the crimes.
If the suspect is charged against
multiple crimes, the decision to charge must specify each crime and Articles
and relevant Sections quoted from the Criminal Code.
3. Investigation
authorities, in 24 hours upon their decision to charge suspects, must send such
decision and relevant documents on charges against suspects to the equivalent
Procuracy for approval. The procuracy, in 03 days upon receiving a decision to
charge suspects, shall approve or annul such decision or request additional
evidences and documents that support its approval and respond to the
investigation authority in prompt manner.
If the Procuracy requests further
documents and documents, it shall, in 03 days upon receiving such additional
evidences and documents, approve or annul the decision to charge suspects.
4. The
procuracy, upon the exposure of a perpetrator committing uncharged acts defined
as crimes by the Criminal Code, shall request investigation authorities to file
charges against the suspect or, if investigation authorities do not respond to
such request, shall directly press charges. The procuracy, in 24 hours upon
issuing a decision to charge a suspect, must send such decision to
investigation authorities for investigation.
The procuracy, when acquiring
investigative documents and findings and uncovering other perpetrators of
uncharged acts defined as crimes in the Criminal Code, shall press charges
against such suspects and return documents to investigation authorities for
further investigation.
5. Investigation
authorities, upon receiving the Procuracy's decision to charge or approval of
their decisions to charge the suspects, must promptly deliver such decision(s)
and explain the suspects' rights and duties.
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The delivery of the said decisions
shall be executed in writing as per Article 133 of this Law.
Article 180.
Amendments to the decision on pressing charges against suspects
1. Investigation
authorities or procuracies shall amend their decisions to charge suspects in
one of the following events:
a) The suspects are evidently found
not to commit charged crimes during the process of investigation;
b) A decision to charge contains
incorrect full name, age and personal details of the suspects.
2. Investigation
authorities and procuracies, if there are grounds on suspects’ commission of
other acts defined as crimes in the Criminal Code, shall supplement their
decisions to charge suspects.
3. Investigation
authorities, in 24 hours upon altering or supplementing their decisions to
charge suspects, must send such decisions and relevant documents to the
equivalent Procuracy for approval. The procuracy, in 03 days upon receiving the
said amendments or supplements to charges against suspects, shall approve or
reject such amendments or supplements or request additional evidences and
documents that support its approval and respond to investigation authorities in
prompt manner.
If The procuracy requests further
documents and documents, it shall, in 03 days upon receiving such additional
evidences and documents, approve or reject the said amendments or supplements.
The procuracy, in 24 hours upon
amending or supplementing charges against suspects, shall have investigation
authorities informed for investigation.
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The delivery of the said decisions
shall be executed in writing as per Article 133 of this Law.
Article 181.
Suspension of suspects from duty
Investigation authorities, units
assigned to investigate and procuracies, when considering a suspect's holding
of office as obstruction of investigation, shall be entitled to request
authorities or organizations in control of suspects to suspend them from duty.
The said authorities and organizations, in 07 days upon receiving such request,
must respond in writing to investigation authorities, units assigned to
investigate and procuracies that issuing the request.
Article 182.
Summoning of suspects
1. Investigators,
when convening a suspect, must send out a subpoena. A subpoena for a suspect
shall specify the suspect’s full name and residential address; time, date and
location for his appearance, schedule of tasks, contact individuals and
liabilities for absence not due to force majeure or objective obstacles.
2. The
subpoena shall be sent to local authorities at the commune, ward or town where
the suspect resides or his workplace or educational facility. The authorities
or organizations receiving the subpoena are held responsible for forwarding it
to the suspect in prompt manner.
The suspect, when receiving the
subpoena, must sign and date the recipient’s Section. The forwarder of the
subpoena shall deliver the subpoena’s Section bearing the suspect’s signature
to the authority issuing the subpoena. If the suspect does not affix signature,
a written record of his non-compliance shall be made and sent to the summoning
authority. If the subpoena cannot be delivered due to the suspect’s absence, it
shall be given to his family member possessing legal capacity, who affixes
signature and forward the paper to the suspect.
3. The suspect
bear the obligation to appear as per the subpoena. Avoidance behavior or
absence not due to force majeure or objective obstacles shall lead to
investigators’ decision to deliver by force.
4. Procurators,
if necessary, may convene suspects. Summoning of a suspect shall be governed by
this Article.
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1. Investigators,
upon the issuance of a decision to charge a suspect, shall interrogate
suspects. A suspect may be interrogated at the investigated scenes or at
suspects' place of residence. Investigators, before interrogating a suspect,
must inform procurators and defense counsels of the time and location for
interrogation. Procurators, if necessary, shall participate in the suspect
interrogation.
2. Investigators,
before conducting the first session of interrogation, must explain to the
suspect his rights and duties as defined in Article 60 of this Law. Such
activities shall be recorded in writing.
If there are several suspects, they
shall be separately interrogated and prevented from interacting with each
other. A suspect may be permitted to write his statements.
3. Suspect
interrogation does not occur at night, unless otherwise indispensable. Reasons
must be clarified in the written record.
4. Procurators
interrogate suspects, who claim innocence or complain of investigative
activities, or in the presence of grounds showing investigative activities'
non-compliance with laws or in other events deemed necessary. Procurators’
suspect interrogation shall be governed by this Article.
5. Investigators,
investigation officers, procurators and checkers extorting statements and
torturing suspects shall incur criminal liabilities as per the Criminal Code.
6. Suspect
interrogation at a detention facility or the office of investigation
authorities or units assigned to investigate shall be recorded by sound or
sound-and-visual means.
Suspect interrogation at various
places shall be recorded by sound or sound-and-visual means at the requests for
the suspect or competent procedural authorities and persons.
Article 184.
Written records of suspect interrogation
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A written record of suspect
interrogation shall be made according to Article 178 of this Law and contain
all statements from the suspect, questions and answers. Investigators and
investigation officers are inhibited to alter the suspect's statements.
2. Investigators
and investigation officers, after conducting interrogation, shall read out the
written record or let the suspect read it. If there are amendments to the
written record, investigators, investigation officers and suspects shall affix
signatures to endorse such. If a written record has several pages, the suspect
shall sign every page. If the suspect writes the statement by himself,
investigators, investigation officers and suspects shall affix signatures to
endorse such self-declared statement.
3. If an
interpreter attends the suspect interrogation, investigators and investigation
officers must explain the interpreter's rights and duties and the suspect's
right to change the interpreter. Every page of the interrogation record shall
bear the interpreter’s signature.
If a defense counsel or
representative of the suspect attends the interrogation, investigators and
investigation officers must explain the attendees' rights and duties during the
process of interrogation. Suspects, defense counsel or representative shall
affix signatures onto the written record of interrogation. If the defense
counsel is permitted to address questions to the suspect, the written record
must contain all inquiries raised by the defense counsel and the suspect's
responses.
4. If a
procurator interrogates the suspect, the written record shall abide by this
Article. The written record of suspect interrogation shall be promptly sent to
investigators to be put into case files.
Chapter XII
DEPOSITION BY TESTIFIERS, CRIME VICTIMS, CIVIL
PLAINTIFFS, CIVIL DEFENDANTS AND PERSONS HAVING INTERESTS AND DUTIES IN
CONNECTION WITH THE CASE, CONFRONTATION AND IDENTIFICATION
Article 185.
Summoning of witness testifiers
1. Investigators,
when summoning witness testifiers for deposition, shall send out a subpoena.
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3. The
delivery of the subpoena is as follows:
a) The subpoena is given to the
witness testifier directly or through local authorities at the commune, ward or
town where the witness testifier resides or his workplace or educational
facility. In all circumstances, signatures must be affixed to confirm the
delivery of the subpoena. Local authorities at the commune, ward and town where
the witness testifier resides or his workplace or educational facility shall be
responsible for supporting the witness testifier to perform his duties;
b) The subpoena for a witness
testifier less than 18 years of age shall be given to his parents or
representative.
c) The delivery of the subpoena for
the witness testifier according to a foreign entity's judicial delegation shall
be governed by this Article and the Law on judicial assistance.
4. Procurators,
if necessary, may convene the witness testifier for deposition. Summoning of a
witness testifier shall be governed by this Article.
Article 186.
Deposition by witness testifiers
1. A witness
testifier’s deposition shall be carried out at the investigative scene, his
residential place or workplace or educational facility.
2. If there
are several witness testifiers in a case, each person shall give testimonies
separately and prevented from interacting with others during the process of
deposition.
3. Investigators
and investigation officers, before conducting depositions, must explain witness
testifiers’ rights and duties as per Article 66 of this Law. Such activities
shall be recorded in writing.
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5. If
investigators' deposition sessions are deemed biased or unlawful, procurators
shall take statements from witness testifiers. If evidences and documents must
be clarified to facilitate the Procuracy’s charges or its approval or rejection
of the investigation authority’s decision to charge, witness testifiers’
statements shall be taken by procurators. Witness testifiers' depositions shall
be governed by this Article.
Article 187.
Written records of witness testifiers’ depositions
A written record of witness
testifiers’ depositions shall be made according to Article 178 of this Law.
Witness testifiers’ depositions may
be recorded by sound or sound-and-visual means.
Article 188.
Summoning of crime victims and litigants for deposition
Summoning of crime victims and
litigants for deposition shall be governed by Article 185, 186 and 187 of this
Law.
The taking of testimonies from crime
victims and litigants may be recorded on sound recorder or camcorder.
Article 189.
Confrontation
1. If
testimonies from two or several persons come into conflict despite various
investigative measures implemented, investigators shall conduct a confrontation.
Investigators, before carrying out a confrontation, must inform the equivalent
Procuracy to assign procurators administering the confrontation. Procurators
must be present to administer the confrontation. The procurators' absence shall
be clearly described in the written record of confrontation.
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3. Investigators,
at the beginning of the confrontation, shall inquire into the mutual
relationship of attendees before asking about facts to be clarified.
Investigators, after listening to the confrontation, may raise additional
questions to each attendee.
Investigators, during the
confrontation, can present relevant evidences, documents and items. Attendees
may question each other. Their questions and answers shall be reduced to
writing.
Attendees’ previous statements
shall be restated only after the attendees in the confrontation complete their
depositions.
4. The written
record of confrontation is made according to Article 178 of this Law. The
confrontation may be recorded by sound or sound-and-visual means.
5. Procurators,
if necessary, may organize the confrontation. Confrontation shall be governed
by this Article.
Article 190.
Identification
1. Investigators,
when necessary, may present persons, photos or items to witness testifiers,
suspects or defendants for identification.
There must be at least three
externally identical persons, photos or items to be identified, except for the
identification of corpses.
Investigators, prior to the
identification, must inform the equivalent Procuracy to assign procurators
administering the process of identification. Procurators must be present to
administer the identification. The procurators' absence shall be clearly
described in the written record of identification.
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a) Witness testifiers, crime
victims or defendants;
b) Witnesses.
3. Investigators
must explain liabilities against witness testifiers or crime victims refusing,
avoiding or falsifying depositions, prior to their participation in a session
of identification. Such activities shall be recorded in writing.
4. Investigators
must first inquire into the identifying persons' knowledge of facts, traces and
traits that may facilitate their progress of identification.
During the process of
identification, investigators shall not raise suggestive questions. After the
identifying person recognizes an individual, item or photo displayed for
identification, investigators shall request to know his justifications from
traces and traits that result in the recognition of such individual, item or
photo.
5. The written
record of identification shall be made according to Article 178 of this Law.
The written record shall specify the identity and health conditions of the
identifying person and individuals to be identified; characteristics of items
and photos shown for identification, identifying persons' statements; lighting
conditions during the process of identification.
Article 191.
Recognition of voices
1. Investigators,
when necessary, may let crime victims, witness testifiers or arrestees,
detainees and defendants to recognize voices.
There must be at least three voices
in similar timbre and loudness.
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2. The
following persons bear the obligation to attend a process of voice recognition:
a) Expert witnesses of sound;
b) Persons requested to recognize
voices;
c) Persons presented to be
recognized by voice, unless voice recognition is done through a sound recorder;
d) Witnesses.
3. Investigators
must explain liabilities against witness testifiers or crime victims refusing,
avoiding or falsifying depositions, prior to their participation in a session
of voice recognition. Such activities shall be recorded in writing.
4. Investigators
must first ask identifying persons about their knowledge of traits that help
their recognition of voices.
During the process of voice
recognition, investigators shall not raise suggestive questions. After the
identifying person recognizes one of the voices projected, investigators shall
ask him to explain traits that he relies on to recognize a voice.
5. The written
record of voice recognition shall be made according to Article 178 of this Law.
The written record shall specify the identity and health conditions of the
identifying person and individuals whose voices are recognized; characteristics
of voices projected for recognition, identifying persons' statements; lighting
conditions during the process of voice recognition.
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SEARCH, SEIZURE AND IMPOUNDMENT OF DOCUMENTS AND ITEMS
Article 192.
Justifications for search of body, residence, workplace, area, vehicle,
document, item, mail, telegraphy, postal package and electronic data
1. Search of
body, residence, workplace, area, vehicle shall only be permissible in the
presence of justifications showing the existence of criminal instruments,
documents, items, property obtained by crime or other objects, electronic data,
documents related to the case on the body or in the residence, workplace, site
and vehicle.
Search of residence, workplace,
area and vehicle shall be conducted to seek wanted persons or search and rescue
crime victims.
2. If there
are justifications showing the existence of criminal instruments, documents,
items and property related to the case in mails, telegraphs, postal packages
and electronic data, such items and data shall be searched.
Article 193.
The authority to issue search warrants
1. Competent
individuals as defined in Section 1, Article 113 of this Law are entitled to
issue search warrants. Search warrants issued by individuals as defined in
Section 2, Article 35 and Point a, Section 1, Article 113 of this Law must be
approved by The procuracy prior to the enforcement of such warrants.
2. In
emergency events, competent individuals as defined in Section 2, Article 110 of
this Law shall be entitled to issue search warrants. Individuals issuing search
warrants, in 24 hours upon the completion of the search, must send written
notices to the equivalent Procuracy or The procuracy empowered to exercise
prosecutors; rights and administer cases and lawsuits.
3. Investigators,
before conducting the search, must inform the equivalent Procuracy of the time
and location of the search to have procurators assigned to administer the
search, except for emergency circumstances. Procurators must be present to
administer the search. The procurators' absence shall be clearly described in
the written record of the search.
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Article 194.
Search of body
1. Enforcers
of a search warrant, before searching body, must read out the warrant and let
the searched person read it. The searched person and attendees in the search
shall hear explanations of their rights and duties.
Searchers must request the searched
persons to present documents and items related to the case. If they refuse or
present insufficient items and documents related to the case, the search shall
occur.
2. The search
of a person's body shall be carried out by a person of same gender and
witnessed by other individuals of same gender. The search process shall not
affect the life, health, property, honor and dignity of the person searched.
3. Body search
shall be permissible without a warrant in case of an arrest or in the presence
of justifications asserting that the person present at the location of the
search is concealing weapons, evidences, documents and items in connection with
the case.
Article 195.
Search of residence, workplace, area and vehicle
1. Search of
residence requires the presence of the suspect or a co-resident person from 18
years of age, representatives of local authorities at communal of the commune,
ward or town (at communal or lower level). If the suspect or the co-resident
person is intentionally absent, absconds or fails to appear for any reasons,
the search of residence, if not deferrable, shall be conducted in the presence
of the representatives of local authorities at communal or lower level and two
witnesses.
Search of residence shall not
commence at night, except for emergency circumstances that must be specified in
writing.
2. The person,
when his residence is searched, must be present. Despite the absence of such
person, the search of residence, if not deferrable, shall occur and be reduced
to writing.
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3. Search of
an area requires the presence of the representatives of local authorities and
witnesses.
4. Search of a
vehicle requires the presence of the owner or manager of such vehicle or
witnesses. If the owner or manager of the vehicle is absent, absconds or fails
to appear for any reasons, the search, if not deferrable, shall occur in the
presence of two witnesses.
A relevant specialist may be
summoned to participate in the search of a vehicle.
5. The persons
attending a search of residence, workplace, area or vehicle shall not be left
to the discretion of leaving the place searched, contacting or interacting with
each other or other individuals until the completion of the search.
Article 196.
Seizure of electronic media and data
1. Seizure of
electronic media and data is conducted by authorized procedural persons.
Relevant specialists may be summoned to attend the search. If seizure is not
viable, data shall be transferred to a storage medium and stored as a piece of
evidence.
2. Seizure of
electronic media may include accompanying peripherals and relevant documents.
Article 197.
Seizure of mails, telegraphs and postal packages at the premises of providers
of postal or telecommunications services
1. Investigation
authorities, when affirming the necessity of the seizure of mails, telegraphs
and postal packages at the premises of providers of postal or
telecommunications services, shall issue a search warrant. The said warrant,
prior to enforcement, must be approved by an equivalent Procuracy.
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The procuracy, in 24 hours upon
receiving the request for ratification and documents related to the seizure of
mails, telegraphs and postal packages, shall decide to approve and reject the
request. If The procuracy rejects the said request, the issuer of the seizure
warrant shall immediately return the items seized to the providers of postal
and telecommunications services. Moreover, the recipients of mails, telegraphs
or postal packages seized shall be informed.
3. The
enforcers of the warrant, before seizing items, must inform the managerial
personnel of the concerned providers of postal or telecommunications services.
Managerial personnel of concerned providers of postal or telecommunications services
must support the enforces of the warrant to accomplish their missions.
Seizure of mails, telegraphs and
postal packages requires the presence of the representative of postal or
telecommunications service providers, who shall sign the written record of the
seizure.
The authority issuing the seizure
warrant shall notice the recipients of mails, telegraphs and postal packages
seized. If the said notice obstructs investigative activities, the authority
issuing the seizure warrant shall promptly deliver the notice upon the
disappearance of such obstruction.
Article 198.
Impoundment of documents and items during a search
1. Investigators,
when conducting a search, shall be permitted to impound items deemed as
evidences and documents in direct connection with the case. Items prohibited
from storage or circulation shall be seized and transferred to competent
authorities in prompt manner. If sealing is necessary, items shall be sealed in
the presence of the owner, manager, witnesses, family members as representatives,
and representatives of local authorities at communal or lower level.
2. The
impoundment of items and documents during a search shall be executed in writing
as per Article 133 of this Law. A written record of impounds shall be made into
four originals. One is given to the owner or manager of the items or documents.
One is stored in the case file. One is submitted to the equivalent Procuracy.
One is delivered to the authority managing items and documents impounded.
Article 199.
Responsibilities for preserving vehicles, documents, items, electronic data,
mails, telegraphs, postal packages seized, impounded or sealed
1. Vehicles,
documents, items, electronic data, mails, telegraphs and postal packages
seized, impounded or sealed must be preserved in intact conditions.
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Article 200.
Liabilities of individuals issuing and enforcing warrants of search, seizure
and impoundment.
Individuals issuing or enforcing
warrants of search, seizure or impoundment in illegal manners shall incur
disciplinary treatments or face criminal prosecution according to the nature
and degree of violations as per the laws.
Chapter XIV
CRIME SCENE EXAMINATION, AUTOPSY, INSPECTION OF TRACES
ACROSS A BODY, EXPERIMENTAL INVESTIGATION
Article 201.
Crime scene examination
1. Investigators organize the
examination of the scenes where crimes occur or criminals are detected to seek
criminal traces, evidences, relevant documents, items and electronic data and
to elucidate facts significant to the case.
2. Investigators, before examining
crime scenes, must inform the equivalent Procuracy of the time and location of
an examination to have procurators assigned to administer such examination.
Procurators must be present to administer a crime scene examination.
An examination of crime scenes
requires the presence of witnesses. Suspects, defense counsels, crime victims
and witness testifiers may be permitted and specialists may be summoned to
participate in the examination.
3. A crime scene examination
requires the taking of photographs and making of crime scene sketches,
descriptions, measurements and mockups. Moreover, criminal traces, documents
and items related to the case shall be examined on-site and collected. Results
of the examination shall be clearly reduced to writing. The written record of
crime scene examination shall be made according to Article 178 of this Law.
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Article 202.
Autopsy
1. Forensic post-mortem expert
witnesses shall conduct an autopsy under the management of investigators. An
autopsy shall require witnesses.
Investigators, before examining
corpses, shall inform the equivalent Procuracy of the time and location of the
autopsy to have procurators assigned to administer such examination.
Procurators must be present to administer an autopsy.
2. Forensic autopsy technicians may
be summoned to participate in a post-mortem examination to expose and collect
traces for expert examination.
3. An autopsy requires the taking
of photographs and description of traces across the body. Photographs and
samples shall be taken and preserved for expert examination. Results of the
post-mortem examination shall be specified in writing. The written record of
autopsy is made according to Article 178 of this Law.
4. Investigation authorities, if
requiring burial excavation, shall issue a decision and have the deceased
person’s family members informed in advance. If family members of the deceased
do not exist or are unidentified, representatives of local authorities at the
commune, ward or town where the body is buried shall be informed.
Article 203.
Inspection of traces across a body
1. Investigators, when necessary,
shall inspect the body of an emergency detainee, arrestee, person on temporary
detainment, suspect, crime victim or witness testifier for criminal traces or
other signs significant to solve the case. Investigation authorities, when
necessary, shall requisition expert examination.
2. The inspection of traces across
the body of a person must be carried out and witnessed by individuals of same
gender. A doctor of medicine, if necessary, shall be summoned.
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An inspection of bodily traces
shall be described in a written record. Photographs or expert examination shall
be required if necessary.
The written record of bodily trace
inspection shall be made according to Article 178 of this Law.
Article 204.
Experimental investigation
1. Investigation authorities, in
order to inspect and verify documents and acts significant to solve the case,
may conduct experimental investigation by reproducing a crime scene, replaying
acts, situations or other facts of a certain event and by performing other
experimental activities deemed necessary. An experimental investigation
requires measurements, photographs, video recording, sketches. Results of the
experimental investigation shall be specified in writing.
An experimental investigation is
prohibited from violating the life, health, honor, dignity and property of
participants in the investigation and other people.
2. Investigators, before conducting
an experimental investigation, must inform the equivalent Procuracy of the time
and location of the investigation. Procurators must be present to administer an
experimental investigation. The procurators' absence shall be specified in
writing.
3. Investigators shall organize the
execution of an experimental investigation. Witnesses during the investigation
is required.
Investigation authorities may
summon a specialist to participate in an experimental investigation. Temporary
detainees, suspects, defense counsels, crime victims and witness testifiers, if
necessary, may be participate in an experimental investigation.
4. The procuracy, if necessary,
shall administer an experimental investigation. Experimental investigations
shall be conducted according to this Article.
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EXPERT EXAMINATION AND VALUATION
Article 205.
Requisition for expert examination
1. Competent procedural
authorities, in an event deemed necessary or defined in Article 206 of this
Law, decide to requisition expert examinations.
2. A decision to requisition expert
examination shall specify:
a) Names of the authority and
competent individual requisitioning expert examination;
b) Full name of organizations and
persons requested to conduct expert examination;
c) Name and traits of the subject
to be examined;
d) Name of a relevant document or
sample enclosed (if available);
dd) Contents of requisitions for
expert examination;
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3. An authority, in 24 hours upon
issuing a decision to requisition expert examination, must send such decision,
documents and examined subjects to the entities conducting the examination.
Moreover, such decision shall be sent to The procuracy empowered to exercise
prosecution rights and administer investigative activities.
Article 206.
Mandatory expert examinations
Expert examinations are mandatory
to corroborate:
1. mental conditions of the accused
person when doubts of their criminal capacity arise. Mental conditions of
witness testifiers or crime victims shall be verified when there are doubts of
their awareness and capacity of providing accurate statements on facts of a
case;
2. the age of suspects, defendants
and crime victims if it is significant to solve the case and there is no
document to determine their exact age or the authenticity of such documents is
doubtful;
3. causes of death;
4. properties of injuries, degree
of harms against health or work capacity;
5. narcotics, military weapons,
explosives, inflammables, toxic, radioactive substances, counterfeit money,
gold, silver, precious metal, precious stones, antiques;
6. level of environmental
pollution.
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1. Litigants or their
representatives are entitled to petition competent procedural authorities for
requisitioning exert examinations of matters regarding their legitimate rights
and benefits, except for examinations that determine criminal liabilities of
accused persons.
Presiding authorities, in 07 days
upon receiving the petition, must consider and decide to requisition expert
examinations. Petitioners shall be informed in writing of the rejection of
their petitions and reasons. Petitioners shall be entitled, when the deadline
passes or they receive the written rejection from competent procedural
authorities, to consult expert witnesses by themselves.
2. Petitioners of expert
examinations shall have rights and duties as per the Law on judicial expert
examination.
Article 208.
Time limit for expert examination
1. Time limit for mandatory expert
examination is:
a) 03 months at most for events as
defined in Section 1, Article 206 of this Law;
b) 01 month at most for events as
defined in Section 3 and Section 6, Article 206 of this Law;
c) 09 days at most for events as
defined in Section 2, 4 and 5, Article 206 of this Law.
2. Time limit for expert
examination for other events shall be subject to the decision to requisition
expert examination.
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4. Time limit for expert
examination as stated in this Article applies to expert examinations added or
repeated.
Article 209.
Process of expert examination
1. The process of expert
examination shall occur at premises of authorities conducting examinations or
at places of investigation upon the issuance of a decision to requisition
examinations.
Investigators, procurators, judges
and petitioners for expert examinations can participate in the examinations
after informing expert witnesses of their attendance.
2. Expert examinations shall be
conducted by individuals or group of persons.
Article 210.
Additional expert examinations
1. Additional expert examinations
shall be conducted in the following events:
a) Findings from an expert examination
are obscure or inadequate;
b) Expert examinations must be
carried out on new matters in connection with existing facts of the case, which
were verified through previous examinations.
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3. The requisition for additional
expert examinations shall be processed in the same method of the first
examination.
Article 211.
Repeated expert examinations
1. Expert examinations shall be
repeated when the accuracy of the first examination is in doubt. A
repeated expert examination must be performed by different expert witnesses.
2. The authority requisitioning
expert examinations shall decide the repetition of an examination on its own
discretion or according to petitions by participants in legal proceedings. If
the individual authorized to requisition expert examination rejects the request
for examination repetition, the person making such request shall be informed in
writing of the rejection and reasons.
3. If the repeated expert
examination and the initial one inspect the same matter but produce different
findings, the individual authorized to requisition examinations shall make
decisions on repeating the examination for the second time. The second repeated
expert examination shall be conducted by the panel of expert examination
according to the Law on judicial expert examination.
Article 212.
Repetition of expert examination in special circumstances
The head of the Supreme People’s
Procuracy or Court president of the Supreme People’s Court, in special
circumstances, shall decide the repetition of expert examinations after the
panel of expert examination present its findings. A new panel shall repeated an
expert examination in special circumstances. Participants in the previous
examination shall not attend the repeated one. Findings of the repeated expert
examination in this event shall contribute to the settlement of the case.
Article 213.
Conclusion of expert examinations
1. The conclusion of an expert
examination must specify findings on matters, of which examinations have been
requisitioned, and other matters as per the Law on judicial expert examination.
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The authorities or persons
requesting expert examinations, in 24 hours upon receiving the said findings,
shall forward them to The procuracy that exercise prosecution rights and
administer investigative activities.
3. The authorities or persons
requesting expert examinations, in order to clarify findings, shall be entitled
to ask for expert witnesses' explication of such findings and further details
of facts deemed necessary.
Article 214.
Rights of suspects, defendants, crime victims and other participants in legal
proceedings to findings of expert examinations
1. Competent procedural
authorities, in 07 days upon receiving petitions for expert examinations from
suspects, defendants, crime victims and other participants in legal
proceedings, shall consider and make decisions on requisition for expert
examinations.
2. Competent procedural
authorities, in 07 days upon obtaining findings of expert examinations, shall
inform suspects, defendants, crime victims and other participants in legal
proceedings of such findings.
3. Suspects, defendants, crime
victims and other participants in legal proceedings shall be entitled to state
their opinions on findings of expert examinations or to petition for additional
or repeated examinations. Investigation authorities, procuracies and Courts
must record the said persons’ direct statements in writing.
4. If investigation authorities,
procuracies and Courts reject petitions by suspects, defendants, crime victims
or other participants in legal proceedings, petitioners shall be informed in
writing of such rejection and reasons.
Article 215.
Requisition for valuation
1. Competent procedural
authorities, when requiring the valuation of property for the settlement of
criminal cases, shall requisition valuation in writing.
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a) Names of the authority and
competent individual requisitioning valuation;
b) Name of the panel that is
requested to valuate property;
c) Name and traits of the property
to be valuated;
d) Name of relevant documents (if
any);
dd) Contents of requisitions for
valuation;
e) Date of valuation and deadline
for findings.
3. The authorities requesting
valuation, in 24 hours upon issuing the written request for valuation, must
deliver such request, documents and objects to be valuated to the Panel of
valuation. Moreover, the written request for valuation shall be sent to the
Procuracy that exercise prosecution rights and administer investigative
activities.
4. The requisition for property
valuation to settle civil cases in criminal lawsuits shall be governed by the
laws on civil procedure.
Article 216.
Deadline for valuation
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Article 217.
Process of property valuation
1. The Panel of valuation shall
valuate property. The meeting for property valuation shall be carried out at
the location of the property appraised or other places aas per decisions of the
Panel of valuation.
Investigators, procurators and judges
can attend the property valuation meeting after informing the Panel of
valuation in advance. The said individuals, when permitted by the Panel of
valuation, can provide their opinions.
2. The government shall regulate
the details of the establishment and operation of the Panel of valuation;
sequence and procedure for valuation of property.
Article 218.
Repetition of property valuation
1. If findings of the initial
process of valuation are in doubt, competent procedural authorities shall
requisition the repetition of the valuation process on their own discretion or
according to petitions by accused persons or other participants in legal
proceedings. The repeated valuation process shall be conducted by the immediate
superior Panel of valuation.
2. If the initial and repeated
processes of valuation generate contradictory findings on the value of the
property appraised, competent procedural authorities shall requisition in
writing the repetition of the valuation process for the second time. The second
repeated valuation process shall be conducted by a competent Panel of
valuation. Findings of the repeated valuation process in this event shall
contribute to the settlement of the case.
Article 219.
Valuation of property missing or evanishing
If the property missing or
evanishing must be appraised, the process of valuation shall be subject to the
documents that compile information and papers on such property.
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The head of the Supreme People’s Procuracy
or Court president of the Supreme People’s Court, in special circumstances,
shall decide the repetition of property valuation after the Panel of valuation
provides findings of the second repeated valuation process. A new panel shall
perform the valuation process repeated in special circumstances. Participants
in the previous valuation process shall not attend the repeated one. Findings
of the repeated valuation process in this event shall contribute to the
settlement of the case.
Article 221.
Conclusion of property valuation
1. The conclusion of a property
valuation process must specify findings on the value of the property
according to the request for valuation and other details as per the laws.
2. The Panel of valuation, in 24
hours upon concluding the valuation process, must send its findings to the
authorities and persons requesting valuation.
The authorities or persons
requesting valuation, in 24 hours upon receiving the said findings, shall
forward them to The procuracy that exercise prosecution rights and administer
investigative activities.
3. The authorities requesting
valuation, in order to clarify findings, shall be entitled to ask the Panel of
valuation for explanations of such findings and further details of facts deemed
necessary.
Article 222.
Rights of suspects, defendants, crime victims and other participants in legal
proceedings to findings of property valuation
1. Competent procedural
authorities, in 07 days upon receiving petitions for property valuation from
suspects, defendants, crime victims and other participants in legal
proceedings, shall consider and make written decisions on requisition for
property valuation.
2. Competent procedural
authorities, in 07 days upon acquiring findings of property valuation, shall
inform suspects, defendants, crime victims and other participants in legal
proceedings of such findings.
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4. If investigation authorities,
procuracies and Courts reject petitions by suspects, defendants, crime victims
or other participants in legal proceedings, petitioners shall be informed in
writing of such rejection and reasons.
Chapter XVI
SPECIAL METHODS OF INVESTIGATION AND LEGAL PROCEEDINGS
Article 223.
Special methods of investigation and proceedings
After filing charges, authorized
procedural persons during the stage of investigation shall be entitled to
enforce special methods of investigation and proceedings:
1. Secret recording by sound or
sound-and-visual means;
2. Secret phone tapping;
3. Secret collection of electronic
data.
Article 224.
Circumstances for enforcement of special methods of investigation and
proceedings
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1. Breach of national security,
drug-related crimes, corruption, terrorism, money laundering;
2. Other organized crimes
categorized as extremely severe felonies.
Article 225.
Duties and authority to decide and enforce special methods of investigation and
proceedings
1. Heads of provincial investigation
authorities and military investigation authorities of a military zone or higher
level shall decide to enforce special methods of investigation and proceedings
on their own discretion or as per requests for heads of provincial People’s
Procuracy and Military procuracy of the military zone. If a district
investigation authority or local military investigation authority handles the
case, the heads of such authorities shall recommend the heads of the provincial
investigation authority or military investigation authority of the military
zone to consider and enforce such methods.
2. A decision to implement special
methods of investigation and proceedings must specify essential information of
the subjects for such methods, names of methods, duration, location for
enforcement, authorities enforcing special methods of investigation and
proceedings and other details as per Section 2, Article 132 of this Law.
3. The decision to implement
special methods of investigation and proceedings, before executed, must be approved
by the head of the equivalent Procuracy. The head of the investigation
authority issuing such decision is responsible for controlling the enforcement
of the methods in strict manner and promptly requesting The procuracy to
terminate methods deemed unnecessary.
Specialized units of the people’s
police force and people’s arm shall be responsible for implementing special
methods of investigation and proceedings according to the laws.
4. Heads of investigation
authorities, competent procuracies and enforcers of special methods of
investigation and proceedings must maintain confidentiality.
Article 226.
Time limit for special methods of investigation and proceedings
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2. The head of the investigation
authority issuing the enforcement decision, in at least 10 days prior to the
expiration of the time limit for special methods of investigation and
proceedings, shall request the head of The procuracy in writing to consider and
approve the extension, if deemed essential by the former.
Article 227.
Use of information and documents collected through special methods of
investigation and proceedings
1. Information and documents
collected through special methods of investigation and proceedings shall only
be used to press charges, investigate, prosecute and adjudicate criminal
lawsuits. Documents and information irrelevant to the case must be disposed in
timely manner.
It is prohibited to exploit such
information, documents and evidences for other purposes.
2. Information and documents
collected through special methods of investigation and proceedings may be used
as evidences to solve the case.
3. Investigation authorities shall
be responsible for informing the head of The procuracy approving the former’s
decision of the results of special methods of investigation and proceedings.
Article 228.
Termination of special methods of investigation and proceedings
The head of The procuracy approving
the decision to enforce special methods of investigation and proceedings shall
annul such decision promptly in the following events:
1. As per the written request by
the head of the competent investigation authority;
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3. Special methods of investigation
and proceedings are no longer necessary.
Chapter XVII
SUSPENSION AND CLOSURE OF INVESTIGATION
Article 229.
Suspension of investigation
1. Investigation authorities shall
decide to suspend investigative activities in one of the following events:
a) Suspects are unidentified or their
whereabouts are unknown despite the expiration of the investigation time limit.
If the location of suspects is unknown, investigation authorities must issue
wanted notices before suspending the investigation;
b) If judicial expert examination
finds that suspects suffer from mental illness or fatal diseases, the
investigation may be suspended ahead of schedule;
c) Time limit for investigation
expires while expert examination, property valuation or judicial assistance,
though requested, does not progress. In such event, expert examination,
valuation process and judicial assistance shall continue until results are
achieved.
2. If there are several suspects in
one case but the reason for suspension of investigation does not apply to all
of them, the investigative activities against each suspect shall be suspended
separately.
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Article 230.
Termination of investigation
1. Investigation authorities shall
decide to terminate investigative activities in one of the following events:
a) As per justifications as defined
in Section 2, Article 155 and Article 157 of this Law or in Article 16 or
Article 29 or Section 2, Article 91 of the Criminal Code;
b) Time limit for investigation
expires though suspects are not proved to commit crimes.
2. A decision to terminate
investigation shall specify time and issuing place of the decision, reasons and
justifications, termination of preventive and coercive measures, return of
documents and items impounded (if any), handling of evidences and relevant matters.
If there are several suspects in
one case but the reason for suspension of investigation does not apply to all
of them, the investigative activities against each suspect shall be terminated
separately.
3. The procuracy, in 15 days upon
receiving the decision to terminate investigation and case files from
investigation authorities, shall consider justifications of such decision and
return case files to investigation authorities that handle intra vires matters.
If the suspension decision is deemed unjustified, it shall be abrogated and
investigation authorities shall be requested to resume investigative
activities. If justifications of prosecution suffice, the Procuracy shall
nullify the decision on investigation suspension and decide to prosecute according
to the time limit, sequence and formalities as stated in this Law.
Article 231.
Seeking of suspects
1. Investigative authorities shall
decide to issue wanted notices against suspects on the loose or in unknown
places.
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A wanted notice for a suspect shall
be sent to the equivalent Procuracy and publicly announced for everyone to
detect and detain the wanted person.
3. Upon the capture of the suspect
as per the wanted notice, the investigation authority issuing such notice shall
terminate it. A decision to terminate wanted notice shall be sent to the
equivalent Procuracy and publicly announced.
Article 232.
Closure of investigation
1. Investigation authorities, when
closing an investigation, must conclude the investigation in writing.
2. The investigation ends when the
investigation authorities concluding the investigation requisition charges or
terminate the investigation.
3. The written conclusion of
investigation shall specify date, full name and position of the person
concluding the investigation and bear his signature.
4. Investigation authorities, in 02
days upon concluding the investigation in writing, shall send such conclusion
to requisition charges or enclose a decision to terminate investigation and
case files to the equivalent Procuracy. Suspects or their representative or
defense counsels shall be given a copy of the conclusion of investigation for
charges or suspension of investigation. Crime victims, litigants and protectors
of their legitimate rights shall be informed.
Article 233. Conclusion
of investigation during the stage of prosecution
During the stage of prosecution,
the written conclusion of investigation shall specify the progress of crimes;
evidences of suspects' commission of crimes, their artifices, motives,
purposes, nature and degree of damage caused by the crimes; preventive and
coercive measures enforced, altered or terminated; factors aggravating and
mitigating criminal liabilities, traits and personal record of suspects;
seizure and impoundment of documents and items, handling of evidences; reasons
and circumstances leading to the crimes and other facts significant to the
case; reasons and justifications of prosecution; offence titles, Articles,
Sections and Points quoted from the Criminal Code; recommendations for the
settlement of the case.
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Article 234.
Conclusion of an investigation terminated
When an investigation is
terminated, the written conclusion of investigation shall specify events,
process of investigation, reasons and justification of investigation
suspension.
The written conclusion of
investigation shall specify issue date, full name and position of the person
concluding the investigation and bear his signature.
A decision to terminate
investigation shall specify time and issuing place of the decision, reasons and
justifications, termination of preventive and coercive measures, return of
documents and items impounded (if any), handling of evidences and relevant
matters.
Article 235.
Resumption of investigation
1. Investigation authorities, when
having justifications to annul the decision to terminate or suspend
investigation, shall decide to resume the investigation if the prescriptive
period for criminal prosecution remains effective.
If the investigation is terminated
according to Section 5 and Section 6, Article 157 of this Law without the
consent of the suspect who petitions for repetition of investigation,
investigation authorities or equivalent procuracies shall decide to resume the
investigation.
2. Investigation authorities, in 02
days upon deciding to resume the investigation, shall send such decision to the
equivalent Procuracy, suspects, their defense counsels or representatives and
deliver notices to the crime victims, litigants and protectors of their
legitimate rights.
PART THREE
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Chapter
XVIII
GENERAL
Article 236.
Duties and authorities of The procuracy exercising prosecution rights during
the stage of prosecution
1. Decide to implement, alter or
terminate preventive and coercive measures; request investigation authorities
to issue wanted notices against suspects.
2. Request authorities and entities
to provide documents related to the case when necessary
3. A Court returns documents to
investigation authorities, which The procuracy deems unnecessary, for further
investigation; therefore, the Procuracy is entitled to directly carry out
certain activities of investigation. Moreover, its direct investigative
activities can contribute to the verification and addition of documents and
evidences for making decisions to prosecute.
4. Decide to press charges, amend
or supplement decisions to file lawsuits or charges against suspects upon the
detection of criminal acts or other offenders not charged or investigated.
5. Decide to return documents to
investigation authorities for further investigation.
6. Decide to join and separate
cases; transfer lawsuits to competent authorities for prosecution, implement
summary procedures and civil commitment.
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8. Decide to prosecute.
9. Decide to dismiss or adjourn
cases; to dismiss or adjourn lawsuits against suspects; to resume cases or
lawsuits against suspects.
10. Carry out other duties and
powers to make decisions on prosecution as per this Law.
Article 237.
Duties and authorities of The procuracy administering activities during the
stage of prosecution
1. The procuracy, when
administering activities during the stage of prosecution, bears these duties
and authority:
a) Administer criminal proceedings
of participants in legal procedure; request competent authorities and entities
to implement strict measures against participants in legal proceedings, who
breach laws;
b) Request concerned authorities
and organizations to implement preventive measures against crimes and breach of
laws;
c) Perform other duties and
authority to administer activities during the stage of prosecution according to
this Law.
2. Competent authorities and
entities, in 10 days upon receiving requests as stated in Point a and Point b,
Section 1 of this Article, shall be responsible for informing The procuracy of
the their fulfillment of such requests.
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1. When investigation authorities
and units assigned to investigate hand over case files and written conclusions
of investigation for prosecution and evidences (if any), the Procuracy shall
inspect and handle information in the following manner:
a) If case files and accompanying
exhibits (if any) suffice according to the list of documents and evidences and
suspects or their representatives receive the written conclusion of
investigation, the Procuracy shall obtain case files;
b) If case files and accompanying
exhibits (if any) do not suffice according to the list of documents and
evidences, or the written conclusion of investigation is not given to suspects
or their representatives, the Procuracy shall refuse to take in case files and
request investigation authorities and units assigned to investigate to
supplement documents and exhibits or to provide suspects or their
representatives with the written conclusion of investigation.
2. The delivery of case files and
written conclusion of investigation shall be executed in writing as per Article
133 of this Law and inputted into case files.
Article 239.
The authority to prosecute
1. The procuracy exercising
prosecution rights and administering investigative activities shall make
decisions on prosecution. A procuracy’s authority to prosecute shall be subject
to the Court's jurisdiction over the case.
If a case goes beyond a Procuracy's
authority to prosecute, the Procuracy shall promptly decide to transfer the
case to another competent Procuracy. A provincial People’s Procuracy or
Military procuracy of a military zone shall decide the transfer of cases to
procuracies out of the province, centrally-affiliated city or military zone.
A superior Procuracy shall decide
to prosecute cases, against which it exercises prosecution rights and
administer investigation. The superior Procuracy, in 02 month prior to the
closure of the investigation, must inform the lower Procuracy, at the level
equivalent to that of the first-instance Court having jurisdiction over the
case, to assign procurators to examine case files. The superior Procuracy, when
issuing a decision to prosecute, shall assign the lower Procuracy to exercise
prosecution rights and administer the process of adjudication. The competent
inferior Procuracy, upon receiving case files and charging documents, shall
exercise prosecution rights and administer the process of adjudication as per
this Law.
2. A Procuracy, in 03 days upon
issuing a decision on case transfer, must inform in writing the investigation
authority closing the investigation, suspects or their representatives, defense
counsels, aggrieved persons and other participants in legal proceedings.
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Article 240.
Time limit for the issuance of decisions to prosecute
1. A Procuracy, in 20 days for
misdemeanors and felonies or 30 days for horrific and extremely severe felonies
upon receiving case files and written conclusion of investigation, must make
one of the following decisions:
a) Prosecute suspects in a Court;
b) Return documents for further
investigation;
c) Dismiss or adjourn the case;
dismiss or adjourn lawsuits against suspects;
The head of The procuracy, when
necessary, may extend the time limit for the issuance of a decision to prosecute
for 10 more days for misdemeanors or felonies or 15 more days for horrific
felonies or at most 30 more days for extremely severe felonies.
2. The procuracy, in 03 days upon
making one of the decisions as stated in Section 1 of this Article, must inform
suspects, their defense counsels or representatives and crime victims of the
return of documents for further investigation. Moreover, it shall in 03 days
provide suspects or their representatives, investigation authorities and
defense counsels with charging documents, decisions to adjourn or dismiss the
case or lawsuit against suspects. Furthermore, it shall send notices to crime
victims, litigants and protectors of their legitimate rights and benefits.
The delivery of the said documents
shall be executed in writing according to Article 133 of this Law and be
inputted in case files.
If the case is complex, the time
limit for the delivery of charging documents and decisions on suspension or
dismissal of the case to suspects or their representatives may be extended for
10 more days at most.
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Article 241.
Implementation, alteration and termination of preventive and coercive measures
The procuracy, when receiving case
files and written conclusion of investigation, shall be entitled to decide to
implement, alter or terminate preventive and coercive measures according to
this Law.
The time limit for preventive
measures during the stage of prosecution shall not exceed that defined in
Section 1, Article 240 of this Law.
Article 242.
Joinder or separation in cases during the stage of prosecution
1. The procuracy shall decide to
join issues into one case in the following events:
a) The suspect commits multiple
crimes;
b) The suspect commits a crime in
multiple times;
c) Several suspects commit one
crime, or there are accomplices and accessories who conceal or fail to report
the suspect or use property obtained by crime.
2. When the lawsuit against the
suspect is suspended, the Procuracy shall decide to separate issues from a case
in the following events, if separation is deemed not to affect the
determination of unbiased and comprehensive truths:
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b) Suspects suffer from fatal
diseases;
c) Civil commitment is imposed on
suspects.
Chapter XIX
DECISION TO PROSECUTE SUSPECTS
Article 243.
Decision to prosecute suspects
The procuracy shall decide to
prosecute a suspect in a Court through charging documents.
Charging documents shall detail the
progress and acts of crime; evidences clarifying suspects’ crimes, their
artifices, motives, purposes, nature and degree of damage caused by the crimes;
preventive and coercive measures enforced, altered or terminated; factors
aggravating and mitigating criminal liabilities, traits and personal record of
suspects; seizure and impoundment of documents and items, handling of
evidences; reasons and circumstances leading to the crimes and other facts
significant to the case.
The conclusion of the charging
documents shall specify offence titles and articles, sections and points quoted
from the Criminal Code.
Charging documents shall specify
their date of issuance, full name and position of the person releasing such
documents and bear his signature.
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The procuracy, in 03 days upon
issuing charging documents, must submit case files and charging documents to
the Court. The time limit for filing papers and charging documents of a complex
case in the Court may be extended for 10 more days at most.
If suspects are in detention, the
Procuracy shall, in 07 days prior to the end of the detention, inform the Court
to consider and decide the detention of such suspects before obtaining case
files.
Article 245.
Return of case files for further investigation
1. The procuracy shall decide to
return case files and request investigation authorities to conduct further
investigative activities in one of the following events:
a) Evidences do not suffice to
evince one of the matters as stated in Article 85 of this Law; however, the Procuracy
fails to supplement evidences by itself;
b) There are justifications to
press charges against the suspect for one or many crimes;
c) Accomplices or other offenders
related to the case have not been charged;
d) Serious violations of legal
procedure occur.
2. A decision to return documents
and request further investigation must detail additional issues to be
investigated according to Point 1 of this Article and Point 2, Article 132 of
this Law.
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Investigation authorities, when
closing additional investigation, shall conclude such investigation in writing.
The written conclusion of the additional investigation shall specify additional
findings and standpoints for the settlement of the case. If the additional
findings basically conflict with previous ones, investigation authorities shall
issue a new conclusion of investigation to replace the old one.
The transfer of case files and
additional conclusion of investigation to The procuracy and the delivery of
notices of additional findings shall be governed by Article 232 and Article 238
of this Law
Article 246.
Handling of the Court’s request for further investigation
If the Court decides to return case
files and request further investigation, the Procuracy shall consider
justifications for further investigation and handle such request in the
following manner:
1. The Court reach a justified
decision to return documents to investigation authorities, which The procuracy
deems unnecessary, for further investigation; therefore, the Procuracy is
entitled to directly carry out certain activities of investigation to
supplement documents and evidences. However, the Procuracy, if unable to
conduct further investigation, shall forward documents to investigation authorities
for additional investigative activities.
If additional findings alter the
fundamentals of existing charging documents, the Procuracy shall redress such
documents and convey documents to the Court. If additional findings lead
to the dismissal of the case, the Procuracy shall decide to have the case
dismissed and send a notice to the Court;
2. The procuracy, if finding no
justifications for the return of documents for further investigation, shall
state its reasons, maintain the decision to prosecute and send documents back
to the Court.
Article 247.
Suspension of cases
1. The procuracy shall decide to
suspend a case in the following events:
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b) Though the time limit for
issuing a decision to prosecute expires, the suspect absconds to an unknown
location. In this event, investigation authorities shall be requested to
release a wanted notice against the suspect prior to the suspension of the
case. The search for the suspect shall abide by Article 231 of this Law;
c) Time limit for issuing a
decision to prosecute expires while expert examination, valuation process or
judicial assistance, though requested, does not progress. In such event, expert
examination, valuation process and judicial assistance shall continue until
results are achieved.
2. A decision to suspend a case
must specify reasons and justifications for suspension, relevant details and
other matters as stated in Section 2, Article 132 of this Law.
If there are several suspects in
one case but the reason for case suspension does not apply to all of them, the
lawsuit against each suspect shall be suspended separately.
Article 248.
Dismissal of cases
1. The procuracy shall decide not
to prosecute and to dismiss the case when possessing one of the justifications
as defined in Section 2, Article 155 and Article 157 of this Law or as stated in
Article 16 or Article 19 or Section 2, Article 91 of the Criminal Code.
2. A decision to dismiss a case
must specify reasons and justifications for the dismissal of the case,
termination of preventive and coercive measures, handling of evidences, documents
and items impounded (if any), other relevant matters and other details as
stated in Section 2, Article 132 of this Law. If there are many suspects in one
case but the justifications for case dismissal do not apply to all of them, the
case shall be dismissed separately for each suspect.
Article 249.
Resumption of cases
1. The procuracy, when having
justifications to annul the decision to suspend or dismiss a case, shall decide
to resume the case if the prescriptive period for criminal prosecution remains effective.
If the case is dismissed according to Section 5 and Section 6, Article 157 of
this Law without the consent of the suspect who petitions for case resumption,
the Procuracy shall decide to resume the case. The case can be resumed fully or
partly against each suspect.
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3. The procuracy, in 03 days upon
making the decision, shall send the decision to resume case or lawsuit against
a suspect to the suspect, his defense counsel or representative, authorities
closing the investigation; and send a notice to the crime victims, litigants
and protectors of their legitimate rights and benefits.
The delivery of the decision to
resume the case or lawsuit against the suspect shall be executed in writing and
inputted into the case file.
4. The time limit for issuing a
decision to prosecute upon the resumption of the case shall be subject to
universal stipulations in this Law and commence upon the Procuracy’s issuance
of the decision to resume the case.
5. The procuracy, when resuming a
case, shall be entitled to enforce, alter or terminate preventive and coercive
measures as per this Law.
If there are justifications for
detention as per this Law, the duration of detention for the resumption of the
case shall not exceed the time limit for the issuance of a decision to
prosecute.
PART FOUR
CRIMINAL ADJUDICATION
Chapter XX
GENERAL
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1. The trial shall be conducted
through verbal communication.
The Trial panel shall directly
determine facts of the case by asking and listening to the defendants,
crime victims or their representatives, witness testifiers, expert witnesses
and other attendees summoned by the Court. The lay assessors shall consider and
examine documents and evidences collected; announce written records and
documents and engage in other legal proceedings to inspect evidences. The lay assessors
shall listen to procurators, defense counsels, and protectors of legitimate
benefits and rights of the crime victims and litigants.
2. The trial shall not be
interrupted, save break time and halt.
Article 251.
Temporary halt to trial
1. The trial may be halted in one
of the following events:
a) Evidences, document and items
must be verified, gathered or supplemented; however, such tasks are not viable
in court and shall be fulfilled in 05 days' time upon the temporary halt to the
trial;
b) Authorized procedural persons
and participants in legal proceedings, due to health conditions, force majeure
or objective obstacles, cannot continue their attendance in court; however,
they can reappear in court in 05 days' time upon the temporary halt to the trial;
c) The court clerk is absent from
the Courtroom.
2. The temporary halt to the trial
shall be inputted into the written record of the Court and announced to
participants in legal proceedings. The duration of a temporary halt to a trial
shall not exceed 05 days upon the issuance of the decision to halt the trial.
Upon the expiration of the halt, the trial resumes. If the trial cannot resume,
it shall be adjourned.
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A Court verifies, collects and adds
evidences through the following activities:
1. Obtain evidences, documents and
items in connection with the case from authorities and entities;
2. Request authorities and entities
to provide documents and items related to the case;
3. Assess on site evidences not
movable to the Courtroom;
4. Assess crime scenes or other
sites in connection with the case;
5. Requisition expert examination
or property valuation, except for situations that require mandatory expert
examination or property valuation as per Article 206 and Article 215 of this
Law; requisition additional or repeated expert examinations and repeated
valuation of property;
6. If The procuracy fails to
provide additional proofs according to the Court's request, the Court shall
verify and collect documents and evidences to settle the case.
Article 253.
Procurement of evidences, documents and items related to the case
1. The presiding judge of the Court
shall procure evidences, documents and items of the case from authorities and
entities and pose questions to the providers of such articles about matters in
connection with such evidences, documents and items. The procurement shall be
executed in writing.
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Article 254.
Composition of a trial panel
1. A trial panel of a
first-instance Court is composed of one judge and two lay assessors. A
trial panel of a first instance Court adjudicating a serious and complex case
shall comprise two judges and three lay assessors.
Two judges and three lay assessors
shall constitute a trial panel of a first-instance Court adjudicating
defendants whose crimes are punishable by life imprisonment or death as per the
Criminal Code.
2. A trial panel of an appellate
Court shall comprise three judges.
Article 255.
Decision to hear a case
1. A decision to bring a case to
trial shall detail:
a) Issue date of the decision; name
of the Court’s issuing the decision; date, time and location of the trial;
b) Public or secret trial;
c) Full name, date of birth, place
of birth, occupation and residential address of the defendants;
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dd) Full name of judge(s), lay
assessors, Court clerk; full name of reserve judge(s), lay assessor(s) and
Court clerk(s), if any;
e) Full name of procurators
exercising prosecution rights and administering the trial; full name of reserve
procurators (if any);
g) Full name of defense counsels
(if any);
h) Full name of interpreters (if
any);
i) Full name of other individuals
summoned to the Court;
k) Evidences taken to and assessed
in court.
2. A decision to hear a case in an
appellate Court shall state details as defined in Point a, b, e, g, h, i and k,
Section 1 of this Article; offence titles and punishments ruled by the
first-instance Court; full name of the appellant and appellee; The procuracy
filing appeals; full name of judge(s) and Court clerk; full name of reserve
judge(s) and Court clerk(s), if any.
Article 256.
Internal rules of a Court
1. Every person in court must be
dressed properly, conform to the security check and follow the guidelines given
by The court clerk.
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3. Every person in court must stand
up when the Trial panel enters the Courtroom and pronounces judgments. The
defendants must stand up when the procurator announce the charges or the
decision to prosecute. The persons summoned by the Court must obtain The
presiding judge’s permission before stating their opinions. The persons giving
opinions must stand up when stating their viewpoints and responding to
questions.
The presiding judge may permit
individuals to remain seated due to health conditions.
4. In court, the defendants in
detention shall only interact with their defense counsels. They must obtain The
presiding judge's permission before interacting with other people.
5. People less than 16 years of age
shall not enter the Courtroom, unless summoned by the Court.
Article 257.
Courtroom
1. The Courtroom must be arranged
to uphold solemnity, safety and equality between individuals exercising
prosecution rights and lawyers or defense counsels.
2. The court president of the
Supreme People’s Court shall regulate the details of this Article.
Article 258.
Records of Court
1. A written record of a Court
shall detail time, date and location of the trial and every event in court from
start to finish. Apart from the written record, the Court's progress may be
recorded by sound or sound-and-visual means.
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3. The presiding judge, at the end
of the trial, must examine the Court record. The signatures of his and The
court clerk’s shall be affixed on to the record.
4. After The presiding judge and
Court clerk sign the Court record, the procurator, defendants, defense
counsels, crime victims, litigants and protectors of legitimate rights and
benefits of crime victims and litigants and their representatives shall be
permitted to read the Court record. If amendments to the Court record are
requested, The court clerk shall input such amendments into the Court record. A
Court record shall not be erased or modified directly. Amendments shall be
inputted at the bottom of the record and endorsed by the signatures of The
presiding judge and Court clerk. If The presiding judge disapproves such
request, he must state reasons in The court clerk.
Article 259.
Records of deliberation
1. Deliberation must be executed in
writing.
All members of the Trial panel must
sign the record of deliberation in the retiring room before pronouncing
judgments.
2. The record of deliberation by a
trial panel of a first-instance Court shall detail:
a) Time and date of the record;
name of the Court holding the trial;
b) Full name of judge(s) and lay
assessors;
c) The case being adjudicated;
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3. The record of deliberation by a
trial panel of an appellate Court must specify details as per point a, c and d,
Section 2 of this Article and full name of judges.
Article 260.
Judgments
1. A Court passes judgments in the
name of the Socialist Republic of Vietnam.
Judgment provided in written form
must bear signatures of all members of the Trial panel.
2. The judgments of a first
instance Court must specify:
a) Name of the first-instance
Court; case number and initial date of admission; number and date of the
judgment, full name of members in the Trial panel, Court clerk and procurators;
full name, date of birth, place of birth, residential address, occupation,
educational level, ethnicity, criminal records and previous convictions of the
defendants; date of temporary detainment or detention of the defendants; full
name, age, occupation, place of birth, residential address of representatives
of the defendants; full name of defense counsels, witness testifiers, expert
witnesses, valuators, interpreters, translators and other individuals summoned
by the Court to attend the trial; full name, age, occupation and residential
address of the crime victims, litigants and their representatives; number and
date of the decision to hear the case; public or secret trial; time and
location of the trial;
b) Number and date of charging
documents and decisions to prosecute; name of The procuracy prosecuting;
defendants’ acts as per the crimes prosecuted by The procuracy; crimes and
points, sections, articles quoted from the Criminal Code and punishments,
additional penalties, judicial remedies, compensations for damage, which are
recommended by The procuracy against the defendants; handling of evidences;
c) Opinions given by defense
counsels, crime victims, litigants and other individuals summoned by the Court
to attend the trial;
d) The Trial panel’s judgments must
analyze evidences establishing guilt or innocence, determine the defendants’
state of being guilty of what crimes or guiltless, points, sections and
articles quoted from the Criminal Code and other legislative documents, factors
aggravating and mitigating criminal liabilities and solutions. If the
defendants are found guiltless, the judgment must detail justifications of
their innocence and the restoration of their honor, legitimate rights and
benefits as per the laws;
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e) The analysis of the legality of
legal proceedings and relevant decisions of investigators, procurators and
defense counsels during the investigation, prosecution and adjudication;
g) The Trial panel’s rulings over
each issue of the case, Court fee and right to appeal against the judgments.
Rulings, if immediately executed, must be specified.
3. The judgment of an appellate
Court must specify:
a) Name of the appellate Court;
case number and initial date of admission; number and date of the judgment,
full name of members in the Trial panel, Court clerk and procurators; full
name, date of birth, place of birth, residential address, occupation,
educational level, ethnicity, criminal records and previous convictions of the
defendants filing or facing appeals and those who do not but are reviewed by
the appellate Court; date of temporary detainment or detention of the
defendants; full name, age, occupation, place of birth, residential address of
representatives of the defendants; full name of defense counsels, witness
testifiers, expert witnesses, valuators, interpreters, translators and other
individuals summoned by the Court to attend the trial; full name, age, occupation
and residential address of the crime victims, litigants and their
representatives; name of The procuracy filing appeals; public or secret trial;
time and location of the trial;
b) Summary of the case, rulings
from the judgment of the first-instance Court; details of the appeals;
judgments by the appellate trial panel, justifications for approval or
disapproval of appeals; points, sections and articles quoted from the Criminal
Code and other legislative documents, which the appellate judicial Court base on
to settle the case;
c) The appellate trial panel’s
rulings over each issue of the case, which arise due to the appeals, fees of
first-instance and appellate Courts.
Article 261.
Amendments to a judgment
1. A judgment shall not be amended
unless it contains apparent errors in spelling or figures due to confusion or
miscalculation.
Amendments to a judgment shall not
alter the nature of the case or lead to the disadvantage of defendants or other
participants in legal proceedings.
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2. Amendments to a judgment as per
Section 1 of this Article shall be subject to the decisions by The presiding
judge of the Court passing such judgment. If The presiding judge is unable to
adopt the said amendments, The court president of the Court adjudicating the
case shall ratify them.
Article 262.
Delivery of judgments
1. A first-instance Court, in 10
days upon pronouncing a judgment, must deliver such judgment to the defendants,
crime victims, the equivalent Procuracy, defense counsels and defendants
convicted in absentia according to Point c, Section 2, Article 290 of this Law,
the immediate superior Procuracy, equivalent investigation authority, competent
authority enforcing criminal sentences, detention or penal facility holding
defendants in captivity. Moreover, written notices shall be sent to local
authorities at the commune, ward or town where defendants reside or to
defendants’ workplaces or educational facilities. Furthermore, litigants or
their representatives shall receive copies or relevant extracts of the
judgments.
The judgments, if passed in a trial
in absentia according to Point a or Point b, Section 2, Article 290 of this
Law, shall be posted at the People’s committee of the commune, ward or town
where defendants last resided or at their last workplaces or educational
facilities within the time limit as stated above.
The first-instance Court shall
deliver its judgments to a competent authority enforcing civil sentences if
such judgments expresses pecuniary fine, confiscation of property and civil
rulings according to the Law on civil sentence enforcement.
2. An appellate Court, in 10 days
upon pronouncing a judgment or issuing a ruling, must deliver such appellate
judgment or ruling to the equivalent Procuracy, competent authority enforcing
criminal sentences, investigation authorities, procuracies, the Court of first
instance, detention or penal facility holding defendants in captivity, appellants,
individuals having interests and duties related to the appeals or their
representatives. Moreover, the competent authority enforcing civil sentences
shall receive the appellate judgment expressing pecuniary fines, confiscation
of property and civil rulings. Furthermore, written notices shall be sent to
local authorities of the commune, ward or town where defendants reside or to
their workplaces or educational facilities. If the Higher People’s Court hears
the appeals, the time limit stated above may be extended for 25 more days at
most.
Article 263.
Interpretation in a Courtroom
1. If a defendant, crime victim,
litigant or witness testifier does not speak Vietnamese or suffers from mutism
or deafness, an interpreter shall explicate presentations, questions and
answers in court, the Trial panel’s rulings and relevant matters for them to
perceive.
2. The interpreter must translate
presentations, questions and answers made by individuals as defined in Section
1 of this Article into Vietnamese for the Trial panel and other attendees in
court to grasp.
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1. The Court, when passing a
judgment, shall ask concerned authorities and organizations to implement
essential measures to rectify causes and circumstances leading to criminal acts
at such authorities or organizations. Authorities and organizations, in 30 days
upon receiving the Court’s requisition, must inform the Court in writing of
measures taken.
2. The Court’s requisition, along
with the judgments, may be read out in court or sent privately to concerned
authorities or organizations.
Article 265.
Requisition for competent authorities’ revision of legislative documents
The Court, when adjudicating a
criminal case, shall detect and propose competent authorities’ revision or
abrogation of legislative documents in violation of the Constitution, laws,
resolutions passed by the National Assembly, ordinances and decrees passed by
Standing Committee of the National Assembly to guarantee legitimate rights and
benefits of authorities and entities.
The contemplation of matters and
respond to the Court about the handling of legislative documents proposed shall
be governed by the laws.
Article 266.
Duties and authorities of The procuracy exercising prosecution rights during
the stage of adjudication
1. The procuracy, when exercising
prosecution rights during the stage of a trial of first instance, shall bear
the following duties and authority:
a) Announce the accusations and decisions
to prosecute through summary procedures and other decisions on charges against
defendants in court;
b) Pose questions, assess
evidences, and examine scenes;
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d) Appeal against the judgments or
rulings of the Court, which are unjust or incorrect or which omit crimes and
offenders.
dd) Perform other duties and
authority to exercise prosecution rights at a first-instance trial as per this
Law.
2. The procuracy, when exercising
its prosecution rights to hear appeals, shall bear these duties and authority:
a) State opinions on the appeals;
b) Add new evidences;
c) Amend the appeals o revoke parts
or all of the appeals;
d) Pose questions, assess
evidences, and examine scenes;
dd) State the Procuracy's opinions
on the settlement of case in court and meeting session;
e) Engage in oral arguments with
the defendants, defense counsels and other participants in legal proceedings in
court;
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Article 267.
Duties and authority of the Procuracy administering the trial
1. Administer legal compliance of
the Court’s hearing of criminal cases.
2. Administer legal compliance of
participants in legal proceedings, request competent authorities to handle
participaints in legal proceedings, who breach the laws.
3. Administer judgments, rulings
and other procedural documents of the Court
4. Request the equilvaint Court or
lower authorities to transfer the cases to consider and decide the appeals.
5. Appeal against the Court’s
judgments and decision in serious of violations of legal proceedings.
6. Request the Court, authorities
and entities to conduct procedural activities as defined in this Law; request
the Court to rectify procedural violations.
7. Request concerned authorities
and organizations to implement preventive measures against crimes and breach of
law in managerial tasks.
8. Exercise the right to make other
requests and perform other duties and powers when administering the criminal
trial as per this Laws.
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TRIAL OF FIRST INSTANCE
Volume I.
JURISDICTION OF COURTS
Article 268.
Jurisdiction of a Court
1. A district People’s Court or
local military Court hears criminal cases of misdemeanors, felonies and
horrific felonies at first instance, except for the following crimes:
a) Breach of national security;
b) Sabotage of peace, crimes
against humanity and war crimes;
c) Crimes as defined in Article
123, 125, 126, 227, 277, 278, 279, 280, 282, 283, 284, 286, 287, 288, 337, 368,
369, 370, 371, 399 and 400 of the Criminal Code;
d) Crimes committed outside the
territories of the Socialist Republic of Vietnam.
2. A provincial People’s Court or
military Court of a military zone hears following cases at first instance:
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b) Criminal cases related to
defendants, crime victims or litigants who live abroad or in connection with
property involved in other lawsuits occurring on foreign territories;
c) A criminal lawsuit, though
within the jurisdiction of a district People’s Court or local military Court,
comprise complex facts making it hard to assess or reach unanimity upon the
properties of the case or is involved in various sectors and levels of
authority or is brought against a defendant who is a judge, procurator,
investigator, primary governmental leaders in district, township, provincial
city or city of a centrally-affiliated city, religious dignitary or individual
having high prestige in a community of minority.
Article 269.
Territorial jurisdiction
1. A Court, whose location is most
adjacent to the scene of a crime, shall have jurisdiction over the criminal
lawsuit against that crime If crimes occur in various places or at an unknown
site, the Court most adjacent to the site where investigative activities are
finished shall retain jurisdiction.
2. The provincial People’s Court at
the last residential place of a defendant committing a crime abroad shall have
jurisdiction if such person is tried in Vietnam. If a defendant’s last
residential place in Vietnam is unknown, The court president of the Supreme
People’s Court shall, as the case may be, decide to assign the People’s Court
of the city of Hanoi or the city of Ho Chi Minh or the city of Da Nang to hear
the case.
A defendant committing a crime
abroad, if falling within the jurisdiction of a military Court, shall be tried
by the military Court of a military zone as per the decision by The court
president of the Central military court.
Article 270.
Jurisdiction over crimes occurring aboard an aircraft or ocean ship of the
Socialist Republic of Vietnam, which is operating outside the airspace or
territorial waters of Vietnam
A Vietnamese Court most adjacent to
the airport or harbor, where an aircraft or ocean ship of the Socialist
Republic of Vietnam is registered or first arrives, shall have jurisdiction
over crimes occurring on such aircraft or ocean ship operating outside the
airspace or territorial waters of Vietnam.
Article 271.
Trial against a defendant committing multiple crimes that fall within the
jurisdiction of a Court at different level
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Article 272.
Jurisdiction of a military Court
1. A military Court has
jurisdiction over:
a) A criminal case against a
defendant who is a serviceman on active duty, state employee, worker, national
defense official or reserve soldier undergoing focus training or combat
availability tests; militia undergoing focus training or subordinated to the
People’s Army in combat, citizens mobilized, convoked or contracted to serve
the People’s Army;
b) A criminal case against a
defendant who is not stated in Point a, Section 1 of this Article and is
involved in military secrets or causes damage to the life, health, honor and
dignity of servicemen on active duty, state employees, workers, national
defense officials, reserve soldiers undergoing focus training or combat
availability tests or causes damage to the property, honor and reputation of
the People’s Army or commits crimes in a military barrack or military area
under the management and protection of the People’s Army.
2. A military Court has
jurisdiction over all crimes occurring in areas under martial law.
Article 273.
Trial against a defendant committing multiple crimes that fall within the
jurisdiction of a People’s Court and Military Court
If a defendant or crime comes
within the jurisdiction of a Military Court and another defendant or crime in
the same case falls within the jurisdiction of a People’s Court, the case shall
be subject to the following jurisdiction:
1. If issues of the case can be
separated, the Military Court shall judge defendants and crimes within its
jurisdiction and the People’s Court shall judge defendants and crimes within
its jurisdiction;
2. If separation is not viable, the
Military Court shall hear the entire case.
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1. A Court shall return files of a
case beyond its jurisdiction to The procuracy initiating prosecution, which
shall transfer the case to a competent Procuracy for prosecution.
The procuracy initiating
prosecution, in 03 days upon retrieving case files, shall issue a decision to
transfer them to a competent Procuracy for intra vires prosecution. The
transfer of a case out of a province, centrally-affiliated city or a military
zone shall abide by Article 239 of this Law.
The procuracy, if considering thin
court returning case files still has juridistion over the case, shall give such
documents back to the Court with an enclosed letter of explanation. If the
Court still deem the case ultra vires, the dispute over jurisdiction shall be
settled according to Article 275 of this Law. The procuracy must conform to the
decisions of the competent Court.
2. The time limit for prosecution
and the enforcement of preventive measures shall be governed by Article 240 and
Article 241 of this Law.
Article 275.
Settlement of disputes over jurisdiction
1. The court president of a
provincial People’s Court or a Military court of a military zone shall make
decisions on disputes over jurisdiction among People’s Courts at district level
in the same province or centrally-affiliated city or Military courts in the
same military zone.
2. The court president of a
provincial People’s Court or a Military court of a military zone most adjacent
to the site where investigative activities end shall make decisions on disputes
over jurisdiction among district People’s Courts in various provinces or
centrally-affiliated cities or Military courts from different military zones.
3. The court president of the
Supreme People’s Court or the Central military court shall make decisions to
settle disputes over jurisdiction among provincial People’s Courts or Military
courts of military zones.
4. The court president of the Supreme
People’s Court shall make decisions on disputes over jurisdiction between a
People’s Court and Military court.
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Volume II.
TRIAL PREPARTION
Article 276.
Obtain case files, charging documents and admit the case
1. When the Procuracy delivers
charging documents, case files and evidences (if available), the Court shall
examine and handle such papers and objects in the following manner:
a) If case files and accompanying
exhibits (if any) suffice according to the list of documents and exhibits, and
the suspect or his representative receives charging documents, the case file
shall be admitted;
b) If case files and accompanying
exhibits (if any) do not suffice according to the list of documents and
exhibits, or the suspect or his representative does not receive charging
documents, the case file shall not be admitted. In this event, the Procuracy
shall be requested to supplement documents and exhibits or send charging documents
to the suspect or his representative.
2. The delivery of case files and
charging documents shall be executed in writing according to Article 133 of
this Law and be inputted into the case file.
The court, upon receiving case
files and charging documents, shall admit the case. The court president of the
Court, in 03 days upon admitting the case, shall appoint The presiding judge
who hears the case.
Article 277.
Time limit for trial preparation
1. The presiding judge, in 30 days
for misdemeanors, 45 days for felonies, 02 months for horrific felonies and 03
months for extremely severe felonies upon the admission of the case, shall make
one of the following decisions:
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b) Return documents for further
investigation;
c) Suspend or dismiss the case.
The court president of the Court
may decide to extend the time limit for preparation for trial against a complex
case for 15 more days for misdemeanors and felonies and 30 more days at most
for horrific felonies and extremely severe felonies. The equivalent procuracy
must be promptly informed of the extension of the time limit for trial
preparation.
2. If a case is returned for
further investigation, the Presiding judge, in 15 days upon retrieving
documents, must decide to hear the case. If a case is resumed, the time limit
for trial preparation shall abide by universal stipulations of this Law and
commences as of the date of the Court's decision to resume the case.
3. The court, in 15 days upon
issuing a decision to hear the case, must hold a trial. If force majeure or
objective obstacles occur, the Court may initiate the trial within 30 days.
Article 278.
Implementation, alteration and termination of preventive and coercive measures
1. The presiding judge, after
admitting a case, shall decide to implement, alter and terminate preventive or
coercive measures. However, the Court president or Vice court president shall
make such decisions on detention measure.
2. The time limit for detention
prior to trial shall not exceed that for trial preparation as stated in Section
1, Article 277 of this Law.
3. If the time limit for detention
of a defendant in detention expires upon the initiation of the trial, the Trial
panel shall consider the necessity of detention for trial and issue a detention
order that loses effect at the end of the trial.
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1. The presiding judge, before
initiating a trial, must process these requests:
a) Requests by procurators and
participants in legal proceedings for the provision and addition of evidences,
summoning of witness testifiers, authorized procedural persons and other
participants in legal proceedings to the court, and for the replacement of
members of the Trial panel or Court clerk;
b) Requests by defendants or their
representatives, defense counsels for alteration or termination of preventive
and coercive measures;
c) Requests by procurators and
participants in legal proceedings for a trial through summary procedures or for
a public or secret trial;
d) Requests by participants in legal
proceedings for their absence from the courtroom.
2. The presiding judge, if
considering such requests justified, shall grant those within his powers or
inform competent individuals to handle the requests according to this law.
Moreover, the persons issuing such requests shall be informed. Rejection and
reasons shall be informed in writing.
Article 280.
Return of documents for further investigation
1. The presiding judge shall decide
to return documents to the Procuracy for further investigation in one of the
following events:
a) Evidences for matters defined in
Article 85 of this Law are not sufficient and cannot be supplemented in court;
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c) There are grounds showing the
existence of other accomplices or offenders of criminal acts, as per the
Criminal Code, involved in the case and facing no charges;
d) The charges, investigation and
prosecution have constituted serious violations of legal proceedings.
2. If the Procuracy finds grounds
to have documents returned for additional investigation, it shall request the
Court in writing for document return.
3. A decision to return documents
for further investigation must specify issues to be further investigated. Such
decision and case files shall be given to the Procuracy in 03 days upon the
issuance of the decision.
If additional findings lead to the
dismissal of the case, the Procuracy shall decide to have the case dismissed
and inform the Court in 03 days upon the issuance of such decision.
If additional findings lead to the
alteration of the decision to prosecute, the Procuracy shall issue new charging
documents that replace the previous ones.
If the Procuracy fails to provide
additional information as per the Court's requests and retain its decision to
prosecute, the Court shall commence the trial.
Article 281.
Case suspension
1. The presiding judge shall decide
to suspend a case in one of the following events:
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b) The location of a suspect or
defendant is unknown despite the expiration of the time limit for trial
preparation. In this event, investigation authorities shall be requested to
seek such defendant or suspect prior to the suspension of the case. The seeking
of a suspect or defendant shall abide by Article 231 of this Law;
c) Await the result of the
processing of legislative documents as per the Court’s requisitions.
2. If there are several suspects or
defendants in one case but the reason for case suspension does not apply to all
of them, the lawsuit shall be suspended for each suspect or defendant
separately.
3. The decision to suspend the case
must specify reasons for suspension and details as stated in Section 2, Article
132 of this Law.
Article 282.
Case dismissal
1. The presiding judge shall decide
to dismiss a case in one of the following events:
a) There are justifications for
case dismissal as defined in Section 2, Article 155 or Point 3, 4, 5, 6 and 7,
Article 157 of this Law;
b) The procuracy revokes all
decisions to prosecute before the trial commences.
If there are several suspects or
defendants in one case but the reason for case dismissal does not apply to all
of them, the lawsuit shall be dismissed for each suspect or defendant
separately.
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Article 283.
Case resumption
1. If the prescriptive period for
criminal prosecution is still effective and there are grounds to annul the
decision to suspend or dismiss a case, the Presiding judge issuing such
decision shall decide to resume the case.
If the Judge issuing the decision
to suspend or dismiss the case is obstructed, the Court president shall issue
the decision to resume the case.
2. If the case is suspended or
dismissed for each suspect or defendant separately, the decision on case
resumption shall apply to each of them.
3. The decision to resume the case
must specify reasons for case resumption and details as stated in Section 2,
Article 132 of this Law.
4. The court, when resuming the
case, shall be entitled to implement, alter or terminate preventive and
coercive measures as per this Law.
If there are justifications for the
necessity of detention as per this Law, the duration of detention for case
resumption shall not exceed the time limit for trial preparation.
Article 284.
Request for the Procuracy’s addition of documents and evidences
1. The presiding judge, when
requiring additional documents and evidences necessary to settle to the case
without the return of case files for further investigation, shall request the
Procuracy to supplement such papers and proofs.
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3. The procuracy, in 05 days upon
receiving the Court’s request, shall provide the Court with additional
documents and evidences as requested. If the Procuracy fails to provide
additional documents or evidences, the court shall commence the trial.
Article 285.
The procuracy’s revocation of the decision to prosecute
The procuracy, when finding a
justification as per Article 157 of this Law or Article 16 or Article 29 or
Section 2, Article 91 of the Criminal Code, shall decide to revoke the decision
to prosecute prior to the start of the trial and to request the Court to
dismiss the case.
Article 286.
Delivery of a first-instance Court’s decisions
1. A decision to hear a case shall
be given to the defendant or his representative, defense counsel, crime victim
and litigant in 10 days at most prior to the start of the trial.
A decision to hold a trial in
absentia shall be given to the defendant's defense counsel or representative.
Such decision shall also be posted publicly at the People’s committee at the commune,
ward or town where the defendant last resided or his last workplace or
educational facility.
2. The court’s decision to suspend,
dismiss or resume a case shall be given to the suspect, defendant, crime victim
or their representatives and other participants in legal proceedings in 03 days
upon the issuance of such decision.
3. The delivery of a decision to
appoint a Judge presiding the court, to try a case, to suspend, dismiss or
resume a case to the equivalent procuracy must occur in 02 days upon the
issuance of such decision. A decision to dismiss or suspend a case must be sent
to the immediate superior Procuracy in 02 days upon the issuance of such
decision.
4. A decision to implement, alter
or terminate preventive or coercive measure shall be given, in 24 hours upon
the issuance of such decision, to the suspect, defendant, the equivalent
Procuracy, detention facility holding the suspect or defendant in captivity.
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The presiding judge shall consider
the decision to hear the case and requests by procurators, defense counsel and
other participants in legal proceedings to summon individuals to the trial for
questioning.
Volume III.
GENERAL REGULATIONS ON COURT PROCEEDINGS
Article 288.
Attendance of members of the Trial panel and Court clerk
1. The trial shall proceed only in
the presence of full members of the Trial panels and the Court clerk. The
members of the Trial panel must hear the case from start to finish.
2. If a Judge or lay assessor
cannot continue hearing the case but a reserve Judge or lay assessor attends
the trial from the start, the reserve one shall be the replace member of the
Trial panel. If the Trial panel consists of two judges but the Presiding judge
cannot continue attending the trial, the other Judge shall preside the court
and a reserve Judge shall be the replace member of the Trial panel.
3. If a reserve Judge or lay
assessor is not available or a judge substituting the presiding judge is not
available as per Section 2 of this Article, the trial shall be adjourned.
4. If the Court clerk is changed or
cannot continue attending the court, the trial may progress in the presence of
a reserve Court clerk. If a replace clerk is not available, the trial shall be
halted.
Article 289.
Attendance of Procurators
1. A procurator of the equivalent
Procuracy must appear in court to exercise prosecution rights and administer
the trial. If the procurator is absent, the trial shall be adjourned. Many
procurators may attend a lawsuit composed of serious and complex elements. If
procurator(s) cannot attend the trial, reserve procurator(s) attending the
trial from the start shall become replace(s) to exercise prosecution rights and
administer the trial.
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Article 290.
Defendants’ attendance in the court
1. A defendant must be present in
the court as per the Court’s subpoena during the trial. If the defendant is
absent not due to force majeure or objective obstacles, he shall be delivered
by force to the court. If his absence results from force majeure or objective
obstacles, the trial shall be adjourned.
If the defendant suffers from
mental illness or fatal disease, the Judicial panel shall suspend the case
until the defendant is cured.
If the defendant absconds, the
Trial panel shall suspend the case and request investigation authorities to
seek for him.
2. The court can only hold a trial
in absentia in the following events:
a) The defendant has absconded and
remains elusive despite the wanted notice;
b) The defendant is on foreign soil
and cannot be summoned to the court;
c) The trial panel approves a
request for trial in absentia;
d) The defendant’s absence is not
because of force majeure or objective obstacles and does not hinder the trial.
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1. The defense counsel must appear
in court to plead for persons whom they agree to advocate. The defense counsel
may send the written statement of defense to the Court in advance. If the
defense counsel is absent for the first time due to force majeure or objective
obstacles, the trial shall be adjourned unless the defendant agrees to be tried
in the absence of the defense counsel. If the defense counsel is absent not due
to force majeure or objective obstacles or fails to appear as per the valid
second subpoena, the court shall hold the trial.
2. If a defense counsel appointed as
per Section 1, Article 76 of this Law is absent, the Trial panel shall adjourn the
trial unless the defendant or his representative agrees to engage in the trial
in the absence of the defense counsel.
Article 292.
Attendance of crime victims, litigants or their representatives
1. If crime
victim(s), litigant(s) or their representatives are absent, the Trial panel, as
the case may be, shall decide to adjourn or continue the trial.
2. If the
absence of the crime victim(s) or litigant(s) only obstructs the settlement of
compensations for damage, the Trial panel may separate the issue of
compensation for later adjudication as per the laws.
Article 293.
Attendance of witness testifiers
1. Testifiers shall attend the
trial to elucidate facts of a case. If a testifier is absent but gives
statements to investigation authorities, the presiding judge shall announce
such statements. If a witness testifier for vital issues of the case is absent,
the Trial panel shall, as the case may be, decide to adjourn or continue the
trial.
2. If a witness testifier is
summoned by the Court but is intentionally absent not due to force majeure or
objective obstacles, the Trial panel shall decide to escort by force such
witness testifier, whose absence is deemed to hinder the trial, according to
this Law.
Article 294.
Attendance of expert witnesses and valuators
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2. If the expert witness or
valuator is absent, the Trial panel, as the case may be, shall decide to adjourn
or continue the trial.
Article 295.
Attendance of interpreters and translators
1. Interpreters and translators,
when summoned by the Court, shall attend the trial.
2. If the interpreter or translator
is absent without a replace, the Trial panel shall decide to adjourn the trial.
Article 296.
Attendance of Investigators and other individuals
During the process of trial, the
Trial panel may summon Investigators, authorized procedural persons handling
the lawsuit and other individuals, if deemed necessary, to adduce matters
related to the case.
Article 297. Adjournment
of trial
1. The court shall adjourn the
trial in one of the following events:
a) There are justifications as
defined in Article 52, 53, 288, 289, 290, 291, 292, 293, 294 and 295 of this
Law;
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c) Expert examinations must be
furthered or repeated;
d) Valuation processes must be
furthered or repeated.
If the trial is adjourned, it shall
restart.
2. The duration of a adjournment to
a trial at first instance shall not exceed 30 days upon the issuance of a
decision to adjourn the trial.
3. A written decision to adjourn a
trial shall specify these primary details:
a) The issue date of the decision;
b) The name of the Court and full
name of the Judge(s), lay assessors and Court clerk;
c) The full name of Procurator(s)
exercising prosecution rights and administering the trial in court;
d) The case being adjudicated;
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e) The time and location for the
resumption of the trial
4. The presiding judge shall
represent the Trial panel to sign the written decision to adjourn the trial. If
the presiding judge is absent or replaced, the Court president shall decide to adjourn
the trial.
A decision to adjourn a trial, in
02 days upon the issuance of the decision, must be announced to the
participants in legal proceedings in court, be sent to the equivalent Procuracy
and to individuals absent from the court.
Article 298.
Limits of adjudication
1. A court shall adjudicate
defendants and acts of crimes prosecuted by a Procuracy and brought to trial as
per the Court's decision.
2. The court, when adjudicating
defendants, may adduce different sections in a legal article, which the Procuracy
quote for prosecution, or may consider other crimes equal or lesser than those
prosecuted by the Procuracy.
3. If the defendants must be tried
for crimes that outweigh those prosecuted by the Procuracy, the Court shall
return documents for the Procuracy to re-prosecute and have defendants or their
representatives and defense counsels informed of reasons. If the Procuracy
still prosecute the original crimes, the Court shall be entitled to adjudge the
defendants to crimes of higher degree.
Article 299.
Pronouncement of a Court's judgments and rulings
1. The trial panel shall discuss
and pass judgments in the retiring room.
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3. The decisions on other matters,
as discussed and passed by the Trial panel in the retiring room, may not be
executed in writing but must be inputted in the court record.
Volume IV.
FORMALITIES TO COMMENCE COURT PROCEEDINGS
Article 300.
Preliminary activities to commence a trial
The court clerk, prior to the start
of the trial, shall perform these tasks:
1. Verify the attendance and
perceive reasons for the absence of the individuals summoned by the Court;
2. Announce the court’s rules.
Article 301.
Start of trial
1. The presiding judge commences
the trial and utter the decision to hear the case.
2. The court clerk reports to the
Trial panel on the attendance and absence, with reasons, of the individuals
summoned by the Court.
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Article 302.
Handling of requests for the replacement of Judges, lay assessors, Procurators,
Court Clerks, expert witnesses, property valuators, interpreters or translators
The presiding judge shall ask the
Procurators and participants in legal proceedings in court about requests and
reasons for the replacement of Judges, lay assessors, Procurators, Court
clerks, expert witnesses, valuators, interpreters or translators. The trial
panel shall consider and ratify such requests, if raised.
Article 303.
Undertaking by interpreters, translators, expert witnesses and property
valuators
The presiding judge, after
elucidating the rights and duties of interpreters, translators, expert
witnesses and property valuators, shall demand their commitments to accomplish
their missions.
Article 304.
Oath and exclusion of witness testifiers
1. The presiding judge, after
explaining the witness testifiers’ rights and duties, shall demand them to
undertake to honest testimony.
2. The presiding judge, prior to
the questioning of witness testifiers about the case, shall decide measures to
exclude witness testifiers from hearing each other’s testimonies or interacting
with concerned people. If the defendant’s statements and witness testifiers’
testimonies come under mutual influence, the presiding judge shall isolate
defendants from witness testifiers before witness testifiers undergo
questioning session.
Article 305.
Handling of requests for evidence assessment and adjournment to trial out of
absence
The presiding judge must ask
Procurators and participants in legal proceedings in court about requests for
the summoning of additional witness testifiers or display of more exhibits and
documents for assessment. If a participant in legal proceedings is absent or
appear in court but fails to engage in legal proceedings due to ill health
conditions, the presiding judge shall ask about requests for an adjournment to
the trial. The trial panel shall consider and ratify such requests, if raised.
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Article 306.
Announcement of charges
Procurators, before engaging in the
questioning session, shall announce the charges and state additional opinions,
if available. Additional opinions must not exacerbate the defendants'
situations.
Article 307.
Sequence of questioning
1. The trial panel must ascertain
sufficient facts of each event and every crime in the case and per capita. The
presiding judge shall govern the questioning session and decide the rational
order of persons raising questions.
2. Each person shall be questioned
by the presiding judge then, as per his decisions, by other Judges, lay
assessors, Procurators, defense counsels, and protectors of litigants'
legitimate rights and benefits.
Participants in court proceedings
shall be entitled to petition the presiding judge for his inquiry into facts
that require further clarification.
Expert witnesses and property
valuators shall be asked about matters related to expert examinations and
property valuation.
3. The trial panel, when running
the questioning session, shall examine exhibits in connection with the case.
Article 308.
Disclosure of statements gathered during the stage of investigation or
prosecution
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2. Statements gathered during the
stage of investigation or prosecution shall be disclosed in one of the
following events:
a) The person questioned gives
testimonies in court, which conflict with his statements taken during the stage
of investigation or prosecution;
b) The person questioned does not
give testimonies in court or does not remember his statements taken during the
stage of investigation or prosecution;
c) The person questioned petitions
for the disclosure of his statements taken during the stage of investigation or
prosecution;
d) The person questioned is absent
or deceased.
3. The trial panel shall not
disclose documents of a case to, in special events, maintain the
confidentiality of state secrets, trade secrets, business secrets or personal
secrets, family secrets must be maintained, if deemed necessary or as per
requests by participants in legal proceedings, or to preserve national
conventions.
Article 309.
Questioning of defendants
1. The presiding judge shall decide
to have each defendant questioned separately. If a defendant’s testimonies
influence another defendant's statements, the presiding judge must exclude them
from hearing each other. The defendant excluded shall be informed of the prior
defendant's testimonies and be permitted to raise questions to that defendant.
2. A defendant shall state his
opinions regarding the charging documents and facts of the case. The trial
panel inquires further about details that a defendant has not elucidated or
that come into collision.
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Defense counsels shall ask
defendants about evidences, documents and items related to their tasks of
defense and facts of the case.
Protectors of legitimate rights and
benefits of crime victims and litigants shall ask defendants about facts
regarding their protection of litigants’ legitimate benefits and rights.
Participants in court proceedings
shall be permitted to petition the presiding judge to inquire further about
facts related to them.
3. If a defendant does not answer
questions, the Trial panel, Procurators, defense counsels, protectors of
legitimate benefits and rights of aggrieved persons and litigants shall ask
other persons and examine exhibits and documents pertaining to the case.
A defendant, with the presiding
judge’s permission, shall ask other defendants about matters linked to him.
Article 310.
Questioning of crime victims, litigants or their representatives
Crime victims, litigants or their
representatives shall present the case's facts associated with them. After such
persons' presentations, the Trial panel, Procurators, defense counsels and
protectors of legitimate rights and benefits of crime victims and litigants
shall ask them more about insufficient or contradictory details in their
speech.
Defendants, when permitted by the
presiding judge, shall raise questions to crime victims, litigants or their
representatives about matters related to the defendants.
Article 311.
Questioning of witness testifiers
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2. The trial panel, when
questioning a witness testifier, shall inquire about the witness testifier’s
relationship with defendants and litigants of the case. The presiding judge
shall request witness testifiers to expound the facts of the case, which came
to their knowledge, and have them clarify inadequate or inconsistent details in
their testimonies. Procurators, defense counsels and protectors of legitimate
rights and benefits of crime victims and litigants may pose additional
questions to witness testifiers.
With the presiding judge’s consent,
a defendant may ask witness testifiers about matters that are connected to the
defendant.
3. Witness testifiers, after giving
testimonies, shall remain in the courtroom for further questioning.
4. If there are evidences of
violations or risks of violations against the life, health, property, honor and
dignity of a witness testifier or his kindred, the Trial panel shall decide to
have them secured by protective measures according to this Law or other
relevant laws.
5. The court, if necessary, shall
question witness testifiers through a network of computers or
telecommunications.
Article 312.
Assessment of exhibits
1. Exhibits, images or written attestation
of exhibits shall be displayed for assessment in court.
The trial panel, along with
procurators, defense counsels and participants in court proceedings, shall
assess immovable exhibits on site, if necessary. The onsite assessment of
exhibits shall be executed in writing according to Article 133 of this Law.
2. Procurators, defense counsels
and other participants in court shall be permitted to state their opinions
regarding the exhibits. The trial panel, procurators, defense counsels and
protectors of the legitimate rights and benefits of litigants and crime victims
can inquire courtroom participants further about matters linked with exhibits.
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The trial panel shall decide to
have audible or visual records played in court to assess evidences, documents
and items related to the case or verify the defendants’ claims of torture or
confession extortion.
Article 314.
Scene assessment
The trial panel, along with
procurators, defense counsels and participants in court proceedings, shall
assess crime scenes or other sites in connection with the case, if necessary.
Procurators, defense counsels and other participants in court proceedings shall
be entitled to make remarks on the crime scenes or other sites linked with the
case. The trial panel can ask courtroom participants more about matters
regarding such locations.
The process of scene assessment
shall be executed in writing according to Article 133 of this Law.
Article 315.
Presentation and announcement of reports and documents from authorities and
organizations
Authorities and organizations shall
assign representatives to expound on their reports and documents. If their
representatives do not attend the trial, the Trial panel shall announce such
reports and documents in court.
Procurators, defendants, defense
counsels and other participants in court proceedings shall be entitled to make
remarks on the said documents and reports and raise questions to the
representatives of the said authorities or organizations and to other
participants in court proceedings about matters related to such documents and
reports.
Article 316.
Questioning of expert witnesses and property valuators
1. The trial panel shall, on its
own discretion or as per requests by Procurators, defense counsels or other
participants in court, request expert witnesses and property valuators to state
their findings on matters examined or property valued. Expert witnesses and
property valuators, when reporting, are entitled to give additional
explanations and justifications for their findings.
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3. If expert witnesses or property
valuators are absent from the court, the presiding judge shall announce the
findings of expert examinations and property valuation.
4. The trial panel shall order that
expert examinations are furthered or repeated or property valuation process
starts again, if deemed necessary.
Article 317.
Remarks by Investigators, Procurators, persons participating in or given
authority to institute legal proceedings
The trial panel shall, on its
discretion or at the requests for authorized procedural persons, request
Investigators, Procurators, persons participating in or given authority to
institute legal proceedings to give their opinions, if deemed necessary to
clarify decisions and proceedings during the stage of investigation,
prosecution and adjudication.
Article 318.
End of questioning session
The presiding judge, when
considering facts of the case fully assessed, shall ask Procurators,
defendants, defense counsels and other participants in court proceedings about
their further questions. If no further question exists, the questioning session
shall end. If further questions raised are deemed necessary, the presiding
judge shall decide to sustain the questioning session.
Article 319.
Procurator’s revocation of decisions on prosecution or conclusion of lesser
charges in court
Procurators, after ending their
questioning session, can revoke parts or all of their decisions to prosecute or
conclude lesser charges.
Article 320.
Sequence of oral arguments
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2. Defendants and defense counsels
shall give arguments to defend the former. Defendants and their representatives
shall be entitled to supplement the defense arguments.
3. Crime victims, litigants and
their representatives state their arguments to defend their legitimate rights
and benefits. Other protectors of such people’s legitimate benefits and rights
shall be entitled to present and supplement arguments.
4. If charges are pressed at the
requests by the crime victims, the Procurators shall draw conclusions before
the aggrieved and their representatives state and supplement arguments.
Article 321.
Conclusion by Procurators
1. Procurators, when reaching
conclusions, must contemplate evidences, documents and items examined in court
and arguments given by defendants, defense counsels, protectors of legitimate
rights and benefits of crime victims and litigants, and other participants in
court proceedings.
2. The content of such conclusions
must analyze and assess, in unbiased, comprehensive and thorough manners,
evidences of guilt or innocence; nature and harmful extent of crimes against
society; consequences of crimes; personal records and roles of defendants in
crimes; offence titles; points, sections and articles quoted from the Criminal
Code, factors aggravating or mitigating criminal liabilities; level of
compensations for damage, handling of evidences, judicial remedies; reasons and
circumstances leading to crimes and other significant facts of the case.
3. Procurators shall propose the
conviction of defendants on parts or all of charges or lesser crimes; primary
and additional penalties, judicial remedies, liabilities for amends, handling
of evidences.
4. Preventive measures against
crimes and breach of laws shall be proposed.
Article 322.
Oral arguments in court
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Defendants, defense counsels and
other participants in legal proceedings shall be entitled to state their
propositions.
2. Procurators must display
evidences, documents and arguments to respond to the last of each standpoint
given by the defendants, defense counsels and other participants in court
proceedings.
Individuals engaging in oral
arguments shall be entitled to respond to other people’s opinions.
3. The presiding judge shall not
restrict the time for oral arguments and shall endorse Procurators, defendants,
defense counsels, crime victims and other participants in legal proceedings to
argue and state all viewpoints. However; opinions not related to the case or
repeated shall be removed.
The presiding judge shall demand
Procurators’ obligation to respond to standpoints of defense counsels and other
participants in legal proceedings if Procurators do not debate such
standpoints.
4. The trial panel must listen and
acknowledge every standpoint from Procurators, defendants, defense counsels and
other individuals providing oral arguments in court to judge truths of the case
in impartial and comprehensive manners. The trial panel, if overruling
standpoints of courtroom participants, must clarify its justifications that are
inputted into the court record.
Article 323.
Resumption of questioning session
If oral arguments expose unasked or
unclear facts of the case, the Trial panel must resume the questioning session.
Oral arguments shall continue upon the end of the questioning session.
Article 324.
Defendants’ last words
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2. Defendants shall speak their
last words. No question shall be raised after the defendants utter their last
words. If the defendants’ last words reveal new facts significant to the case,
the Trial panel shall decide to resume the questioning session. The trial panel
shall be entitled to request the defendants not to digress from the case.
However, no time limit shall be imposed on the defendants' final speech.
Article 325.
Revocation of decisions to prosecute or to conclude lesser charges in court
1. The trial panel shall sustain
the trial though the Procurators revoke parts of the decision to prosecute or
draw conclusions on lesser offences.
2. If the Procurators revoke the
entire decision to prosecute before the deliberation session, the Trial panel
shall request courtroom participants to state their opinions on the revocation
of the decision to prosecute.
Volume VI.
DELIBERATION AND PRONOUNCEMENT OF JUDGMENTS
Article 326.
Deliberation of judgments
1. Only judges and lay assessors
are empowered to deliberate judgments The deliberation session occurs in the
retiring room.
The presiding judge chairing the
deliberation session shall be responsible for stating each issue of the case
that must be settled through the Trial panel’s deliberation. The presiding
judge himself or assigns a member of the Trial panel to execute the written
record of deliberation. Members of the Trial panel must settle all and every
issue of the case under majority rule. The votes shall be first casted by the
lay assessors then by the Judge(s). If the opinions do not win most of the
vote, each of the trial panel’s members’ opinions shall be re-discussed and
re-voted for the most voted ones. The minority voters shall be permitted
to state their opinions in writing, which are inputted into the case file.
2. The deliberation session shall
only consider evidences and documents verified in court on the basis of fully
and thoroughly examined evidences and standpoints of Procurators, defendants,
defense counsels and other participants in legal proceedings.
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a) The case is suspended or
documents are returned for further investigation;
b) The legality of evidences and
documents gathered by Investigation authorities, Investigators, Procuracies and
Procurators or provided by lawyers, suspects, defendants and other participants
in legal proceedings;
c) The existence of justifications
for the conviction of the defendants. If justifications for conviction suffice,
the points, sections and articles applicable from the Criminal Code must be
specified.
d) Penalties and judicial panels
imposed on the defendants; liabilities for compensations; civil matters in the
criminal lawsuit;
dd) The defendants‘ exemption from
criminal liabilities or penalties;
e) Criminal court fee, civil court
fee; handling of evidences; property seized, accounts frozen;
g) The validity of acts and
procedural decisions of Investigators, Procurators and defense counsels during
the processes of investigation, prosecution and adjudication;
h) Propositions for the prevention
of crimes and correction of violations.
4. If the Procurators revoke the
entire decision to prosecute, the Trial panel shall continue settling the
issues of the case by the sequence defined in section 1 of this Article. If
justifications absolve a defendant of guilt, the Trial panel shall declare the
defendant not guilty. The trial panel, if considering the revocation of the
decision to prosecute groundless, shall decide to suspend the lawsuit and
inform the head of the equivalent or immediate superior Procuracy of such
matter.
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6. The trial panel, when finishing
the deliberation session, shall decide one of the following matters:
a) Pass and pronounce the
sentences;
b) Resume the sessions of
questioning and oral argument if some facts of the case remain unasked or
unclear;
c) Return case files to the
Procuracy for further investigation and the Procuracy's addition of documents
and evidences;
d) Suspend the lawsuit.
The trial panel must inform the
courtroom participants and other participants in legal proceedings, who are
absent from the court, of the decisions as stated in Point c and Point d of
this Section.
7. If crimes are omitted, the Trial
panel shall decide to file a lawsuit according to Article 18 and Article 153 of
this Law.
Article 327.
Pronouncement of judgments
The presiding judge or a member of
the Trial panel shall read the sentence document. In a closed trial, only the
ruling section of the sentence document shall be read. Additional explanations
on the abidance by the sentences and the right to appeal may be provided after
the reading of the sentence document.
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In the following events, the Trial
panel must declare the immediate discharge, in the courtroom, of a defendant in
detention, if he is not held in detention for another crime:
1. The defendant is guiltless;
2. The defendant is exempt from
criminal liabilities or penalties;
3. The defendant is not sentenced
to imprisonment;
4. A suspended jail sentence is
imposed on the defendant;
5. The length of the jail sentence
is equal to or shorter than the length of the detention of the defendant.
Article 329.
Detention of defendants after the pronouncement of sentences
1. If a defendant held in detention
is sentenced to jail and such detention is deemed necessary to enforce the
sentence, the Trial panel shall decide to hold such defendant in detention,
unless otherwise stated in Section 4 and Section 5, Article 328 of this Law.
2. If a defendant not held in
detention is sentenced to jail, he shall only be put in detention for the
enforcement of the sentence upon the effect of the sentence. The trial panel
can decide to hold a defendant in detention in court if justifications show
that he may abscond or continue criminal acts.
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4. If a defendant is sentenced to
death, the Trial panel shall decide, in the sentence document, to continue the
detention of the defendant for the enforcement of the sentence.
Chapter XXII
APPELLATE TRIAL
Volume I.
CHARACTERISTICS OF APPELLATE TRIAL AND RIGHT TO APPEAL
Articles 330.
Characteristics of appellate trial
1. Appellate trial means that the
immediate superior Court re-tries a case or re-considers the decisions passed
by the first instance court, whose judgments and rulings pronounced for the
case are appealed before coming into force.
2. The decisions in a first
instance court, which are appealed, refer to decisions to suspend or dismiss
the case or lawsuit against suspects and defendants and other decisions in the
first instance court as per this Law.
Article 331.
Right to appeal
1. Defendants, crime victims and
their representatives shall have the right to appeal against the judgments or
rulings of the first instance court.
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3. Civil plaintiffs, civil
defendants and their representatives shall have the right to appeal against
parts of the judgments or rulings, that are related to compensations for
damage.
4. Individuals having benefits and
duties from the case and their representatives shall have the right to appeal
against parts of the judgments or rulings, which are associated with their
duties and benefits.
5. The protectors of legitimate
rights and benefits of crime victims or litigants aged less than 18 or having
mental or physical defects shall have the right to appeal against parts of the
judgments or rulings, which are in connection with the benefits and duties of
those under their protection.
6. A person declared not guilty by
a Court shall have the right to appeal against the justifications of the
first-instance court’s verdict of no guilty.
Article 332.
Appellate procedure
1. The appellant lodges an appeal
to the court that conducted the first instance trial or a court of second
instance.
If the defendant is held in
detention, the warden of the detention center or head of the detention facility
must enable the defendant's execution of his right to appeal. The warden or
head shall obtain and forward the written appeal to the first-instance court
that issued the judgments or rulings appealed.
The appellant can directly present
his appeal to the court that conducted the first-instance trial or the
appellate court. The court must make a written record of the appeal as per
Article 133 of this Law.
The appellate court, that has made
the written record of the appeal or received the written appeal, shall send
such record or written appeal to the first instance court for further
activities according to general regulations.
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a) The date of the written appeal;
b) The full name and address of the
appellant;
c) The reasons and petitions of the
appellant;
d) The signature or fingerprint of
the appellant.
3. The written or direct appeal
shall be enclosed with additional evidences, documents and items, if available,
that evince the grounds of such appeal.
Article 333.
Time limit for appeal
1. The time limit for appeal
against a first-instance court’s judgments is 15 days upon the pronouncement of
such judgments. If the defendant or litigant is absent from the court, the time
limit for appeal commences upon his receipt or the proclamation of the
judgments according to the laws.
2. The time limit for appeal
against a first-instance court’s rulings is 07 days and commences when the
person entitled to appeal receives such rulings.
3. The entry date of an appeal is
determined as follows:
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b) If the written appeal is
forwarded by the warden of the detention center or head of the detention
facility, the entry date of the appeal shall be the date when the warden or
detention head receives the written appeal. The warden or detention head must
specify and confirm the date of receipt by affixing his signature on the
written appeal;
c) If the appellant submits the
written appeal in court, the entry date of the appeal shall be fixed upon the
Court’s receipt of the written appeal. If the appellant directly appeals in
court, the entry date of the appeal shall be fixed upon the Court’s written
record of such appeal.
Article 334.
Procedures for admission and processing of appeals
1. The first-instance court, after
receiving the written appeal or executing a written record of the appeal, must
enter details into a receipt journal and verify the validity of such appeal
according to this Law.
2. If the written appeal is valid,
the first-instance Court shall send a notice of appeal according to Article 338
of this Law;
3. If the written appeal is valid
but its content is obscure, the first-instance Court must promptly inform the
appellant for the latter's elucidation.
4. If the content of the written
appeal conforms to this Law but the time limit for appeal expires, the
first-instance court shall request the appellant to present his excuses and
evidences, documents and items, if available, which justify his late submission
of the written appeal.
5. If the petitioner does not have
the right to appeal, the Court shall return the petition, in 03 days upon the
receipt of such paper, and notice the petitioner and equivalent Procuracy in
writing. Such written notice must specify reasons for the return of the petition.
A complaint can be lodged against
the return of such petition in 07 days upon the receipt of the notice. The
processing of such complaint shall abide by the stipulations in Chapter XXXIII
of this Law.
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1. The filing of a late appeal
shall be permissible on condition that the appellant has been obstructed by
force majeure or objective obstacles to lodge an appeal within the time limit
as defined by this Law.
2. The court of first instance, in
03 days upon receiving a late appeal, shall forward to the appellate court the
written appeal, the appellant's letter explaining the retardation of the appeal
and evidences, documents and items (if available).
3. The appellate court, in 10 days
upon receiving the late appeal enclosed with evidences, documents and items (if
any), shall establish a Panel of three Judges to scrutinize the late appeal.
The panel that contemplates the late appeal shall be entitled to decide to
endorse or reject such appeal in writing and specify its reasons in the written
decision.
4. The procurator of the equivalent
Procuracy shall attend the meeting, in which the late appeal is perused. The
appellate Court, in 03 days prior to its contemplation of the late appeal,
shall send a copy of the late appeal with evidences and documents (if any) to
the equivalent Procuracy. The procurator shall express the Procuracy’s
standpoints on the ratification of the late appeal.
5. The decision by the late appeal
review Panel shall be sent to the appellant, the Court of first instance and
the Procuracy equivalent to the appellate Court.
If the appellate Court accepts the
late appeal, the Court of first instance shall go through the formalities as
defined in this Law and send the case file to the appellate Court.
Article 336.
Appeal by the Procuracy
1. An appeal can be lodged by a
Procuracy equivalent to the court of first instance or the immediate superior
Procuracy to protest a judgment or ruling passed by such court.
2. An appeal by the Procuracy shall
contain these primary details:
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b) The name of the Procuracy that
decides to appeal;
c) The appeal is filed against
parts or the whole of judgments or rulings of the first instance court;
d) The reasons, justifications for
appeal and requests by the Procuracy;
dd) Full name and position of the
individual signing the written decision to appeal.
Article 337.
Time limit for protest
1. The time limit for protests
against a first-instance court’s judgments is 15 days for the equivalent Procuracy
and 30 days for the immediate superior Procuracy upon the Court’s pronouncement
of such judgments.
2. The time limit for protests
against a first-instance court’s rulings is 15 days for the equivalent
Procuracy and 30 days for the immediate superior Procuracy upon the Court’s
issuance of such rulings.
Article 338.
Notice of appeals and delivery of prosecution decisions to appeal
1. The first-instance court shall
notice the equivalent Procuracy and concerned individuals in writing about the
appeal in 07 days upon the expiration of the time limit for appeal. Such
written notice must specify the appellant’s requests.
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3. Participants in legal proceedings,
who are informed in writing of the appeal or protest, shall be entitled to
state their opinions on the content of such appeal in writing to the appellate
Court. Their opinions shall be inputted into the case file.
Article 339.
Results of appeals or protests
Parts of the Court's judgments and
rulings being appealed shall not be enforced, unless otherwise defined in
Article 363 of this Law. If an appeal is filed against the whole of the Court’s
judgments or rulings, the enforcement of all judgments or rulings shall be
postponed, except for circumstances as defined in Article 363 of this Law.
The first-instance Court must
provide the appellate Court with the case file, written appeal and documents,
evidences and items (if any) in 07 days upon the expiration of the time limit
for appeals or protests.
Article 340.
Admission of cases
1. The appellate Court, upon
receiving the file of the case appealed with evidences, documents and items (if
any), shall enter details into the case admission journal.
2. In 03 days upon the admission of
the case, the Court president of the appellate Court shall appoint a
Judge to preside the court and meeting session.
Article 341.
Transfer of case files to the Procuracy
1. The appellate Court, after
admitting the case, must transfer the case file to the equivalent Procuracy.
The case file must be returned to the Court, in 15 days’ time for the
provincial People’s Procuracy or military procuracy of a military zone or 20
days’ time for the Higher People’s Procuracy or Central military procuracy upon
such procuracies’ receipt of the case file. In the case of extremely severe or
complicated felonies, the said time limit may be extended for 25 more days for
the provincial People’s Procuracy or military procuracy of a military zone or 30
more days for the Higher People’s Procuracy or Central military procuracy.
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Article 342.
Amendment or withdrawal of appeals
1. The appellant or Procuracy
deciding to appeal shall be entitled to amend the appeal but not to aggravate the
defendants' circumstances, in the appellate court or prior to the start of the
trial. The right to withdraw parts or all of the appeal shall be granted to the
appellant, the Procuracy deciding to appeal or the immediate superior Procuracy
in the appellate court or prior to the start of the trial.
2. The amendment or withdrawal of
an appeal prior to the start of the trial must be executed in writing and sent
to the appellate Court. The appellate court must inform the Procuracy,
defendants and concerned individuals of the amendment or withdrawal of the
appeal. The amendment or withdrawal of an appeal in court shall be noted in the
court record.
3. If the appellant or Procuracy
withdraws a part of the appeal in court, which does not affect other parts, the
appellate Trial panel shall consider the part withdrawn and decide to terminate
its adjudication of such part of the appeal.
Article 343.
Effect of a first-instance court’s judgments and rulings not being appealed
A first-instance court's judgments,
rulings and parts of such not being appealed shall come into force upon the
expiration of the time limit for appeals and protests.
Volume II.
PROCEDURE IN APPELLATE COURTS
Article 344.
Appellate jurisdiction
1. A provincial People’s Court
shall have appellate jurisdiction over a district People’s Court's judgments
and rulings being appealed.
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3. A military court of a military
zone shall have appellate jurisdiction over a local military court's judgments
and rulings being appealed.
4. The Central military court shall
have appellate jurisdiction over the judgments and rulings that were passed by
a military court of a military zone and are being appealed.
Articles 345.
Scope of appellate jurisdiction
An appellate court shall review the
content of sentences and rulings being appealed. It can review other parts of
such sentences and rulings, which are not appealed, if necessary.
Article 346.
Time limit for appellate trial preparation
1. A provincial People’s Court or
military Court of a military zone must start the appellate trial in 60 days
upon the receipt of the case file. The higher People’s Court or Central
military court must begin the appellate trial in 90 upon receiving the case
file.
2. Upon the admission of a case,
the provincial People’s Court and military court of the military zone, in 45
days, or the Higher People’s Court and Central military court, in 75 days, must
issue one of the following decisions:
a) Terminate the appellate trial;
b) Hear the appellate case;
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4. The appellate court, in 10 days
at most prior to the start of the trial, must send its decision to try the case
to the equivalent Procuracy, defense counsels, crime victims, protectors of
legitimate rights and benefits of crime victims and litigants, appellants and
individuals having duties and interests related to the appeal.
Article 347.
Implementation, alteration and termination of preventive and coercive measures
1. The appellate court, upon
accepting the case, shall be empowered to implement, alter or terminate
preventive and coercive measures.
The implementation, alteration and
termination of detention shall be subject to the decisions of the Court
president and Vice court presidents. The implementation, alteration and
termination of other preventive and coercive measures shall be subject to the
decisions of the Presiding judge.
2. The time limit for detention
prior to trial shall not exceed the time limit for appellate trial preparation
as per Article 346 of this Law.
The appellate court shall base on
the first-instance court’s decision on detention to set the time limit for
extending the active detention of a defendant, if deemed imperative. The
appellate court shall base on the first-instance court’s decision on detention
to extend the active time limit for the continued detention of a defendant, if
deemed imperative.
If a defendant is held and must be
kept in detention for the completion of the trial, the Trial panel shall decide
to hold him in detention until the end of the trial.
3. If a defendant in detention is
sentenced to jail but his detention time expires, the Trial panel shall decide
to hold him in detention for sentence enforcement, unless otherwise stated in
Section 4 and Section 5, Article 328 of this Law.
If a defendant not in detention is
sentenced to jail, the Trial panel can decide to put him in detention upon the
pronouncement of sentences.
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Article 348.
Termination of appellate trial
1. The appellate court shall terminate
the appellate trial when the appellant or Procuracy withdraws the entire
appeals. The termination of the appellate trial shall be subject to the
decisions of the Presiding judge, prior to the start of the trial, or the
decisions of the Trial panel, in court. The first-instance court’s sentences
shall come into force upon the appellate Court’s issuance of the decision to
terminate the appellate trial.
2. If the appellant or Procuracy,
prior to the start of the trial, withdraws parts of the appeal, which are
deemed not to affect other parts, the Presiding judge shall decide to terminate
the appellate trial against the parts withdrawn.
3. A decision to terminate
appellate trial must specify reasons of termination and other details as
defined in Section 2, Article 132 of this Law.
The appellate court, in 03 days
upon issuing its decision to terminate the appellate trial, must send such
decision to the equivalent Procuracy, the court that held the first-instance
trial, defense counsels, crime victims, litigants, protectors of legitimate
rights and benefits of crime victims and litigants, appellants and individuals
having duties and interests related to the appeal.
Article 349.
Attendance of members of the appellate Trial panel and Court clerk
1. The trial shall proceed only in
the presence of full members of the Trial panel and the Court clerk. Members of
the Trial panel must hear the case from start to finish.
2. If a Judge fails to continue
hearing the case but a reserve Judge attends the trial from the start, the
reserve one shall be the substitute member of the Trial panel. If the Presiding
judge cannot continue hearing the case, a member Judge of the Trial panel shall
preside the court and a reserve Judge shall become a substitute member of the
Trial panel.
3. If a reserve Judge or a Judge to
substitute the presiding judge, when required, is not available, the trial
shall be adjourned.
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Article 350.
Attendance of Procurators
1. Procurator(s) of the equivalent
Procuracy must appear in the court to exercise prosecution rights and
administer the trial. The trial shall be adjourned in the absence of
procurator(s). Many procurators may attend a lawsuit composed of serious and
complex factors. If procurator(s) cannot attend the trial, reserve
procurator(s) attending the trial from the start shall become substitute(s) to
exercise prosecution rights and administer the trial.
2. If reserve procurator(s) is not
available to replace procurator(s) who must be changed or cannot continue
exercising prosecution rights or administering the trial, the Trial panel shall
adjourn the trial.
Article 351.
Attendance of defense counsels, protectors of legitimate rights and benefits of
crime victims and litigants, appellants and individuals having duties and
interests related to the appeal
1. Defense counsels, protectors of
legitimate rights and benefits of crime victims and litigants, appellants and
individuals having duties and interests related to the appeal must appear in
court as per subpoenas. If such person(s) is absent, the Trial panel shall
implement the following measures:
a) If the defense counsel is absent
for the first time due to force majeure or objective obstacles, the trial shall
be adjourned unless the defendant agrees to be tried in the absence of the
defense counsel. If the defense counsel is absent not due to force majeure or
objective obstacles or fails to appear as per the valid second subpoena, the
court shall hold the trial.
If a defense counsel appointed as
per Section 1, Article 76 of this Law is absent, the trial shall be adjourned unless
the defendant or his representative agrees to engage in the trial in the
absence of the defense counsel.
b) If the appellant, crime victims,
litigants and their representatives who have interests and duties related to
the appeal, and protectors of legitimate rights and benefits of crime victims
and litigants are absent not due to force majeure or objective obstacles, the
Trial panel shall hold the trial. If such people are absent due to force
majeure or objective obstacles, the Trial panel can hold the trial but cannot
pass a judgment or ruling that is inimical to the crime victims or litigants;
c) If the defendant filing or
facing an appeal is absent due to force majeure or objective obstacles, the
Trial panel can hold the trial but cannot pass a judgment or ruling inimical to
the defendant. If the defendant’s absence out of force majeure or objective
obstacles does not hinder the trial, the Trial panel shall hold the trial.
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Article 352. Adjournment
of appellate trial
1. The appellate court can adjourn the
trial only in one of the following events:
a) There are justifications as
defined in Article 52, 53, 349, 350 and 351 of this Law;
b) Evidences, documents or items
must be verified or added outside the court;
If the trial is adjourned, the
process of adjudication shall restart.
2. The duration of an adjournment
to a trial of second instance shall be defined in Article 297 of this Law.
Article 353.
Addition and examination of evidences, documents and items
1. The procuracy, prior to or at
the appellate trial, can gather new evidences on its own discretion or at the
requests for the Court. Furthermore, the appellant and individuals having
duties and interests related to the appeal, defense counsels, protectors of
legitimate benefits and rights of crime victims and litigants shall be entitled
to supplement evidences, documents and items.
2. Existing and new evidences and
newly added documents and items must be examined in court. The appellate
court’s judgments must consider existing and newly added evidences.
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1. The procedures to start the
trial and conduct oral arguments in an appellate court and first-instance court
are similar; however, a member of the Trial panel in the court of second
instance shall summarize the case, the first-instance court’s judgments and
rulings and details of the appeal before the questioning session.
2. The presiding judge shall ask
the appellant about his intention to amend or withdraw the appeal. If such
intention exists, the presiding judge shall ask about the Procurator’s opinions
on such amendment or withdrawal of the appeal.
The presiding judge shall ask about
the Procurator's intention to amend or withdraw the protest. If such intention
exists, the presiding judge shall ask the defendants and individuals in
connection with the protest to express their opinions on such amendment or
withdrawal of the protest.
3. During the court’s session of
oral argument, the Procurator and individuals related to the appeal shall
express their opinions on the details of the appeal. Moreover, the Procurator
shall state the Procuracy’s opinions on the settlement of the case.
Article 355.
The appellate Trial panel’s jurisdiction over the first-instance court’s
judgments
1. The appellate trial panel shall
have the rights to:
a) Reject appeals and sustain the
first-instance court’s judgments;
b) Alter the first-instance court’s
judgments;
c) Annul the first-instance court’s
judgment and send the case back for re-investigation or retrial;
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dd) Terminate the appellate trial.
2. The appellate court’s judgments
shall come into force upon the pronouncement of such judgments.
Article 356.
Rejection of appeals and sustainment of the first-instance court’s judgments
The appellate court, when
considering the first-instance court’s judgments justified and conformable to
the laws, shall reject appeals and sustain the first-instance court’s judgments.
Article 357.
Alteration of the first-instance court’s judgments
1. In the presence of new facts or
grounds showing the disparity in the first-instance court’s judgments and the
defendant’s personal records or nature, degree and consequences of the crimes,
the Trial panel of the appellate court shall be entitled to alter the
first-instance court’s judgments as follows:
a) Exempt the defendant from
criminal liabilities or penalties; enforce no additional penalty or judicial
remedy;
b) Implement articles and sections
of the Criminal Code on lesser crimes;
c) Mitigate the defendant’s
punishments;
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dd) Commute a punishment to a less
harsh one;
e) Sustain or alleviate a jail
sentence and grant a suspended sentence.
2. At the requests by the Procuracy
or crime victims, the Trial panel of the appellate court can:
a) Aggravate punishments and
implement articles and sections of the Criminal Code on harsher crimes; pass
additional punishments and implement judicial remedies;
b) Increase the compensation level;
c) Replace existing punishments
with harsher ones;
d) Nullify suspended sentence.
The trial panel, if acquiring
sufficient justifications, can mitigate punishments and implement articles and
sections of the Criminal Code on lesser crimes, commute existing punishments to
less harsher ones, sustain and suspend jail sentence and reduce the
compensation level.
3. The trail panel of the appellate
court, if possessing satisfactory grounds, can alter the first-instance court’s
judgments, as per Section 1 of this Article, for the defendants filing or
facing no appeal.
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1. The trial panel of the appellate
court shall annul the first-instance court’s judgments in the following events:
a) There are grounds demonstrating
the first-instance court’s omission of crimes or criminals or the demand for
charges and investigation into crimes harsher than those defined in the
first-instance court's judgments;
b) The appellate court cannot
fulfill the incomplete investigation activities at first instance;
c) Legal proceedings during the
stage of investigation or prosecution have constituted serious violations.
2. The trial panel of the appellate
court shall annul the first-instance court’s judgments to re-try the case at
first instance with a new Trial panel in these events:
a) The composition of the Trial
panel of the first-instance court does not abide by this Law;
c) Legal proceedings during the
stage of adjudication at first instance have constituted serious violations;
c) The first-instance court issued
a verdict of not guilty in favor of a person, who is found to commit crimes
through substantial grounds;
d) Grant unjustified exemption of
criminal liability, punishment or judicial remedy in favor of the defendant;
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3. The trial panel of the appellate
court, when annulling the first-instance court's judgments for re-investigation
or retrial, must specify reasons for such invalidation of judgments.
4. The appellate trial panel, when
annulling the first-instance court’s judgments for retrial, shall not set, in
advance, evidences for the first-instance court to approve or reject or
applicable points, sections and articles of the Criminal Code or punishments
against the defendants.
5. When the first-instance court's
judgments are annulled for re-investigation or retrial but the time limit for
the detention of the defendant expires, the appellate Trial panel shall, if
finding the need of keeping such defendant in detention, issue a decision to
continue the temporary detainment of the defendant until the Procurator or the
first-instance court re-handles the case.
In 15 days upon the annulment of
the first-instance court's judgments, the case shall be sent to the Procuracy
or the first-instance court for general proceedings as per this Law.
Article 359.
Annulment of the first-instance court’s judgment and dismissal of the case
1. If one of the justifications as
defined in Section 1 and Section 2, Article 157 of this Law exists, the
appellate Trial panel shall nullify the first-instance court's judgments,
declare the defendant not guilty and dismiss the case.
2. If one of the justifications as
defined in Section 3, 4, 5, 6 and 7, Article 157 of this Law exists, the
appellate Trial panel shall nullify the first-instance court's judgments and
dismiss the case.
Article 360.
Re-investigation or retrial of criminal cases
1. After the
appellate Trial panel annuls the first-instance court’s judgments for re-investigation,
the Investigation authorities, Procuracy and first-instance Court shall be
empowered to investigate, prosecute and adjudicate the case again according to
this Law.
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Article 361.
The appellate trial panel’s jurisdiction over the first-instance court’s
rulings
1. The
appellate trial panel shall have the rights to:
b) Alter the first-instance Court’s
rulings;
c) Annul the first-instance Court’s
rulings and transfer the case to the first-instance court for further
settlement of the case.
2. The
appellate court’s rulings shall come into force when pronounced.
Article 362.
Appellate procedure against the first-instance court’s rulings
1. The
appellate Trial panel, when reviewing the first-instance court’s rulings being
appealed, must summon to the meeting session the appellant, defense counsels,
protectors of litigants’ legitimate rights and benefits, and individuals having
interests and duties related to the appeal. The appellate Trial panel, despite
the absence of such people, shall hold the meeting session.
2. In 15 days
upon the acceptance of the case, the Court must hold the meeting session to
examine the first-instance court's rulings being appealed.
In 10 days upon the decision to
hold the meeting session, the appellate Trial panel must start the meeting
session. The court, in 02 days upon issuing the decision to hold the meeting
session, must send the case file and such decision to the equivalent Procuracy.
The procuracy, in 05 days upon receiving the case file, must send the
file back to the Court.
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The procurator of the equivalent
Procuracy must attend the meeting session and express the Procuracy’s opinions
on the settlement of the appeal prior to the appellate Trial panel’s issuance
of its rulings.
PART FIVE
REGULATIONS ON THE ENFORCEMENT OF THE COURT’S
SENTENCES AND RULINGS
Chapter
XXIII
SENTENCES AND RULINGS THAT ARE IMMEDIATELY ENFORCED
AND THE AUTHORITY TO DECIDE THE ENFORCEMENT OF SENTENECS
Article 363.
The court’s sentences and rulings that are immediately enforced
The court's sentences or rulings,
though appealable, shall be immediately enforced when the first-instance court
decides to dismiss the case for a defendant in detention or declare that
defendant guiltless or exempt from criminal liabilities or punishments.
Moreover, alternatives to incarceration or suspended prison sentences or jail
sentences, whose length of time is equal to or shorter than the detention time
served, shall take immediate effect.
Warnings shall be delivered in
court.
Article 364.
Authority and procedure to order the enforcement of sentences
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2. The time
limit for the issuance of an order for sentence enforcement shall be 07 days
upon the effect of the first-instance court's sentences and rulings or upon the
receipt of sentences and rulings from the appellate court or decisions
generated through cassation or reopening procedures.
The court president, when delegated
by the president of the court that held the first-instance trial, shall in 07
days upon the receipt of the written delegation issue an order to enforce the
sentences.
3. If a person
on bail is sentenced to jail, the order on the enforcement of such prison
sentence must state that the said person must in 07 days upon receiving the
written order present himself to a criminal sentence enforcement unit of a
district police office to serve time.
If a person on bail and sentenced
to jail absconds, the President of the Court that has ordered the sentence
enforcement shall request a wanted notice to be issued by the criminal sentence
enforcement police unit of the provincial Police office at the location where
the prison sentence was passed.
Article 365.
Explication and revision of the Court’s sentences and rulings
1. Criminal
and civil sentence enforcement authorities, procuracies, sentenced persons,
crime victims and litigants in connection with the enforcement of sentences
shall be entitled to petition the Court that passed such sentences and rulings
for its explication and revision of obscure details of such judgments and
decisions for the purpose of enforcement.
2. The
presiding judge of the court that pronounced the sentences and rulings shall be
held responsible for explicating and revising vague details of the Court’s
judgments and decisions. The president of the Court that passed the sentences
and rulings, if the presiding judge cannot explicate or revise such, shall
undertake the tasks.
Article 366.
Settlement of motions against the Court’s sentences and rulings
If a criminal or civil sentence
enforcement authority makes a motion for revision of the Court’s sentences or
rulings through the reopening or cassation procedures, the competent Court
shall be responsible for responding to such motion in 90 days upon the receipt
of the motion made in writing. The time limit for response, in complex cases,
can be extended for 120 more days at most upon the receipt of the written
motion.
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PROCEDURES FOR THE EXECUTION OF DEATH PENALTY, PAROLE
AND EXPUNGEMENT OF CRIMINAL RECORDS
Article 367.
Procedures for the review of death penalty before execution
1. The
following procedures shall apply to the review of a death penalty before
execution:
a) When a death penalty comes into
force, the case file shall be promptly sent to the President of the Supreme
People’s Court and the sentences shall be immediately delivered to the Head of
the Supreme People’s Procuracy;
b) Supreme People’s Court, after
reviewing the case file to make decisions to or not to file an appeal through
reopening or cassation procedures, shall have the case file sent to the Supreme
People’s Procuracy. Supreme People’s Procuracy, in 01 month upon receiving the
case file, shall return it to the Supreme People’s Court;
c) The president of the Supreme
People’s Court or head of the Supreme People’s Procuracy, in 02 months upon the
receipt of the case file, must decide to or not to appeal through reopening or
cassation procedures;
d) The sentenced person shall be
allowed to, in 07 days upon the effect of the sentence, petition for the State
president’s commutation;
dd) A death penalty shall be
executed if the President of the Supreme People’s Court and the Head of the
Supreme People’s Procuracy do not appeal through reopening or cassation
procedures and the sentenced person does not petition for the State president’s
amnesty.
If an appeal is filed against the
death penalty through the reopening or cassation procedures but is rejected by
the Reopening panel or Cassation panel of the Supreme People’s Court for
sustaining the death penalty, the Supreme People’s Court shall promptly notice
the sentenced person for the latter’s petition for amnesty;
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2. The
president of the Court that held the first-instance trial, in the presence of
grounds as defined in Section 3, Article 40 of the Criminal Code, shall not
order to enforce the death penalty and report to the President of the Supreme
People’s Court for the reduction of the death sentence to incarceration for
life.
Article 368.
Procedures for parole
1. Prisons and detention centers of
the Ministry of Public Security, detention centers of the Ministry of Defense,
criminal sentence enforcement units of provincial Police offices and military
zones shall be responsible for preparing and sending the application for parole
to the provincial Procuracy or military Procuracy of the military zone,
provincial People’s Court, military Court of the military zone at the location
where the convict serves time.
An application for parole
comprises:
a) The convict’s letter of
application for parole, including his undertakings to obey the laws and perform
mandatory duties of the parole;
b) A copy of the sentence in effect
and sentence enforcement order;
c) A copy of the decision to
mitigate the prison sentence’s term of length for a person convicted of
felonies or harsher crimes;
d) The documents showing the
fulfillment of additional pecuniary fines, court fees and civil liabilities;
dd) The personal records of the
convict and his family background;
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g) The written request for parole
from the authority that prepares the application.
2. The written request for parole
from the authority that prepares the application shall contain these primary
details:
a) Number and date of the written
request;
b) Full name, position and
signature of the individual authorized to make the request;
c) Full name, gender, year of
birth, residential place of the convict; and the location where the convict
undergoes probation;
d) Length of time served and
remaining;
dd) Remarks and requests by the
authority that prepares the application.
3. The provincial People’s
Procuracy or military Procuracy of the military zone must, in 15 days upon
receiving the application for parole, expresses its opinions in writing on such
application.
If the Procuracy demands further
documents, the authority making the application must, in 03 days upon receiving
such demand, prepare and send additional papers to the Procuracy and Court.
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5. The parole board is composed of
the Court president, chairing the board, and 02 judges.
6. A member of the Board shall
brief the application in the meeting. The procurator shall state the
Procuracy’s standpoints on the concerned authority’s application for parole and
the legal compliance of the ratification of parole. The representative of the
authority making the application can present additional details to elucidate
the application for parole.
7. The parole meeting shall be
recorded in writing. The written record shall specify the date and location of
the meeting, participants, contents and events in the meeting and the Board's
decision to approve or reject the application for parole for each convict.
At the end of the meeting, the
Procurator shall view the written record and request amendments (if any) to
such record. The chairman of the Board must review the record and, together
with the meeting clerk, sign the record.
8. In 03 days upon the issuance of
the decision to grant parole, the Court must send such decision to the convict,
equivalent Procuracy, immediate superior Procuracy, authority making the
application, Court that ordered sentence enforcement, criminal sentence
enforcement unit of district Police or military zone, local authorities at the
commune, ward or town where the person on parole resides, military unit
managing such person, and Department of Justice adjacent to the office of the
Court issuing the decision.
9. The prison, upon receiving the
decision to grant parole, shall announce such decision and handle formalities
to execute the parole decision. If the person on parole does not violate
Section 4, Article 66 of the Criminal Code during his probation, the criminal
sentence enforcement unit of the district Police or military zone that managed
such person, upon the expiration of the probation, shall certify his
fulfillment of jail sentence in writing.
10. If the person on parole
violates Section 4, Article 66 of the Criminal Code, the criminal sentence
enforcement unit of the district Police office adjacent to the residential
location of the person on parole or the military unit managing such person must
submit documents to the Procuracy and Court that decided the parole. The said
Procuracy and Court shall consider such documents to annul the decision issued
and compel that person to serve the jail time remaining.
The court, in 05 days upon
receiving a request, must hold a meeting to review details and make decision.
The court, in 03 days upon
annulling the parole decision, must send its new decision to the authorities
and individuals as stated in Section 8 of this Article.
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The order, procedures and authority
to settle such appeals and complaints against the decisions as stipulated in
this section shall abide by Chapter XXII and Chapter XXXIII of this Law.
Article 369.
Procedures for expungement of criminal records
1. The authority managing criminal
record database, in 05 days upon receiving the request by the person whose
criminal records are eligible for expungement, shall consider the conditions as
stated in Article 70 of the Criminal Code and issue a certificate of no justice
records.
2. The court shall decide the
expungement in the events as defined in Article 71 and Article 72 of the
Criminal Code. The sentenced person must send the Court, which held the
first-instance trial, his petition bearing remarks of the local authority at
the commune, ward or town where he resides or of his workplace or educational
facility.
The court that held the
first-instance trial, in 03 days upon receiving the sentenced person’s
petition, shall send the application for expungement to the equivalent
Procuracy. The equivalent Procuracy, in 05 days upon obtaining the documents
from the Court, shall respond in writing and return such papers to the Court.
The president of the Court that
held the first-instance trial, in 05 days upon retrieving documents from the
Procuracy, shall consider the eligibility and approve or reject the application
for expungement.
The court, in 05 days upon issuing
a decision to approve or reject the application for expungement, must have such
decision sent to the sentenced person, equivalent Procuracy, local authorities
at the commune, ward or town where the person resides or his workplace or
educational facility.
PART SIX
REVIEW OF SENTENCES AND RULINGS IN EFFECT
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CASSATION PROCEDURE
Article 370.
Nature of cassation procedure
The cassation procedure reviews a
Court’s effective sentences and rulings under protest upon the exposure of a
serious breach of law in the settlement of the case.
Article 371.
Grounds for protest through the cassation procedure
A court’s sentences and rulings in
effect shall be protested according to the cassation procedure in the presence
of one of the following grounds:
1. The court’s sentences and
rulings do not correspond with objective facts of the case;
2. A serious breach of legal
proceedings for investigation, prosecution and adjudication resulted in a
serious error in the settlement of the case;
3. An error in the application of
the law occurred.
Article 372.
Detection of effective sentences and rulings to be reviewed through the
cassation procedure
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2. The provincial People’s Court
shall examine the effective sentences and rulings passed by a district People’s
Court in order to detect violations of laws and propose the President of the
Higher People’s Court or the Supreme People’s Court to lodge protests.
The military court of the military
zone shall examine the effective sentences and rulings passed by a local
military court to detect violations of laws and propose the President of the
Central military court to lodge protests.
3. Individuals authorized to lodge
protests shall be informed promptly in writing upon the Court’s or Procuracy's
detection of violations of laws in a Court's judgments and rulings through the
cassation review or administration of the process of adjudication or through
other sources of information.
Article 373.
Right to lodge protests through the cassation procedure
1. The president of the Supreme
People’s Court and the head of the Supreme People’s Procuracy shall have the
right to lodge protests through the cassation procedure, when deemed necessary,
against the effective sentences and rulings passed by a Higher People’s Court
or other Courts, except for the rulings pronounced by the Judicial panel of the
Supreme People’s Court.
2. The president of the Central
military court and the head of the Central military procuracy shall have the
right to lodge protests through the cassation procedure against the effective
sentences and rulings passed by a military Court of a military zone or a local
military Court.
3. The president of the Higher
People’s Court and the head of the Higher People’s Procuracy shall have the
right to lodge protests through the cassation procedure against the effective
sentences and rulings passed by a provincial People’s Court or a district
People’s Court in conformity to the territorial jurisdiction.
Article 374.
Procedures for notice of a Court’s effective rulings and sentences to be
reviewed through the cassation procedure
1. The sentenced person,
authorities and entities, when exposing violations of laws in the Court’s
effective sentences and rulings, shall submit a written notice or give a direct
presentation and evidences, documents and items, if available, to the
individuals authorized to lodge protests or to the nearest Court or Procuracy.
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a) Date;
b) Name and address of the
authority or entity issuing the notice;
c) The court’s effective sentences
or rulings in violation of the laws;
d) The details of violations
exposed;
dd) The petition for the competent
individuals' protests.
3. Such notice must bear the
signature or fingerprint of the informing person or the corporate seal and
signature of the legal representative of the authority or organization issuing
the notice.
Article 375.
Procedures for acquisition of notices of a Court’s effective rulings and
sentences to be reviewed through the cassation procedure
1. The court or procuracy, when
acquiring the written notice, shall input details into the notice receipt
journal.
2. When the sentenced person,
authorities or entities directly state the violations of laws in a Court’s
effective sentences and rulings, the Court or Procuracy must record details
stated in writing. If the informing person provides evidences, documents and
items, the Court and Procuracy must execute a written record of custody. Such
written record shall be made according to Article 133 of this Law.
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Article 376.
Transfer of case files for contemplation of protests through the cassation
procedure
1. The court or procuracy, if in
need of examining the case file to contemplate protests through the cassation
procedure, shall be entitled to request in writing the Court managing such file
to have it transferred.
The court managing the case file,
in 07 days upon receiving the written request, must have it transferred to the
Court or Procuracy making such request.
2. If the Court and Procuracy
simultaneously issue their written requests, the Court managing the case file
shall have it transferred on first-come basis and inform the later one.
Article 377.
Suspension of the enforcement of sentences and rulings protested through the
cassation procedure
The individual issuing the decision
to protest sentences and rulings in effect through the cassation procedure
shall be entitled to suspend the enforcement of such rulings and sentences.
The decision to suspend the
enforcement of sentences and rulings protested through the cassation procedure
must be sent to the Court and Procuracy, which held the trials at first and
second instance, and competent sentence enforcement authorities.
Article 378.
Decision to lodge protests through the cassation procedure
A decision to lodge protests
through the cassation procedure shall contain these primary details:
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2. The individual authorized to
make the decision;
3. The number and date of the
sentence or ruling protested;
4. Remarks and analysis of
violations and errors in the sentence or ruling protested;
5. Legal grounds that lead to the
decision to protest;
6. The decision to protest the
whole or parts of the sentence or ruling;
7. The name of the Court empowered
to perform the cassation review of the case;
8. The requests by the individual
initiating protests.
Article 379.
Time limit for protests through the cassation procedure
1. The time limit for protests
against the sentenced person shall be 01 year upon the effect of the sentence
or ruling.
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3. Protests on litigants’ civil
matters in a criminal case shall abide by the Civil procedure code.
4. If there is no ground to lodge
protests through the cassation procedure, the individual authorized to protest
must inform the requesting authorities and entities in writing of his decision
not to protest and reasons.
Article 380.
Delivery of decisions to protest through the cassation procedure
1. The decision to protest through
the cassation procedure must be promptly delivered to the Court that passed the
effective sentence and ruling protested, the sentenced person, competent
authorities enforcing criminal or civil sentences, and other people having
interests and duties related to the protests.
2. If the President of the Supreme
People’s Court initiates protests, the decision to protest and case file must
be promptly delivered to the Court empowered to conduct cassation procedure.
If the President of the Higher
People’s Court or Central military court initiates protests, the decision to
protest and case file must be promptly delivered to the competent Procuracy.
The court empowered to conduct
cassation procedure must deliver the decision to protest and case file to the
equivalent Procuracy. The procuracy, in 30 days upon receiving the case file,
must send back the file to the Court.
3. If the head of the Supreme
People’s Procuracy or Higher People’s Procuracy or Central military procuracy
initiates protests, the decision to protest and case file must be promptly
delivered to the Court empowered to conduct the cassation procedure.
Article 381.
Amendment or revocation of protests
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2. Before trial or in the court of
cassation, the protesting individual shall be entitled to withdraw parts or the
whole of the protests. The withdrawal of protests before trial must be executed
through written decisions. The withdrawal of protests in court shall be
inputted into the court record.
3. If all protests are withdrawn
before trial, the President of the Court empowered to conduct the cassation
procedure shall decide to dismiss the trial of cassation. If all protests are
withdrawn in court, the Trial panel shall decide to dismiss the trial of
cassation.
The court, in 02 days upon issuing
its decision to dismiss the trial of cassation, shall send such decision to the
persons as stated in Section 1, Article 380 of this Law and to the equivalent
Procuracy.
Article 382.
Jurisdiction over cassation procedure
1. Committee of Judges of the
Higher People’s Court conducts the cassation procedure through a Judicial panel
of three judges to review effective sentences and rulings passed by provincial
People’s Courts or district People's Courts in conformity to the territorial
jurisdiction.
2. Plenary assembly of the
Committee of Judges of the Higher People’s Court conducts the cassation review
of effective rulings and sentences passed by a People’s Court as per Section 1
of this Article, which comprise complex elements, or sentences and rulings
reviewed by the 3-judge Judicial panel established the Committee of Judges of
the Supreme People’s Court through the cassation procedure without reaching an
agreement on the settlement of the case through voting.
When the Plenary assembly of the
Committee of Judges of the Higher People’s Court holds the trial of cassation,
two thirds of its members must be attend the trial, which is chaired by the
President of the Supreme People’s Court. Rulings of the Plenary assembly of the
Committee of Judges must be approved by more than half of its members;
otherwise, the trial shall be adjourned. Plenary assembly of the Committee of
Judges, in 30 days upon adjournment of the trial, must resume the trial.
3. Committee of Judges of the
Central military court conducts the cassation review of effective sentences and
rulings passed by a military court of a military zone or local military court.
More than two thirds of members of the Committee of Judges of the Central
military court must attend the trial of cassation, which is chaired by the
President of the Central military court. Rulings of the Committee of Judges must
be approved by more than half of its members; otherwise, the trial shall be adjourned.
Committee of Judges, in 30 days upon adjournment of the trial, must resume the
trial.
4. Justices’ Council of the Supreme
People’s Court assigns a Judicial panel of five Judges to conduct the cassation
review of effective rulings and sentences passed the Higher People’s Court or
Central military court.
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More than two thirds of members of
the Plenary assembly of Judges of the Supreme People’s Court must be present at
the trial of cassation, which is chaired by the President of the Supreme People’s
Court. Rulings of the Plenary assembly of Judges of the Supreme People’s Court
must be approved by more than half of its members; otherwise, the trial shall
be adjourned. Plenary assembly of Judges, in 30 days upon adjournment of the
trial, must resume the trial.
6. Justices’ Council of the Supreme
People’s Court shall conduct the cassation review of the entire lawsuit, whose
effective sentences and rulings protested fall into different levels of
jurisdiction over cassation procedure.
Article 383.
Participants in a trial of cassation
1. The procurator assigned by the
equivalent Procuracy must attend the trial of cassation.
2. The court, when perceiving the
necessity or grounds to amend parts of an effective sentence or ruling, must
summon the sentenced person, defense counsel and individuals having interests
and duties related to the protests to the court of cassation. The trial of
cassation shall occur despite the absence of the said people.
Article 384.
Preparation for a trial of cassation
The court president shall assign a
Judge from the Judicial panel of cassation to prepare an verbal report on the
case. Such report shall summarize the details of the case, the Courts’
sentences and ruling, and particulars of the protests.
The verbal report and relevant
documents must be sent to the members of the Judicial panel of cassation not
later than 07 days before trial.
Article 385.
Time limit for the start of a trial of cassation
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Article 386.
Procedures for a trial of cassation
1. After the presiding judge
commences the trial, a member of the Judicial panel of cassation shall present
the verbal report on the case. Other members of the Judicial panel of
cassation, before discussing and expressing their opinions on the settlement of
the case, shall address questions about unclear details to the Judge delivering
the verbal report. If the protests are lodged by the Procuracy, the Procurator
shall present the details of such protests.
2. If the sentenced person, defense
counsel or individuals having duties and interests related to the protests
appear in court, they shall be permitted to state opinions at the requests for
the Judicial panel of cassation.
The procurator shall present the
Procuracy’s opinions on the decision to protest and the settlement of the case/
The procurator and participants in
the trial of cassation shall present their oral arguments on relevant issues in
connection with the settlement of the case. The presiding judge must allow the
Procurator and participants in legal proceedings to express all opinions in
just and equal manners before the court.
3. Members of the Judicial panel of
cassation shall present their opinions and converse. The judicial panel of
cassation shall take vote and announce its rulings on the settlement of the
case.
Article 387.
Scope of cassation procedure
The judicial panel of cassation
must review the entire case beyond the boundary of the protests.
Article 388.
Powers of the Judical panel of cassation
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2. Abrogate the sentences and
rulings in effect and sustain lawful judgments and decisions of the Court of
first instance or second instance, which were annulled or modified unlawfully.
3. Abrogate sentences and rulings
in effect for re-investigation or retrial.
4. Abrogate sentences and rulings
in effect and dismiss the case.
5. Redress sentences and rulings in
effect.
6. Terminate the cassation
procedure.
Article 389.
Rejection of protests and sustainment of effective sentences and rulings under
protest
The judicial panel of cassation
shall reject the protests and sustain the effective sentences and rulings under
protest if such rulings and sentences are deemed justified and statutory.
Article 390.
Abrogation of sentences and rulings in effect and sustainment of lawful
judgments and decisions of a Court of first instance or second instance, which
were annulled or modified unlawfully
The judicial panel of cassation
shall decide to abrogate the sentences and rulings in effect and sustain the
lawful judgments and decisions of the Court of first instance or second
instance, which were annulled or modified unlawfully.
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The judicial panel of cassation
shall abrogate the effective sentences and rulings, partly or wholly, for
re-investigation or retrial in the presence of one of the grounds as defined in
Article 371 of this Law. In the event of retrial, the Judicial panel of
cassation shall, as the case may be, decide to have the case retried in the
first or second instance.
If the continued detention of the defendant
is deemed necessary, the Judicial panel of cassation shall order such detention
until a Procuracy or Court handles the case again.
Article 392.
Abrogation of sentences and rulings in effect and dismissal of the case
The judicial panel of cassation
shall abrogate the sentences and rulings in effect and dismiss the case in the
presence of one of the grounds as defined in Article 157 of this Law.
Article 393.
Rectification of sentences and rulings in effect
The judicial panel of cassation
shall redress the sentences and rulings in effect upon the fulfillment of all
conditions below:
1. Documents and evidences in the
case file are sufficient and explicit;
2. The rectification of the
sentences and rulings does not alter the nature of the case or worsen the
sentenced person's circumstances or put the crime victims and litigants at
disadvantage.
Article 394.
Decision to institute the cassation procedure
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2. The decision to institute the
cassation procedure shall comprise:
a) The date and location of the
trial;
b) The full name of members of the
Judicial panel of cassation;
c) The full name of the Procurator
exercising the prosecution rights and administering the trial;
d) The name of the case reviewed by
the Judicial panel through the cassation procedure;
dd) The name, age and address of
the sentenced person and individuals having interests and duties in connection
with the decision to institute the cassation procedure;
e) Summarize the case and parts of
the effective sentences and rulings under protest;
g) The decision to protest and
justifications;
h) Remarks by the Judicial panel of
cassation, including the analysis of the said justifications for the approval
or rejection of the protests;
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k) The decisions by the Judical
panel of cassation.
Article 395.
Effect of rulings from the cassation procedure and delivery of such rulings
1. The rulings by the Judical panel
of cassation shall come into force as of the date of pronouncement.
2. The judicial panel of cassation,
in 10 days upon pronouncing its rulings, must have them delivered to the
sentenced person, individuals filing protests, equivalent Procuracy, Procuracy
and Court that held the first-instance or appellate trial. Moreover, competent
authorities enforcing criminal or civil sentences, individuals having interests
and duties related to the protests or their representatives shall receive such
rulings. Furthermore, a written notice shall be sent to the local authorities
at the commune, ward and town where the sentenced person resides or his
workplace of educational facility.
Article 396.
Time limit for transfer of case file for re-investigation or retrial
If the Judicial panel of cassation
decides to abrogate a sentence or ruling in effect for re-investigation, the
case file, in 15 days upon the issuance of such decision, must be transferred
to the equivalent Procuracy for re-investigation according to this Law.
If the Judicial panel of cassation
decides to abrogate a sentence or ruling in effect for retrial in the first or
second instance, the case file, in 15 days upon the issuance of such decision,
must be transferred to a competent Court for retrial according to this Law.
Chapter XXVI
REOPENING PROCEDURE
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The reopening procedure reviews a
Court’s effective sentences and rulings under protest upon the exposure of new
facts that may alter the fundamentals of such sentences and rulings, given that
the said Court had no knowledge of such facts when passing its judgments and
decisions.
Article 398.
Grounds for protest through reopening procedure
A court’s sentences and rulings in
effect shall be protested through the reopening procedure in the presence of
one of the following grounds:
1. There are grounds to ascertain
the falseness of vital details in witness testifiers' statements, findings of
expert examinations and property valuation, interpreters’ metaphrase, written
translations;
2. Investigators, Procurators,
Judges and lay assessors had no knowledge of certain facts and, consequently,
drew inaccurate conclusions that made the Court’s effective sentences and
rulings deviate from the objective truths of the case;
3. Evidences, records of
investigation, prosecution or adjudication, records of other legal proceedings
or other proofs, papers and items in the case were falsified or inaccurate.
4. Other facts that made the
Court’s effective rulings and sentences deviate from the objective truths of
the case.
Article 399.
Announcement and verification of facts newly found
1. The sentenced person,
authorities, organizations and every person shall be entitled to find new facts
of the case and send written notice and relevant documents to the Procuracy or
Court. When the Court receives such notice or finds new facts itself, it must
promptly send a written notice and relevant documents to the head of the
Procuracy authorized to lodge protests through reopening procedure. The head of
the Procuracy authorized to lodge protests through reopening procedure shall
issue decisions to verify such facts.
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3. When verifying new facts, the
Procuracy and investigation authorities shall be entitled to implement
investigative and procedural methods according to this Law.
Article 400.
Individuals authorized to lodge protests through the reopening procedure
1. The head of the Supreme People’s
Procuracy shall have the right to lodge protests through the reopening
procedure against the effective sentences and rulings passed by a Court, save
the decisions by the Justices’ Council of the Supreme People’s Court.
2. The head of the Central military
procuracy shall have the right to lodge protests through the reopening
procedure against the effective sentences and rulings passed by a military
Court of a military zone or a local military Court.
3. The head of the Higher People’s
Procuracy shall have the right to lodge protests through the reopening
procedure against the effective sentences and rulings passed by a provincial
People’s Court or a district People’s Court in conformity to the territorial
jurisdiction.
Article 401.
Time limit for protests through the reopening procedure
1. The reopening procedure against
the sentenced person shall only be permissible within the prescriptive period
for criminal prosecution, as defined in Article 27 of the Criminal Code. The time
limit for filing of protests shall not exceed 01 year upon the Procuracy's
receipt of information on newly found facts.
2. The reopening procedure in favor
of the sentenced person shall not be restricted in time and shall be
permissible for the exoneration of the sentenced person who is deceased.
3. Protests regarding litigants’
civil matters in a criminal case shall abide by the Civil procedure code.
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1. Reject the protests and sustain
the effective sentences and rulings that have been protested.
2. Abrogate a Court's sentences and
rulings in effect for re-investigation or retrial.
3. Abrogate sentences and rulings
in effect and dismiss the case.
4. Dismiss the reopening trial.
Article 403.
Other proceedings of the reopening procedure
Other proceedings of the reopening
procedure shall follow the stipulations on the proceedings of the cassation
procedure as per this Law.
Chapter
XXVII
PROCEDURES FOR THE REVIEW OF RULINGS BY THE JUSTICES’
COUNCIL OF THE SUPREME PEOPLE’S COURT
Article 404.
Requests, requisitions and propositions for the review of rulings by the
Justices’ Council of the Supreme People’s Court
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2. The president of the Supreme
People’s Court, at the requests the Standing Committee of the National
Assembly, shall be held responsible for reporting to the Justices’ Council of
the Supreme People’s Court for the review of the rulings of the Justices’
Council of the Supreme People's Court.
3. In response to the requisitions
by the Judiciary Committee of the National Assembly and the head of the Supreme
People's Procuracy, the Justices’ Council of the Supreme People's Court shall
conduct the meeting to review its rulings.
In response to the propositions by
the President of the Supreme People's Court, the Justices’ Council of the
Supreme People's Court shall enter a meeting to review its rulings.
Article 405.
Participants in the meeting organized by the Justices’ Council of the Supreme
People’s Court for examination of requisitions and propositions
1. The head of the Supreme People’s
Procuracy must attend the meeting of the Justices’ Council of the Supreme
People’s Court to examine the requisitions by the Judicial Committee of the
National Assembly or by the head of the Supreme People’s Procuracy or the
propositions by the President of the Supreme People's Court.
2. The representative of the
Judicial Committee of the National Assembly shall be invited to the meeting of
the Justices’ Council of the Supreme People’s Court to examine the requisitions
by the Judicial Committee of the National Assembly.
3. Relevant authorities and
entities can be invited by the Supreme People's Court to the meeting, if deemed
necessary.
Article 406.
Preparation of the meeting for examination of requisitions and propositions
1. Upon the receipt of requisitions
from the Judicial Committee of the National Assembly or the head of the Supreme
People’s Procuracy or written propositions from the President of the Supreme
People’s Court for the review of the rulings of the Justices' Council of the
Supreme People's Court, the Supreme People's Court shall send copies of such
requisitions or propositions and case files to the Supreme People’s Procuracy
for the latter’s preparation of its presentation in the meeting for examination
of such requisitions or propositions.
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2. In 30 days upon the receipt of
requisitions from the Judicial Committee of the National Assembly or the head
of the Supreme People’s Procuracy or upon the proposition in writing by the
President of the Supreme People’s Court, the Justices’ Council of the Supreme
People’s Court must carry out the meeting to examine such requisitions or
propositions. Moreover, the head of the Supreme People’s Procuracy shall be
informed in writing of the time and location of such meeting.
Article 407.
Procedures for the organization of a meeting for examination of requisitions
and propositions
1. The president of the Supreme
People’s Court shall himself or assign a member of the Justices’ Council of the
Supreme People’s Court to present the case and its settlement in brief.
2. The representative of the
Judicial Committee of the National Assembly, the President of the Supreme
People’s Court, the head of the Supreme People's Procuracy, requisitioning for
or proposing the review of the rulings of the Justices' Council of the Supreme
People's Court, shall present the following particulars:
a) The content of the requisitions
or propositions;
b) The grounds for such
requisitions or propositions;
c) The analysis of evidences
existing and arising (if any) to evince the serious breach of laws in the
rulings of the Justices’ Council of the Supreme People's Court, or new facts
that may alter the fundamentals of such rulings.
3. For the examination of
requisitions from the Judicial Committee of the national Assembly or
propositions from the President of the Supreme People’s Court, the head of the
Supreme People’s Procuracy shall state opinions on the grounds and validity of
such requisitions or propositions and specify standpoints and reasons for his
consent to or dissent against such propositions or requisitions.
4. Justices’ Council of the Supreme
People's Court discuss details and take vote under majority rule on its accord
or discord with the requisitions or propositions for the review of the rulings
of the Justices’ Council of the Supreme People’s Court.
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6. Every event of the meeting for
examination of requisitions or propositions and the decisions passed in such
meeting shall be inputted into the meeting record and the archive of documents
for examination of such requisitions or propositions.
Article 408.
Notice of results of the meeting for examination of requisitions or
propositions
At the end of the meeting, the
Justices’ Council of the Supreme People’s Court shall inform the Judicial
Committee of the National Assembly and the head of the Supreme People's
Procuracy in writing of the results of the meeting and the accord or discord
with the requisitions or propositions. The written notice must specify reasons
for the consent to or dissent against requisitions or propositions.
If the result of the examination
meeting of the Justices’ Council of the Supreme People’s Court is deemed not
satisfactory, the Judicial Committee of the National Assembly, the head of the
Supreme People’s Procuracy and the President of the Supreme People’s Court
shall be entitled to report to the Standing Committee of the National Assembly
for the latter’s decisions.
Article 409.
Assessment of case files; verification and collection of evidences, documents
and items
1. At the requests by the Standing
Committee of the National Assembly or as per the consent of the Justices'
Council of the Supreme People's Court to the review of its rulings, the
President of the Supreme People's Court shall organize the assessment of case
files and the verification and collection of evidences, documents and items, if
necessary.
2. The assessment of case files,
verification and collection of evidences, documents and items must clarify the
existence of serious violations of laws or new significant facts that may alter
the fundamentals of the rulings of the Justices' Council of the Supreme
People's Court.
Article 410.
Time limit for the start of the meeting to review rulings of Justices’ Council
of the Supreme People’s Court
1. In 04 months upon the receipt of
requests from the Standing Committee of the National Assembly or upon the
consent of the Justices’ Council of the Supreme People’s Court to the review of
its rulings, the Justices’ Council of the Supreme People’s Court must open the
meeting.
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Article 411.
Procedures and authority to review the rulings of the Justices’ Council of the
Supreme People's Court
1. The head of the Supreme People’s
Procuracy must attend the meeting to review the rulings of the Justices’
Council of the Supreme People’s Court and express opinions on the existence of
serious violations of laws or new significant facts that may alter the
fundamentals of the rulings of Justices' Council of the Supreme People's Court.
Moreover, he shall state standpoints on the settlement of the case.
2. After the report by the
President of the Supreme People's Court and presentations by the head of the
Supreme People’s Procuracy and concerned authorities and entities (if any), the
Justices’ Council of the Supreme People's Court shall decide to:
a) Refuse the requests by the
Standing Committee of the National Assembly, requisitions by the Judicial
Committee of the National Assembly or the head of the Supreme People’s
Procuracy, and propositions by the President of the Supreme People’s Court, and
sustain the rulings of the Justices’ Council of the Supreme People’s Court;
b) Rescind the rulings of the
Justices’ Council of the Supreme People’s Court, effective sentences and
rulings in violation of the laws and decisions on the particulars of the case;
c) Rescind the rulings of the
Justices’ Council of the Supreme People’s Court, effective sentences and
rulings and determine liabilities for amends according to the laws;
d) Rescind the rulings of the
Justices’ Council of the Supreme People’s Court, effective sentences and
rulings in violation of the laws for re-investigation or retrial.
3. Rulings of the Justices’ Council
of the People’s Supreme Court must be approved by more than three fourth of its
members.
Article 412.
Delivery of decisions by the Justices’ Council of the Supreme People’s Court on
the review of its rulings
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PART SEVEN
SPECIAL PROCEDURES
Chapter
XXVIII
LEGAL PROCEEDINGS FOR PERSONS LESS THAN 18 YEARS OF
AGE
Article 413.
Scope of regulation
Legal proceedings for accused
persons, individuals aggrieved and witness testifiers who are less than 18
years old shall be governed by this Chapter and other regulations of this Law
not contrary to those in this Chapter.
Article 414.
Principles of legal proceedings
1. Legal proceedings must be
congenial and conformable to the mentality, age level, maturity level and
awareness of persons less than 18 years of age. Legitimate rights and interests
of persons aged under 18 must be assured. Persons under age of 18 must be
guaranteed to gain the best benefits.
2. Personal information of
individuals below 18 years of age must be kept confidential.
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4. The rights of persons under age
of 18 to attend and express opinions must be respected.
5. The rights of persons aged under
18 to defense and legal assistance must be guaranteed.
6. Principles of treatments as per
the Criminal Code for persons less than 18 years of age must be assured.
7. The cases in connection with
persons aged below 18 must be settled in swift and timely manners.
Article 415.
Presiding officers
Presiding officers in the cases, in
which persons aged under 18 are involved, have been trained or experienced in
conducting activities of investigation, prosecution and adjudication related to
persons less than 18 years of age. Presiding officers must have essential
knowledge of psychology and educational science for persons under age of 18.
Article 416.
Elucidation of essential details in the process of legal proceedings against
accused persons, whose age is under 18
1. The age, physical and spiritual
growth level, awareness level of crimes of persons aged under 18
2. The conditions of life and
education.
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4. The reasons, conditions and
circumstances that lead to crimes.
Article 417.
Determination of age of accused persons or crime victims under the age of 18
1. Competent procedural authorities
shall determine the age of accused persons and crime victims under 18 years of
age according to the laws.
2. The date of birth of such
persons shall be determined in the following manner if legitimate approaches do
not generate an accurate result:
a) If the month of birth is
identified but the day is unknown, the last day of that month shall be the day
of birth.
b) If the quarter when birth
occurred is identified but the date is unknown, the last date of that quarter
shall be the date of birth.
c) If the half of the year when
birth occurred is identified but the date is unknown, the last day of the final
month of that half of the year shall be the date of birth.
d) If the year of birth is
identified but the date is unknown, the last day of the final month of that
year shall be the date of birth.
3. If the year of birth is not
identified, age shall be determined through expert examinations.
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1. Investigation authorities and
units assigned to investigate, procuracies and courts can decide to have
accused persons aged under 18 supervised by their representatives to guarantee
their attendance in response to competent procedural authorities’ subpoenas.
2. Individuals assigned with
supervisory duties shall be held responsible for supervising persons less than
18 years of age in strict manner, oversee their conduct and morality and
educate them.
Individuals assigned with
supervisory duties must report and cooperate with competent procedural
authorities in prompt manner to implement timely preventive measures if the
persons under the age of 18 are likely to abscond or commit the acts of
bribing, coercing and fomenting other people to falsify statements or provide
false documents; destroying or forging evidences, documents and items related
to the case, or shifting property related to the case away; threatening,
repressing or avenging witness testifiers, crime victims, denouncers and their
kin, or continuing criminal acts.
Article 419.
Implementation of preventive and coercive measures
1. Preventive measures and coercive
delivery of persons aged below 18 shall be viable only in truly vital
circumstances.
Temporary detainment or detention
of accused persons less than 18 years of age shall be viable only on the
grounds that supervisory approach and other preventive measures fail. The
permissible duration of the detention of accused persons under 18 shall be two
thirs of the time limit for the detention of individuals from the age of 18 as
per this Law. Competent individuals must promptly terminate or change
preventive measures when the grounds for temporary detainment or detention
evanesce.
2. Persons from the age of 14 to
below 16 may be held in emergency custody, apprehended, temporarily detained or
held in detention for their crimes as defined in Section 2, Article 12 of the Criminal
Code in the presence of grounds as stated in Article 110, 111 and 112, and
Point a, b, c, d and dd, Section 2, Article 119 of this Law.
3. Persons from the age of 16 to
below 18 may be held in emergency custody, apprehended, temporarily detained or
held in detention for intentional felonies, horrific or extremely severe
felonies in the presence of grounds as stated in Article 110, 111 and 112, and
Point a, b, c, d and dd, Section 2, Article 119 of this Law.
4. Suspects or defendants from the
age of 16 to below 18 may be apprehended, detained and held in detention if
they continue criminal acts, abscond and are placed under arrest as per wanted
notices after being charged, investigated, prosecuted and tried for
unintentional felonies or misdemeanors punishable by a maximum term of
imprisonment of 2 years according to the Criminal Code.
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Article 420.
Representative, school and organization participating in legal proceedings
1. Representatives of persons aged
below 18, teachers and representatives of the school, Youth Union and other
organizations, where persons aged under 18 pursue education and perform daily
activities, shall have the right and duty to participate in legal proceedings
as per the decisions of investigation authorities, procuracies and courts.
2. Representatives of persons less
than 18 years of age can attend the session of deposition and interrogation of
persons under 18. Such representatives can submit evidences, documents, items,
requests, complaints and Charges. They can read, transcribe and photocopy
documents related to charges against persons aged below 18 from the case file
after investigative activities end.
3. Individuals as defined in
Section 1 of this Article shall be entitled, in court, to present evidences,
documents, items, requests, to requisition the replacement of presiding
officers, to express opinions, arguments, and to file complaints against
procedural acts of authorized procedural persons and the Court’s decisions.
Article 421.
Deposition of persons held in emergency custody, apprehended or temporarily
detained, crime victims, witness testifiers; interrogation of suspects;
confrontation
1. When a person under 18 gives
depositions while held in emergency custody or apprehended or temporarily
detained, or suffers harms of crimes, or testify, or is interrogated, the
competent procedural authorities must inform the defense counsel,
representative and protector of such person’s legitimate rights and benefits of
the time and location of the deposition or interrogation in advance.
2. The defense counsel or
representative must be present during the taking of depositions from person
held in emergency custody, apprehended or temporarily detained or during the
interrogation of suspects.
The representative or protector of
legitimate rights and benefits of crime victims or witness testifiers must
attend the deposition of such persons.
3. The defense counsel and
representative can pose questions, with the consent of the investigators or
procurators, to the persons apprehended and detained or suspects under the age
of 18. After competent individuals end each session of despotion or
interrogation, the defense counsel and representative can raise questions to
the suspects or persons held in emergency custody, apprehended or held in
termporary custody.
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5. Only two sessions of
interrogation of suspects under 18 shall be permissible per day. The duration
of each session shall be limited to 02 hours, except for:
a) Organized crimes;
b) Seeking of fugitive criminals;
c) Prevention of crimes;
d) Search of tools or instruments
of crime or other exhibits related to the case;
dd) Cases with several complex facts.
6. Authorized procedural persons
shall have suspects or defendants confronted with crime victims aged below 18
for the sole purpose of elucidating facts of the case if the case cannot be
solved without confrontation.
Article 422.
Defense
1. Accused persons under 18 years
of age shall be entitled to defend themselves and be defended.
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3. If accused persons under 18 do
not have or their representatives do not select a defense counsel,
investigation authorities, procuracies or courts shall appoint a defense
counsel according to Article 76 of this Law.
Article 423.
Adjudication
1. The trial panel of the
first-instance court must consist of a lay assessor who has been a teacher or
Youth Union’s official or possessed experience and psychological knowledge
regarding persons less than 18 years of age.
2. If a defendant or crime victim
below 18 years of age must be protected in special circumstances, the Court can
decide to hold a secret trial.
3. The representatives of
defendants aged under 18, representatives of the school or organization where
such defendants pursue education and do daily activities must attend the trial
against the juveniles, unless such representatives are absent not due to force
majeure or objective obstacles.
4. The session of questioning or
debate in court for defendants, crime victims and witness testifiers under 18
must correspond with their age and growth level. The courtroom must be
congenial and conformable to persons less than 18 years of age.
5. If crime victims and witness
testifiers are less than 18 years old, the Trial panel must limit the
interaction between such juveniles and defendants when the said adolescent give
testiomines in court. The presiding judge can request the representative,
protector of legitimate rights and benefits to question the victims and witness
testifiers.
6. The trial panel, when holding
the trial, shall have defendants to undergo educational remedies in a reform
school if considering penalties not necessary.
7. The president of the Supreme
People’s Court shall elaborate the juvenile and family Court's adjudication of
cases involved in persons under 18.
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Sentenced persons aged below 18 may
benefit from the termination of educational remedies at the commune, ward or
town, or in the reform school, of from the mitigation or exemption of penalties
upon the satisfaction of requirements in Article 95 or Article 96 or Article
105 of the Criminal Code.
Article 425.
Expungement of criminal records
Criminal records of persons aged
under 18 shall be expunged according to this Law upon the fulfillment of
requirements in Article 107 of the Criminal Code.
Article 426.
Authority to implement supervisory and education remedies against criminals
under 18 who are exempt from criminal liabilities
Investigation authorities,
procuracies and courts shall be empowered to decide the enforcement of one of
following supervisory and educational remedies against criminals aged below 18
who are exempt from criminal liabilities:
1. Reprimand;
2. Community conciliation;
3. Edification at the commune, ward
or town.
Article 427.
Order and procedures of the remedy of reprimand
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2. A decision to implement the
remedy of reprimand shall have these primary details:
a) Number, issue date and issuing
place of the decision;
b) Full name, position and
signature of the individual authorized to make the decision and seal of the
issuing authority;
c) Reasons and grounds of the
decision;
d) Full name, date of birth and residential
address of the suspect or defendant;
dd) Offence title, applicable
points, sections and articles from the Criminal Code;
e) Length of time of duties of
persons reprimanded.
3. Investigation authorities,
procuracies and courts must promptly send their decisions to reprimand to the
person reprimanded, his parents or representative.
Article 428.
Order and procedures of the remedy of community conciliation
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2. A decision to implement the
remedy of community conciliation shall have these primary details:
a) Number, issue date and issuing
place of the decision;
b) Full name, position and
signature of the individual authorized to make the decision and seal of the
issuing authority;
c) Reasons and grounds of the
decision;
dd) Offence title, applicable
points, sections and articles from the Criminal Code;
dd) Full name of the investigator
or procurator or judge assigned to organize a conciliation;
d) Full name, date of birth and
residential address of the suspect or defendant;
g) Full name of the crime victim;
h) Full name of other participants
in the conciliation;
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3. The decision on community
conciliation must be delivered, in no more than 03 days prior to the
conciliation, to the criminals aged under 18, their parents, crime victims and
their representatives and People’s committee of the commune, ward or town where
the conciliation happens.
4. When conducting the
conciliation, the investigator, procurator or judge assigned to conciliate must
cooperate with the People's committee of the commune, ward or town where the
conciliation takes place. Moreover, the conciliation must be recorded in
writing.
5. The written record of
conciliation shall contain these primary details:
a) Location, time and date of the
conciliation, starting and ending time;
b) Full name of the investigator,
procurator or judge assigned to organize the conciliation;
d) Full name, date of birth and
residential address of the suspect or defendant;
d) Full name, date of birth and
residential address of the crime victim;
dd) Full name, date of birth and
residential address of other participants in the conciliation;
e) Questions, answers and colloquy
of participants in the conciliation;
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h) Signature of the investigator,
procurator or judge organizing the conciliation.
6. At the end of the conciliation,
the investigator, procurator or judge organizing the conciliation shall re-read
the written record to the participants in the conciliation. The investigator,
procurator or judge making the written record must enter amendments requested
into the record and have them confirmed by signature. If such requests are
rejected, reasons for rejection must be specified in the record. The written
record of conciliation shall be immediately given to the participants in the
conciliation.
Article 429.
Order and procedures of the remedy of edification at the commune, ward or town
1. When a criminal under 18 is
exempt from criminal liabilities but is eligible for edification at the
commune, ward or town according to the Criminal Code, the head or vice head of
investigation authorities, procuracies or the Trial panel shall decide to
implement such remedy against the juvenile criminals in cases that they settle.
2. A decision to implement the
remedy of edification at the commune, ward or town shall have these primary
details:
a) Number, issue date and issuing
place of the decision;
b) Full name, position and
signature of the individual authorized to make the decision and seal of the
issuing authority;
c) Reasons and grounds of the
decision;
d) Full name, date of birth and
residential address of the suspect or defendant;
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e) Length of time of the remedy;
g) Responsibilities of local
authorities at the commune, ward or town where the remedied person resides.
3. Investigation authorities,
procuracies and courts must send their decisions, in 03 days upon issuing a
decision to implement the remedy, to the remedied person, his parents or
representative, and local authorities at the commune, ward or town they the
concerned person reside.
Article 430.
Order and procedures of the educational remedy in the reform school
1. The trial panel, when
considering penalties not necessary, shall sentence the criminal under 18 to
educational remedy in a reform school.
2. A decision to implement the
educational remedy in a reform school have these primary details:
a) Number, issue date and issuing
place of the decision;
b) Full name and signatures of
members of the Trial panel issuing the decision;
c) Reasons and grounds of the
decision;
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dd) Offence title, applicable
points, sections and articles from the Criminal Code;
e) Length of time of education
remedy in the reform school;
g) Responsibilities of the reform
school that educate the remedied person.
3. The decision to implement this
remedy shall be immediately given to the criminals under 18, their parents or
representatives and the reform school.
Chapter XXIX
PROCEDURES FOR CRIMINAL PROSECUTION OF JURIDICAL
PERSONS
Article 431.
Scope of regulation
Legal proceedings against juridical
persons denounced or reported for crimes, or facing requisitions for charges,
or investigated, prosecuted or tried, or enforcing sentences shall abide by
this Chapter and other regulations in this Law, which are not contrary to this
Chapter.
Article 432.
Filing of lawsuit and amendments to decisions to file criminal lawsuits
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2. The grounds, order and
procedures for amendments to decisions to file criminal lawsuits shall conform
to Article 156 of this Law.
Article 433.
Filing of charges against suspected juridical persons and amendments to
decisions to press such charges
1. Competent authorities, when
having sufficient grounds to define a juridical person’s acts as crimes
according to the Criminal Code, shall decide to press charges against the
juridical person suspected.
2. A decision to charge a juridical
person suspected shall specify time and location where the decision is issued;
full name and position of the issuer; name and address of the juridical person
as per the decision of establishment by a competent authority; offence title
and applicable articles of the Criminal Code; time and location of crimes and
other particulars of the crimes.
If a juridical person is charged
against multiple crimes, the decision to charge the juridical person suspected
must specify each offence title and applicable sections and articles of the
Criminal Code.
3. The authority, order and
procedures for filing of charges against suspects, and amendments to decisions
to charge juridical persons suspected shall abide by Article 179 and 180 of
this Law.
Article 434.
Legal representatives of juridical persons in legal proceedings
1. A juridical person facing
criminal prosecution engages in every legal proceeding through its legal
representative. The juridical person must assign and assure its legal
representative to participate in all activities of charging, investigation,
prosecution, adjudication and sentence enforcement at the requests for
competent authorities and individuals.
If the legal representative of the
juridical person is charged, investigated, prosecuted or tried or cannot engage
in legal proceedings, the juridical person must appoint another person as its
legal representative in legal proceedings. If the juridical person replaces its
legal representative, competent procedural authorities must be promptly
informed.
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2. The legal representative of the
juridical person in legal proceedings must provide competent procedural
authorities with the information of his full name, date birth, nationality,
ethnicity, religion, gender, occupation and position. If such information
changes, the legal representative shall promptly inform competent procedural
authorities.
Article 435.
Rights and duties of a legal representative of a juridical person
1. A legal representative of a
juridical person shall be entitled to:
a) Be informed of the result of the
processing of criminal information;
b) Be informed of reasons for the
filing of charges against the juridical person;
c) Be informed and given
explanations of the rights and duties as stated in this Article;
d) Receive decisions to charge the
juridical person suspected, to amend the decision to charge, to approve the
decision to charge, to ratify the decision to amend the decision to charge, to
implement, alter or terminate coercive measures, to suspend or terminate
investigation, to suspend or dismiss the case, to bring the case to trial and
other procedural decisions; written conclusion of investigation, charging
documents, Court's judgments and rulings as per this Law;
dd) Present statements and
opinions, bear no obligation to testify against the juridical person he
represents or to admit that the juridical person is guilty;
e) Present evidences, documents,
items and requests;
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h) Defend the juridical person or
solicit a defense counsel;
i) Read, transcribe and photocopy
papers or digital documents related to charges, vindication or other documents
regarding the defense of the juridical person, if requested, at the end of the
investigation;
k) Attend the trial, pose
questions, with the presiding judge’s consent, or ask the presiding judge to
question courtroom participants, engage in oral argument session in court;
l) State the last opinion before
deliberation;
m) Read the court record, and
request amendments to the court record;
n) Appeal the Court’s sentences and
rulings;
o) Complain of procedural decisions
and actions of competent procedural authorities and persons.
2. A legal representative of a
juridical person shall bear duties to:
a) Appear as per authorized
procedural persons' subpoenas. The person may be escorted by force if absent
not due to force majeure or objective obstacles;
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Article 436.
Coercive measures against juridical person
1. Investigation authorities and
units assigned to investigate, procuracies and courts can implement the
following coercive measures against a juridical person charged, investigated,
prosecuted or tried:
a) Distrainment of assets linked
with the juridical person's criminal acts;
b) Freeze the juridical person’s
accounts in connection with its criminal acts;
c) Suspend the juridical person's
operations associated with its criminal acts in limited time;
d) Impose a pecuniary guarantee of
the enforcement of sentences.
2. The length of time of coercive
measures as defined in Section 1 of this Article shall not exceed the time
limit for investigation, prosecution and adjudication.
Article 437.
Distrainment of assets
1. Distrainment of assets applies
when amends for damage must be guaranteed or the juridical person is charged,
investigated, prosecuted or tried for crimes punishable by mulct as per the
Criminal Code.
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3. The following individuals must
be present when the juridical person’s assets are distrained:
a) The legal representative of the
juridical person;
b) The representative of local
authorities at the commune, ward or town where the juridical person’s assets
are located and distrained;
c) Witnesses.
4. The authority, order and
procedures for asset distrainment shall abide by Article 128 of this Law.
Article 438.
Freezing of accounts
1. Freezing of a juridical person's
accounts, evidently available at a credit institution or State Treasury,
applies when amends for damage must be guaranteed or the juridical person is
charged, investigated, prosecuted or tried for crimes punishable by mulct as
per the Criminal Code.
2. Account freeze also applies to
the accounts of other entities evidently found to hold amounts involved in the
juridical person’s criminal acts.
3. Only amounts proportionate to
probable degree of fine or compensation for damage shall be frozen.
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5. The authority, order and
procedures for account freeze shall abide by Article 129 of this Law.
Article 439.
Suspension of a juridical person’s operations associated with that juridical
person’s criminal acts in limited time; imposition of pecuniary guarantee of
sentence enforcement
1. Suspension of a juridical
person's operations in limited time only applies when there are grounds showing
that the juridical person's criminal acts undermine or are likely to maim the
life and health of human beings, environment or social order and safety.
Competent individuals as defined in
Section 1, Article 113 of this Law shall be authorized to issue decisions to
suspend a juridical person’s operations in limited time. A decision to suspend
a juridical person’s operations, which are issued by individuals as defined in
Point a, Section 1, Article 113 of this Law, must be ratified by the equivalent
Procuracy before implementation.
The length of time of the
suspension of a juridical person's operations must not exceed the time limit
for investigation, prosecution and adjudication according to this Law. The
length of time of the suspension of a juridical person sentenced shall not
exceed the time from the pronouncement of sentences to the juridical person's
execution of such sentences.
2. Mandatory pecuniary guarantee of
the enforcement of sentences applies to a juridical person charged,
investigated, prosecuted or tried for crimes punishable by mulct as per the
Criminal Code or assures the amends for damage.
Only an amount propotionate to
probable degree of fine or amends shall be imposed to guarantee the enforcement
of sentences.
Competent individuals as defined in
Section 1, Article 113 of this Law, shall be authorized to issue decisions to
compel the juridical person to submit a pecuniary guarantee of the enforcement
of sentences. When individuals as defined in Point a, Section 1, Article 113 of
this Law issue decisions to compel a juridical person to submit a pecuniary
guarantee of the enforcement of sentences, such decisions must be ratified by
the equivalent Procuracy before implementation.
The government shall regulate
details of the order, procedures and level of the pecuniary guarantee of the
enforcement of sentences, custody or return or confiscation of such amount to
the state treasury.
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1. Authorized procedural persons,
when summoning the legal representative of a juridical person, must send
subpoenas. The subpoena shall specify the full name, residential or work
address of the legal representative of the juridical person; time, date and
location for his appearance, contact person and liabilities for absence not due
to force majeure or objective obstacles.
2. The subpoena shall be sent to
the legal representative or to the juridical person. in which the summoned
person is working, or local authorities at the commune, ward or town where he
resides. Authorities and organizations receiving the subpoena shall be
responsible for forwarding it to the legal representative of the juridical
person in prompt manner.
The legal representative, upon
receiving the subpoena, must affix his signature, date and time of receipt. The
forwarder of the subpoena must deliver the subpoena’s section bearing the legal
representative’s signature to the authority issuing the subpoena. If the legal
representative does not affix signature, a written record of his non-compliance
shall be made and sent to the summoning authority. If the subpoena cannot be
delivered due to the legal representative’s absence, it shall be given to his
family member from 18 years of age, who affixes signature and forward the paper
to the legal representative.
3. The legal representative of the
juridical person must be present as per the subpoena. Absence not due to force
majeure or objective obstacles shall result in authorized procedural persons'
decision to escort by force.
Article 441.
Elucidation of essential details during legal proceedings against a juridical
person charged
1. The existence of criminal acts,
time, location and other particulars of criminal acts that fall into the
juridical person's criminal liabilities as per the Criminal Code.
2. Errors committed by the
juridical person or personnel of the juridical person.
3. Nature and degree of damage
caused by the juridical person’s criminal acts.
4. Factors aggravating and
mitigating criminal liabilities and other facts related to exemption of
punishments.
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Article 442.
Deposition of legal representative of juridical person
1. Investigators and investigation
officers of units assigned to investigate shall carry out the deposition of the
legal representative of a juridical person at the location of investigative
activities, at the office of the investigation authority or unit assigned to
investigate, or at the juridical person’s office. Investigators and
investigation officers, before taking statements, must inform the Procurator
and defense counsel of the time and location of deposition. The procurator
shall participate in the deposition, if necessary.
2. Investigators and investigation
officers of units assigned to investigate, prior to the first deposition, must
provide the legal representative of the juridical person with clear
explanations of his rights and duties as defined in Article 435 of this Law.
The event of explanation shall be recorded in writing. The legal representative
may be permitted to write his statements.
3. The deposition of the legal
representative of a juridical person shall not occur at night.
4. The procurator shall take
statements from the legal representative if he does not admit the juridical
person’s criminal acts or complains of investigative activities. If
investigative activities breach the laws or other essential events arise, the
procurator shall also take statements.
The procurator’s taking of
statements from the legal representative shall abide by this Article.
5. The deposition of the legal
representative at the office of the investigation authority or unit assigned to
investigate must be recorded by sound or sound-and-visual means.
The deposition of the legal
representative of a juridical person at other places shall be recorded by sound
or sound-and-visual means at the requests for that person or competent
procedural authorities and persons.
6. The written record of the
deposition of the legal representative of a juridical person shall be made according
to Article 178 of this Law
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1. Investigation authorities and
units assigned to investigate shall decide to suspend investigative activities
when expert examination, property valuation or foreign judicial assistance,
despite the expiration of the time limit for investigation, is requisitioned to
no avail. In such event, expert examination, valuation process and
judicial assistance shall continue until results are achieved.
2. Investigation authorities and
units assigned to investigate shall decide to terminate investigation, or the
Procuracy or Court shall decide to dismiss the case or remove the suspect or
defendant, that is a juridical person, in one of the following events:
a) Criminal acts do not exist;
b) The juridical person’s acts do
not constitute crimes;
c) The juridical person’s criminal
acts have been sentenced or the case has been dismissed by effective rulings.
d) The time limit for investigation
expires but the juridical person’s commission of crimes has not been proved;
dd) The prescriptive period of
criminal prosecution expires.
Article 444.
Jurisdiction and procedures for trial against juridical person
1. A court, whose location is
adjacent to the scene of the juridical person’s crime, shall have jurisdiction
over the criminal lawsuits against that crime. If crimes occur in various
places or at an unknown site, the Court adjacent to the headquarter or branch
of the juridical person shall retain jurisdiction.
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Article 445.
Authority and procedures for enforcement of sentences against juridical person
1. Heads of civil sentence enforcement
authorities shall be authorized to make decisions on the enforcement of
pecuniary penalties against a juridical person. The order and procedures for
the enforcement of pecuniary penalties shall abide by the Law on civil sentence
enforcement.
2. Competent governmental
authorities shall be authorized to enforce other penalties and judicial
remedies, as defined in the Criminal Code, against a juridical person as per
the laws.
3. If the juridical person
sentenced is splitted, divided, consolidated or merged, the successive entity
inheriting rights and duties from the juridical person sentenced shall be held
liable for executing the duties to enforce pecuniary penalties and amends for
damage.
Article 446.
Expungement of criminal records for eligible juridical person
In 05 days upon the receipt of the
request from the juridical person eligible for expungement of criminal records
and upon the satisfaction of requirements as defined in Article 89 of the
Criminal Code, the President of the Court the held the first-instance trial
shall issue a certificate of the expungement of the juridical person's criminal
records.
Chapter XXX
PROCEDURES FOR THE ENFORCEMENT OF CIVIL COMMITMENT
Article 447.
Circumstances and authority to enforce civil commitment
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2. The procuracy shall rely on the
findings of the forensic psychiatric assessment to make decisions on the
enforcement of civil commitment during the stage of investigation and
prosecution. Similar decisions during the stage of adjudication and sentence
enforcement shall fall into the authority of the Court.
Article 448.
Investigative activities against person with uncertain criminal capacity
1. Investigation authorities must
clarify these matters on the grounds that the person causing danger to society
does not have criminal capacity:
a) The acts endangering society
occurred;
b) Mental conditions and illness of
the person endangering society;
c) Whether the person endangering
society loses sense of awareness or ability to control his actions.
2. Investigation authorities, when
conducting legal proceedings, must assure the presence of a defense counsel
after the person endangering society is determined to succumb to mental illness
or other diseases that deprive him of sense of awareness or ability to control
actions. A representative of the mentally ill person can participate in legal
proceedings when necessary.
Article 449.
Enforcement of civil commitment during the stage of investigation
1. When the forensic psychiatric
assessment, as requisitioned by investigation authorities, finds the suspect
mentally ill or deprived of sense of awareness or ability to control actions
due to other diseases, investigation authorities shall propose in writing civil
commitment with findings of the assessment to the equivalent Procuracy for
approval.
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2. If the Procuracy decides to
enforce civil commitment, the investigation authorities must decide to suspend
or terminate investigative activities against the suspect.
Article 450.
Decisions by the Procuracy during the stage of prosecution
1. After receiving the case file
and investigative findings, the Procuracy, if finding grounds of the suspect’s
possession of no criminal capacity, shall requisition a forensic psychiatric
assessment.
2. The procuracy shall consider the
findings of the assessment to make one of these decisions:
a) Suspend the case and enforce
civil commitment;
b) Dismiss the case and enforce
civil commitment;
c) Return the case file for further
investigation;
d) Prosecute the suspect before a
Court.
3. Apart from civil commitment, the
Procuracy can handle other issues of the case.
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1. The court, after accepting the
case and grasping grounds that the suspect or defendant does not possess
criminal capacity, shall requisition forensic psychiatric assessment.
2. The court shall consider the
findings of the assessment and make one of these decisions:
a) Suspend or dismiss the case and
enforce civil commitment;
b) Return case files for repeated
or further investigation;
c) Grant exemption of criminal
liabilities or penalties, and enforce civil commitment;
d) Try the case.
3. The court, apart from its
decision to enforce civil commitment, can handle matters of compensation or
other issues of the case.
Article 452.
Enforcement of civil commitment against persons incarcerated
1. The prison, detention center or
criminal sentence enforcement unit of the provincial Police office shall
propose the provincial People’s Court or military Court of the military zone,
at the place of a prisoner's imprisonment, to requisition forensic psychiatric
assessment on the grounds that such prisoner allegedly succumbs to mental
illness or other diseases bereaving him of abilities of perception or action
control.
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The said person, when cured, shall
continue serving time if it is unjustifiable to excuse the jail sentence.
Article 453.
Complaints, appeals and protests
1. The filing and handling of
complaints against a Procuracy's decisions to enforce civil commitment shall
abide by Chapter XXXIII of this Law.
2. The filing of appeals or
protests to a Court's rulings on the enforcement of civil commitment shall
follow the stipulations for appeals or protests to the rulings of a
first-instance court in this Law.
3. A decision to enforce civil
commitment shall mantain its effect until it is replaced by another decision or
rendered void.
Article 454.
Termination of civil commitment
1. Civil commitment shall transpire
at a mandatory mental treatment facility designated by the Procuracy or Court
according to the laws.
2. When the head of the mandatory
mental treatment facility announces the successful healing of a person forced
to undergo medical treatments, the authority proposing such treatments or the
Procuracy or Court enforcing the treatments shall requisition a forensic
psychiatric assessment of the conditions of the said person.
The procuracy or court shall
consider the assessment's findings on the treated person and decide to
terminate civil commitment.
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4. Legal proceedings and sentences
suspended can only be resumed according to this Law.
Chapter XXXI
SUMMARY PROCEDURE
Article 455.
Scope of summary procedure
Summary procedure for
investigation, prosecution, trial in the first and second instance shall be
governed by this Chapter and other stipulations of this Law, which are not
contrary to this Chapter.
Article 456.
Requirements for the application of summary procedure
1. Summary procedure shall be
applied during the stage of investigation, prosecution and trail in the first
instance upon the satisfaction of these requirements:
a) The perpetrator of criminal acts
confesses or is caught in the act;
b) The crime is plain and evidences
are lucid;
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d) The perpetrator of crimes has
manifest address of residence and personal record.
2. Summary procedure shall be
applied for trial in the second instance upon the satisfaction of one of these
requirements:
a) Summary procedure was applied
for the trial in the first instance. Furthermore, appeals or protests are
lodged to commute or suspend sentences;
b) Summary procedure was not
applied for the trial in the first instance despite the satisfaction of all
requirements in Section 1 of this Article. Moreover, appeals or protests are
lodged to commute or suspend sentences.
Article 457.
Decisions to apply summary procedure
1. In 24 hours upon the
satisfaction of requirements in Article 456 of this Law, investigation
authorities, procuracies and courts shall decide to apply summary procedure.
Summary procedure shall commence
upon the issuance of the decision and end upon the closure of the appellate
trial, unless such procedure is terminated according to Article 458 of this
Law.
2. The decision to apply summary
procedure shall be given to the suspect, defendant or their representatives,
and defense counsel in 24 hours upon its issuance.
Investigation authorities or
Courts, in 24 hours upon the issuance of their decision to apply summary procedure,
shall send such decision to the equivalent Procuracy.
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4. The procuracy, when finding the
invalidity of the Court’s decision to apply summary procedure, shall propose
its findings to the President of that Court. The court president must consider
details and respond in 24 hours upon the receipt of the Procuracy’s
propositions.
5. Complaints may be lodged against
a decision to apply summary procedure. The suspect, defendant or their
representatives shall be entitled to lodge complaints against a decisions to
apply summary procedure. The time limit for such complaints shall be 05 days
upon the receipt of the decision. Complaints shall be sent to the investigation
authorities, procuracies or courts issuing the decision to apply summary
procedure. Such complaints, after received, must be settled in 03 days.
Article 458.
Nullification of decisions to apply summary procedure
If one of the requirements in Point
b, c and d, Section 1, Article 456 of this Law is not satisfied during the
summary procedure, investigation authorities, procuracies and courts shall
nullify the decisions to apply summary procedure and handle the case according
to general regulations in this Law. The same applies if the investigation or
the case is suspended or documents are returned for further investigation
according to this Law.
The time limit for legal
proceedings of the lawsuit shall abide by general stipulations in this Law upon
the nullification of the decision to apply summary procedure.
Article 459.
Temporary detainment and detention for investigation, prosecution and
adjudication
1. Grounds, authority and
procedures for temporary detainment and detention shall abide by this Law.
2. The length of time of temporary
detainment shall not exceed 03 days upon the investigation authorities’
acquisition of an arrestee.
3. The time limit for temporary
detention shall not exceed 20 days during investigation, 05 days during
prosecution, 17 days during trial in the first instance, and 22 days during
trial in the second instance.
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1. The time limit for investigation
under summary procedure shall be 20 days upon the issuance of a decision to
file a lawsuit.
2. Investigation authorities, when
closing investigation, shall issue decisions to prosecute.
A decision to prosecute shall
summarize criminal acts, artifices, motives, purposes, nature and degree of
damage caused by criminal acts; preventive and coercive measures implemented,
altered or terminated; seizure and impoundment of documents, items, handling of
evidences; personal traits of suspects, factors aggravating or mitigating
criminal liabilities; reasons and grounds for prosecution; offence titles,
applicable points, sections and articles of the Criminal Code; specific time
and issuing place of the decision. Such decision must bear the full name and
signature of the individual issuing the decision.
3. Investigation authorities, in 24
hours upon issuing a decision to prosecute, must send such decision to the
suspect or his representative, defense counsel, crime victims, litigants or their
representatives. Moreover, such decision and case files shall be delivered to
the Procuracy.
Article 461.
Decision to prosecute
1. The procuracy, in 05 days upon
receiving a decision to prosecute and case files, shall make one of these
decisions:
a) Prosecute the suspect before a
Court via the decision to prosecute;
b) Decide not to prosecute the
suspect and dismiss the case;
c) Return documents for further
investigation;
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dd) Dismiss the case.
2. A decision to prosecute shall
summarize criminal acts, artifices, motives, purposes, nature and degree of
damage caused by criminal acts; preventive and coercive measures implemented,
altered or terminated; seizure and impoundment of documents, items, handling of
evidences; personal traits of suspects, factors aggravating or mitigating
criminal liabilities; reasons and grounds for prosecution; offence titles,
applicable points, sections and articles of the Criminal Code; specific time
and issuing place of the decision. Such decision must bear the full name and
signature of the individual issuing the decision.
3. The procuracy, in 24 hours upon
issuing a decision to prosecute, must send such decision to the suspect or his
representative, defense counsel, crime victims, litigants or their representatives
and investigation authorities. Moreover, such decision and case files shall be
delivered to the Court.
Article 462.
Preparation for trial in the first instance
1. The judge appointed to hold
trial, in 10 days upon the admission of the case, shall make one of these
decisions:
a) Hear the case;
b) Return documents for further
investigation;
c) Suspend the case;
d) Dismiss the case.
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3. The first-instance court, in 24
hours upon deciding to hear the case, must send such decision to the equivalent
Procuracy, the defendant or his representative, defense counsel, crime victims,
litigants or their representatives.
Article 463.
Trial in the first instance
1. A trial under summary procedure
in the first instance shall be held by one Judge.
2. The procurator, after the
preliminary formalities of the trial, shall announce the decision to prosecute.
3. The order and procedures of this
court of first instance shall abide by general stipulations in this Law,
without a session of deliberation.
Article 464.
Preparation for trial in the second instance
1. The appellate court shall
receive and admit case files according to general stipulations in this Law.
The court, after admitting the
case, shall send case files to the equivalent Procuracy/ In 05 days, the
Procuracy must return case files to the Court.
2. The judge appointed to hold
trial, in 15 days upon the admission of the case, shall make one of these decisions:
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b) Dismiss the appellate lawsuit.
3. The court, if deciding to hear
the case in the second instance, shall start the trial in 07 days upon the
issuance of such decision.
4. The appellate court, in 24 hours
upon deciding to hear the case, must send such decision to the equivalent
Procuracy, the defendant or his representative, defense counsel, crime victims,
litigants or their representatives.
Article 465.
Trial in the second instance
1. An
appellate trial under summary procedure shall be held by one Judge.
2. The order
and procedures of this court of second instance shall abide by general
stipulations in this Law, without a session of deliberation.
Chapter
XXXII
RECTIFICATION OF IMPEDIMENTS TO LEGAL PROCEEDINGS
Article 466.
Punitive actions against individuals hindering legal proceedings of authorities
given authority to institute legal proceedings
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1. Falsify or destroy evidences to
obstruct the settlement of affairs and cases;
2. Give false statements or
documents;
3. Decline deposition or refuse to
provide documents or items;
4. Expert witnesses or property
valuators give false findings or refuse to conclude expert examinations or
valuation tasks not due to force majeure or objective obstacles;
5. Delude, threaten, bribe or use
force to make witness testifiers refrain from testifying or give false
testimonies;
6. Delude, threaten, bribe or force
witness testifiers to refrain from testifying or to give false testimonies;
7. Delude, threaten, bribe or force
expert witnesses or property valuators to refrain from their duties or to give
findings that deviate from objective truths;
8. Delude, threaten, bribe or force
interpreters and translators to refrain from their duties or to provide false
translation;
9. Delude, threaten, bribe or force
representatives of authorities and organizations and other individuals to
refrain from legal proceedings;
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11. Have not appeared despite a
subpoena not due to force majeure or objective obstacles; therefore, hinder
legal proceedings;
12. Prevent the delivery or
announcement of procedural documents by competent procedural authorities.
Article 467.
Punitive actions against contempt of court
1. Persons in contempt of court
shall incur administrative penalties, subject to the nature and degree of their
violations, as per the Presiding judge’s orders according to the laws.
2. The presiding judge shall be
entitled to expel violators from the courtroom or have them held in
administrative detention. Police officers or personnel maintaining court order
shall execute the Presiding judge’s orders on expelling or administrative
detention of persons disturbing the order of the court.
3. If the violators' disobedience
of court rules results in criminal prosecution, the Trial panel shall be
entitled to file a criminal lawsuit.
4. The stipulations in this Article
shall apply to persons committing violations in a Court’s meeting.
Article 468.
Form, authority, order and procedures of punitive actions
Form, authority, order and
procedures of punitive actions against the impediments to criminal proceedings
shall be governed by the Law on punitive actions against administrative
violations and relevant laws.
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COMPLAINT AND DENOUNCEMENT IN CRIMINAL PROCEDURE
Article 469.
Right to complain
1. Authorities and entities shall
be entitled to lodge complaints against decisions and legal proceedings of
competent procedural authorities and persons on the grounds that such decisions
and proceedings breach the laws or violate their legitimate rights and
benefits.
2. Chapter XXI, XXII, XXIV, XXV,
XXVI and XXXI of this Law shall govern complaints, appeals or protests to a
first-instance sentences and rulings not in effect, a Court’s sentences and
rulings in force or decisions to prosecute or to apply summary procedure,
rulings of a Trial panel in the first or second instance, Judicial panel of
cassation or reopening, or Panel ratifying reduction of time, exemption of
punishments or parole.
Article 470.
Decisions and legal proceedings that prone to complaints
1. Procedural decisions, which
prone to complaints, are issued by heads and vice heads of investigation
authorities, investigators, heads and vice heads of procuracies, procurators,
presidents and vice presidents of courts, judges and individuals authorized to
investigate according to this Law.
2. Legal proceedings, which prone
to complaints, are procedural actions of heads and vice heads of investigation
authorities, investigators, investigation officers, heads and vice heads of
procuracies, procurators, checkers, presidents and vice presidents of courts,
judges, verifiers and individuals assigned to investigate according to this
Law.
Article 471.
Prescriptive period for complaints
1. The prescriptive period for
complaints shall be 15 days after the person filing complaints receives or
perceive procedural decisions and proceedings that he deems unlawful.
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Article 472.
Rights and duties of persons filing complaints
1. Persons filing complaints shall
be entitled to:
a) Lodge complaints by themselves
or through a defense counsel, protector of litigants’ legitimate rights and
benefits or representative;
b) Lodge complaints anytime during
the settlement of a criminal case;
c) Withdraw complaints anytime
during the processing of complaints;
d) Obtain the decision to process
complaints;
dd) Reclaim legitimate rights and
benefits violated and receive amends for damage as per the laws.
2. Persons filing complaints shall
bear the duties to:
a) Present matters, information and
documents to the individuals processing complaints in honest manner; and assume
liabilities for their presentations and provision of documents and information;
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Article 473.
Rights and duties of persons facing complaints
1. Persons facing complaints shall
be entitled to:
a) Be informed of the details of
the complaints;
b) Present evidences on the
validity of decisions and proceedings under complaint;
c) Obtain the decision to process
complaints against their decisions and proceedings.
2. Persons facing complaints shall
bear the duties to:
a) Explain the decisions and
proceedings under complaint; provide relevant information and documents at the
requests for competent authorities and entities;
b) Obey effective decisions on
complaints.
c) Make restitution, reimbursement
and remedies against consequences caused by their unlawful decisions and
proceedings as per the laws.
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1. Complaints against emergency
custody orders, arrest warrants, decisions on temporary detainment or
detention, detention orders, decisions to approve arrest, decisions to extend
temporary detainment or detention, and actions to execute such orders and
decisions must be settled in 24 hours upon the receipt of such complaints. The
time limit may be extended for 03 mores days upon the receipt of the complaints
if the settle of verification takes time.
2. Heads of Procuracies shall be
held responsible for settleing complaints against procedural decisions and
actions regarding emergency custody, arrest, temporary detainment and detention
during the stage of investigation and prosecution. In 24 hours upon the receipt
of complaints, authorities and individuals having rights to emergency custody,
arrest, temporary detainment and detention must promptly transfer the case and
matters under complaint related to the persons arrested or held in custody or
detention to the Procuracy exercising prosecution rights and administering
investigation.
Heads of procuracies shall settle
complaints against procedural decisions and actions, regarding emergency
custody, arrest, temporary detainment and detention, of heads and vice heads of
investigation authorities, investigators, investigation officers, procurators,
checkers and individuals assigned to investigate.
Heads of procuracies shall settle
complaints against procedural decisions and actions, regarding arrest,
temporary detainment and detention, of vice heads of procuracies.
If the decisions by the head of the
Procuracy on the complaints are not satisfactory, the person lodging complaints
can file complaints to the head of the immediate superior Procuracy in 03 days
upon that person’s receipt of such decisions. If a head of a provincial
People’s Procuracy settles such complaints initially, further complaints shall
be delivered to the head of the Supreme People's Procuracy. In 07 days upon the
receipt of complaints, the head of the immediate superior Procuracy or Supreme
People’s Procuracy must consider and settle such complaints. Decisions by the
head of the immediate superior Procuracy or Supreme People’s Procuracy shall
come into force.
Complaints against procedural
decisions and actions, regarding arrest, temporary detainment and detention, of
a head of a Procuracy shall be settled by the head of the immediate superior
Procuracy. If complaints are lodged against procedural decisions and actions of
a head of a provincial People’s Procuracy, they shall be settled by the head of
the Supreme People’s Procuracy. In 07 days upon the receipt of complaints, the
head of the immediate superior Procuracy or Supreme People’s Procuracy must
consider and settle such complaints. Decisions by the head of the immediate
superior Procuracy or Supreme People’s Procuracy shall come into force.
3. The court is responsible for
settling complaints against decisions on arrest or detention during the stage
of adjudication.
Heads of procuracies shall process
complaints against procedural decisions and actions, regarding arrest,
temporary detainment and detention, of vice heads of procuracies.
If the Court president’s decisions
on the complaints are not satisfactory, the person filing complaints can lodge
further complaints to the President of the immediate higher Court in 03 days
upon the receipt of such decisions.
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The president of the immediate
higher Court shall settle complaints against procedural decisions and actions,
regarding arrest and detention, of the President of the lower Court. In 07 days
upon the receipt of complaints, the President of the immediate higher Court
must consider and settle such complaints. Decisions by the President of the
immediate higher Court shall come into force.
Article 475.
Authority and time limit for settlement of complaints against investigators,
investigation officers, vice heads and heads of investigation authorities and
individuals assigned to investigate
1. Heads of investigation
authorities shall settle complaints against procedural decisions and actions of
investigators, investigation officers and vice heads of investigation
authorities in 07 days upon the receipt of such complaints, except for those
related to emergency custody, arrest, temporary detainment and detention. If
the decisions by the head of the investigation authority are not satisfactory,
the person filing complaints can lodge further complaints to the head of the
equivalent Procuracy in 03 days upon the receipt of such decisions. In 07 days
upon the receipt of complaints, the head of the equivalent Procuracy shall
consider and settle such complaints. Decisions by the head of the equivalent
Procuracy shall come into force.
The head of the equivalent Procuracy
shall settle complaints against procedural decisions and actions of heads of
investigation authorities and procedural decisions of investigation
authorities, which have been approved by the Procuracy, in 07 days upon the
receipt of such complaints.
If the decisions by the head of the
equivalent Procuracy on the complaints are not satisfactory, the person lodging
complaints can file complaints to the head of the immediate superior Procuracy
in 03 days upon that person’s receipt of such decisions. If a head of a
provincial People’s Procuracy settles such complaints initially, further
complaints shall be delivered to the head of the Supreme People's Procuracy.
In 15 days upon the receipt of
complaints, the head of the immediate superior Procuracy or Supreme People’s
Procuracy must consider and settle such complaints. Decisions by the head of
the immediate superior Procuracy or Supreme People’s Procuracy shall come into
force.
2. Heads of units assigned to
investigate shall settle complaints against procedural decisions and actions of
investigation officers and vice heads of such units in 07 days upon the receipt
of such complaints, except for those related to emergency custody, arrest and
temporary detainment. If the decisions by the heads of the said units are not
satisfactory, the person filing complaints can lodge further complaints to the
head of the Procuracy exercising prosecution rights and administering
investigation in 03 days upon the receipt of such decisions. In 07 days upon
the receipt of complaints, the head of the Procuracy shall consider and settle
such complaints. Decisions by the head of the Procuracy shall come into force.
Heads of procuracies exercising
prosecution rights and administering investigation shall settle complaints
against procedural decisions and actions of heads of units assigned to
investigate. In 07 days upon the receipt of complaints, the head of the
Procuracy shall consider and settle such complaints. Decisions by the head of
the Procuracy shall come into force.
Article 476.
Authority and time limit for settlement of complaints against procurators,
checkers, vice heads and heads of procuracies
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2. The immediate superior Procuracy
shall settle complaints against procedural decisions and actions of a head of a
procuracy in 15 days upon the receipt of such complaints. Decisions by the head
of the immediate superior Procuracy shall come into force.
3. Complaints against procedural
decisions and actions of a head of a provincial People’s Procuracy, in the
events as defined in Section 1 and Section 2 of this Article, shall be settled
in the following manner:
a) Supreme People’s Procuracy shall
settle complaints against procedural decisions and actions, regarding the
exercising of prosecution rights and administration of investigation and
prosecution of a head of a provincial People’s Procuracy in 15 days upon the
receipt of such complaints. Decisions by the head of the Supreme People's
Procuracy shall come into force.
b) Higher People’s Procuracy shall
settle complaints against procedural decisions and actions, regarding the
exercising of prosecution rights and administration of adjudication, of a head
of a provincial People’s Procuracy in 15 days upon the receipt of such
complaints. Decisions by the head of the higher People's Procuracy shall come
into force.
4. The head of the Supreme People’s
Procuracy or the Central military procuracy shall settle complaints against
procedural decisions and actions of vice heads, procurators and checkers of the
Supreme People’s Procuracy, or vice heads, procurators and checkers of the
Central military procuracy, respectively, in 15 days upon the receipt of such
complaints. Decisions by the head of the Supreme People’s Procuracy or the
Central military procuracy shall come into force.
Article 477.
Authority and time limit for settlement of complaints against judges,
verifiers, court presidents and vice court presidents
1. The president of a district
People’s Court or a local military Court shall settle complaints against
procedural decisions and actions, before trial, of judges, verifiers and vice
presidents of the district People's Court or local military court,
respectively, in 07 days upon the receipt of such complaints.
If the decisions by the President
of the district People’s Court or local military Court are not satisfactory,
the person filing complaints can lodge further complaints to the President of
the provincial People’s Court or military Court of a relevant military zone in
03 days upon the receipt of such decisions. In 15 days upon the receipt of
complaints, the President of the provincial People's Court or military Court of
the military zone must consider and settle such complaints. Decisions by the
President of the provincial People’s Court or military Court of the military
zone shall come into force.
The president of a provincial
People’s Court or a military Court of a military zone shall settle complaints
against procedural decisions and actions, before trial, of the presidents of
the relevant district People's Courts or local military courts, respectively,
in 15 days upon the receipt of such complaints. Decisions by the President of
the provincial People’s Court or military Court of the military zone shall come
into force.
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The president of a higher People’s
Court shall settle complaints against procedural decisions and actions, before
trial, of judges, verifiers and vice presidents of the higher People’s Court,
in 07 days upon the receipt of such complaints. If the decisions by the
President of the higher People’s Court are not satisfactory, the person filing
complaints can lodge further complaints to the President of the Supreme
People’s Court in 03 days upon the receipt of such decisions. In 15 days upon
the receipt of complaints, the President of the Supreme People's Court shall
settle such complaints. Decisions by the president of the Supreme People's
Court shall come into force.
The president of the higher
People’s Court or central military Court shall settle complaints against
procedural decisions and actions of presidents of provincial People's Courts or
military courts of military zones, respectively, in 15 days upon the receipt of
such complaints. Decisions by the President of the higher People’s Court or
central military Court shall come into force.
3. The president of the Supreme
People’s Court or central military Court shall settle complaints against
procedural decisions and actions of presidents of higher People’s Courts, vice
presidents, judges and verifiers of the Supreme People's Court, vice
presidents, judges and verifiers of the central military Court, respectively,
in 15 days upon the receipt of such complaints. Decisions by the President of
the Supreme People’s Court or central military Court shall come into force.
Article 478.
Right to denounce
Individuals shall have the right to
present denunciations to competent authorities and persons against the breach
of laws by an authorized procedural person, which cause damage or menace the
interests of the Government and legitimate rights and benefits of authorities
and entities.
Article 479.
Rights and duties of persons filing complaints
1. A person filing complaints shall
be entitled to:
a) Lodge petitions or directly
state denunciations to competent authorities and individuals;
b) Request to have his full name,
address and handwriting maintained confidential;
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d) Request competent procedural
authorities' protection from menaces, repression, vengeance.
2. A person filing complaints shall
bear duties to:
a) Present details of the
denunciations in honest manner, and provide information and documents in
connection with such denunciations;
b) Identify his full name and
address;
c) Be held liable for intentional
false denunciations.
Article 480.
Rights and duties of persons facing complaints
1. A person facing complaints shall
be entitled to:
a) Be informed of the particulars
of the complaints;
b) Present evidences of the
inaccuracy of the denunciations;
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d) Reclaim legitimate rights and
benefits violated, restore honor and receive amends for damage caused by
inaccurate denunciations;
dd) Request competent authorities
and entities to castigate persons giving false denunciations.
2. A person facing complaints shall
bear duties to:
a) Elucidate the actions
complained; provide relevant information and documents at the requests for
competent authorities and individuals;
b) Conform to the decisions on
denunciations;
c) Make restitution, reimbursement
and remedies against consequences caused by their unlawful procedural actions
as per the laws.
Article 481.
Authority and time limit for settlement of denunciations
1. The head of a competent
procedural authority shall be given authority to settle denunciations against
unlawful actions of competent personnel of that authority.
The head of an investigation
authority or Procuracy shall be given authority to settle denunciations against
the head of the immediate lower investigation authority or Procuracy.
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The president of the higher
People’s Court or central military Court shall be given authority to settle
denunciations against the president of a provincial People’s Court or military
Court of a military zone.
The president of the Supreme
People’s Court shall be given authority to settle denunciations against the
president of the higher People's Court or central military Court.
The procuracy exercising
prosecution rights and administering investigation shall be given authority to
settle denunciations against procedural actions of persons assigned to
investigate.
2. The settlement of denunciations
against unlawful procedural actions denoting crimes shall abide by Article 145
of this Law.
3. The time limit for settlement of
denunciations shall not exceed 30 days upon the receipt of such denunciations.
The time limit for complex cases may be extended for 60 more days at most.
4. The head of an equivalent
Procuracy or competent Procuracy shall settle denunciations against emergency
custody, temporary detainment and detention during the stage of investigation
and prosecution, in 24 hours upon the receipt of such denunciations. If
information must be further verified, the time limit shall be 03 more days at
most upon the receipt of denunciations.
Article 482.
Responsibilities of authorities and persons authorized to settle complaints and
denunciations
1. Authorities and persons
authorized to settle complaints and denunciations, within their powers and
objectives, shall be held responsible for admitting and settling complaints and
denunciations in prompt and legal manner and for sending results of the
settlement of such complaints and denunciations in writing to the person lodging
such complaints and denunciations. Moreover, they shall castigate violators of
laws in stringent manner, implement protective measures for denouncers upon
requests and prevent possible damage. Furthermore, they shall assure the strict
settlement of complaints and denunciations and assume liabilities for their
relevant actions.
2. If a person, though authorized
to settle denunciations and complaints, does not perform or neglect his given
tasks, he shall face disciplinary penalties or criminal prosecution or make
restitution to damage caused according to the nature and degree of his
violations as per the laws. Moreover, his illicit actions to settle complaints
or denunciations shall give rise to the same consequences.
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Article 483.
Duties and authority of procuracies administering the settlement of complaints
and denunciations
1. A procuracy shall administer the
settlement of complaints and denunciations by investigation authorities and
units assigned to investigate, equivalent or lower courts.
2. The procuracy, when administering
the settlement of denunciations and complaints, shall bear the following duties
and authority:
a) Reqeust investigation
authorities, courts, units assigned to investigate to settle complaints and
denunciations according to this Chapter;
b) Request investigation
authorities, courts and units assigned to investigate to, by themselves,
inspect the settlement of complaints and denunciations by their personnel and
inferior ones; and inform the Procuracy of the findings of such inspection;
c) Request investigation
authorities, courts and units assigned to investigate to provide the Procuracy
with documents related to the settlement of denunciations and complaints;
d) Directly administer the
settlement of denunciations and complaints by investigation authorities, units
assigned to investigate, equivalent and lower courts;
dd) Conclude the tasks of
administration in writing; exercise the rights to lodge appeals or protests,
request investigation authorities, courts and units assigned to investigate to
rectify violations in the settlement of denunciations and complaints.
3. A procuracy shall be responsible
for inspecting the lower procuracy's settlement of denunciations and
complaints. Supreme People’s Procuracy shall inspect procuracies’ settlement of
denunciations and complaints.
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PROTECTION OF DENOUNCERS, WITNESS TESTIFIERS, CRIME
VICTIMS AND PARTICIPANTS IN LEGAL PROCEEDINGS
Article 484.
Persons under protection
1. The following persons shall be
protected:
a) Denouncers;
b) Witness testifiers;
c) Crime victims;
d) Kindred of denouncers, witness
testifiers, crime victims.
2. Protected persons shall have
rights to:
a) Petition for protection;
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c) Be informed of the
implementation of protective measures; petition for the alteration, addition or
termination of protective measures;
d) Receive amends for damage, have
honor restored and have legitimate rights and benefits guaranteed during their
protection.
3. Protected persons shall bear
duties to:
a) Conform to the protection
authorities’ requests regarding the protection;
b) Maintain confidentiality of
information protected;
c) Inform the protection
authorities of doubts in prompt manner during the protection.
Article 485.
Authorities and individuals authorized to decide the implementation of
protective measures
1. The following authorities shall
be given authority to implement protective measures:
a) Investigation units of the
People’s police force;
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2. The following individuals shall
be given authority to make decisions on protective measures:
a) Heads and vice heads of
investigation units of the People’s police force shall be given authority to
decide to implement protective measures for criminal issues and cases that they
have admitted, handled or investigated or at the requests for the equivalent
People's Procuracy or People's Court or Supreme People's Procuracy;
b) Heads and vice heads of
investigation units of the People’s army shall be given authority to decide to
implement protective measures regarding criminal issues and cases that they
have admitted, handled or investigated or at the requests for the equivalent
military Procuracy or military Court or Central military procuracy;
3. People’s procuracies and
People’s courts shall propose investigation authorities that directly handle
the criminal case to implement protective measures, if deemed necessary. Such
requests shall be executed in writing.
Investigation units of the Supreme
People's Procuracy or Central military procuracy, if finding the necessity of
protective measures regarding criminal issues and cases that they have
admitted, handled or investigated, shall report to the head of the Supreme
People’s Procuracy or Central military procuracy, who shall propose
investigation police units, security investigation department of the Ministry
of Public Security, criminal investigation department and security
investigation department of the Ministry of Defense to issue a decision to
implement protective measures.
Article 486.
Protective measures
1. Authorities and persons
authorized to institute legal proceedings shall decide to implement the
following protective measures on the grounds that the life, health, property,
honor or dignity of the protected persons are harmed or menaced due to such
persons’ provision of evidences, documents and information related to crimes:
a) Deploy personnel, implement
professional measures, utilize weapons, support equipment and other means for
guard and protection;
b) Constrain the protected persons'
travel and interaction for their safety;
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d) Displace protected persons,
encase information of their residential place, workplace or educational
facility; change their whereabouts, personal records and identities, with their
consent;
dd) Deter, warn or attenuate
intrusive actions against the protected persons; hinder and resolve intrusive
actions in timely manner according to the laws;
e) Other protective measures as per
the laws.
2. The implementation and
alteration of protective measures as defined in Section 1 of this Article must
not impinge on legitimate rights and benefits of the protected persons.
Article 487.
Petition for and request for protective measures
1. Protected persons are entitled
to petition or request in writing competent authorities to implement protective
measures. A written petition or request must contain these primary details:
a) Date;
b) Name and address of the
petitioner;
c) Reasons and particulars of the
petition for protective measures;
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2. In emergency events, the
protected persons can state their requests for protective measures to competent
authorities and individuals in direct manner or through means of communication;
however, such requests must later be submitted in writing.
Competent authorities and individuals, when receiving the petitions
and requests, must execute written records for the archive of
protection-related files.
3. Units assigned to investigate,
procuracies and courts, upon the receipt of a petition or request for
protective measures during their procedural actions towards a lawsuit, shall be
responsible for considering details and requisitioning the equivalent
investigation authority to ratify particulars and decide to implement
protective measures. If the higher People's Procuracy or higher People’s Court
receives a petition or request for protection, investigation units of the
Ministry of Public Security shall consider details and decide to implement
protective measures.
4. Investigation authorities must
inspect grounds and authenticity of the petition or request for protection. If
protective measures are deemed not necessary, relevant reasons must be clearly
explained to the petitioner or requester.
Article 488.
Decisions to implement protective measures
1. A decision to implement
protective measures shall comprise these main details:
a) Number, issue date and issuing
place of the decision;
b) Position of the individual
making the decision;
c) Grounds of the decision;
d) Full name, date of birth and
residential address of the protected person;
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2. The decision to implement
protective measures shall be delivered to the person requesting protection, the
protected person, the Procuracy or Court that has proposed protective measures
and protection-related authorities and organizations.
3. Upon the issuance of the
decision to implement protective measures, competent investigation authorities
must enforce such measures. Agencies and units of the People’s Police force and
People’s Army, in essential circumstances, shall cooperate with relevant
authorities to provide protection.
4. Investigation authorities
issuing the decision can alter or add protective measures, if deemed necessary,
during the protection.
5. The time of protection shall
start upon the implementation of such measures and end upon the decision to
terminate protective measures.
Article 489.
Termination of protection
1. The head of the investigation
authority, which issued the decision to implement protective measures, shall
decide to terminate such measures when detriments or menaces against the life,
health, property, honor and dignity of the protected person are deemed to
vanish.
2. The decision to terminate protective
measures must be sent to the protected person, the authority that proposed such
measures and protection-related authorities and organizations.
Article 490.
Protection-related documents
1. Investigation authorities that
decided to implement protective measures must establish protection-related
documents.
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a) The petition or written request
for protective measures; written records of such petition or request;
b) Results of the verification of
detriments or menaces against the life, health, property, honor and dignity of
the protected person;
c) Documents on consequential
damage that occurred (if any) and competent authorities' solutions;
d) The petition or written request
for alteration, addition or termination of protective measures;
dd) The decisions to implement,
alter, add or terminate protective measures;
e) Documents on the progress of
protective measures implemented;
g) The written proposition or
request for the cooperation from authorities and entities in protection-related
tasks;
h) Reports on the implementation of
protective measures;
i) The decision to terminate
protective measures;
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PART EIGHT
INTERNATIONAL COOPERATION
Chapter XXXV
GENERAL
Article 491.
Scope of international cooperation in criminal procedure
1. International cooperation in
criminal procedure means that competent authorities of the Socialist Republic
of Vietnam and competent foreign authorities collaborate and support each other
to carry out activities of investigation, prosecution, adjudication and
enforcement of criminal sentences.
2. International cooperation in
criminal procedure includes judicial assistance in criminal matters,
extradition, acquisition and transfer of persons serving time and other
international cooperation activities as defined in this Law, the laws on
judicial assistance and international agreements that the Socialist Republic of
Vietnam has signed.
3. International cooperation in
criminal procedure in the territories of the Socialist Republic of Vietnam
shall be governed by international agreements that the Socialist Republic of
Vietnam has signed or by the principle of reciprocity, in adherence to this
Law, the laws on judicial assistance and other relevant laws of Vietnam.
Article 492.
Principles of international cooperation in criminal procedure
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2. If Vietnam does not sign or
accede to a relevant international agreement, international cooperation in criminal
procedure shall adhere to the principle of reciprocity and the laws of Vietnam,
international laws and practices.
Article 493.
Central governmental authorities' engagement in international cooperation in
criminal procedure
1. Ministry of Public Security
shall be the central governmental authority of the Socialist Republic of
Vietnam, which extradites and transfers persons serving time.
2. Supreme People’s Procuracy shall
be the central governmental authority of the Socialist Republic of Vietnam,
which is responsible for judicial assistance in criminal matters and other
international cooperation activities as per the laws.
Article 494.
Validity of documents and items acquired via international cooperation in
criminal procedure
Documents and items, which are
collected by foreign competent authorities as per the judicial delegation by
competent Vietnamese authorities, or documents and items, which foreign
competent authorities send to Vietnam for the delegation of criminal
prosecution, shall be regarded as evidences. Documents and items with
attributes as defined in Article 89 of this Law shall be regarded as evidences.
Article 495.
Legal proceedings taken by competent Vietnamese individuals in foreign
countries and by foreign competent nationals in Vietnam
Legal proceedings taken by
competent Vietnamese individuals in foreign countries and by foreign competent
nationals in Vietnam shall abide by international agreements that the Socialist
Republic of Vietnam has signed or by the principle of reciprocity.
Article 496.
Overseas presence of witness testifiers, expert witnesses and persons serving
time in Vietnam and vice versa
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2. Competent Vietnamese authorities
may permit witness testifiers, expert witnesses and persons serving time in
Vietnam to be present in a foreign country, according to propositions by that
country's competent authorities, for the settlement of a criminal case.
Chapter
XXXVI
INTERNATIONAL COOPERATION ACTIVITIES
Article 497.
Acquisition and transfer of documents and items in connection with a legal case
The acquisition and transfer of
items and documents related to a legal case shall conform to international
agreements that the Socialist Republic of Vietnam has signed, regulations of
this Law, laws on judicial assistance and other relevant laws of Vietnam.
Article 498.
Rejection of extradition of Vietnamese citizens
Competent Vietnamese authorities
shall be held responsible for considering requests by foreign competent
authorities to initiate criminal prosecution or enforce a foreign Court’s
criminal sentences and rulings against Vietnamese citizens whose extradition is
rejected.
Article 499.
Sequence and procedure for the consideration and settlement of requisitions for
criminal prosecution against Vietnamese citizens whose extradition is rejected
1. In 10 days upon the rejection of
foreign competent authorities’ request for extradition of a Vietnamese citizen,
the Court that decided to reject extradition shall transfer documents from
abroad to the Supreme People's Procuracy for the latter's consideration of
criminal prosecution.
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3. Charging, investigation,
prosecution and adjudication of persons against whom criminal prosecution is
requested shall be governed by this Law.
4. Competent Vietnamese authorities
can request foreign competent authorities to provide and supplement evidences,
documents and items to assure the justification and legitimacy of activities of
investigation, prosecution and adjudication.
Article 500.
Requirements for the enforcement of a foreign Court’s criminal sentences and
rulings against a Vietnamese citizen whose extradition is requested
A foreign Court’s criminal
sentences and rulings against a Vietnamese citizen whose extradition is
rejected can be enforced in Vietnam upon the satisfaction of these
requirements:
1. A foreign competent authority
issues a written request for the enforcement of a foreign Court’s criminal
sentences and rulings against the Vietnamese citizen whose extradition is
rejected.
2. Criminal acts committed by
Vietnamese citizens sentenced overseas constitute crimes according to the
Criminal Code of the Socialist Republic of Vietnam;
3. The foreign Court’s criminal
sentences and rulings against the Vietnamese citizen, who faces no other legal
proceedings, have come into force.
Article 501.
Sequence and procedure for the consideration of requisitions for the
enforcement of a foreign Court’s criminal sentences and rulings against
Vietnamese citizens whose extradition is rejected
1. In 30 days upon the receipt of
competent foreign authorities’ requisitions for the enforcement of a foreign
Court’s criminal sentences and rulings against Vietnamese citizens whose
extradition has been rejected, the provincial People’s Court that rejected
extradition shall consider such requisitions from abroad.
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3. Upon the commencement of the
meeting, a member of the Panel shall express matters related to the
requisitions for the enforcement of the foreign Court’s criminal sentences and
rulings against Vietnamese citizens and present legal grounds for the
enforcement of such in Vietnam.
The procurator states the
Procuracy’s opinions on the enforcement of the foreign Court's criminal rulings
and sentences against Vietnamese citizens in Vietnam.
The person against whom the
enforcement of foreign criminal sentences and rulings are requested, his lawyer
or representative shall state their opinions (if any).
The panel shall discuss and decide
to approve or reject the enforcement of foreign criminal sentences and rulings
under majority rule.
4. The approval of the enforcement
of the foreign Court’s criminal sentences and rulings against a Vietnamese
citizen in Vietnam must specify the length of time of that citizen’s prison
sentence in Vietnam on the grounds that:
a) If the length of time of the
foreign penalty corresponds with the laws of Vietnam, the time served in
Vietnam shall be equal to that length of time;
b) If the nature or length of time
of the foreign Court’s penalty does not correspond with the laws of Vietnam,
such penalty shall be converted according to the laws of Vietnam but shall not
exceed the length of the foreign sentence passed.
5. In no later than 10 days upon
the issuance of the decision to approve or reject the enforcement of the
foreign Court’s criminal sentences and rulings, the provincial People’s Court
shall send such decision to the person bound by such foreign judgments, the
equivalent People’s Procuracy and Ministry of Public Security for execution of
the decision.
The person bound to serve foreign
criminal sentences and rulings or the equivalent People's Procuracy shall be
entitled to lodge an appeal or protest, respectively, in 15 days upon the
provincial People's Court's decision. However, the higher People’s Procuracy
shall be entitled to lodge its protest in 30 days .
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6. In 20 days upon the receipt of
documents for the contemplation of requisitions for the enforcement of
foreign criminal sentences and rulings under appeal or protest, the higher
People’s Court shall hold a meeting to contemplate the provincial People’s Court’s
decisions under appeal or protest.
Procedures for the contemplation of
a provincial Court’s decisions under appeal or protest shall be governed by
this Article.
7. A decision to implement a
foreign Court’s criminal sentences and rulings against a Vietnamese citizen
shall comprise:
a) The provincial People's Court's
decisions under appeal or protest;
b) The decisions by the higher
People’s Court.
8. The sequence and procedure for
the enforcement of a foreign Court's criminal sentences and rulings gainst a
Vietnamese citizen in Vietnam shall be governed by this Law and the Law on
criminal sentence enforcement.
9. Upon the announcement of a
reprieve, general amnesty, commutation or exemption of foreign sentences being
served in Vietnam by a Vietnamese citizen whose extradition was rejected by
Vietnamese authorities despite his commission of crimes on foreign soil, the
Ministry of Public Security shall promptly inform the competent Court and
Procuracy to consider details and make decisions.
Article 502.
Preventive measures, grounds and authority to implement preventive measures
1. Preventive measures that enable
the consideration of requisitions for extradition or execution of extradition
shall include arrest, temporary detainment, residential confinement, surety or exit
restriction.
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a) The court has decided to
consider the request for extradition or its decision to execute extradition has
taken effect;
b) The person whose extradition is
requested is suspected of absconding or obstructing the consideration of the
request for extradition or the execution of extradition.
3. The president and vice
presidents of a provincial People’s Court or higher People’s Court shall make
decisions on implementing preventive measures as defined in Section 1 of this
Article. The presiding judge of the meeting for consideration of requests for
extradition shall be entitled to make decisions on ordering residential
confinement or surety to assure the attendance of the persons, whose
extradition is requested, in the meeting.
Article 503.
Detention of persons whose extradition is requested
1. The capture of persons, whose
extradition is requested, for detention or execution of extradition shall
conform to Article 133 of this Law.
2. The duration of detention for
consideration of requests for extradition shall not exceed the length of time
of the arrest warrant by competent authorities of the nation requesting
extradition. Moreover, the duration of detention shall not exceed the full or
remaining length of time of the criminal sentences and rulings by the Court of
the countries requesting extradition.
In essential circumstances, the
provincial People’s Court or higher People’s Court can request in writing, via
the Ministry of Public Security, the competent authorities of the nation
requesting extradition to issue orders or decisions to hold persons whose
extradition is requested in detention or extended detention to enable the
consideration of requests for extradition.
Article 504.
Residential confinement, exit restriction
1. Residential confinement is a
preventive measure applicable to persons, whose extradition is requested, with
definite place of residence to guarantee their presence as per a Court's
subpoenas.
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The time limit for residential
confinement shall not exceed the time limit for the consideration of the
request for extradition and time limit for appeals or protests against a
decision to approve or reject extradition according to the laws on judicial
assistance.
2. Exit restriction is a preventive
measure applicable to persons whose extradition is requested to guarantee their
presence as per a Court’s subpoenas.
The execution of exit restriction
shall be governed by the Article 124 of this Law.
The time limit for exit restriction
shall not exceed the time limit for the consideration of the request for
extradition and time limit for appeals or protests against a decision to
approve or reject extradition according to the laws on judicial assistance.
Article 505.
Surety
1. Surety is a preventive measure
applicable to persons whose extradition is requested and subject to conditions
of their assets in order to guarantee their presence as per a Court's
subpoenas.
2. The execution of surety shall be
governed by Article 122 of this Law.
3. The time limit for surety shall
not exceed the time limit for the consideration of the request for extradition
and time limit for appeals or protests against a decision to approve or reject
extradition according to the laws on judicial assistance.
Article 506.
Termination or alteration of preventive measures
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2. Individuals authorized to
implement preventive measures as defined in Article 502 of this Law must
promptly terminate or alter preventive measures, if deemed unlawful or
unnecessary, at their discretion.
Article 507.
Handling of assets gained through crimes
1. Competent Vietnamese authorities
shall cooperate with foreign competent authorities to seek, impound, distrain,
freeze, seize and appropriate assets gained through crimes for activities of
investigation, prosecution, adjudication and criminal sentence enforcement.
2. The pursuit, impoundment,
distrainment, freezing and seizure of assets gained through crimes in Vietnam
shall abide by this Law and other relevant laws of Vietnam.
3. Assets gained through crimes in
Vietnam shall be handled according to international agreements that the
Socialist Republic of Vietnam has signed or on a case-by-case basis between
relevant competent Vietnamese authorities and foreign competent authorities.
Article 508.
Cooperation in investigation and special investigation methods and proceedings
1. Competent Vietnamese authorities
can cooperate with foreign competent authorities to jointly carry out
investigation or implement special investigation methods and proceedings. The
cooperation in investigation or special investigation methods and proceedings
shall adhere to international agreements that the Socialist Republic of Vietnam
has signed or on a case-by-case basis between relevant competent Vietnamese
authorities and foreign competent authorities.
2. Investigation cooperation
activities in the territories of the Socialist Republic of Vietnam shall be
governed by this Law and other relevant laws of Vietnam.
PART NINE
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Article 509.
Force
1. This Law shall come into force
as of the 01st of July 2016.
2. The Criminal procedure code no
19/2003/QH11 shall lose effect upon this Law's entry into force.
3. The regulation on the issuance
of the defense counsel certificate according to Section 3 and Section 4,
Article 27, Law on lawyers no 65/2006/QH11 as amended and
supplemented by the Law no 20/2012/QH13, shall be rendered void.
Article 510.
Elaboration
The Government, Supreme People’s
Procuracy and Supreme People’s Court shall stipulate particulars of the
articles and sections in this Law.
This Law was passed by the 13th
National Assembly of the Socialist Republic of Vietnam in the 10th
meeting session on the 27th of November 2015.
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