Địa vị pháp lý của luật sư trong giai đoạn điều tra vụ án hình sự theo pháp luật tố tụng hình sự việt nam từ thực tiễn thành phố hồ chí minh tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN THANH LONG

LEGAL STATUS OF LAWERS IN THE PERIOD OF CRIMINAL CASE
INVESTIGATION ACCORDING TO VIETNAMESE CRIMINAL
PROCEDURE CODE FROM HO CHI MINH CITY PRACTICE

Major: Criminal Code and Criminal Procedure Code
Major code: 9.38.01.04

SUMMARY OF THE PHD THESIS IN LAWS

Hanoi - 2019


The Thesis is completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
VIETNAM ACADEMY OF SOCIAL SCIENCES

Scienctific: Assoc.Prof.PhD. Nguyen Van Huyen

Reviewer 1: Prof. PhD. Bui Minh Thanh

Reviewer 2: Assoc. Prof. PhD. Tran Van Do

Reviewer 3: PhD. Pham Manh Hung

The Thesis defence before the Academy-level Dissertation Committee will be
held at: Graduate Academy of Social Sciences, No 477 Nguyen Trai, Thanh

Xuan, Hanoi
At ……., ……… June,2019

Thesis might found in:

- National Library of Vietnam
- Graduate Academy of Social Sciences Library


INTRODUCTION
1. The necessity of the thesis
In order to ensure human rights, citizenship rights and defense rights
of the accused, our country has signed most of the international conventions on
human rights, including the right to defend the accused under the Criminal
Procedure Code. Along with that, Resolution 08 - NQ/TW dated January 2,
2002 [4], Resolution 48-NQ/TW dated May 24, 2005 [5], Resolution 49NQ/TW dated June 02, 2005 [6] guided the strategy to build and perfect the
Criminal Procedure Code system in terms of judicial reforms, attaching
importance to ensuring the defense of the accused, protecting the legitimate
rights and interests of the victim, litigant. The 2013 Constitution recognizes
new regulations to ensure human rights, civil rights and defense rights of the
accused. The policy of assuring the right to defend the accused, enhancing the
position, the role of defense counsel, and the mechanism of assuring defenders'
rights is the foundation for ensuring democratization of criminal legal
proceedings, creating an independent and equal position among actors with
incriminating functions. This means that where there is accusation, the defense
right shall be respected; ensure that the Court is truly the embodiment of justice,
objectivity and impartiality in the trial process so that people can really live in the
“protection of citizens” of law [34]. On the other hand, the Constitution has strict
and specific regulations to protect the legitimate rights and interests of the accused,
and the principles applied to protect people from the “whirlpool” of criminal legal

proceedings that agencies and people have jurisdiction to conduct legal proceedings
when prosecuting, investigating, suing and adjudicating. One of these rights is: “A
person who is arrested, detained, detained, prosecuted, investigated, sued,
adjucated, have the right to defend themselves, to seek defense by a lawyer or other
person” [84, p 24]. The right to defense is a necessary legal basis for the defender
to defend and protect legitimate rights and interests for the accused. Ensuring the
accused's defense rights is not only an important principle of the Criminal
Procedure Code but also a regulation recorded in the 5 Constitutional Versions
from the Constitution 1946, 1959, 1980, 1992 to 2013. One of the actors that can
exercise the right to defend the accused, protect legitimate rights and interests for
the victims, the litigants according to the Criminal Procedure Code, is the Lawyer.
The investigation period is the decisive stage in the process of
conducting legal legal proceedings, because the person temporarily kept in
custody, who is called the accused, is only the subject of “suspicion of criminal
offense”, if not being careful, the gap between not guilty and committing a
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crime or a mistake and a crime can be easily erased [137]. The outstanding
feature in the investigation period is that i) the competent proceeding authority
(Investigator) is the person to take the lead; they tend to “condemn, accuse”; ii)
those who are suspected to commit crimes, are weak and passive, often have
psychological confusion, fluctuation, instability in the testimony (easy to have
different testimonies); iii) A lawyer at this stage is the “legal doctor” who
approaches the accused as the defender for the accused, the person protects
legal rights and interests for the victim, the litigant.
This situation requires that the participation of Lawyers during the
criminal case investigation period is very important, in order to seek evidence
of offense, details to extenuate criminal liability for the accused; protecting
legitimate rights and interests for the victim, the litigants in making penalty

proposals, collecting documents and evidence to claim damages including
material, mental and financial losses or violated asset...; At the same time, it
contributes to limit the violation of legal proceedings in investigation activities
such as harassment, corporal punishment, clarifying the objective truths of the
case, helping the investigation to be quick and accurate and not unjust the
innocent, not let the criminals left behind. However, through the study of the
provisions of the Criminal Procedure Code and practice of procedural activities,
the Criminal Procedure Code regulations on the legal status of lawyers in the
period of criminal case investigation are still of formality and lack of real
mechanism to ensure the participation in the legal proceedings of Lawyers. In
many cases, Lawyers have been prevented, made difficult, delayed in issuing
written notices of defense counsels, not allowed to meet the accused, not
participating in interrogation and in other investigation activities, which leads to
the consequences when Lawyers seem to be excluded from legal
proceedingsduring the criminal case investigation period, failing to protect the
rights and legitimate interests of the accused, the victim and litigant. Many
competent proceeding authorities, people are not aware of the role of Lawyers,
respecting Lawyers, disregarding the provisions of the Criminal Procedure
Code, leading to errors, criminal omission and failure to clarify the truth of the
criminal case.
The correct identification of the legal status of lawyers in the Criminal
Law contributes an important part to the efficiency of the Criminal Law of
judicial reforms. When the lawyer participates in the legal proceedings, the
Criminal Law must “legalize” the rights and obligations; These regulations
constitute the legal status of Lawyers in the legal proceedings. On the other
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hand, Lawyers' participation in the early criminal case investigation period “...
the role of Lawyers in unfair and wrong cases is at the time when the unjust

person has to “ abide by the sentence”, means in the initial stages of the legal
proceedings, Lawyers have not really been recognized and respected in
proportion to the role of “soldiers committed to justice” as well as in the
prevention and petition against errors,”[167] will contribute to with agencies
and people with authority to conduct legal proceedings to find out the objective
facts of criminal cases, contributing to overcoming wrongfull and false cases.
Being the largest city in Vietnam and also an economic engine, with
favorable natural conditions, Ho Chi Minh City is now a place to attract
workers across the country, in which labor operating in the legal field in general
and Lawyers in particular accounts for the largest number in the country. As of
November 2016, Ho Chi Minh City had a total of 8,066 Lawyers, including
5,527 Official Lawyers and 2,539 Lawyer interns. The city has the largest
population of 8,611,100 as of 2017 [132, p 24] so there is a scale of 1
Lawyer/1,558 people. The increase in criminals, in which number of annually
settled criminal cases in Ho Chi Minh City always accounts for a high
proportion compared to other localities [104] in recent years, cause more and
more people to participate in legal proceedingson. So there is a bigger and
bigger demand for Lawyers in Ho Chi Minh City.
Over the past time, there are many works related to the study of the
legal status of Lawyers in the stages of legal proceedings, but there has not been
any separate research on the professional actor to exercise the right to defend as
lawyers; separate research during the criminal case investigation phase in Ho
Chi Minh City. The thesis makes a comprehensive research on theoretical
issues; current legal status; practical implementation of the legal status of
lawyers during the criminal case investigation in accordance with Vietnam's
Criminal Procedure Code in order to propose solutions to improve the legal
status of lawyers during the investigation period of criminal cases according to
Vietnam's Criminal Procedure Code. Currently, it is meaningful not only in
terms of theory and practice but also contributes to perfecting Vietnam's
criminal laws; changing awareness of competent authorities and authorities

about the role and position of lawyers.
This is the reason that the PhD student chooses the topic “Legal status of
Lawyers in the period of criminal case investigation under Vietnam's criminal
procedure code from Ho Chi Minh City practice” to conduct research.
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2. Research Purposes and tasks of the thesis
2.1. Research Purposes
2.2. Research Tasks
3. Objects and Scope of Research
3.1. Objects of research
Research objects of the thesis are theoretical issues, legal provisions,
practical implementation of legal provisions on the legal status of lawyers in the
period of criminal case investigation in Ho Chi Minh City.
3.2. Scope of research
- The thesis studies the legal status of Lawyers during the criminal
case investigation in accordance with Vietnam's criminal law from the practice
of Ho Chi Minh City in terms of rights attached to the defender's obligations in
the period of investigation of criminal case under the Criminal Law of Vietnam,
focusing on the only subject group of Lawyer because Lawyers are closely and
professionally engaged in professional activities, achieving the highest
efficiency compared to other defense counsels.
- Scope of space: Studying the legal status of Lawyers in the period of
investigation of criminal cases (except cases of infringing against the
environment and national security) under the investigation authority of the
Investigation Police Department in 24 Districts, Police Investigation
Department of Ho Chi Minh City; Investigation Police Department under
Ministry of Public Security C01, C03; Investigation agency of the Supreme
People's Procuracy; Criminal Investigation Agency under the Ministry of

Defense from Ho Chi Minh City practice.
- Scope of time: The thesis studies the practice of implementing the
provisions of the criminal law on legal status of lawyers in Ho Chi Minh City
for 10 years from 2009 to 2018.
4. Methodology and research method
4.1. Methodology
The thesis conducts research on the basis of dialectical materialism
methodology of Marxist-Leninist philosophy and Ho Chi Minh's thought on the State
and the law.
4.2. Research method
To solve the tasks of the thesis, the author uses the following
specific research methods:
- Methods of sociological investigation
- Criminal statistics method
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- Methods of summarizing experience
- Method of talks with experts
- Typical project selection method
- Methods of synthesis, analysis and comparison
- Historical method
5. New points of the thesis
- Clarifying the theoretical basis of legal status of lawyers, such as
building a legal position concept of a lawyer, pointing out characteristics and
meaning, content of legal status of lawyers in the investigation period criminal
case.
- Clarifying the shortcomings in the provisions of the criminal
procedure code and the Law on Lawyers affecting the legal status of lawyers.
- Clarifying the practice of implementing the provisions of criminal

procedure code on the legal status of lawyers in the period of criminal case
investigation; the causes of inadequacies and limitations in implementing the
provisions of the procedural laws on the legal status of lawyers in the period of
criminal cases investigation from the practice of Ho Chi Minh City.
- Proposing solutions to implement the Criminal Procedure in the
direction of extending to Lawyers many rights and opportunities to participate
in the legal proceedings in equality with the competent person to conduct the
legal proceedings. This is very important for ensuring the implementation,
improving the quality of defense of lawyers in general and protecting the
legitimate rights and interests of the accused in particular, especially the author
wishes to recommend to the competent authority a legal document guiding the
provisions of Clause 1, Article 79 of the Criminal Procedure Code of 2015.
6. Scientific and practical significance of the thesis
Research results of the thesis can supplement the theoretical basis of
the legal status of defense counsels and the lawyers in the investigation period
criminal cases of in particular.
With the presentation and analysis of the theoretical basis of the legal
status of the Lawyer; the mechanism to ensure the legal status of the lawyer
during the period of criminal case investigation under the Vietnamese Criminal
Procedure, the thesis will be a meaningful source of information for competent
state agencies and law makers to consult, study, review and finalize the 2015
Criminal Procedure Code and the current Law on Lawyers; propose solutions
including issuing documents under the law on criminal procedure code. The
thesis is also a research document, useful reference for scientists, lawmakers,
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lecturers, Lawyers, and other advocates; or can be used as teaching materials at
judicial training institutions.
7. Structure of the thesis

The main content structure of the thesis includes:
Chapter 1. Overview of the research situation.
Chapter 2. Theoretical issues and provisions of criminal procedure
code on the legal status of lawyers in the period of criminal case investigation.
Chapter 3. Status of legal status of lawyers in the period of criminal
case investigation in Ho Chi Minh City.
Chapter 4. Requirements and solutions to ensure compliance with the
provisions of law and improve the legal status of Lawyers in the period of
criminal case investigation.
Chapter 1
OVERVIEW OF THE RESEARCH SITUATION
1.1. Foreign research situation
1.1.1. Overview of the foreign study of the issues related to the thesis.
1.1.1.1. Research works on defense counsels and rights to have defense
councils of defendants in criminal proceedings.
- The book”Brownlie’s document on the human rights” [183], by Ian
Brownlie – a British professor wrote in 2010.
- The book “Toward an international criminal procedure” [188], by the
author Christoph Saffeling in 2003,
- The article “Evolution of U. S.Criminal Law” [182], by the U.S.
Criminal authors James B.Jacobs, Warren.E.Burger (the United States) Professor of New York University, Director of the Center for Crime and Justice
Research at the Faculty of Law, New York University, published in the U.S.
Department of State's e-Journal No. 1, volume 6, July 2001.
1.1.1.2. The research works on the legal status of Lawyers in the investigation
period; about the legal system of countries; about procedural models
- Concerning the issue of defense activities of Lawyers in the
investigation period, the book “Law and legal system of the Russian
Federation” [178] by Professor William Burnham, first published in 1999, 5th
edition in 2012.
- “Basic principles on the role of lawyers” [149], adopted at the 8th

United Nations Congress on Crime Prevention and Crime Treatment, held in
Havana (Cuba), from August 27 to September 7, 1990.
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- International Conference on Criminal Procedure Code in 2003 and
the rights of defense lawyers in 2012, author Tian Wen Chang - a Chinese
expert published the article “Thinking and evaluating the overall draft of the
revised Chinese Criminal Procedure Code.” [184].
- The book “Outline of the U.S. Legal system, Congressional
Quarterly, Inc, 2001” [185], by the author Michael Jay Friedman (the United
States)
- “Body of Principles for the protection of All Persons under Any
Form of Detention or Imprisonment” [150].
- The book “Research on the organization and operation of the judicial
system of China, Indonesia, Japan, Korea and Russia” [151] carried out by the
United Nations in 2010
- The book “Comparative Criminal Justice Systems”, [187] 6th
edition in 2012 by Philip L.Reichel (the United States), Professor in Kansas
University, Colorado, New Hampshire…
1.2. Overview of the domestic study situation
1.2.1. Group of research works on procedural models and criminal procedure
principles; Criminal procedure functions related to the legal status of defense
counsels and lawyers; on the rights and legal status of actors in the Criminal
procedure; on the rights and legal status of defense counsels, lawyers in
general and in the period of investigation of criminal cases in particular.
The author divided into 3 groups of research projects as follows:
Group of research works on procedural models and criminal procedure
principles; Criminal procedure functions related to the legal status of defense
counsels and lawyers.

+ The doctoral law thesis “Vietnam Criminal Procedure Model and the
issue of litigation proceedings” [100] by Dr. Nguyen Thi Thuy in 2014.
+ The doctoral law thesis by author Nguyen Manh Hung in 2012
“Functions in Vietnamese criminal procedures - Theoretical and practical
issues” [46].
+ The doctoral thesis “Principles of litigation in Vietnamese criminal
procedure - Theoretical and practical issues” [36] by author Nguyen Van Hien
in 2010.
+ For the outline level, there is a textbook called “Criminal Procedure
code” [107] of Hanoi Law University in 2006; Textbook “Vietnam Criminal
Procedure code” [108] of Hanoi Law University in 2011; textbook “Lawyer
and Lawyer profession” [109] of the Training School of Justice titles in 2001;
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Textbook “Skills to solve criminal cases” [43] of the Judicial Academy (Labor
Publishing House) in 2014; Textbook “Law practice skills” volume IV [42] of
the Judicial Academy in 2001.
+ Articles for reference in litigation activities in criminal procedure
such as: “Discussion on litigation in criminal proceedings” by Dr. Hoang Thi
Quynh Chi [126].
+ Published at the International Conference on Criminal Procedure
Code in 2003 and the rights of Lawyers, in 2012, PhD. Le Huu The and Master
Nguyen Thi Thuy, wrote the article “Completing the Vietnam Criminal
Procedure Model in accordance with the requirements of judicial reform” [96].
The Vietnam Bar Federation has also organized scientific conferences
to study the legal status of lawyers such as the scientific conference “Judicial
reform and wrongful prevention in litigation activities” [55]. held in Hanoi on
November 2 & 3, 2009; Hanoi Law University and UNDP also held an
international conference “Report on defense rights in criminal procedure code

and practice in Vietnam” [130] in May 2010
+ Project “New contents in the Criminal Procedure Code in 2015” by
Assoc. Prof. Dr. Nguyen Hoa Binh (editor) - National Political Publishing
House - Truth Publishing House, Hanoi, 2016 [3].
+ Project “Scientific commentary on Criminal Procedure Code in
2015” by Assoc. Prof. Dr. Nguyen Van Huyen - Dr. Le Lan Chi (Editor) Labor Publishing House, 2016 [47].
+ The project “Scientific Review of 2015 Criminal Procedure Code” by
Prof. Dr. Nguyen Ngoc Anh - LS. Dr. Phan Trung Hoai (Editor-in-Chief) National Political Publishing House - Truth, 2018 [1].
- A group of research works on the rights and legal status of subjects in
criminal proceedings.
+ In 2014, the doctoral thesis “The defense rights of defendants who are
juniors in criminal proceedings” [106], by the author Nguyen Huu The Trach
+ Doctoral thesis in law “Implementing the defense right of defendants
in criminal proceedings” [95] by Hoang Thi Minh Son, Hanoi Law University,
2003.
+ Document “Studying the defense rights in criminal law and practice
in Vietnam” [76] by the researchers's group Nguyen Hung Quang et al 2012
- Group of research works on the rights and legal status of defense
counsels, lawyers in general and in the period of investigation of criminal cases
in particular.
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+ Theses related to the theoretical basis, master degree thesis of Hoang
Chi Hieu, in 2016 with the topic “Legal status of defense counsel in the period
of criminal case investigation” [37]; Master degree thesis of Chu Dang Chung,
in 2014 with the topic “Defense lawyers in the period of criminal case
investigation” [24].
+ Doctoral thesis “Defense activities of Lawyers during the first
instance trial of criminal cases” [116] by the author Ngo Thi Ngoc Van, 2016.

+ Doctoral thesis “Implementing defense rights in Vietnam's criminal
proceedings today” [73] in 2016, by the author Dang Tran Thanh Ngoc
+ In 2011, the doctoral thesis “Ensuring the right to defense of the
accused - Comparison between the Criminal Procedure Codes of Vietnam,
Germany, America” [92] by the author Luong Thi My Quynh
+ In 2003, the doctoral thesis “The theoretical basis of completing law
on lawyers in Vietnam today” [38, p. 155] by the author Phan Trung Hoai
+ The doctoral thesis in law by the author Do Van Duong in 2000
“Collecting, evaluating and using evidence in the investigation of criminal
cases in Vietnam today” [33]
+ The book “Mechanism to ensure and protect human rights” [122] Monographs of the Human Rights Education Forum Project - Prof. Dr. Vo
Khanh Vinh, Editor-in-Chief, Social Sciences Publishing House, Hanoi 2011.
Besides, human rights studies such as monograph “Human rights - Multidisciplinary and interdisciplinary approach to Law” [121] by Prof. Dr. Vo
Khanh Vinh editor, Social Science Publishing House, Hanoi 2010 (2 volumes).
+ The book “The role of Lawyers in criminal proceedings” [110] of Dr.
Nguyen Van Tuan, National University Publishing House, Hanoi 2001.
+ The Works “The position of the lawyer defending in trial” [35] of the
author Pham Hong Hai in 1999
+ Contemporary commentary articles about the wrongful and false
cases, such as “Prosecutor, litigant accused to refuse Lawyer by Lawyer” [136]
dated December 08, 2016 by Nguyen Duc;“Preventing Lawyers from copying
documents is illegal” [161] on December 4, 2016 by author Dinh van Que;
Tuoi Tre newspaper published the article: “Lawyers can copy the case
documents” [November 18, 2016] by the author Tuyet Mai

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- A project on the reference book “New points of defense regimen in
2015 Criminal Procedure Code” of Dr. Lawyer Phan Trung Hoai - National

Political Publishing House - Truth, Hanoi, 2016 [41] ...
1.2.2. Reports at conferences, scientific research workshops, surveys on
defense rights of lawyers in the period of criminal case investigation.
+ Survey conducted by a group of experts in Vietnam such as:
“Report on the defense rights in the Criminal Procedure Code and Practice in
Vietnam”
+ At the International Conference on Criminal Procedure Code in
2003 and the right of defense lawyer, in 2012, Lawyer Nguyen Huy Thiep,
published the article “Completing the provisions of the Criminal Procedure
Code 2003 on the defense of lawyers' rights” [97].
+ Workshop on evaluating 1 year of implementing Circular
70/2011/TT-BCA and Regulation on coordination between Vietnam Bar
Federation and the Supreme People's Procuracy, JPP [140]; Report at the
Conference on summarizing the implementation of 10 years of implementing
the 2003 Criminal Procedure Code of the Supreme People's Procuracy in 2015
[128];
1.3. Evaluating the research situation related to the thesis and the issues
that the thesis continues to study and solve
1.3.1. Issues related to the topic have been resolved
- Foreign studies related to the thesis
IT can be affirmed that, up to now, most of the published research
projects abroad only analyze and comment on the provisions of the law on the
defense of the accused; litigation position of Lawyers during the investigation
period; practice rights, advantages and disadvantages when practicing practice
of Lawyers.
However, the contents of the survey evaluated “Report on defense in
the criminal procedure law and practice in Vietnam” [130] implemented by the
United Nations Development Program (UNDP) shall be used as references as it
refers to the actual status of the legal status of lawyers during the criminal case
investigation period for subsequent surveys for comparison.

- Domestic studies related to the thesis.
Through an overview of the research situation on the legal status of
lawyers during the investigation period of criminal cases according to
Vietnam's Criminal Procedure Code, it shows that the research works, articles
have solved the problems:
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Firstly, the research works have mentioned and solved the content of
legal status of the lawyer but only at a preliminary level; being able to solve the
theoretical basis of the legal status of the lawyer; It is necessary to ensure that
the legal status of lawyers in the investigation period under Circular
70/2011/TT-BCA [11] is necessary but it is recommended to cancel because it
is no longer appropriate for the Criminal Procedure Code of 2015.
Secondly, in the published studies, the authors focused mainly on
solutions to complete the Criminal Procedure Code in 2003 [80].
Thirdly, a number of research works and articles mentioned very
briefly about the legal status of Lawyers, with little research, specific analyses
of related aspects or just going into a research of some specific issues without
having been invested specifically in the legal status of lawyers during the
criminal case investigation period, failing to provide an overview of
synchronous solutions and recommendations for the amendment and
supplement the Criminal Procedure Code of 2003.
1.3.2. The contents of the thesis that continue to study and solve
- Related overseas studies need to be researched and addressed.
Through studying foreign projects, especially on the Due Process of Law and
the principle of fair trial (Right to fair trial) [93; p 25].
- Related domestic studies need to be researched and resolved.
There are 6 contents to be studied and solved.
1.4. Theoretical basis and research methods

1.4.1. Theoretical basis
1.4.1.1 Research questions
1.4.1.2 Research theory.
1.4.1.3 Research hypothesis.
Summary of Chapter 1
Although there have been many scientific works published and
mentioned in legal status both at home and abroad, due to limited scope of
research as well as research level, issues related to the legal position of lawyers
during the criminal case investigation period is often not presented separately
but is only mentioned in some aspects when writing about advocates in general.
In some separate studies on the legal status of lawyers during the criminal case
investigation period, the theoretical basis has not been addressed in a
comprehensive and systematic way. Therefore, as a comprehensive study of the
legal status of lawyers during the criminal case investigation period, the thesis
continues to study at a deeper level to become a full-scale systematic research
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project with new features in the practice of Lawyers in Vietnam in general and
in Ho Chi Minh City in particular.
Chapter 2
THEORETICAL ISSUES AND PROVISIONS OF THE CRIMINAL
PROCEDURE CODE ON LEGAL STATUS OF THE LAWYERS IN
THE PERIOD OF CRIMINAL CASE INVESTIGATION
2.1. Theoretical issues about the legal status of Lawyers in the period of
criminal case investigation
2.1.1. The concept of legal status of Lawyers in the period of criminal case
investigation
2.1.1.1. Concept of Lawyers
Firstly, Lawyer is a person with extensive professional knowledge and

legal knowledge, trained in Law practice skills, professional ethics and joined
the Lawyers' organization.
Secondly, Lawyer is a professional advocate and works in the Bar
Association.
Thirdly, the laws of the countries in the world often do not give the
concept of lawyers but only regulations on qualifications to become lawyers.
Common standards for recognition of lawyers are: i) Being citizens of the host
country; ii) Having a bachelor's degree in law; iii) Having good moral qualities
[162].
On the basis of the above analysis it can give the concept of Lawyers as
follows: Lawyers are those who meet the criteria and conditions for practicing
according to regulations related to the field of law, implementation and
provision of legal services according to customer requirements.
2.1.1.2. Scope of practice of Lawyers
Lawyers operate in the proceedings mainly on 3 areas:
2.1.1.3. Lawyer in the period of criminal case investigation
- Criminal case.
- Concept of criminal investigation period.
2.1.2. Characteristics of legal status of Lawyers in the period of criminal case
investigation
There are 4 characteristics:
2.1.3. The purpose and meaning of the legal status of lawyers in the
investigation of criminal cases

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2.1.3.1. The purpose of regulating the legal status of Lawyers in the period of
criminal case investigation.
The provisions of the law on the legal status of Lawyers are the legal

basis for Lawyers to perform their duties, helping Lawyers to have conditions
to implement protection measures for customers. The basis of the provisions of
the Criminal Procedure Code is the foundation for Lawyers to implement their
natural functions and noble professional qualities. Lawyers express their
arguments on the basis of analysis and petition, request the Investigation
Agency to accept evidence and documents to remove crime allegations or
protect legitimate rights and interests for customers..
2.1.3.2. The meaning of regulating the legal status of Lawyers in the period of
criminal case investigation.
Political meaning:
The defense right of the accused is a constitutional principle
expressed in paragraph 4 of Article 31 of the 2013 Constitution [84; p 24]
“Persons arrested, detained, temporarily detained, prosecuted, investigated,
prosecuted or tried have the right to defend themselves, to seek defense by
other lawyers or other persons”, prescribing the legal status of the Lawyer not
only demonstrates the democratic and objective nature of the Socialist State in
litigation activities, but also ensures the exercise of citizens' freedom and
democracy.
Social meaning:
The law stipulates that the expansion of the Lawyers' right to
participate in the investigation phase of criminal cases to ensure that lawyers
have the necessary means to protect the legitimate rights and interests of the
accused is also a guarantee of a balanced Social - State status, reinforcing
democratic legislation.
Legal meaning:
The legal status of lawyers in the investigation period of criminal
cases is to ensure the implementation of the basic principles of Vietnamese
Criminal Procedures. It is possible to say that the participation of lawyers is
very essential.
2.2. Legal provisions on legal status of Lawyers in the period of criminal

case investigation
2.2.1. The provisions on rights and obligations of Lawyers in the period of
criminal case investigation

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2.2.1.1. Time to join criminal procedure of Lawyers in the period of criminal
case investigation.
2.2.1.2. Regulating procedures for registration of defense counsels; granting
and sending written notices of defense counsels for defense applicants
This is the biggest barrier, limiting the participation of Lawyers,
seriously affecting the legitimate rights and interests of the person placed in
the proceedings. Obstacles and obstacles in granting procedures, refusing to
issue a certificate of defense are said to be “bottlenecks” that limit the right to
defend and ask others to defend the accused's rights to obey the right to
practice of lawyers.
2.2.1.3. Provisions on responsibility to notify lawyers of competent agencies
conducting proceedings in the criminal case investigation period
The new regulation aims to ensure the right to be present when the
investigation agency takes testimony, asks the arrested person, the detainee, the
accused. Notification to Lawyers is considered to be the responsibility of the
agency competent to conduct the proceedings.
2.1.4. Regulations on the right to ask when taking testimonies and
interrogations; right to be present in other proceedings.
The right to ask the accused should be distinguished in two cases as
provided in points a and b of article 73 of the Criminal Procedure Code of 2015.
2.2.1.5. Provisions on the right to see the minutes of the legal proceedings, the
proceeding decisions related to the person they defend; Claiming decisions and
procedural acts of agencies and persons competent to conduct legal

proceedings.
2.2.1.6. Provisions on the right to request to change persons with authority to
conduct legal proceedings, to participate in legal proceedings, to propose
changes, to cancel preventive measures.
This group of rights stipulated in point e, clause 1, Article 73 of the
Criminal Procedure Code of 2015, contributes to ensuring the principle of
determining the objective truth of the case.
2.2.1.7. Regulations on the right to collect evidence and give evidence;
examination and evaluation to present opinions on evidence and use of
evidence; request the authorized person to conduct the examination and
evaluation of the procedure; request the competent authority to conduct
proceedings to collect evidence; additional assessment, re-assessment and
valuation of assets.

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This group of rights has meaning in professional activities of
Lawyers, as stipulated in points h, i and k, Clause 1, Article 73 of the Criminal
Procedure Code of 2015, this is considered an important group of rights which
is key to expressing equal status for Lawyers in the process of participating in
legal proceedings.
2.2.1.8. Regulations on obligations to legally help the accused in order to
protect their legitimate rights and interests; on the obligations of the lawyer
during the criminal case investigation period.
- When a lawyer participates in a legal proceeding as an advocate for
the accused, the person defending the legal rights and interests of the victim, the
litigant under the provisions of the criminal procedure code, the lawyer is
responsible for applying every measure legal measures required to defend or
protect clients. The law stipulates that lawyers exercise these rights to protect

their rights and legitimate interests.
2.2.2. The regulations to ensure the implementation of the legal status of
Lawyers
2.2.2.1. Principles to ensure the defense of the accused, protection of legitimate
rights and interests of the victims, the litigants.
The right to self-defense, to solicit a lawyer or to ask others to defend
the accused is the first recorded Constitutional right in Article 67 of the 1946
Constitution to date.
2.2.2.2. Principles to determine the truth of the case.
The principle of determining the truth of the case is provided in Article
15 of the Criminal Procedure Code in 2015, this is an important principle of the
Criminal Procedure to ensure the fair handling, not missing criminals, and not
to make wrongful cases over innocent people.
2.2.2.3. The principle of innocent speculation.
The Declaration of Human Rights in 1948, the United Nations
International Convention on Civil and Political Rights, states: “Any accused
person has the right to speculate that he will not commit a crime until his fault
is determined in a legal order set by the Court's public trial with the assurance
of his defense.”
2.2.2.4. The principle of litigation in trial is guaranteed.
The first litigation proceeding model that appeared in the ancient Greek
nation was then widely spread in Rome and throughout Europe under the name
“continuous inquiry procedure.” Over the centuries, this model has been
increasingly improved, but the nature of litigation remains an equality between
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the parties in presenting, debating, clarifying significant issues to resolve the
case.
Summary of Chapter 2

In order to ensure the legal rights and interests of the accused, it is
necessary for the lawyers to be involved in the legal proceedings at the time of
the criminal case investigation. The 2015 Criminal Procedure Code sets out
rules about the obligations of the Lawyers that they must implement and
comply with to ensure objectivity and accuracy in the investigation. However,
according to the author, most of the regulations on rights and obligations of
Lawyers have not been specifically instructed, in addition to the Circular No.
70/2011/TT-BCA of the Ministry of Public Security dated October 10, 2011
stipulating detailed implementation of the 2003 Criminal Procedure Code's
provisions relates to the guarantee of defense rights during the criminal case
investigation period, which leads to inadequacies in applying the Criminal
Procedure in investigation activities. Continuing to clarify this issue, the author
will continue to analyze issues related to the implementation of the criminal
procedure provisions on the legal status of lawyers during the criminal case
investigation in Chapter 3.
Chapter 3
LEGAL STATUS OF THE LAWYERS IN THE PERIOD OF CRIMINAL
CASE INVESTIGATION IN HO CHI MINH CITY
3.1. Current situation of factors affecting the legal status of lawyers in the
period of criminal case investigation in Ho Chi Minh City
3.1.1. Characteristics of the socio-economic situation in Ho Chi Minh City.
3.1.1.1. Overview of Ho Chi Minh City
- Geographic - population characteristics:
Ho Chi Minh City is a special urban area with a central location in the South, a
key economic region in the South, with an important political position of the
country. The area is 2,095.6 km2, the population as of December 2017 is
8,611,100 people [132]. Administrative units are divided into 24 districts.
- Socio-economic situation of Ho Chi Minh City:Ho Chi Minh City is one of
the most dynamic economic areas, with continuous high growth rate, playing an
important role in the Vietnamese economy. Though only accounting for 0.6%

of the area and 8.56% of the country's population, Ho Chi Minh City
contributed 21.3% of the country's GDP; 29.38% of the total state budget
revenue [155].
3.1.1.2. Organizational characteristics of Ho Chi Minh City Bar Association.
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Ho Chi Minh City Bar Association was established on October 24, 1989 on the
basis of the Law on Organization of Laws on December 18, 1987, located at
104 Nguyen Dinh Chieu, Da Kao Ward, District 1, Ho Chi Minh City.
3.1.2. Characteristics in the number of criminal cases, the number of
defendants, the accused in Ho Chi Minh City.
- The economic development of the most dynamic city in the
country has affected the social situation of 24 districts in general, districts and
suburban districts in particular, due to the rapid increase of migrant workers in
the district. Especially in Binh Tan where there is the highest proportion of
immigrants in Ho Chi Minh City and higher than the number of permanent
residents [152], many instabilities and difficulties in State management are
created, especially when the city is urgently applying specific mechanisms
and policies [144]
- Due to the fact that the city has active economic activities, in local
people's awareness, thoughts and living conditions they have a habit of asking
lawyers when their relatives are engaged in the legal cycle, which leads to the
more and more increasing need of the Lawyers.
3.1.3. Overview of crime situation in Ho Chi Minh City.
- Crime situation in Ho Chi Minh City; the handling and settlement
of criminal cases from 2009 to 2018 of the two-level People's Court of Ho Chi
Minh City.
- Report on work situation in 10 years from 2009 to 2018, Ho Chi
Minh City Police recorded 114,809 criminal cases [74]. Crime in the city is

becoming more and more sophisticated, sly and organized, making it difficult
for police forces in the struggle and prevention work. [145].
3.2. Practical implementation of criminal procedure code provisions on
the legal status of lawyers in the period of criminal case investigation in
Ho Chi Minh City
3.2.1. Advantages
3.2.1.1. Advantages in implementing the provisions of criminal procedure
code on the legal status of lawyers in the period of investigation of criminal
cases throughout the country.
The position of Lawyers is increasingly improved in the process
of coordinating with agencies and conducting proceedings, thereby we can see
the fighting results of the Lawyers' team in judicial reforms, enhancing its
legal status, ensuring the defense and protection of customers' legitimate
rights and interests in an effective way.
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3.2.1.2. The yielded results of the Ho Chi Minh City Bar Association in
participation in the proceedings of criminal cases during the investigation
period.
See List of Tables and Charts 3.3
3.2.1.3. Results in implementing the work of coordinating with legal
proceeding agencies and authorities in the period of criminal investigation of
Ho Chi Minh City Bar Association.
In general, the settlement of complaints and denunciations at the Bar
Association is a difficult and complicated task due to the large number of
members in the Bar Association, with many complicated cases, making it timeconsuming for verification and in many cases the cooperation of complainants
and denouncers as well as those who are complained and accused cannot be
received. [32].
3.2.2. Limitations, shortcomings and causes of limitations and shortcomings

3.2.2.1. The limitations and shortcomings in the criminal investigation phase under
the Criminal Procedure Code 2003.
Through summarizing 10 years of implementing the 2003 Criminal
Procedure Code [128], the causes of these limitations and shortcomings are
determined due to 2 reasons:
3.2.2.2. Limitations, shortcomings in the criminal case investigation period
according to the 2015 Criminal Procedure Code.
Limitations, shortcomings come from 4 reasons:
3.2.2.3. Limitations and shortcomings in implementing defense registration
procedures; granting and sending written notices of defense counsels to the defense
applicants.
- Regarding the presentation of papers:
- Regarding the request of the representative of the accused person to
confirm the personal relationship with the accused:
- Regarding the issue of receiving registration of procedures and issuance
of notices on defense counsels:
- Regarding the time for issuing documents to notify defense counsel:
- Regarding the value of using documents to inform defense counsel:
- Regarding responsibility to notify defense counsel:
3.2.2.4. Limitations and shortcomings in the exercise of the right of the Lawyers
being present when the investigation agency ask the accused, taking testimony of
the custody; The lawyer meeting the detainee and the accused who are being
detained in the investigation period.
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- The right to meet in private in the custody and detention process:
The meeting, questioning between the Lawyer and the detainee, the
accused who are being detained in the investigation period is limited because the
Lawyer is not allowed to facilitate private contact, this is a natural right, regardless

of consent of the investigation agency or the procuracy.
3.2.2.5. Limitations, shortcomings in the implementation of the collection and
provision of evidence; examination, evaluation and presentation of opinions on
evidence and requesting competent persons who conduct procedures for
examination and evaluation; Proposing the competent authority who conduct
evidence collection, additional assessment, re-assessment and revaluation of
assets in the investigation period.
Clause 1 of Article 73 of the 2015 Criminal Procedure Code extended
the rights of Lawyers when stipulating the rights group: point h, point i point k; In
addition, it is also provided in Clause 2 of Article 88 of the 2015 Criminal
Procedure Code.
3.2.2.6. Limitations and shortcomings in the implementation of the right to
propose changes, cancellation of preventive measures; Proposing to summon
witnesses and other procedural participants.
- Regarding the right to propose changes, cancellation of preventive
measures.
- Restricting the right to request to summon witnesses and other
procedural participants specified at Point g, Clause 1, Article 73 of the 2015
Criminal Procedure Code.The 2003 Criminal Procedure Code does not stipulate
this right, but the 2015 Criminal Procedure Code allows defense counsels to
exercise the right to request witnesses and other persons participating in the
investigation in the investigation period.
3.2.2.7. The limitations and omissions to exercise the right to read, record and
copy documents in case files related to the defense from the conclusion of the
investigation.
Previously this right was stipulated in point g, clause 2, Article 58 of
the 2003 Criminal Procedure Code, Lawyers were allowed to read, record and
copy documents in the case file relating to the defense after the investigation
ends. However, Point l, Clause 1, Article 73 of the 2015 Criminal Procedure
Code stipulates that lawyers can read, record and copy documents in case files

related to the defense from the conclusion of the investigation.
3.2.2.8. The limitations and shortcomings to fulfill the Lawyers' obligations in the
period of criminal case investigation
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Clause 3 of Article 19 of the Penal Code stipulates that “Defense
counsels are not subject to penal liability... except for cases of not denouncing
crimes of infringing upon national security or other particularly serious crimes
prescribed in Article 389 of this Code.”
3.2.3. Causes of limitations and shortcomings
3.2.3.1. Legislative causes
It starts from 5 reasons:
3.2.3.2. First cause when Lawyers are infringed upon the legal right to practice
when practicing.
In the process of participating in legal proceedings, relating to
practicing activities, the lawyer is directly violated to his life, health, dignity
and honor, causing the lawyer's right to practice.
3.2.3.3. Subjective cause from the lawyer.There are 4 reasons:
3.2.3.4. Causes from the agency conducting proceedings.
Summary of Chapter 3
The causes of limitations, obstacles and shortcomings in the
implementation of the legal status of lawyers in the investigation period under
the Law on Criminal Law currently focus on the following issues: Limitations
and inadequacies of the Criminal Procedure Code in the regulating legal status
of Lawyers; awareness, capacity, moral qualities of the procedure conductor,
other procedural participants; a mechanism to ensure the operation of Lawyers;
these factors affect and affect the quality of Lawyers' performance. Towards
solutions to overcome limitations, obstacles, shortcomings are the content to be
presented by the author in chapter 4.

Chapter 4
REQUIREMENTS, SOLUTIONS TO ENSURE THE
IMPLEMENTATION OF THE REGULATIONS OF LAWS AND
IMPROVING LEGAL LOCATIONS ON LEGAL STATUS OF THE
LAWYERS IN THE PERIOD OF CRIMINAL CASE INVESTIGATION
4.1. Request to ensure the implementation of the legal status of Lawyers in
the period of criminal case investigation
4.1.1. Request to ensure human rights, defense rights of the accused, the right
to protect the rights and legitimate interests of the victims, the litigants.
Human rights are very broad concepts, including human rights in
criminal procedure. These are all civil, political, economic, cultural and social
rights of people affected by specific bold power activities of the State. It does

20


not happen every day, every hour like other fields, but the consequences of
violated human rights in the Criminal Procedure are very heavy [45].
4.1.2. Request to construct the rule of law State
4.1.2.1. Building a rule of law state must go hand in hand with the construction
of a judicial apparatus, building a team of judicial officers, focusing on
building a lawyer team
To build a socialist rule-of-law state of the people, by the people and
for the people, asking for judicial reforms, organizational reforms and modes of
operation, raising the capacity and efficiency of the State apparatus; reforming
the judiciary towards a strong, professional, modernizing, building a contingent
of cadres in a clean and strong judicial system, that is qualified, capable and
truly meeting the requirements growing of the country.
4.1.2.2. Enhancing the role of Lawyers in ensuring human rights and
democratic rights of citizens; guarantee defense rights in the investigation

period
Over the past time, the participation of the Lawyers has ensured the
defense right of the accused, victims, litigants during the investigation period,
making an important contribution to the implementation of the central task of
“judicial reform it is the process of promoting human rights of citizens in
judicial activities, considering people as the actor, the main resource and the
purpose of development.” [142].
4.2. Solutions to improve the quality of implementation of legal status of
lawyers in the period of criminal case investigation
4.2.1. Solutions to complete the legal provisions
4.2.1.1. Completing the defense rights of the accused, the right to protection of
the victim, the litigant.
This is a very important criminal procedure principle, showing two
basic contents, covering the viewpoint of ensuring human rights in the
proceedings, especially the defense rights of the accused; protecting the rights
and interests of the victim, the person, which is: The defense right of the
accused; protecting legitimate rights and interests of victims, plaintiffs, civil
defendants, persons with interests and obligations related to the criminal case.
4.2.1.2. Completing procedures for registration of defense
4.2.1.3. Completing procedures in the defense register
4.2.1.4. Completing regulations to ensure the issuance of written notice of
defense counsel in time

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4.2.1.5. Amending the regulations when the competent authority who conduct
legal proceedings must give a reasonable time to the defense counsels
According to Article 79 of the 2015 Criminal Procedure Code “The
competent authority who conduct legal proceedings must give a reasonable

time to the defense counsel about the time and place of conducting proceedings
where they have the right to participate according to the provisions of this
Code”.
4.2.1.6. Completing regulations on ensuring the implementation of legal
provisions on the collection and release of evidence, documents and objects;
submit evidence; request agencies, organizations and individuals to provide
evidence, documents and objects; check and evaluate evidence in the
investigation period.
Demonstration, evidence in the Criminal Procedure is one of the
important regulations, throughout the entire legal proceedings from the
prosecution, investigation to suing, trial. Activities of entities in the procedural
stages, especially during the investigation period, are directed at collecting,
examining and evaluating evidence to prove the issues that need to be
demonstrated in the criminal case.
4.2.1.7. Perfecting regulations on ensuring the principle of equality between
people conducting legal proceedings, other procedural participants and
lawyers.
4.2.2. Solutions to ensure the implementation of the legal status of lawyers in
the period of criminal case investigation
4.2.2.1. Promulgating documents guiding the implementation of the provisions
of the criminal procedure code on the legal status of lawyers.
4.2.2.2. Solutions for competent agencies and persons who conduct legal
proceedings during the investigation of criminal cases
4.2.2.4. Ensuring the Lawyers' right to propose changes, canceling preventive
measures, summoning people to participate in legal proceedings.
4.2.2.5. Developing and improving the capacity of Lawyers' team
4.2.2.6. Completing the regulations on Lawyers standards.
4.2.2.7. Ensuring the implementation of the rights and obligations of
4.2.2.8. Ensuring regulations for Practitioners of Lawyers participating in the
proceedings.

4.2.2.9. Developing Lawyers in suburban areas of Ho Chi Minh City,
Increasing the remuneration for appointed lawyers.
4.3. Other solutions to improve the legal status of Lawyers
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4.3.1. Solutions to improve legal awareness for people
Propaganda and dissemination of criminal law, Criminal Procedure
Code, Law on Lawyer, Law on Legal Aid 2017 [90] is an effective method to
improve people's understanding of Criminal Procedure Code knowledge
4.3.2. Solutions to strengthen inspection and supervision to ensure the rights
and obligations of Lawyers in the period of criminal case investigation.
CONCLUSION
The results are shown in the following basic points:
Firstly, the legal status of lawyers during the criminal case
investigation period is activities, jobs and professional operations conducted
by lawyers during the investigation period based on the provisions of criminal
procedure code, rules on the professional ethics and conduct of lawyers which
aims at protesting against accusations, determining the innocence of the
accused or mitigating their criminal liability, protecting the legitimate rights
and interests of the accused, the victim and the litigant, the accused person and
the prosecuted petitioner contributing to determining the objective truth of the
case.
Secondly, in the past years, the legal status of the Lawyers has been
expanded, the position, role of the Lawyer, the rights and obligations of the
Lawyers have been amended and supplemented by the criminal law. Lawyers
have made important contributions to the democratization of legal proceedings
and increased litigation in the spirit of Resolution 08/NQ-TW dated January 2,
2002, Resolution 49/ Q-TW dated June 02, 2005 of the Politburo, to protect
the legitimate rights and interests of the accused, victims and litigants.

Thirdly, the 2015 Criminal Procedure Code regulates the rights of
people accused, the victims and parties involved in the criminal case
investigation period, with the aim of protecting them from violations from the
agencies and people conducting legal proceedings. Practically, all these rights
will become formality if there is no mechanism to ensure those rights are
implemented.
Fourthly, ensuring the implementation of the system of rights and
obligations of Lawyers in the criminal case investigation period requires a
proper awareness of the position and role of Lawyers in criminal procedure;
clarifying investigation activities with accusatory functions, focusing on
defense, protecting activities for the accused and protecting legitimate rights
and interests for the victim, the litigants, thereby forming the Institute of
Prosecutors. On the other hand, the role and position of the Lawyer must be
23