THE ROLE OF THE COURT IN PROTECTING HUMAN RIGHTS IN PRESENT VIETNAM

HANOI LAW UNIVERSITY


DANG CONG CUONG


THE ROLE OF THE COURT IN PROTECTING
HUMAN RIGHTS IN PRESENT VIETNAM


Speciality: Constitutional law
Code: 62 38 10 01

SUMMARY OF LAWSTUDY DOCTORAL THESIS


HANOI - 2014
MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE



The thesis was completed at Hanoi Law University

Supervisors: 1. Prof. Dr. Thai Vinh Thang
2. Dr. To Van Hoa


Reviewer 1: Assoc. Prof. Dr. Nguyen Tat Vien

Reviewer 2: Dr. Ngo Duc Manh

Reviewer 3: Dr. Hoang Thi Ngan







The thesis is protected at the Council level thesis dot School. Meeting at
Hanoi Law University

The last… hours, day… month, 2014


Thesis can be found at the National Library
And the Library of Hanoi Law University


LIST OF RELATED PUBLISHED RESEARCHES

1 The role of the Court in protecting human rights, Legal Scientific
Journal, No. 01/2014, pages 6-11;
2 Improving the effectiveness of the protecting human rights of
Vietnamese Court, the Journal on Law and Development, No.
01/2014, pages 46-53;
3 Ensuring the independence of the Court by the Constitution, Magazine on
Law and Development, No. 5 + 6/2013, pages 65-72;
4 The role of the Court in protecting civil rights, Journal on People’s Court,
No. 22/2013, pages 7-11;
5 Completing the institution on human rights in criminal proceedings

through the judicial activities of the Court, the Procurator Journal, No.
23/2013, pages 46-51.
6 The position, role and function of the court in Thailand today, Legal
Information, No. 13/2012, pages 2-5;
7. The authority relationship between the state with political parties in the
state, Legal Information, No. 10/2012, pages 14-20;

1

INTRODUCTION

1. The urgency of the topic
Protecting human rights is one of important legal responsibility of the
State. In the tendency of international integration, protecting human rights
is not only the obligation of the state to the people but also the obligation of
a country to the international community. This legal obligation is tightly
bound by international conventions on human rights, and the direct
obligation is Article 8 relating about the international Declaration on
human rights: "Everyone has the right of being protected by competent
national courts with effective measures against the violation of their basic
rights which have been regulated by constitution or law" [34 ]. Vietnam is
one of a member of international conventions on human rights and the
government belongs to the people, by the people, for the people so
protecting human rights become an important political task and legal duty
of the state agencies.
On the basis of the Party's viewpoints on ensuring and protecting
human rights, the State makes into law and implementing law to meet the
demand of human rights beneficiary of individuals in life. In recent years,
implementing and protecting human rights in Vietnam has achieved a lot of
achievements, such as: civil rights and political rights of Vietnamese people

have always been secured, the beneficiary of these rights of people is more
and more comprehensive and complete; economic, cultural and social
rights of people have been recorded in the Constitution and the law, is
shown in the country development policies of the Government and are
implemented in reality, especially since Vietnam reforms the country
comprehensively. Rights of vulnerable groups is codified fully in the
Constitution and relevant legal documents being applicable to each specific
groups according to international legal standards that Vietnam commits,
such as. Children's rights, irrespective rights of gender, the disable’s rights,
equal rights of ethnic minorities [3].
In spite of gaining a lot of archivements, judicial activities of People’s
Courts over the years still have many limitations, such as: "Some courts
have not completely overcome the overdue civil cases in accordance with

law; the rate of solving administrative cases did not meet the requirements
and the rate of the judgment, administrative decision being canceled or
modified is still high; there are also many cases of which the court applied
the suspended sentence are not in accordance with the regulation of law and
guidelines of the Supreme People's Court; there are still unclear, infeasible
judgments of the court. The effectiveness of checking, judging in some
localities are still not high, provincial people’s courts have not appealed to
repair and overcome mistakes of the lower Court "[95, page16] ; "There are
still some officials, judges who lack of responsibility and quality, lack of
the awareness of training, do not complete tasks, violate discipline, even
violate criminal law " [96, page 3]. These limitations influence significantly
to the ability of protecting the human rights of the People’s Courts, people's
faith in justice is eroded and sometimes, the limitations of the People’s
Courts have been used to distort and defame guidelines, policies and
leadership capacity of the Party and the State. In addition, in the
international integration trend today, legal inadequacies of the Vietnamese

court have created legal barriers leading to the limitation of capacity to
protect human rights of Vietnamese Court foreigners as well as Vietnamese
citizens having relationship with foreigners.
On the basis of the Party's viewpoints on the target and the strategic
dynamic of socialist law-governed State and the state of capacity to protect
human rights of the Courts today. We found that further study rationale,
interpretation of existance, limitation influencing the capacity of protecting
human rights of the People's Court, and building science solutions being
consistent with economic, political and culture conditions of Vietnam to
overcome above shortcomings and limitations are meaningful contributing
to promoting the process of building a socialist law-governed State of the
people, by the people and for the people. That is the reason why the author
chose the topic "The role of the Court in protecting human rights in present
Vietnam" as a doctoral thesis on law.
2. Research purpose and mission
2.1. Research purpose
The thesis analyzes and demonstrates theoretical aspects showing the
role of Courts in protecting human rights. On the basis of theories being
proven, the thesis assesses the situation of protecting human rights by
judgment in Vietnam today and proposes a number of scientific solutions

aiming at improving science the role of courts in protecting human rights in
Vietnam.
2.2. Research mission
- Analysing and demonstrating basic dimensions showing the role of
Courts in protecting human rights;
- Analysing and clarifying the situation of "protecting the human
rights by Court," especially limitation and existance of this activity;
- Researching and clarifying reasons influencing negatively to the role
of Court in protecting human rights in Vietnam today;

- Building the orientation and proposing solutions on enhancing the
role of Vietnamese Court in protecting human rights.
3. Research methods
(1) The indirect research method by summarizing and analysising
documents, especially primary documents, comparing research issues
among selected objects;
(2) The direct research method by contacting and exchanging directly
with researchers, officers in charge and investigate politics and law;
(3) Using the systematic approach method, social sciences and
humanities, especially paying attention to law (mainly the approach method
of constitutional law, state theory and law, criminal procedure law, civil
procedure code);
To solve the research object and task of the topic, the author uses
specific research methods such as:
- Methods of analysising, summarizing, comparing and abstracting
used in the process of establishing the concept of protecting human rights
by Court; analysising, demonstrating and explaining characteristics,
advantages and roles of protecting human rights by the Court;
- The method of legal comparison is used in the process of proving the
popularity of "the role of courts in protecting human rights" (mainly
compare the regulation on constitutional of some countries and some
international conventions on human rights); this method is also used in
justifying scientific basis of solutions on enhancing the role of Courts in
protecting human rights.
- The method describing and analysising rules is mainly used in the
process of clarifying legal limitations on the position, role, function,
authority, order and proceedings of the Court; legal limitations ensure the

independence of judicial activities, legal systematic organization, and the
process of selecting and appointing judges;

- The method of analysising and summarizing statistic figures is used
to demonstrate limitations in the judgment of the court (mainly used in
chapter 3). In addition, to ensure the practical basis, the urgency of
scientific problems need to be solved, especially to enhance the
persuasiveness of scientific solutions, the method of analysising and
summarizing statistic figures is used in the thesis showing aspects of the
proposed solution
- The method of scientific analysis and forecast forecasts the
development trend of social demand on the position and role of courts in
protecting human rights and requirements of the socialist law-governed
State for the Court in a near future
4. Research object and scope
4.1. Research object
The thesis studies the scientific issues relating to the position and role
of the Court in protecting human rights in Vietnam nowadays. It mainly
focuses on the following basic content:
- The theoretical and legal basis about the Court's role in protecting
human rights;
- Law status and practical judgment of Vietnamese Court today;
- The current direction of judicial reform and the solution on
enhancing the role of Courts in protecting human rights in Vietnam
4.2. Research scope
- Scope of space: Theory and practice in Vietnam.
- Scope of time: From 1945 to the present
5. New contributions of the Thesis
The thesis is a comprehensive study about the role of Courts in
protecting human rights in the context of building socialist law-governed
State in Vietnam.
Firstly, the thesis has established basic theoretical aspects in order to
supplement on the argument system about the role of Courts in protecting

human rights, including:
- The concept of "protecting human rights by the Court";
- Analyzing and demonstrating basic characteristics of protecting
human rights by the Court;

- Justifying basic dimensions showing the important role of Courts in
protecting human rights;
- Clarifying basic elements ensuring the role of Courts in protecting
human rights in the context of building socialist law-governed State in
Vietnam.
Secondly, the thesis comprehensively assesses the limitations of
Vietnam Court in protecting human rights on the basis of the aspects
showing the role of the Court in this field. In addition, it points out basic
reasons of those shortcomings and existance.
Thirdly, the thesis has developed a system of scientific solutions
which are in accordance with conditions and directions of socialist law-
governed State in order to enhance the role of Courts in protecting human
rights, including the following solutions:
- Perfecting the law on recognizing the role of Courts in protecting
human rights, including: constitutional right of judging acts on violating
human rights made by the legislative power, executive power; entrusting
the right of explaining the Constitution and laws to the Court.
- Improving the independence of judgment activities by broadening
constitutional content of judiciary independence in the Constitution;
building act to ensure the judicial independence; renovating leadership
methods of the Vietnamese Communist Party for the judgment activity;
building ethnic standard code on Judge; and removing the right of
controlling the judgement activity of the People's Procuracy during the
criminal trial.
- Developing the order and procedure of scientific justice

comprehensively and suitably with international law on human rights such
as amending and supplementing the criminal law; amending and
supplementing the civil procedure law; amending and supplementing the
administrative procedure law.
- Improving the quality of judges, including: Establishing the process
of recruiting and appointing new judges; reforming the curriculum of
training bachelor on law.
- Improving the awareness of the Party, State and people about the
role of Courts in protecting human rights
- Improving the quality of civil enforcement
6. The structure of the Thesis

Introduction;
Chapter 1. General view about thesis research
Chapter 2. Theoretical basic on role of courts in protecting hman
rights
Chapter 3. Evaluating the roles off the court in protecting human
rights in Vietnam today
Chapter 4. Direction and Advanced solutions role in the court of
human rights protection in Vietnam
Conclusions and next research recommendations
Chapter 1
GENERAL VIEW ABOUT THESIS RESEARCH
1.1. The overseas research
Through some examined research works, it is confirmed that the roles
of court in human rights protection are researched in many countries in the
world. Some research works have made the remarkable contributions in
clarifying the position, role of court in protecting human rights and basic
elements to ensure this judicial position of court. These research results are
considered as the important theoretical and practical basis as scientific

foundation for the author to build theoretical basis and evaluate the roles of
court in human rights protection in Vietnam. In the scientific values
inherited by the thesis, ensuring judicial independence and legal judging
right of legislative and excutive power are concerned specially.
1.2. The research in Vietnam
The examined research works mainly mention the requirements of
jurisdiction state for the judicial power, the position and role of the court in
the control of state power and the protection of justice for the people.
Besides, they are analyzed the limitations of law, organization status and
operation reality of current court. In the articles, the authors proposed
scientific solutions to enhance the independence of courts and judges, as
well as the reform of the the system of court of the different judging levels
oriented in the Resolution No. 49/NQ-TW dated June 2
nd
, 2005 from
Ministry of Politics for judicial reform strategy up to 2020.
1.3. The evaluation of thesis research
1.3.1. The advantages and research results in which the thesis will
inherit and continue to develop

The research works (domestically) mentioned and analyzed theoretical
basis of ensuring human rights in judicial proceedings, firstly came from
the relationship between human rights and ensuring human rights in the
legal relations arising in judicial proceedings. Judging activity has
jurisdictional characteristic and is secured by coercive power of the state,
together with judging activities they are arising, restriction or termination
of some individual’s authorities. In court proceedings, the legal measures to
guarantee the rights of the participants in the proceedings, including the
basic principles of criminal procedures, civil and administrative
proceedings; the rules of procedures, the proceedings, the stages of criminal

proceedings, the prosecution activities to comply with the law and the
responsibilities of proceedings authorities. This is a very important
beginning, the theoretical basis as the premise for the author to analyze
more deeply theoretical basis about the role of court in protecting human
rights.
The research works in Vietnam and in overseas provided a
comprehensive overview of the concept of ensuring human rights,
protecting human rights and the effect of protecting human rights by
judging activities. The knowledge (mainly from the overseas research
works) is the basis for the author to explain, analyse the advantages of
protecting human rights by the court under the comparative law aspect and
constitutional law science.
One of the research results brings the importance to the author's thesis
is that the research works above have fairly complete overview of the status
of international law and the democratic jurisdiction state’s Constitution for
the position and role of national courts in the protection of human rights,
thus help the writer have scientific basis to study and compare with the
status of position, role of Vietnam Court in protecting human rights, as well
as giving the solution to improve the position and role of courts in
protecting human rights .
The research works in Vietnam also initially approach and analyze
some aspects (viewpoints) that demonstrate the role of courts in human
rights protection. This analysis continue to be evaluated and commented by
the thesis writer, from then give his own assessment of the concept,
characteristics and content of human rights protection by the court, as well
as the basic aspects expressing the court's role in protecting human rights .

The works are explained and analyzed the basic dimensions
demonstrating the position and role of the court in the relationship with
other Institutions of Justice, as well as the one between the judicial power,

the executive power and legislative power. In terms of external relations
(with legislative power and executive one) or inside ones (with other
Institutions of Justice), the Court remains the most important institution in
performing judicial power; plays an important role in deciding the capacity
and effect of judicial power in particular and the state power in general.
In addition, the research works mentioned the negative factors to the
effectiveness of human rights protection of the court in particular, judicial
system in general and also suggest some directions, solutions to improve
the capacity and effectiveness of protecting human rights of judicial system
and the court in the context of building a socialist jurisdiction state.
The assessment of the reality of organization and operation of
Vietnam court in the research works is important for the thesis to collect,
compare and clarify the limitations of the courts in human rights protection
in Vietnam.
1.3.2. The problems have not solved thoroughly and need to be
studied further
The examination of research works mentioned above demonstrates
research issues about the role of courts in protecting human rights in
Vietnam today still remaining limitations and gaps that need to be studied,
include as follows:
- The concept of human rights protection has not been studied in
Vietnam thoroughly and convincingly;
- The difference between the human rights protection and guarantee
has not been clarified;
- The concept of "protecting human rights by the court" has been used
but the internal content is not still clear so it is necessary to analyze,
demonstrate and clarify the internal content and characteristics "protecting
human rights by the court";
- The analysis and demonstration the advantages of protecting human
rights through judging activities on the basis of comparison with the

operation of the National Assembly, the Government in this field still need
to be studied to clarify;

- The position and role of the court in the system of Institutions of
Justice in protecting human rights;
- The basic factors to ensure the role of court in protecting human
rights in the context of building jurisdiction state and international
integration have not been clarified so they need to be studied further;
- The system of evaluation criteria the role of court in protecting
human rights has not been established comprehensively;
- The reality of protecting human rights in judging activities should be
studied. Therefore, the assessment of rights protection from the court in
Vietnam from 1945 to 2012 should be researched.
Overseas studies analyzed and demonstrated the practical
effectiveness of protecting human rights by judging activities of the court.
However, there are not any comprehensive research works in protecting the
human rights of the court.
1.4. Theoretical basis and research hypotheses
1.4.1. Theoretical basis
The thesis "The role of court in protecting human rights in Vietnam
today" is studied based on the theoretical basis of Marxism - Leninism and
Ho Chi Minh Ideology about the state and socialist law, the relationship
between the state and individuals, human rights, socialist democracy and
build socialist jurisdiction state. Besides, other scientific fields such as
philosophy, sociology, criminology, psychology, etc studying the human
beings, human rights have been also used to solve the problems of thesis, in
which mainly promote the theories and ideas, including:
- The theory of Marxism - Leninism and Ho Chi Minh Ideology about
the state and the law
- The viewpoints of the Party, the state about the country's

comprehensive renovation, renew of the state organization and operation in
accordance with the requirements of building socialist jurisdiction state of
the people, by the people and for the people;
- The opinions of the Party and the state on "The work of human
rights in the new situation" according to the Directive No. 44 CT/TW dated
July 20
th
, 2010 from Board of Secretary;
- The thesis also acquires selectively the human essence ideas about
the law, democracy and human rights, like the theory of "power limit" of
John Locke; decentralization theory of Montesquieu (1689-1715).

1.4.2. Research hypotheses
In socialist jurisdiction state, the court is "the last protection” of
human rights
In order to demonstrate the scientific hypothesis, the thesis directly
solves scientific problems, including:
1. Why does the court play the important and supreme role in
protecting the human rights in socialist jurisdiction state?
2. Which factors ensure the important role of the court in protecting
human rights in the current situation and development orientation up to
2020?
3. Research, analyze and clarify the limitations of the court in
protecting human rights, the reasons and solutions to these limitations in
order to ensure the court to be “the final protection” of human rights.
1.5. The research direction of the thesis
The thesis demonstrates the research hypothesis" In socialist
jurisdiction state, the court is "the final protection" of the human rights" on
the basis of analyzing, explaining and demonstrating the advantages of
judging activities in protecting human rights in relation to the basic

characteristics of legislative power and executive one. On the basis of
research orientation, the thesis solves scientific thesis according to the
approach, namely:
- The system approach: analyzing and evaluating the issues of the
state power, judicial one, the position and role of court in the judicial
system, the state machine are set in a complex of the relevant factors,
interacting together to create a unity;
- Interbranch approach: There is the intellectual combination of many
fields of social science and humanity, such as politics, philosophy and law
(criminal law, criminal proceedings one, administrative one, state and law
theoretical science, constitutional law, and human rights science).
- History approach: Historical perspective is consistently used in the
research, especially in assessing the reality of protecting human rights by
the court in Vietnam.
- Comparative law approach is used (mainly compare the
Constitution) to clarify the fundamental roles of judging activities in
protecting human rights in the democratic jurisdiction society.

Chapter 2
THEORETICAL BASIS ON ROLE OF COURTS IN
PROTECTING HUMAN RIGHTS
2.1. The concept, characteristics of protecting human rights by the
court
2.1.1. The concept of protecting human rights by the court
On the basis of the content of judging activities and protecting human
rights, “protecting human rights by the court” is an activity to punish the
violation behaviours of human rights and recovering the limited and
deprived human rights is implemented in the procedures of judicial
proceedings law aimed to ensuring the rights of individuals to be respected
and implemented in the social life.

2.1.2. The basic characteristics of protecting human rights by the
court
The internal content of the concept of human rights protection by the
court show that these activities have the following basic characteristics:
- Protecting the human rights by the court has strong coercive power
- Protecting the human rights by the court is governed by the law
comprehensively
- Protecting the human rights by the court is formed on the needs of
individuals and the state.
- Protecting the human rights by the court is carried out in public,
independence and fairness.
2.2. The concept, content about the role of the court in protecting
human rights
2.2.1. The concept about the role of the court in protecting human
rights
On the basis of the internal content of the term “role”, content and
characteristics of protecting the human rights by the court, the role of court
in protecting the human rights is the activities of the state power carried out
according to the order and procedures of judicial proceedings law aimed to
oppose all violation to preserve “human dignity, interests, needs and
abilities” of everyone in the society to be “intact” and implemented in the
social life. Besides, this also contributes to reinforce the people’s belief in
the executed justice, transparency and equality of law, the power and
prestige of state machine, humanity and democracy of the jurisdiction state

2.2.2. The content about the role of court in protecting the human
rights
2.2.2.1. The role of court in controlling the violation of the human
rights carried out by the state
2.2.2.2. The court punishes equally to the criminal of human rights

and protects the rights of the innocent
2.2.2.3. The role of court in protecting democratic freedom right and
individual safety.
2.2.2.4. The trial is the last phase to recover the individual’s rights and
benefits
2.2.2.5. The role of court in educating the awareness of respecting and
protecting the human rights of individual and society.
2.3. The basic factors ensuring the role of court in protecting
human rights in Vietnam
2.3.1. The awareness of the Party, the state and the people about
the role of court in protecting human rights
- The awareness of the Party and the state about the role of court in
protecting human rights
- The awareness of the people about the human rights and the role of
court in protecting human rights
Firstly, the awareness of the people about the human rights
Secondly, the awareness of the people about the role of court in
protecting the human rights
2.3.2. The recognition of law about the role of court in protecting
human rights
- The law recognizes the legal behavior judging right of the court
- The law recognizes the authority of the court for protecting the right
of freedom and personal safety
2.3.3. The independence of the judging activities
Stipulating the independence of court is the prerequisite to ensure the
judicial and political position of the court so that the court can oppose the
impact and dominance of the executive and legislative power in trial
process. However, the reality has shown that: The stop at the constitutional
provisions, lack of legal mechanisms has made the provisions of the
Constitution like political slogan than "legal regulation", together with

stipulating the constitutional aspects to ensure judging independence,

constitutional provisions have to be listed in detail into specific provisions
in law to restrict some provisions of Constitution does not go into real
social practices.
2.3.4. The order and procedure of judicial proceedings
Trial operation of the court must be carried out in order, proceedings
procedure according to the regulation of law so proceedings law is the legal
basis for the court to ensure good performance their functions and tasks,
especially the trial operation. Judicial proceedings law defines the judging
authority, the order and trial procedure, the rights and obligations of the
court, proceedings-conducting persons, proceedings-participating persons
in the trial, therefore proceedings law impacts directly on the quality and
efficiency of judging activities. Proceedings law defines the rights and
obligations of the parties loosely, contradictorily and overlappingly, trial
operation cannot ensure the fairness and equality. Trial operation only
ensure the fairness, impartiality and objectiveness when proceedings law
system is full, united and ensuring comprehensive human rights, as well as
the independence of the court, judges, jury to the parties involved in the
proceedings, other state agencies.
2.3.5. The organization of the court system
In the jurisdiction state, the court system is organized to perform state
power – state judging power. The need of beneficiary of human rights puts
the court in heavy duties because individual liberty depends on the fairness
of the judging activities and thus the organization of the court system has
important meanings for performing judging functions and independent trial
capabilities of the court.
The way to organize the court system will impact strongly on the
independence as well as the quality and trial efficiency of the court.
Therefore, building an independent court system based on judging levels

and demand of the regions will decrease the domination of court from the
local administrations, ensure the trial capacity and quality of the court. This
will ensure a solid base for the protection of human rights from the court
more and more consolidated and enhanced.
2.3.6. The quality of judge
The judges who have the task of implementing the judging power and
justice protection of the regime so the judges must have morality and
knowledge suitable with their jobs. They not only have to make greater

social responsibility, holding the balance, but also implement the
obligations of a true citizen. The society requires the judges to have the
necessary political, legal, ethical, cultural to perform judging power given
by the state.
2.3.7. The materials serve judging operation
This factor plays an important role influencing the trial effectiveness.
The trial is a complex state power activity with the participation of many
different parties with high sense of responsibility, so the most important
problem is to ensure the income of the people who are assigned to
implement the trial directly by the state. The guarantee of cases solved with
the fairness, impartiality and objectiveness requires the full materials
served for scientific tools and evidence verification techniques, highly
professional, skillful and experienced participants. In addition, the court is
considered as the symbol of justice so it should be guaranteed the
suitability of physical facilities and the rituals during the trial. The court
with spacious, modern, fully equipped office will impact significantly on
the social perception for the role of court as well as ensuring the solemn,
formal and and civilized trial.
2.3.8. The operation quality of sentence execution
Due to profound impact on the quality and efficiency for protecting
the human rights of the judgment and the court's decision, improving the

quality and execution efficiency is the important requirement to ensure the
role of court in protecting the human rights.
2.4. The basic criteria to evaluate the role of court in protecting
the human rights in Vietnam
2.4.1. The criteria to evaluate the awareness of the Party, the state
and the people on the role of court in protecting the human rights
- The true and comprehensive level in the conception of the Party and
the state to protect the justice and human rights of judging activities in
particular, judicial power in general.
- The degree of consistency of the policies and guidelines of the Party
and law policies of the state on protecting human rights of judging
activities in the organization and implementation of the judicial power in
particular, the state power in general.
- The level of ensuring the independence of court, judges and jury
under the judging execution of the Party.

- The awareness level of the people about the human rights and the
significance of judging activities in protecting the human rights.
- The belief of the people in the fairness and ensuring the execution of
justice of judging activites
- The extent of the people's trust in the fairness and guarantee of the
Court’s judicial activities.
2.4.2. Criteria for evaluating the law’s recognition on the roles of
the Court in protecting human rights
- The complete and comprehensive extent of the law in recognizing
the jurisdiction over behaviors of violating human rights of the Court;
- The degree of consistency of the law in ensuring that the Court
remains the central and supreme position in enforcement activities of
judicial power;
- The guarantee of law on the Court's implementation of judicial

power.
2.4.3. Criteria for evaluating the effectiveness in protecting human
rights by judicial activities
The fairness, equality and lawfulness of the Court's judgment and
decisions are the basic criteria for evaluating the roles of the Court in
protecting human rights through judicial activities. In addition, to ensure a
comprehensive assessment of the roles of the Court in this field, it is
necessary to consider the timeliness as well as the punctuation of judicial
activities as stipulated by the law.
CONCLUSION FOR CHAPTER 2
Protecting human rights is important activity in ensuring the
implementation of human rights in the social life. Protecting human rights
not only ensures human rights to be respected and safe from behaviors
damaging human rights, but also remains the decisive basis and
precondition to the implementation of the human rights of the people, so
the State and the people always put special attention on the protection
activities of human rights. The State protects human rights by various
measures which are conducted by different institutions of the State power.
Through judicial activities, the Court proves to be the most effective
institution in protecting human rights of the people among different power
institutions implementing the responsibility of protecting human rights.

Protecting human rights through judicial activities not only ensures
the fairness, publicity and democracy, but also the self-consciousness on
protecting the rights of individuals and citizens on protection process.
Fairness and equality are core values of human rights; therefore judicial
activities with its nature of jurisdictional activities which are conducted
under tight and strict procedures and are ensured to be implemented under
the strong coercive power of the State are increasingly trusted and
appreciated in protecting human rights

Chapter 3
EVALUATING THE ROLES OF THE COURT IN
PROTECTING HUMAN RIGHTS IN VIETNAM TODAY
3.1. The Party, the State and the people have not yet had right
awareness of the roles of the Court in protecting human rights.
- The Party and the State have not yet had right awareness of the roles
of the Court in protecting human rights of individuals.
- The people have not yet appreciated the roles of the Court in
protecting human rights.
3.2. The law has not yet had full awareness of the roles of the
Court in protecting human rights.
- The law has not yet recognized the Court’s jurisdiction over
behaviors of violating the legislative and executive which damaging human
rights.
- The Court has not yet had wide authority in protecting human rights
and personal safety.
3.3. The Court has not yet effectively protected human rights of
individual during judicial process.
3.3.1. Limitations of judicial activities in protecting human rights
in Vietnam nowadays
Under the provisions of the judicial procedural law, Vietnam court has
jurisdiction on criminal cases, civil cases and administrative complaints.
The reality of trial activities in recent years has shown that every trial
remains certain restrictions.
a) Limitations of criminal trial work in the protection of human rights
of the accused and the innocent
b) Limitations of civil trial work in protecting the rights and interests
of the participants in the proceedings

c) Limitations of administrative adjudicating activities in the

protection of human rights
3.3.2. Underlying causes of the limitations of judicial activities in
protecting human rights in Vietnam today
a) The independence of the Court’s trial is not guaranteed
b) The judicial proceedings and order do not create favorable
conditions for the Court to protect the human rights in the judicial process
c) Unscientific model of the Court system leading to the limitations of
judicial capacity and the waste of investment resources of the society to the
Court
d) Judge team lacking in number and limited in professional
qualifications and moral character
CONCLUSION FOR CHAPTER 3
Beside the achievements recognized by the Party, the State and the
society, Vietnam Court still have many inadequacies, especially the quality
and effectiveness of trial remains many limitations which fails to meet the
requirements of legal society. The situation of mistrial, unpunctual trial,
unclear decisions and especially unfair and wrong trial seriously affect the
trust of the people on the equality of the law and the State regime. The
Court has not become the symbol of justice in the awareness of the society.
The trust of the people on the Court depends on the institution
ensuring the independence of the Court, the degree of impartiality and
objectivity of the judge to the trial participants. All these factors are not
ensured in current Vietnamese law (as analyzed in item 3.4). Together with
the limitations of independent trial, the Court has not yet had the
jurisdiction over behaviors of violating the legislative and executive;
overlapped and conflicting judicial proceedings and order has seriously
affected the roles of the Court in protecting human rights.

Chapter 4
DIRECTION AND ADVANCED SOLUTIONS ROLE IN THE

COURT OF HUMAN RIGHTS PROTECTION IN VIETNAM


4.1. The need to enhance the role of courts in protecting human
rights in Vietnam:
In order to achieve the objectives set out in the national development
strategy in transition to socialism: “basically build the economic foundation
of socialism with a superstructure of political, ideological, cultural fit, form
the basis for our country to become a socialist country more prosperous and
happy”[21] , “building a socialist law-governed State of the people, by the
people, for the people”[21] has been identified as one of seven basic
directions of revolutionary Vietnam in this period.
Building a socialist rule requires State legislation constantly improve
and enhance the capacity law enforcement of the state apparatus. the rule of
law in the social law is hardly expressed in social life if the laws are not
enforced or implemented improperly, so law enforcement activities become
the significant activities in ensuring the success of the building of a
socialist law-governed State. The judicial Power has responsible for the law
enforcement, so the judicial authorities have an important role in ensuring
the rule of law in society. In the judicial authority, the Court is the authority
which has the "central position" perform judicial power, so the courts have
an important role in determining the quality and effectiveness of the
judicial power in particular, operation of law protecting of state power in
general.
Therefore, along with the changes in the legislative and administrative
reforms, authorities need to reform the judicial system, especially the courts
which ensure that resolve the urgent and particular needs of the people in
the dispute resolution, conflicts, and protecting justice, protection of human
rights and contributing to social stability.
4.2. The point of increasing the role of courts in protecting human

rights in Vietnam:
First, enhancing the role of the Court in protecting human rights must
be conducted on the basis of the views of the Communist Party of Vietnam
about human and promoting human factors in the construction and
protection of the socialist of Vietnam.
Second, linking to enhance the role of the Court in protecting human
rights with judicial reform strategy in Vietnam in 2020.
Third, enhancing the role of the Court in protecting human rights be
closely associated with guarantee judicial independence of the Court.

Fourth, enhancing the role of the Court in protecting human rights
should be tied to the construction and development of socialist democracy.
Fifth, enhancing the role of the Court in protecting human rights
associated with the integration process of national laws with international
laws on human rights.
4.3. Some solutions to enhance the role of the Court in protecting
human rights in Vietnam
4.3.1. Raising awareness of the Party, State and people of the role
of the Court in protecting human rights
Awareness of the Party, the State and society about the role of the
Court in protecting human rights have a strong influence to the
performance of the role of the Court. To raise awareness of the Party, the
government and people about the role of the Court in protecting human
rights should implement the following measures:
First, restricting the judicial activities required must give priority to
facilitate their political and economic development the local tasks.
Second, thoroughly understand thought to enhance the role of the
Court in protecting human rights within the party.
Third, educating people to respect and appreciate judicial activities of
the Court.

4.3.2. Improving the Law recognized the role of the Court in
protecting human rights
- Constitutional jurisdiction unconstitutional behaviors which harm to
human rights made by the legislature and executive agencies to the Court.
- Giving to the Court the right to explain the Constitution and the Law.
4.3.3. Enhancing the judicial independence of the Court
- First, changing the way of leading of the Party for adjudicating
activities.
- Second, expanding the content of constitutional independence of the
judiciary in the Constitution.
- Third, building the law to ensure judicial independence of the Court.
- Fourth, building the set of standard rules for ethical of Judges.
- Fifth, the Law need to remove the supervision and control to
adjudicating activities of the People's
Procuracies during the criminal adjudication.

4.3.4. Improving the Law of the judicial proceedings to guarantee
the right to a fair trial of the people
a) Completing the law of criminal proceedings
- Supplementing regulations of the order and procedures for collecting
evidence of the accused, the defendant and the defense counsel.
- Amending Article 179, 221, 222 of the Criminal Procedure Code to
ensure independence between adjudicating activities with the prosecutor's
activities.
- Modify the name of the chapter XX of the current Criminal
Procedure Code as "dispute procedure" and modify the content of Articles
206 to Article 216 in the direction of focusing on dispute activities of the
parties, between the defense and the accused, but not merely for
interrogation [64].
- Amending and supplementing Article 58 of the Criminal Procedure

Code in the direction of allowing defense counsel involved from the
beginning of the prosecution for the offense of violating national security;
supplementing the obligation to notify the defense time and place of
interrogation of the accused; unlimited the number of contacts between the
accused person and defense. In addition, the law need to remove
regulations on certification of defenders in Clause 4, Article 56. Because
the provisions of this legislation will lead to restrictions of the right to
defense counsel of the accused or defendant.
b) Completing the law of civil proceedings
First, the regulations relating to burden of proof in civil proceedings.
Second, the regulations of procedure relating to the application of
temporarily and emergency measures in civil proceedings.
Third, the construction of the regulations on the shortened civil
proceedings.
c) Completing law of administrative proceedings
- Firstly, the law should be regulated: the defendant is obliged to
prove the legality of administrative decisions, administrative activities
litigated. If the law of administrative proceedings does not supplement this
regulation, it is difficult to ensure equality between the parties in
administrative proceedings because the parties litigated the initiative and
unilaterally administrative decisions, perform administrative activities on
the basis the regulations of the law so they prevail against the petitioners in

determining the legality of administrative decisions, administrative
activities litigated.
- Secondly, supplementing regulations a time limit, the content of the
right to "modify or cancel administrative decisions, disciplinary decisions
on dismissal, the decision complaint of settlement about decisions for the
next competition cases, lists of voters litigated "(Clause 3, Article 51)
because in practical occurring a lot, where the defendant is abusing the

right to extend time limits for settlement of administrative cases that for the
rights of the petitioner serious damage.
4.3.5. Reforming the organizational model system-level the Court
in accordance with adjudication and does not depend on the
administrative level of the State system
According to Resolution No. 49-NQ / TW, the judicial system will be
organized on the basis of the principle of adjudication in the model: District
Court or the Primary Court (of First Instance level); Appellate court or the
intermediate Court (first instance, appellate); The Court of Appeals or the
High Court (appellate review by the Court of Appeal judgment hearing at
first instance) and the Supreme People's Court. The policy reforms are
effective measures to limit the impact of the local administrative apparatus
in adjudicating activities of the Court are limited and will tend to localize
adjudicating activities of the Court are a tendency to increase.
4.3.6. Institutional reform recruitment and appointment of Judges
- First, reforming the method of recruitment and training Bachelor of
Laws.
- Second, reforming recruitment methods and procedures to appoint
judges. One of the possible solutions to overcome the shortage of number
and quality of judges are selecting institutional reform for human resources
appointed judges. Constructing Judges Nation Selection Council and
change the sequence of training and appointment of judges under process:




2.4.7. Improving operations civil enforcement
The restrictions of enforcement activities has led to a majority of
people, especially those who were judged discontent and loss of confidence
JUDGE CANDIDATE

SELECTION
JUDGES
TRAINING
APPOINTMENT OF
PROBATIONARY
JUDGES
APPOINTME
NT OF
JUDGES

in the rule of law. There are some special cases are refused deliberately to
enforce a judgment or inconsistent with regulations of law by enforcement
agencies, bailiffs or state agencies, the Court's ruling made public
discontent, and has severely harm for the rights of judgment creditors.
Therefore, improving the quality of activities of civil enforcement is one of
the urgent issues need to be taken to ensure that the judgment of the Court
was fully reflected in reality society

CONCLUSION FOR CHAPTER 4
On the basis of the Party's views on the reform of the political system
in general, reforming the state apparatus in particular, especially the party's
views on judicial reform strategy in 2020, the thesis has developed the
basic orientation to ensure proposed solutions to enhance the role of the
Court in protecting human rights scientifically and consistent with
economic and political - society conditions of Vietnam in transition degree
to socialism. From the identification of specific views have been
thoroughly understand by building solutions and urgent requirements of the
need to improve the role of the Court in protecting human rights, scientific
proposed solutions especially retriscted solution causes a negative impact
on the efficiency of protection of human rights in the Court of social life,

such as: Improving the independence of the judicial activities, quality of
Judge; completing the judicial procedural law guarantees the right of the
accused, and the accused party to resolve the case; organizational reforming
model court system; extended jurisdiction to protect the human rights of the
Special Court about constitutional jurisdiction unconstitutional behaviors of
government agencies which is harm for human rights.
CONCLUSIONS AND NEXT RESEARCH RECOMMENDATIONS
Protecting human rights is a meaningful activity in the demand of
human rights beneficiary of the individual. Protecting human rights is both
prevention and defense in order to eliminate activities of violating human
rights, and ensure the rights of being respected and implemented in social
life. Protecting human rights is carried out by a lot of subjects in the society
by different activities. In the mechanism of protecting human rights,
protecting human rights by the Court demonstrates many advantages that
other subjects are difficult to achieve. Through the judgment, the Court not
only punishes the person violating the human rights; restoring the violated