Chức năng bào chữa trong tố tụng hình sự việt nam tt tiếng anh

Vietnam Academy of Social Sciences
GRADUATE ACADEMY OF SOCIAL SCIENCESI

O THỊ NGỌC
CAO THI NGOC HA

DEFENSE FUNCTION IN VIETNAM ‘S
CRIMINAL PROCEDURE

Major: Criminal Law and Criminal Procedure
Code: 9.38.01.04

SUMMARY INFORMATION OF DOCTORAL THESIS

Hanoi - 2019


The thesis was completed in
GRADUATE ACADEMY OF SOCIAL SCIENCES
Người hướng dẫn khoa học: PGS.TS. Hoàng Thị Minh Sơn

Reviewer 1: GS.TS Bùi Minh Thanh
Reviewer 2: TS. Trần Công Phàn
Reviewer 3: TS. Phạm Mạnh Hùng

The thesis will be defended in front of the Academy's Thesis
Evaluation Commitee
Place: Doctoral thesis defense room - Meeting room ... .. House ... ..,
Graduate Academy of Social Sciences
Time: at ……… time, date …… month ……. year ………..…

The thesis can be found at:
- National Library
- Library of Graduate Academy of Social Sciences


OPENING
1. The urgency of the thesis
From the perspective of legal provisions, the study of the function
of defense in criminal proceedings becomes urgent in the context that the
Criminal Procedure Code2015 is born and is about to take effect in reality.
From a practical perspective, the implementation of the defense functions,
the function of accusation and the function of trial has not been clearly
differentiated, there is still overlap, the entities performing the above
functions has not done all its functions. Besides, although the professional
qualifications of defense counsels are increasingly enhanced, the
participation of defense counsels is increasing, but the quality of case
resolution has not met the requirements which were set out. Causes of this
situation include both subjective reasons from defense counsels, and
objective causes from legal proceeding agencies and legal provisions. In
some cases, defense counsels have not been properly facilitated by the
agencies conducting legal proceedings to fulfill their functions and tasks.
Moreover, the perception of legal defense agencies about the role of
defense counsels is not really right. The position of defense counsels must
be considered a party to the proceedings, equal with the Procuracy.
Together with the procedure-conducting agencies, the defense counsels'
activities contribute to finding the objective truths of the cases. This
awareness must be thoroughly understood in the judiciary cadres, especially
the persons competent to conduct legal proceedings and all citizens.
The content of defense has been interested by many authors in
different aspects, expressed through theses, master theses, articles in

specialized journals, topical articles in scientific research topics. That is the
contents related to the right to defense, the assurance of the exercise of the
right to defense, defense counsels, the role of defense counsels, the function
of the criminal procedure, the judicial function of the criminal procedure,
the accusition function of criminal proceedings ... However, at the doctoral
level, there has not been any research on an extensive, comprehensive
function of defense. Therefore, the study of the topic «Defense function in
Vietnam criminal procedure» is urgent and the author has chosen this topic
to study in the perspective of a doctoral thesis in law.
2. Research purposes and missions
1


Based on the research of theoretical issues, the current status of the law
and the practice of defense function in the Criminal Procedure, the
dissertation makes recommendations to improve the law and solutions to
ensure the function of defense in criminal proceedings.
3. Research subject and scope
3.1. Research subjects
The research subjects of the thesis are theoretical issues such as
concepts, characteristics, meaningful purposes, contents, and bases of
defense function in criminal proceedings ... ; legal provisions directly
related to defense function in Vietnam's criminal procedure. In addition, the
object of the topic is the practice of performing the defense function in
Vietnam's criminal procedure, practical evaluation to analyze and clarify
problems and shortcomings of the current law through the data, typical
examples in judicial practice to provide some solutions to perfect the
provisions of the law and organize the implementation of defense functions
in Vietnam's criminal procedure.
3.2. Research scope

In term of the content : The thesis focuses on studying the
theoretical issues and provisions of Vietnam's criminal procedure law on
the function of defense in the field of criminal procedure, the reality and
the solutions to ensure the effective implementation of defense function
in the Criminal Procedure of Vietnam.
In term of time : The regulation of the law on defense function
are studied in each specific historical period such as the period before
the Criminal Procedure (CrP) 1988 was born ; the period of the CrPC
1988, the CrP 2005 and the CrP 2015 take effect.
In terms of space : The thesis studies practical issues through
researching, summarizing defense counsels’ involvement cases nationwide
and analyzing practical implementation of defense functions in the Criminal
Procedure which are based on reports by department of Vietnam Law
Association, Supreme People's Procuracy, Supreme People's Court,
questionnaire survey of some lawyers in Hanoi and local
4. Methodology and research methods
4.1. Methodology and approach
The thesis is studied based on the methodology of Marxism2


Leninism and Ho Chi Minh's thought on the State and the law. In
addition, the thesis is studied based on the methodology of the Criminal
Procedure Law combining multi-disciplinary and interdisciplinary
approach.
Approach : The thesis uses the approach of the major Criminal
Procedure Law, Criminal Law, General Theory of State and Law,
Criminal Investigation Science, Criminology and Approach history,
interdisciplinary and interdisciplinary approach ; approach in terms of
comparative law ...
4.2. Research Methods

The thesis uses general research methods of social sciences and
specific research methods of law to study the subject. On the basis of
dialectical materialism and historical materialism of Marxism- Lenin, Ho
Chi Minh thought, the views of our Party and State on the struggle to
prevent, fight against criminals and other law violations, the thesis uses a
combination of research methods, namely : systematic methods, statistical
methods, analysis methods, sociological investigation methods, historical,
comparative, logical, synthetic methods ...
5. New contributions of science of the thesis
The thesis is a comprehensive research from the perspective of
theory and practice of defense function in criminal procedure. The
results of the thesis have made new scientific contributions as follows :
- Firstly : The thesis clarifies and supplements a number of important
theoretical issues of the function of defense in the administrative
procedure and at the same time, analyzes to explain more deeply the
provisions expressing the defense function in the administrative
procedure through each specific historical period to see the legislative
history of the function of defense in the Vietnam CrPC.
- Second : The thesis researches the practical implementation of defense
functions in the Vietnam CrPC for the past 10 years, based on a
combination of qualitative and quantitative research to create reliability
for conclusions.
- Third : The thesis has proposed feasible solutions to ensure effective
implementation of defense functions in practice.
6. Scientific and practical significance of the thesis
3


The research results of the thesis supplement and clarify the
theoretical issues on the function of defense in criminal procedure. The

thesis has great practical significance and is a meaningful source for
individuals, agencies and organizations to refer to and research in the
process of commenting and finalizing the provisions of law.
7. The structure of the thesis
In addition to the introduction, conclusion and list of references,
the thesis is divided into four chapters :
Chapter 1 : Overview of research situation
Chapter 2 : Theoretical issues on defense function in Vietnam
criminal procedure
Chapter 3 : The law shows the function of defense in Vietnam's
criminal procedure and its practical implementation
Chapter 4 : Viewpoints and solutions to ensure the performance of
defense functions in Vietnam's criminal procedure
Chapter 1
OVERVIEW OF THE RESEARCH SITUATION
1.1 Abroad research situation
In many countries around the world, defense issues are studied from
many aspects, such as the right to defense, defense counsels, the
participation of defense counsels ... That is the scientific foundation for the
formulation and implementation of legal provisions on defense functions.
Studying the basic theoretical issues of the criminal procedure model is
very necessary for graduate students, because the criminal procedure model
is the way to perform the functions of criminal procedure. These include:
"Major legal systems in world today" by Rene David, John E. C. Breierly,
The Free Press in 1978; The book "Criminal Procedure Models in the
World" by Jean-Phillipe Rivaud in 2000 ... The book "Comparative
Criminal Justice" by Phillip.L.Reichel (Vietnamese translation of the
Institute legal science research in 1999; article "Rethinking the functions of
criminal Proceduce" (roughly translated: discussing the functions of
criminal proceedings) in 2010 by Peter A Renella ...

The article about defense function can be mentioned as: article "Defense
function" (roughly translated: function of defense) of the American Law
4


Association who outlined the common standards of the defense and the
functions of defense lawyers. Article "Functions of the police, prosecutor,
court workers, defense counsel, Judge in aiding Juvenile Justice" (roughly
translated: Functions of police, prosecutors, civil servants of courts, defense
lawyers, judges) in 2009, author Donald J. Newman, Ph.D (Lecturer in law
University Wiseunsin, Modison) affirmed: The defense functions are twice
as important in the investigation stage of the criminal prodecure process
compared to other proceedings because the defense function during the
investigation phase with the aim to assist the suspect in gathering evidence
and to protect him from the violation of his rights in the hands of the legal
defenders (people conducting legal proceedings) ...
Some studies have mentioned the contents of human rights in general
and the right to defense in particular such as: The article " the guarantees
for accused peorsons under Article 6 of the European convention on
Human Righs "( roughly translated: ensuring the rights of the accused under
Article 6 of the European Convention on Human Rights) by Stephanos
stavros (Sweet and maxwell, UK, 1993), which focuses on analyzing the
right to self-defense and the accused's right to ask others to defend him. The
book "Criminal process and human rights" by the authors is the professors
and associate professors of the Law University in Melbourne, Australia,
2001 about human rights in general and the defense rights of accused
persons in particular, emphasizing the right to access defense counsels, the
right to contact defense counsels, and the right to free defenders for the
group of vulnerable people such as minors or people with disabilities….
1.2. Research situation in the country

1.2.1. Group of works related to the theory of defense function in
criminal procedure
In legal sciences, issues related to the theoretical basis of the thesis
have quite a lot of published works and articles at different levels.
* First of all, the group of scientific works on theoretical research
on the function of the criminal procedre including the function of defense.
These include researches such as the "Vietnam CrPC Model", which was
presided over by Supreme People’s Procuracy in the Project on Vietnam
CrPC Model (2010); The article "The functions of criminal procedure and
issues to improve the model of Criminal Procedure in Vietnam today" by
5


Assoc. Prof. Dr. Nguyen Thai Phuc; Presentation of the author Dinh Thi
Mai at the scientific conference "The functions of criminal proceedings in
the current context of judicial reform in Vietnam" (2015) ...
* Studies of human rights in relation to the rights of defense of
accused persons:
* Researches on the concept and characteristics of criminal
procedure functions: The article "Discussing the functions of accusation,
defense and adjudication in criminal procedures" in 2003 by Hoang Thi
Son ; Presentation report of Assoc.Prof. Dr. Hoang Thi Minh Son at the
Scientific Conference "The functions of criminal proceedings in the context
of judicial reform in Vietnam today" (2015) ...
* The research work on litigation is also a useful resource related to
the theoretical basis of the thesis. It is possible to mention the doctoral
dissertation "Principles of litigation in Vietnam CrPC - theoretical and
practical issues" by Nguyen Van Hien, 2010 .
1.2.2. Group of works directly related to the thesis content
* The group of research works on the right to defense:

* Group of works related to the actual situation and solutions to perfect
the defense function
1.3. Assessment the research situation
1.3.1. Theoretical issues on defense function in criminal procedure
In the above-mentioned scientific studies, concepts, roles and
contents of defense function have been raised. However : - Basing on the
function of defense function : there has not been any comprehensive
research on this content, very few researches on the origin and basis of the
appearance of defense function in the element of criminal procedure. Regarding the concept of pleading function : there are still many different
views and opinions. - Regarding the role of the function of defense : just
giving a general outline, there is no explanation or analysis ; No in-depth
research on the role of defense functions. The research works have almost
no new awareness about the function of defense - one of the three basic
functions of the CrPC. - Regarding the content of the defense function :
although there are still some disagreements about the content of the defense
function, but most have confirmed that the content of the defense function
is the activities of the owner’s excuse. - Regarding the characteristics of the
6


defense function : there has not been any work that has generalized the
characteristics of the defense function. - Regarding the relationship between
the Criminal Procedure functions : Most of the studies have highlighted the
relationship between the Criminal Procedure functions, which is the
relationship between the accused function, the defense function and judicial
functions. These functions are closely related, closely intertwined, coexist
and develop. However, the analysis of the relationship of defense functions
with the other two functions in the administrative procedure has not been
deeply studied, specifically, only at the level of generalization and brief
analysis.

1.3.2. Situation of defense function in Vietnam's criminal procedure
- On the current situation of the provisions of the law on defense functions:
A number of research studies have outlined the birth of defense functions
and defense functions shown in certain historical periods. . In particular, the
defense function shown in the CrPC 2015 has not been written and
researched on this issue. Regarding the provisions on defense functions
abroad, a number of research works in foreign countries and in the country
have outlined general rights of defense, defense counsels ... in some
countries such as Japan, France, Germany, ... However, there has not been
any in-depth study of the function of defense in certain countries.
- Regarding the current situation of performing the defense functions: All
studies have highlighted the actual situation of exercising the right to
defense and the defense activities of defense counsels in the administrative
procedures as in the investigation period. , the stage of adjudication at the
time of applying the CrPC, 2003. Most of them point out the real situation
of exercising the right to defense, such as: The reality of the granting of
defense certificates; Situation in the collection of documents, objects and
details of defense counsels; Situation in the lawyers' contact with accused
persons, suspects and defendants; The situation of lawyers at the firstinstance trial, especially in the debate, in response to the Procuracy
representative ... Most of the works are written about the implementation
status in terms of the right to defense. Very few works have been written on
the current situation of defense counsels of defense counsels, especially the
situation of other defense counsels such as people's defense counsels, legal
representatives of suspects and defendants. In particular, no work has been
7


written on the status of performing the defense functions of defense
counsels and accused persons according to the CrPC 2015.
1.3.3. Solutions to perfect the law and ensure the performance of

defense functions in Vietnam's criminal procedure
The research works have raised a number of measures to perfect the
regulations on the right to defense, to raise the efficiency of defense
activities of defense counsels. For example: Supplementing a number of
rights and mechanisms to ensure that defense counsels perform well their
legal rights; Expanding a number of defense counsels' powers such as the
right to collect evidence ... The defense counsel and the procedureconducting persons must respect the pleading results and the responsibility
in ensuring the performance of the defense counsels' rights and handling
measures in case of violation; Amendments and supplements to regulations
to create favorable conditions for defense counsels to quickly participate in
the proceedings and approach the process of resolving the case in the
direction of simplifying procedures for granting defense pleadings and
procedures to participate in defense ... However, the evaluation of the
provisions of the CrPC 2015 on the function of defense, the unreasonable
contents of the defense function are codified in the CrPC 2015 ... there is no
scientific study any research on this issue. Since then, the introduction of
measures to ensure the implementation of the defense function and perfect
the provisions of the law on defense function in the CrPC 2015 have not
been comprehensively studied.
1.3.4. Issues needed for further research
Firstly, the thesis needs to continue studying some theoretical
issues such as: the concept of defense function has been used, mentioned by
some domestic researchers but has not been unified and not studied yet.
treatise to give concept and analyze inner meaning of this concept; There
are no scientific studies on the function of defense functions in the CrPC,
and the role of the defense functions is mentioned through the role of the
Criminal Procedure function in general, so there has been no generalization
and further analysis of this content. A number of theoretical issues have
been mentioned by the research work but have not yet had in-depth analysis
or explanation such as : The form of performing the defense function in the

administrative procedure; The existence of defense functions in the criminal
8


procedure models is referred to through the analysis of LRC functions in
the LRC models but still lacking; The relationship between the defense
functions and the functions of the accused and the adjudicatory functions.
Secondly, the provisions expressing the defense function in certain
historical periods need to be analyzed and explained more in-depth,
especially the evaluation of the provisions of the CrPC 2015 on the function
of defense. The study of the actual situation of performing the defense
functions under the CrPC 2015 should be conducted on the basis of
collecting report data from the procedure-conducting agencies, the Vietnam
Law Federation and conducting surveys and interviews of some lawyers in
Hanoi and local areas.
Third : Solutions to improve the law and solutions to organize the
implementation of the defense function in the Criminal Procedure in
accordance with the current situation of Vietnam and the views of the Party
and the State on ensuring functional performancenin the CrPC for
development orientation to 2030.
Chapter 2
THEORETICAL ISSUES ON DEFENSE FUNCTION
IN THE CRIMINAL PROCEDURE
2.1. Concepts, characteristics of defense function in criminal procedure
2.1.1. Concept of defense function in criminal procedure
* Awareness of function
The function of CrP is an integral part of the CrP. Therefore, it is
necessary to be aware of the functions of the centers of general practice in
general and the functions of defense in the centers of particular crimes
based on the functional basis to explain more deeply the research issues.

* The concept of criminal procedure function
* Definition of defense function in criminal procedure
Basis for forming the function of defense in the Criminal
Procedure: The appearance and introduction of the function of defense in
the criminal procedure is an indispensable objective. It can be said that the
democratic and humane nature of the social regime is the basis for the
appearance of defense functions in the criminal procedure. The nature of
democratic society shows that, if there is a function of accusation, there
9


must be a function of debating - defending to ensure a thing, a phenomenon,
an act which is assessed in many different directions, to identify objective
truths, do not injustice innocent people; at the same time, ensure fairness in
the application of the law. In the practice of applying criminal law, it is not
always the right to apply the laws of the intelligence agencies and the
awareness of the content of laws is not always uniformly understood. That
will affect the legitimate rights and interests of the accused. Therefore, the
defense function appears with the noble purpose of protecting justice,
protecting the rights and interests of the accused; with the desire that the
legal rights and interests of the accused are not violated or tolerated in
accordance with the law.
From a procedural point of view, the defense function is broader
and more complex. Theoretically, legal functions are classified into
regulatory and protection functions. “The protection function of the legal
system is determined by the need to protect social relations, protect the
interests of citizens, social groups, classes, classes and the whole commune.
Assembly” [78, p.108]. The basic characteristic of protected social relations
is that within the scope of such relations, state coercive measures are
applied, legal responsibilities are taken. According to Assoc.Prof. Dr. Vo

Khanh Vinh, in the field of CrP relations, the legal protection function
manifests itself in three types of responsibility performance: in the form of
security, protection, recovery. From the above analysis, it can be seen that
the defense function in the administrative procedure is under the protection
function. The function of defense appears to be an indispensable objective
with the purpose of protecting the rights and interests of the accused,
protecting the disadvantaged subjects in society from decisions of state
power and guarantee for the rights of the accused are exercised in practice.
The protective aspect of the defense function is shown in pointing out the
options for defense and protection activities and the implementation of
these activities is of common interest, preventing law violations from
prosecutors, especially the accusatory subjects.
In order to better understand the function of defense in the Criminal
Procedure, it is necessary to put it in relation to the purpose and duties of
the CrPC and the principle of Criminal Procedure.

10


Regarding the concept of the function of defense in the Criminal
Procedure, there is still no agreement and currently there are many different
opinions. It can be seen that criminal procedure is a combination of
activities of different groups of subjects such as investigating bodies,
procuracies, courts and defense counsels. When these subjects participate in
the LRC, they are influenced by different tasks and interests, so their
orientation of activities is also different. The administrative procedures of
these subjects are bound and linked together by the common purpose of the
administrative procedures and are consistent with each other. The defense
function is one of the basic functions of the Criminal Procedure, therefore,
derived from the approach of Criminal Procedure as analyzed above, the

author considers that "the function of defense is the operational aspects the
great and fundamental orientation of criminal proceedings is recognized by
law and ensures the accused party's ability to present evidence and
arguments against the charge; contribute to protecting justice, protecting
the legitimate rights and interests of accused persons and commercial legal
persons, and help the case be resolved objectively, comprehensively and
fully”
2.1.2. Features of the defense function in criminal proceedings
- Subjects performing the function of defense in criminal procedures:
Subjects performing the function of defense also have certain
characteristics, with the purpose of protecting the legitimate rights and
interests of the accused. Different from the subjects of the right to defense,
the subjects exercising the function of defense are: Persons held in
emergency cases, accused persons and defense counsels.
- Scope of the defense function in criminal procedure:
The defense function arises when a person or commercial entity
commits an crime.
The end of the defense function is determined when the accusation
are no longer available. In some special cases, when the grounds of
accusation no longer exist, the competent subject who issues a decision to
suspend the case will have the function of the defense ceased earlier. Or, in
cases where the legally effective judgment is reviewed and re-settled
according to appellate procedure, cassation or reopening procedure, the

11


defense function will appear again until a legally effective judgment is
issued. new rule.
- Content of defense function in criminal procedure:

The content of the defense function in criminal proceedings is that
the defense party uses the powers permitted by law by presenting evidence
and arguments in order to combat or abolish the charge; mitigate criminal
liability for the accused and protect the legitimate rights and interests of the
accused. In order to do so, the defense must carry out the defense activities,
through provisions on the rights of defense counsels in order to protect the
accused. The contents of the basic functions in the LRC show in the
activities of the respective subjects prescribed by law. The content of the
defense function in the Criminal Procedure is reflected in the activities of
the defense counsels and accused persons, which are provided for by the
Criminal Procedure Law, in order to contribute to the protection of justice,
the protection of legitimate rights and interests of accused. The content of
the pleading function is specific in the defense activities of the defending
subject in order to protect the rights of the accused.
2.2. The role and relationship of defense functions with other basic
functions of criminal proceedings
2.2.1. The role of defense functions in criminal proceedings
First: The defense function has a role in protecting justice, protecting
human rights, the legitimate rights and interests of accused persons.
Secondly, the existence of the function of defense, the function of
condemnation and the function of adjudication are the constituent and
essential elements of the CrPC, the decision on the model of Criminal
Procedure and being governed by the purpose and principles of the CrPC .
2.2.2. The relationship between the defense function and the function of
defense and the function of trial
The CrPC consists of three basic functions, that is, the function of
accusation, the function of defense and the function of adjudication. Each
function has a different position, role, nature, different implementing
subjects, different specific activities and especially between them, they are
independent of each other. However, between these functions, there is a

close relationship with each other, bound together, unified to arrive at the
ultimate goal of finding the objective truth of the case. Depending on the
12


specific stage of the proceedings, there are periods when one of the three
basic functions is lacking, the CrP cannot function well. Regardless of the
procedural model (investigation, interrogation, litigation ...), all three
functions of accusation, defense and adjudication always appear and exist.
Each function exists, campaigning for the existence and movement of the
other two functions [4, p.31].
2.3. Forms of performing the defense functions in criminal procedures
and the defense functions in the criminal procedure models
2.3.1. Forms of performing the defense function in criminal
proceedings
The function of defense in the Criminal Procedure is performed
through direct forms such as: Self-performance of defense function,
performed by the accused person himself or indirectly, that is to perform the
function of defense through help of defense counsels (thanks to defense
counsels) and defense counsel as appointed. To perform the defense
functions themselves and ask the defense counsel to conduct them in
parallel or only in a form depending on the views of the accused in each
specific case. The self-defense and thanks to defense counsels are
complementary and supportive. In cases where a person is accused of
requesting defense counsels, they still have the right to defend themselves
in order to protect their own interests.
2.3.2. The function of defense in criminal procedure models
2.4. Factors affecting the performance of defense functions in criminal
proceedings
Legal factor:

Human factors and awareness:
Economic, political and social factors:
Chapter 3
REGULATION OF THE LAW ON DEFENSE FUNCTIONS
IN VIETNAM'S CRIMINAL PROCEDURE AND PRACTICAL
IMPLEMENTATION
3.1. Regulation of law on the function of defense in criminal
proceedings
3.1.1. History of formation and development of defense function
in Vietnam's criminal procedure
13


In the early stages, the recognition and adjustment of legislation on
the function of defense in the administrative procedures are very weak. The
content of pleading is generally prescribed in legal documents such as
Laws, Decrees, etc. However, the legal provisions on defense are few and
not specific, only general provisions on the lawyer has the right to defend
and the defendant has the right to defend himself.
3.1.1.1 Regulation on showing the function of defense in
Vietnam's criminal procedure in the period of 1945-1987
3.1.1.2 Regulation on showing the function of defense in
Vietnam's criminal procedure in the period of 1988-2003
3.1.1.3 Regulation on showing the function of defense in the
Criminal Procedure Code 2003
3.1.1.4. The regulation demonstrates the defense function in the
Criminal Procedure Code 2015
The 2015 Criminal Procedure Code added a new chapter (chapter
V) that provides content related to defense to ensure defense counsel's quick
access to the process of resolving a case. Concretizing the provisions of the

2013 Constitution and in order to create favorable conditions for the
accused to exercise the right to defense, the CrPC has provided some new
contents in 2015.
a. Provisions on showing the function of defense in the stages of
prosecution, investigation and prosecution
* Time of participating in NBC's proceedings
* NBC's registered defense activities
In order to participate in the proceedings in criminal cases, to
protect the legitimate rights and interests of accused, accused and
defendants, NBC must register to defend in every case. This is a new
provision of the CrPC of 2015, replacing the old one which is the procedure
for granting a defense counsel certificate. The CrPC 2015 requires that,
when registering a defense, defense counsels must produce required
documents such as a lawyer card, lawyer request letter, etc. At the request
of the accused, their representatives and relatives of the accused for inviting
defense counsels, the investigating bodies, procuracies and courts shall have
to ensure that they have their right to offer a defense.
* Defense activities of defense counsels:
14


- Activities of meeting with accused persons of defense counsels:
According to Article 80 of the CrPC, defense counsel is allowed to
meet and ask arrestees, detainees, suspects and defendants who are being
held in detention at any stage of the proceedings and unlimited the number
of meetings. defense counsel is allowed to actively discuss matters related
to its clients in the custody conditions of detention facilities without being
obliged to be present to the procedure conductors. In order to meet
arrestees, detainees, suspects, defendants in detention, defense counsel must
present a written notice of the defense counsels of the procedure-conducting

competent agency, the lawyer card or the assistance card. legal or identity
card or citizen ID card.
After finishing the interrogation, defense counsel has the right to ask
its clients. This questioning is completely active from defense counsel.
defense counsel can ask questions related to the client and the behavior the
client has committed in the case ...
- Regulation on changing or canceling preventive and coercive
measures: When finding that the accused or defendants meet all conditions
for changing or canceling preventive or coercive measures, defense counsel
will propose to the competent authority to propose changes or cancellation
of measures being applied to the accused and defendants. For example, it is
recommended to change detention prevention measures to other less strict
measures such as banning from residence, bail, deposit to ensure ...
- Regulation on requesting summons of witnesses, other participants
in legal proceedings and competent procedural persons: When necessary to
clarify matters related to accused persons, defense counsels may request
convene witnesses, other participants in legal proceedings and competent
procedural persons. defense counsel only proposed to summon the above
subjects when their testimony was in favor of the accused and defendants
and in favor of the defense and defense of defense counsels.
- Activities of collecting, examining and evaluating evidences and
proposing competent procedural authorities to collect evidences: When
performing the task of protecting the legitimate rights and interests of the
accused and defendants; defense counsel may discover new documents,
new evidence that has not been discovered by the proceeding agency. In
this case, defense counsel has the right to collect, inspect, evaluate evidence
15


or request competent procedural authorities to collect evidences, when such

documents and objects are beneficial to the accused and do not. worsening the
suspect's condition. For example, it is evidence proving the innocence of the
accused or extenuating circumstances of the criminal liability of the accused,
which the procedure-conducting agency has not shown in the case file.
- Read, take notes, copy documents in case files:
* Self-defense activities of accused persons:
Persons accused of carrying out self-defense and protection activities
through the powers provided for in the CrPC. The CrPC 2015 has been
revised compared to the 2003 CrPC, not only providing more specific and
clear provisions but also extending the rights of accused persons, helping to
ensure fairness in the enforcement of criminal law.
b. Regulations that demonstrate the defense function during the trial
period
Compared to the CrPC, 2003, the CrPC 2015 recognizes the equal
rights of the NBC with participants in litigation at the trial in more detail.
The Court is responsible for creating conditions for procurators, defendants,
NBC, and other participants in legal proceedings to fully exercise their
rights and obligations, and to democratically and fairly conduct disputes
before the Court. According to the provisions of the CrPC 2015, the
authority and position of NBC in litigation at the trial is enhanced, NBC has
the right to equal with the Procuracy representative in presenting evidence,
documents and requests. The trial panel must listen and acknowledge all
opinions of procurators, defendants, defense counsels and participants in
oral arguments in order to assess objectively and comprehensively the truth
of the case. In case of not accepting the opinions of the participants in the
trial, the trial panels must clearly state the reasons and be inscribed in the
judgments ".
3.1.2. Functions of defense in criminal procedure law of some
countries in the world and experience for Vietnam
Functions on the defense of criminal procedure laws of the Federal

Republic of Germany
Functions to defend in the criminal procedure law of the United
States
The defense function in China's criminal procedure law
16


Experience with Vietnam
3.2. Practical performance of defense functions in criminal
proceedings
3.2.1. Situation of accused persons and defense counsels
participating in defense cases in criminal cases
In fact, for various reasons, accused people often perform their own
right to defend, not ask defense counsel to defend themselves.
Table 3.1: Number of cases involving defense counsels at the
first instance trial
Year

2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
The first
6 months

of 2019

Total
number
of firstinstance
trial
cases
60.433
51.705
57.009
65.974
67.153
66.676
59.866
61.918
57.872
58.587
26.846

Number
of cases
involving
defense
counsels

Ratio %

Number of
cases
without

defense
counsels

Ratio %

6.303
4.783
4.480
5.195
5.001
4.554
3.808
4.173
4.050
5.611
2.550

10.4%
9,2%
7,8%
7,8%
7,4%
6,8%
6,3%
6,7%
7.0%
9,5%
9,4%

54.130

46.922
52.529
60.779
62.152
62.122
56.058
57.745
53.822
52.976
24.296

89,6%
90,8%
92,2%
92,2%
92,6%
93,2%
93,7%
93,3%
93%
90,5%
90,6%

(Source: Supreme People's Court)
*The situation of lawyers who are invited and appointed to
participate in the defense of criminal cases
In recent years, the number of lawyers invited by clients to defend
against the number of appointed lawyers has increased, accounting for a
higher proportion than the number of defense lawyers appointed. This
shows that the need for lawyers to defend the accused is increasing,

confirming the role and legal status of defense counsel in general and
17


lawyers in particular in criminal proceedings. The increasing charge of
inviting defense lawyers proves that the quality of defense counsel 's
defense is increasing, creating trust for the people, society in general and
the accused in particular.
The number of defense counsel in general and lawyers nationwide
in particular is increasing day by day, meeting the increasing demand for
lawyers from clients. Most of defense counsel participated in the case with
a high sense of responsibility before the customer and before the law
(including the cases required by the procedure proceeding agency). defense
counsel 's professional activities such as researching case files, meeting
suspects, defendants, gathering additional evidence, preparing arguments
for defense, protection, planning for questioning, participating in litigation
at sessions The court has been carefully and carefully prepared by defense
counsel. Reality shows that defense counsel 's participation in legal
proceedings not only better guarantees the right of defense of defendants,
defendants and other involved parties, but also helps the procedureconducting agencies to discover and correct. correcting shortcomings,
clarifying objective truths, trying the right people, the right crimes, the law,
and protecting socialist legislation. In particular, with the participation of
defense counsel, most of the cases have proved the criminal relief
mitigation grounds for the accused, even in some cases, proved the crime of
the defendant in the case. judgment.
* Situation of other defense counsels participating in defense in
criminal cases
- People's advocates who participate in defense in criminal cases:
- Representatives of persons accused of participating in defense in
criminal cases:

- Legal aid professionals who participate in defense in criminal
cases:
3.2.2. Practical implementation of the defense function of defense
counsels during the stage of prosecution, investigation and prosecution
3.2.3. Practical implementation of of defense functions of defense
counsels during the trial period
3.2. 4. Practical implementation of defense function of accused persons

18


In fact, the person accused of performing the defense function has
encountered certain difficulties. These difficulties come from the
information agencies, such as not allowing the accused to present all
opinions, testimonies, interrogations at night, violations of the agencies at
different levels, affecting the the accused's rights ... At the trial, the accused
still faces a number of difficulties such as: making a request but not being
accepted, difficult to participate in the debate due to not having access to
the case file, getting decided to bring the case to trial slowly so there was no
time to study for self-defense. Violations of the People's Court in securing
the right to defend by asking questionnaire for procuracy officials include:
certificate of defense counsels later than the prescribed (42.3%); not to
nominate defense counsel in compulsory cases (24.9%), limited time, scope
of presentation and debate (22.2%); do not postpone the trial in the absence
of NBC as indicated (7.4%), refuse to grant certificate of defense counsel
without cause (7.4%) [68] ...
However, the above difficulties also stemmed mainly from the
accused. Because of their limited legal capacity and knowledge, they are
not aware of their legal rights and interests to protect themselves. Even the
accused didn't even understand the legal term or content of the indictment.

“At the trial, defendants without defense lawyers are often not involved in
the debate, not knowing how to respond to the Procuracy representative
about the crime, the penalty frame, and the sentence that
procuracyproposed. In some cases, having argument with procuracy is just
normal reasoning, there is no legal factor in debate ... ”[68].
3.2.5. The cause of the limitations in the practice of defense functions in
criminal proceedings
3.2.5.1. Inadequacies in the law on defense functions
3.2.5.2. Other causes
From the procedure-conducting agency; - From the defense counsels; From the accused: - From the perceptions of society:
Chapter 4
VIEWPOINTS AND SOLUTIONS TO ENSURE THE
IMPLEMENTATION OF DEFENSE FUNCTION IN THE
CRIMINAL PROCEDURE OF VIETNAM
19


4.1. Perspective to improve the law and ensure the
implementation of defense functions in Vietnam's criminal procedure
- Thoroughly grasp the Party and State's views on raising the
quality of litigation and intensifying disputes at the trial:
- Thoroughly grasp the Party and State's views on raising the role
of defense counsels and protecting the legitimate rights and interests of
accused persons:
- Orientations for perfecting the law and ensuring the performance
of defense functions in criminal proceedings:
+ To improve the effectiveness of the defense function, create a
new position of defense counsel and ensure the rights of the accused, the
completion of the law is indispensable. Completing the provisions of the
law must ensure the common criteria in the implementation of the criminal

policy and the purpose of the Criminal Procedure, and at the same time
must have its own criteria to ensure the performance of defense functions in
practice. The CrPC 2015 has shown an important step forward compared to
the 2003 CrPC in improving the law, including the provisions related to the
defense function, ensuring the rights of the defense counsel as well as the
accused ...
+ To complete the regulation of the law on the function of defense
in criminal proceedings, one of the important contents is to innovate in
cognitive thoughts. The renewal of awareness on the function of criminal
procedures in general and the defense function in the centers of the
particular life should need to appreciate the position, role and significance
of the administrative procedures as well as the overall consideration of the
constituent elements of CrP. The purpose of any CrP system must be done
at the same time two tasks: to determine the truth of the case, to ensure
justice is enforced, but how to be on the road. In seeking that truth and
justice, the rights of all involved parties must be respected and protected
[27, p.113]. The purpose of the defense function is to protect not only the
legitimate rights and interests of the accused but also the justice, the human
rights, the legal and social justice.
+ The defense function is a basic function of the CrP so it needs to
be built in a synchronous manner with the functions of accusations and
judicial functions. The improvement of the law on the function of defense
20


in the administrative procedures must be unified and must not be in conflict
with the other basic functions of the center of administrative procedures
because these are the basic functions of the center of communication with
each other. .
+ Improve the model of CrP

4.2. Solutions to ensure the implementation of defense functions
in Vietnam's criminal procedure
4.2.1. Perfecting the regulation of law related to the defense
function in criminal proceedings
First: Regarding defense counsel's rights and ensuring the
performance of defense functions
Proposing to supplement and amend some rights of defense
counsel:
- Supplementing the right to receive procedural decisions related to
the person to whom he / she defends (decision to return additional
investigation files, indictments, decisions to dismiss cases or decisions to
suspend cases the accused, the investigation conclusion) as well as
documents on changes in criminal procedure.
- Edit The right to proactively propose witnesses as well as
summon other participants in the proceedings to the trial.
-Recommend supplementary regulations with no limit on the time
for meeting of defense counsels.
- The provision that defense counsels are involved in a number of
specific investigative activities has not been facilitated in the course of
participating in the proceedings. Therefore, the chapter on investigative
activities should specify the rights and obligations of NBC when
participating in investigative activities and regulations to ensure that
defense counsels can participate in accordance with the law. laws that do
not cause difficulties from the CrP agency, defense counsels' signatures into
the investigation records ... In this way, the rights of defense counsels will
have a specific mechanism for implementation, avoiding formality when
performing. defense function. Specifically:
- Please specify clearly and specifically the right to copy files and
documents of the case in the proceedings of the defense counsel because
although the CrP provides for this, the practice of the procedure There are

21


many reasons to restrict defense counsel from exercising this right, such as
not allowing defense counsel to use cameras to copy files and documents,
or making unreasonable requests such as requiring defense counsel to list
documents to be copied for consideration decision.
- The defense counsel provision has the right to collect evidences,
documents and objects related to defense from agencies, organizations and
individuals that are difficult to be implemented in reality as the CrP of 2003
and the CrP 2015 do not provide for Obligation to provide evidence of
agencies and organizations when requested. Therefore, it is recommended
that the provisions of Article 81 of the CrP are supplemented as follows:
“Organizations and individuals that store documents, objects and facts
related to the defense are responsible for providing the defense counsel
when request". At the same time, it is recommended to supplement
regulations on coordination and support of agencies and organizations in
providing documents to defense counsel and sanctions for interventions,
preventing defense counsel from exercising the right to collection. cross
evidence. Witnesses, organizations and related individuals are required to
be responsible to coordinate with defense counsel; defense counsel may go
to the detention facility to investigate, collect evidence from the detainee,
the accused, the defendant, or may ask them to go to Court to testify. The
detention agency must ensure that the above people receive requests for
investigation, gather evidence and testify from defense counsel.
- The Criminal Procedure Code in 2015 is still not consistent with
regulations when defense counsel meets suspects and defendants in
detention camps to meet privately or in the presence of prison supervisor. In
fact, during the investigation phase, in some localities when NBC met
suspects, defendants in detention camps, they always had to be approved by

investigators or forced to have enumerator accompanying them. In order to
create conditions for defense counsels to work effectively, we believe that
the provisions of Article 80 of the CrPC should be supplemented as
follows: 1) "The defense counsels have the right to personally meet the
accused in custody or temporary houses. detention without the presence of
a person conducting legal proceedings or a prison supervisor "; 2)"
Information exchanged between NBC and accused person needs to be
confidential and not controlled on the content of the exchange ".
22


4.2.2. Solutions to organize the implementation of the law on the function
of defense in criminal proceedings
CONCLUSION
Researching on the dissertation topic "Defense function in Criminal
Procedure of Vietnam", in wide and complicated research conditions, the
author of the thesis has achieved some modest results. This is one of the
high theoretical and practical topics. Although the issue of defense has been
studied by many authors from the perspective of the right to defense, the
principle of defense, but from the perspective of defense function, very few
studies have mentioned it. The author of the thesis clarified the basic
theoretical issues on the function of defense in Vietnam's criminal
procedure such as the concept, characteristics and role of defense function;
form of performing the function of defense; conditions to ensure the
performance of defense functions in criminal proceedings ... Thereby
affirming that the defense function is one of the three basic functions of
criminal procedure, which are the operational aspects in criminal procedure
the recognition and assurance of the accused by the accused of the ability to
present evidence and arguments against the charge, to protect the legitimate
rights and interests of the accused, the commercial entity committing the

crime, contribute to resolving the case objectively, comprehensively and
fully. The provisions of Vietnam's criminal law which show the function of
defense in criminal proceedings are also clarified by the author by
analyzing the provisions on the rights of defense counsels, the rights of
accused persons as well as their obligations in the stage of prosecution,
investigation, prosecution, and trial of criminal cases.
Over the years, defense counsels have performed quite well their
defense functions to protect the rights of their clients. The participation of
defense counsels does not hinder the proceedings of procedure-conducting
persons; on the contrary, the activities of involved parties promote and
complement each other. At the same time, the defense of the defendant and
the accused help to ensure the legitimate rights and interests of the accused,
limit the law violations of the CrP agency and guarantee the prosecution
activities. The proceedings took place objectively, comprehensively and in
accordance with the law. However, besides the positive points, the practical
23