THE NATIONAL
ASSEMBLY No: 19/2003/QH11 |
----- o0o ----- Ha Noi , Day 26
month 11 year 2003 |
CRIMINAL PROCEDURE CODE
(No. 19/2003/QH11 of November 26, 2003)
Pursuant to the 1992
Constitution of the Socialist Republic of Vietnam, which was
amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001
of the Xth National Assembly, the 10th session;
This Code prescribes
the order and procedures of instituting, investigating, prosecuting and
adjudicating criminal cases and executing criminal judgments.
Part One
GENERAL PROVISIONS
Chapter I
TASKS AND EFFECT OF THE CRIMINAL PROCEDURE CODE
Article
1.- Tasks of the Criminal Procedure Code
The Criminal Procedure
Code prescribes the order and procedure of instituting, investigating,
prosecuting and adjudicating criminal cases and executing criminal judgments;
functions, tasks and powers of, as well as relationships among
procedure-conducting bodies; tasks, powers and responsibilities of
procedure-conducting persons; rights and obligations of participants in the
procedure and of various agencies, organizations and citizens; international
cooperation in the criminal procedure, in order to take initiative in
preventing and precluding crimes, detecting accurately and quickly and handling
justly and in time all criminal acts, not leaving criminals unpunished and the
innocent punished unjustly.
The Criminal Procedure
Code contributes to protecting the socialist regime, safeguarding the interests
of the State, the legitimate rights and interests of citizens, organizing and
protecting the socialist legal order, and at the same time educating all people
in the sense of law observance, struggling to prevent and fight crimes.
Article
2.- Effect of the Criminal Procedure Code
All criminal
proceedings on the territory of the Socialist Republic of Vietnam must be
conducted in accordance with the provisions of this Code.
Criminal proceedings
against foreigners who commit offenses on the territory of the Socialist
Republic of Vietnam and who are citizens of the member states of the
international agreements which the Socialist Republic of Vietnam has signed or
acceded to shall be carried out in accordance with the provisions of such
international agreements.
For foreigners
committing offenses on the territory of the Socialist Republic of Vietnam, who
are entitled to diplomatic privileges or consular preferential treatment and
immunities in accordance with Vietnamese laws, international agreements which the
Socialist Republic of Vietnam has signed or acceded to or in compliance with
international practices, their cases shall be settled through diplomatic
channels.
Chapter II
FUNDAMENTAL PRINCIPLES
Article
3.- Guarantee of the socialist legislation in the
criminal procedure
All criminal
proceedings of procedure-conducting bodies and persons and participants in the
procedure must be carried out in accordance with the provisions of this Code.
Article
4.- Respect for, and defense of, fundamental
rights of citizens
When conducting the
procedure, the heads and deputy heads of investigating bodies, investigators,
chairmen and deputy chairmen of procuracies, procurators, presidents and
vice-presidents of courts, judges and jurors must, within the scope of their
respective responsibilities, respect and protect the legitimate rights and
interests of citizens, regularly examine the lawfulness and necessity of the
applied measures, promptly cancel or change such measures if deeming that they
are in violation of law or no longer needed.
Article
5.- Guarantee of all citizens’ right to equality before law
The criminal procedure
shall be conducted on the principle that all citizens are equal before law,
regardless of their nationality, sex, belief, religion, social strata and
social position. Any person committing an offense shall be handled according to
law.
Article
6.- Guarantee of citizens’ right to body inviolability
Nobody shall be
arrested without a court decision, decision made or approved by the
procuracies, except for cases where offenders are caught red-handed.
Arrest and detention
of people must comply with the provisions of this Code.
All forms of coercion
and corporal punishment are strictly forbidden.
Article
7.- Protection of life, health, honor, dignity
and property of citizens
Citizens have the
right to have their life, health, honor, dignity and property protected by law.
All acts of infringing
upon the life, health, honor, dignity and/or property shall be handled
according to law.
Victims, witnesses and
other participants in the procedure as well as their relatives, when their life
and health are endangered, their honor, dignity and/or property are infringed
upon, shall be protected by competent procedure-conducting bodies through
applying necessary measures according to law.
Article
8.- Guarantee of the citizens’ right to residence inviolability, safety and confidentiality of
correspondence, telephone conversations and telegraphs
Nobody is permitted to
infringe upon the residence, safety and confidentiality of correspondence,
telephone conversations and telegraphs of citizens.
While conducting the
procedure, the search of residence, search, seizure and forfeiture of
correspondence and telegraphs must comply with the provisions of this Code.
Article
9.- No person shall be considered guilty until a
court judgment on his/her criminality takes legal effect
No person shall be
considered guilty and be punished until a court judgment on his/her criminality
takes legal effect.
Article
10.- Determination of facts of criminal cases
Investigating bodies,
procuracies and courts must apply every lawful measure to determine the facts
of criminal cases in an objective, versatile and full manner, to make clear
evidences of crime and evidences of innocence, circumstances aggravating and
extenuating the criminal liabilities of the accused or defendants.
The responsibility to
prove offenses shall rest with the procedure-conducting bodies. The accused or
defendants shall have the right but not be bound to prove their innocence.
Article
11.- Guarantee of the right to defense of
detainees, accused and defendants
The detainees, accused
and defendants shall have the right to defend by themselves or ask other
persons to defend them.
Investigating bodies,
procuracies and courts shall have the duty to ensure that the detainees,
accused and defendants exercise their right to defense under the provisions of
this Code.
Article
12.- Responsibilities of procedure-conducting
bodies and persons
In the course of
conducting the procedure, the procedure-conducting bodies and persons must
strictly implement law provisions and take responsibility for their acts and
decisions.
Those who act against
law in making arrest, detention, seizure, instituting, investigating,
prosecuting and/or adjudicating criminal cases and/or executing judgments
shall, depending on the nature and seriousness of their violations, be
disciplined or examined for penal liability.
Article
13.- Responsibility to institute and handle criminal cases
Upon detecting
criminal signs, the investigating bodies, procuracies or courts shall, within
the scope of their respective tasks and powers, have to institute criminal
cases and apply measures provided for by this Code to determine offenses and
handle offenders.
Criminal cases must
not be instituted except on the grounds and in the order provided for by this
Code.
Article
14.- Guarantee of the impartiality of persons conducting or
participating in the procedure
The heads and deputy
heads of investigating bodies, investigators, chairmen and vice-chairmen of
procuracies, procurators, presidents and vice-presidents of courts, judges,
jurors and court clerks must not conduct the procedure or interpreters and
experts must not participate in the procedure if there are plausible grounds to
believe that they may not be impartial while performing their duties.
Article
15.- Implementation of the regime of trial with
the participation of jurors
The trial by people’s courts or military courts shall be participated by people’s jurors or military jurors respectively in accordance with the provisions of this
Code. In the course of trial, jurors shall be equal in rights to judges.
Article
16.- Judges and jurors conduct trial independently
and abide by law only
During trial, judges
and jurors are independent and abide by law only.
Article
17.- Courts conduct trial collectively
Courts shall conduct
trial collectively and make decisions by majority.
Courts shall conduct
trial in public, everybody shall have the right to
attend such trial, unless otherwise prescribed by this Code.
In special cases where
State secrets should be kept or the fine national customs and practices should
be preserved or the involved parties’ secrets must be kept at their
legitimate requests, courts shall conduct trial behind closed door but must
pronounce the judgments publicly.
Article
19.- Guarantee of equal right before court
Procurators,
defendants, defense counsels, victims, civil plaintiffs, civil defendants,
persons with interests and obligations related to the cases and their lawful
representatives and defense counsels of interests of the involved parties shall
all have the equal rights to present evidences, documents and objects, make
claims and argue democratically before court. Courts shall have to create
conditions for them to exercise these rights with a view to clarifying the
objective truths of the cases.
Article
20.- To implement the two-level trial regime
1. Courts shall
implement the two-level trial regime.
First-instance
judgments and decisions of courts may be appealed or protested against under
the provisions of this Code.
First-instance
judgments and decisions, if not appealed or protested against within the time
limits prescribed by this Code, shall be legally valid. For first-instance
judgments or decisions which are appealed or protested against, the cases must
be brought to appellate trial. Appellate judgments and decisions shall be
legally valid.
2. For legally valid
court judgments and decisions, if law violations are detected or new circumstances
emerge, they shall be reviewed according to the cassation or re-opening
procedures.
Article
21.- Trial supervision
Superior courts shall
supervise the trial by subordinate courts. The
Article
22.- Guarantee of the validity of court judgments
and decisions
1. Legally valid court
judgments or decisions must be executed and respected by agencies,
organizations and all citizens. The concerned individuals, agencies and
organizations must, within the scope of their respective responsibilities,
strictly execute or serve the court judgments and decisions and take
responsibility before law for their execution or serving.
2. Within the scope of
their respective responsibilities, State agencies, commune, ward and township
administrations, organizations and citizens must coordinate with the agencies
and organizations tasked to execute court judgments and decisions in the
execution thereof.
State agencies and
commune, ward and township administrations shall have to create conditions for,
and comply with the requests of, agencies and organizations tasked to execute
court judgments and decisions in the execution thereof.
Article
23.- Exercise of the right to prosecute and supervise law
observance in the criminal procedure
1. Procuracies shall
exercise their right to prosecute in the criminal procedure and decide to
prosecute offenders before court.
2. Procuracies shall
supervise the law observance in the criminal procedure and have the duty to
detect in time law violations committed by procedure-conducting bodies or
persons as well as participants in the procedure, and apply measures prescribed
by this Code to preclude law violations by these bodies or individuals.
3. Procuracies shall
exercise their right to prosecute and supervise the law observance in the
criminal procedure in order to ensure that all criminal acts be handled in
time; the institution, investigation, prosecution and trial of criminal cases
as well as execution of judgments be conducted against the right persons and
right offenses, not omitting offenses and offenders, not letting injustice be
done on the innocent.
Article
24.- Spoken and written language used in the
criminal procedure
Spoken and written
language used in the criminal procedure is Vietnamese. Participants in the
criminal procedure may use spoken and written languages of their own
nationalities; in this case, interpreters shall be required.
Article
25.- Responsibilities of organizations and
citizens in the struggle to prevent and fight crimes
1. Organizations and
individuals shall have the right as well as obligation to detect and denounce
criminal acts; participate in the struggle to prevent and fight crimes,
contributing to protecting the interests of the State, the legitimate rights
and interests of citizens and organizations.
2.
Procedure-conducting bodies shall have to create conditions for organizations
and citizens to participate in the criminal procedure; must inform the results
of processing the reported information on and denunciations of crimes to the
reporting organizations or denouncers.
3. Organizations and
citizens shall have to abide by the requests of, and create conditions for, the
procedure-conducting bodies and persons to perform their duties.
Article
26.- Coordination between State agencies and
procedure-conducting bodies
1. Within the scope of
their respective responsibilities, State agencies must apply measures to
prevent crimes; coordinate with investigating bodies, procuracies and courts in
the struggle to prevent and fight crimes.
State agencies must
constantly examine and inspect the performance of their assigned functions and
tasks; detect in time law violation acts for handling and immediately inform
the investigating bodies or procuracies of all criminal acts committed in their
agencies and in their management domains; have the right to propose and send
related documents to the investigating bodies and procuracies to consider and
initiate criminal proceedings against persons committing criminal acts.
The heads of State
agencies shall take responsibility for their failure to report criminal acts
happening in their agencies and in their management domains to the
investigating bodies or procuracies.
State agencies shall
have to comply with the requests of, and create conditions for, the
procedure-conducting bodies and persons to perform their duties.
All acts of
obstructing the activities of the procedure-conducting bodies and persons while
performing their duties are strictly forbidden.
2. Inspection agencies
must coordinate with investigating bodies, procuracies and courts in detecting
and handling crimes. When detecting cases with criminal signs, they must immediately
transfer related documents to and propose investigating bodies or procuracies
to consider and institute criminal cases.
3. Within the scope of
their responsibilities, investigating bodies and procuracies must consider and
settle reported information on crimes, propose the institution of criminal
cases and must inform the settling results to the reporting or proposing State
agencies.
Article
27.- Detection and remedy of causes and conditions
for crime commission
In the course of
carrying out the criminal procedure, investigating bodies, procuracies and
courts shall have to find out crime commission causes and conditions; request
the concerned agencies and organizations to apply remedial and preventive
measures.
The concerned agencies
and organizations must reply on their compliance with the requests of
investigating bodies, procuracies or courts.
Article
28.- Settlement of civil matters in criminal cases
The settlement of
civil matters in criminal cases shall be carried out together with the settlement
of criminal cases. Where a criminal case involves the compensation or
indemnification matter which cannot be proved yet and does not affect the
settlement of the criminal case, such civil matter may be separated and settled
according to civil procedures.
Article
29.- Guarantee of the right to damage compensation
and restoration of honor and interests of unjustly handled persons
Persons who have been
unjustly handled by competent persons in criminal proceedings shall have the
right to damage compensation and restoration of their honor and interests.
The competent bodies
which have handled persons unjustly in criminal proceedings shall have to pay
damage compensation to, and restore the honor and interests of, the unjustly
punished persons; persons who have caused damage shall have to reimburse the
compensated amounts to the competent bodies according to law.
Article
30.- Guarantee of the right to damage compensation
of persons suffering from damage caused by the criminal procedure-conducting
bodies or persons
Persons suffering from
damage caused by competent bodies or persons in criminal proceedings shall have
the right to damage compensation.
The bodies competent
in criminal proceedings shall have to pay compensation to the damaged persons;
the damage-causing persons shall have to reimburse the compensated amounts to
the competent bodies according to law provisions.
Article
31.- Guarantee of the right to complain and denounce in the
criminal procedure
Citizens, agencies and
organizations shall have the right to complain about, and citizens shall have
the right to denounce, illegal acts in criminal proceedings committed by bodies
or persons competent to conduct the criminal procedure or by any individuals of
such bodies.
Competent bodies must
receive, consider and settle in a timely and lawful manner complaints and
denunciations, then send notices on the settlement results to the complainants
and denouncers for knowledge and taking remedial measures.
The order, procedures
and competence to settle complaints and denunciations are provided for by this
Code.
Article
32.- Supervision by agencies, organizations and
people-elected deputies of activities of the procedure-conducting bodies and
persons
State agencies, the
Vietnam Fatherland Front Committees, the Front’s member organizations and
people-elected deputies shall have the right to supervise activities of the
procedure-conducting bodies and persons; supervise the settlement of complaints
and denunciations by such bodies and persons.
If detecting any
illegal acts committed by the procedure-conducting bodies or persons, the State
agencies and people-elected deputies shall have the right to request, or the
Vietnam Fatherland Front Committees and the Front’s member organizations shall
have the right to propose, the competent procedure-conducting bodies to
consider and settle them in accordance with the provisions of this Code. The
competent procedure-conducting bodies must consider, settle and reply such
proposals or requests according to law.
Chapter III
PROCEDURE-CONDUCTING BODIES, PROCEDURE-CONDUCTING PERSONS AND THE
CHANGE OF PROCEDURE-CONDUCTING PERSONS
Article
33.- Procedure-conducting bodies and
procedure-conducting persons
1.
Procedure-conducting bodies include:
a/ Investigating
bodies;
b/ Procuracies;
c/ Courts.
2.
Procedure-conducting persons include:
a/ The heads and deputy
heads of investigating bodies, investigators;
b/ Chairmen,
vice-chairmen of procuracies, procurators;
c/ Presidents and
vice-presidents of courts, judges, jurors, court clerks.
Article
34.- Tasks, powers and responsibilities of heads
and deputy heads of investigating bodies
1. The heads of
investigating bodies shall have the following tasks and powers:
a/ To directly organize
and direct the investigating activities of investigating bodies;
b/ To decide to assign
tasks to their deputies and investigators in investigating criminal cases;
c/ To examine
investigating activities of their deputies and investigators;
d/ To decide to change
or cancel ungrounded and illegal decisions of their deputies and investigators;
e/ To decide to change
investigators;
f/ To settle complaints
and denunciations falling under the competence of investigating bodies.
When the head of an
investigating body is absent, one deputy authorized by such head shall perform the
tasks and exercise the powers of the latter. Deputy heads shall be accountable
to their heads for their assigned tasks.
2. When investigating
criminal cases, the heads of investigating bodies shall have the following
tasks and powers:
a/ To decide to institute
criminal cases and initiate criminal proceedings against the accused, to decide
not to institute criminal cases; to decide to incorporate or separate criminal
cases;
b/ To decide to apply,
change or cancel deterrent measures ;
c/ To decide to pursue
the accused, to search, forfeit, seize, distrain properties, and handle
exhibits;
d/ To decide to solicit
expertise and exhume corpses;
e/ To make conclusions
on the investigation of criminal cases;
f/ To decide to suspend
investigation, to decide to cease investigation, to decide resume
investigation;
g/ To directly carry
out investigating measures; to grant or withdraw defense counsel’s certificates; to issue other decisions and carry out other
proceedings
falling under the competence of investigating bodies.
3. When being assigned
to investigate criminal cases, the deputy heads of the investigating bodies
shall have the tasks and powers defined in Clause 2 of this Article.
4. The heads, deputy
heads of investigating bodies shall take responsibility before law for their
acts and decisions.
Article
35.- Tasks, powers and responsibilities of
investigators
1. The investigators
assigned to investigate criminal cases shall have the following tasks and
powers:
a/ To compile files of
criminal cases;
b/ To summon and
interrogate the accused; to summon and take testimonies from witnesses,
victims, civil plaintiffs, civil dependants and persons with interests and
obligations related to the cases;
c/ To decide to escort
the accused, decide to escort witnesses;
d/ To execute orders
for arrest, custody, temporary detention, search, forfeiture, seizure,
distrainment of properties;
e/ To conduct scene
examination, autopsy, confrontation, identification and investigative
experiments;
f/ To conduct other
investigating activities falling under the competence of investigating bodies
according to the assignment of the heads of investigating bodies.
2. Investigators shall
take responsibility before law and the heads of investigating bodies for their
acts and decisions.
Article
36.- Tasks, powers and responsibilities of
chairmen, vice-chairmen of procuracies
1. The chairmen of
procuracies shall have the following tasks and powers:
a/ To organize and
direct activities of exercising the right to prosecute and supervise the law
observance in criminal proceedings;
b/ To decide to assign
their vice-chairmen and procurators to exercise the right to prosecute and
supervise the law observance in criminal proceedings for criminal cases;
c/ To examine their
vice-chairmen and procurators in activities of exercising the right to
prosecute and supervise their law observance in criminal proceedings;
d/ To protest
according to cassation or reopening procedures the legally valid court
judgments or decisions in accordance with law;
e/ To decide to change
or cancel ungrounded and illegal decisions of their vice-chairmen and
procurators;
f/ To decide to
withdraw, suspend or cancel ungrounded and illegal decisions of the subordinate
procuracies;
g/ To decide to change
procurators;
h/ To settle complaints
and denunciations falling under the competence of procuracies.
When the chairman of a
procuracy is absent, one vice-chairman authorized by the chairman shall perform
the chairman’s tasks and powers. Vice-chairmen
shall be
accountable to their chairmen for their assigned tasks.
2. When exercising the
right to prosecute and supervising the law observance in the proceedings for
criminal cases, the chairmen of procuracies shall have the following tasks and
powers:
a/ To decide to
institute criminal cases, to decide not to institute criminal cases, to decide
to initiate criminal proceedings against the accused; to request investigating
bodies to institute criminal cases or change decisions to institute criminal
cases or initiate criminal proceedings against the accused in accordance with
this Code;
b/ To request the heads
of investigating bodies to change investigators;
c/ To decide to apply,
change or cancel deterrent measures; to decide to extend the investigation
period; to decide to prolong the temporary detention period; to request
investigating bodies to pursue the accused;
d/ To decide to approve
or disapprove decisions of investigating bodies;
e/ To decide to revoke
ungrounded and illegal decisions of investigating bodies;
f/ To decide to
transfer cases;
g/ To decide to
prosecute, to decide to return the files for additional investigation; to
decide to solicit expertise;
h/ To decide to suspend
or cease criminal cases, to decide to resume investigation; to decide to handle
exhibits;
i/ To protest according
to appellate procedures court judgments and decisions;
j/ To grant and
withdraw the defense counsel’s certificates; to issue
other
decisions and conduct other proceedings falling under the competence of
procuracies.
3. When being assigned
to exercise the right to prosecute and supervise the law observance in the
proceedings for criminal cases, vice-chairmen of procuracies shall have the
tasks and powers defined in Clause 2 of this Article.
4. The chairmen and
vice-chairmen of procuracies shall take responsibility before law for their
acts and decisions.
Article
37.- Tasks, powers and responsibilities of
procurators
1. Procurators
assigned to exercise the right to prosecute and supervise the law observance in
the proceedings for criminal cases shall have the following tasks and powers:
a/ To supervise the
institution of criminal cases, supervise investigating activities and the
compilation of case files by investigating bodies;
b/ To set investigation
requirements;
c/ To summon and
interrogate the accused; to summon and take testimonies of witnesses, victims,
civil plaintiffs, civil defendants, and persons with interests and obligations
related to the cases;
d/ To supervise
arrests, custody and temporary detention;
e/ To participate in
court sessions; to read the procuracies’ indictments and decisions
related to the case settlement; to ask questions, present evidences and make
arraignments; to express their views on the case settlement and argue with the
participants in the procedure at court sessions;
f/ To supervise the law
observance by courts in their adjudicating activities, by participants in the
procedure, and to supervise court judgments and decisions;
g/ To supervise the
execution of court judgments and decisions;
h/ To perform other
tasks and exercise other powers falling under the procuracies’ scope of competence as assigned by their chairmen.
2. Procurators shall
take responsibility before law and the chairmen of the procuracies for their
acts and decisions.
Article
38.- Tasks, powers and responsibilities of
presidents, vice-presidents of courts
1. The presidents of
courts shall have the following tasks and powers:
a/ To organize the
adjudicating work of their courts;
b/ To decide to assign
their vice-presidents, judges and jurors to settle and adjudicate criminal
cases; to decide to assign court clerks to conduct the procedure for criminal
cases;
c/ To decide to change
judges, jurors and court clerks before opening court sessions;
d/ To protest according
to cassation procedures legally valid court judgments and decisions in
accordance with the provisions of this Code;
e/ To issue decisions
to execute criminal judgments;
f/ To decide to
postpone the serving of imprisonment penalties;
g/ To decide to suspend
the serving of imprisonment penalties;
h/ To decide to remit
criminal records;
i/ To settle complaints
and denunciations falling under the jurisdiction of their courts.
When the president of
a court is absent, one vice-president authorized by the president shall perform
the tasks and exercise the powers of the latter. Vice presidents shall be
accountable before the presidents for their assigned tasks.
2. When settling
criminal cases, the presidents of courts shall have the following tasks and
powers:
a/ To decide to apply,
change or cancel the temporary detention measure; to decide to handle exhibits;
b/ To decide to
transfer criminal cases;
c/ To grant, withdraw
the defense counsel’s certificates; to issue decisions and conduct other
proceedings falling under the jurisdiction of their courts.
3. When being assigned
to settle or adjudicate criminal cases, vice-presidents of courts shall have
the tasks and powers defined in Clause 2 of this Article.
4. Presidents and
vice-presidents of courts shall take responsibility before law for their acts
and decisions.
Article
39.- Tasks, powers and responsibilities of judges
1. The judges assigned
to settle, adjudicate criminal cases shall have the following tasks and powers:
a/ To study the case
files before the opening of court sessions;
b/ To participate in
adjudicating criminal cases;
c/ To conduct
proceedings and vote on matters falling under the jurisdiction of the trial
panels;
d/ To conduct other
proceedings falling under the jurisdiction of their courts according to the
assignment of the presidents of their courts.
2. The judges assigned
to preside over court sessions shall have, apart from the tasks and powers
defined in Clause 1 of this Article, the following tasks and powers:
a/ To decide to apply,
change or cancel deterrent measures in accordance with the provisions of this
Code;
b/ To decide to return
files for additional investigation;
c/ To decide to bring
cases for trial; to decide to cease or suspend cases;
d/ To decide to summon
persons whom they need to inquire to court sessions;
e/ To conduct other
proceedings falling under the competence of their courts according to the
assignment of the presidents of their courts.
3. The judges holding
the post of president or vice-president of the Court of Appeal of the
4. Judges shall take
responsibility before law for their acts and decisions.
Article
40.- Tasks, powers and responsibilities of jurors
1. When being assigned
to adjudicate criminal cases, jurors shall have the following tasks and powers:
a/ To study case files
before the opening of court sessions;
b/ To participate in
adjudicating criminal cases according to first-instance or appellate
procedures;
c/ To conduct
proceedings and vote on matters falling under the jurisdiction of the trial
panels.
2. Jurors shall take
responsibility before law for their acts and decisions.
Article
41.- Tasks, powers and responsibilities of court
clerks
1. Court clerks
assigned to carry out the procedure for criminal cases shall have the following
tasks and powers:
a/ To announce the
internal rules of court sessions;
b/ To report to the
trial panels the list of persons summoned to court sessions;
c/ To write minutes of
court sessions;
d/ To conduct other
proceedings falling under the jurisdiction of their courts according to the
assignment by the presidents of their courts.
2. Court clerks shall
take responsibility before law and the presidents of courts for their acts.
Article
42.- Cases of refusal or change of procedure-conducting
persons
Procedure-conducting
persons must refuse to conduct the procedure or be changed if:
1. They are
concurrently victims, civil plaintiffs, civil defendants; persons with
interests and obligations related to the cases; lawful representatives or next
of kin of such persons or of the accused or defendants;
2. They have
participated as defense counsels, witnesses, experts or interpreters in such
cases;
3. There are explicit
grounds to believe that they may not be impartial while performing their
duties.
Article
43.- Right to request to change procedure-conducting persons
The following persons
shall have the right to request to change procedure-conducting persons:
1. Procurators;
2. The accused,
defendants, victims, civil plaintiffs, civil defendants and their lawful
representatives;
3. Defense counsels,
defense counsels of interests of victims, civil plaintiffs or civil defendants.
Article
44.- Change of investigators
1. Investigators must
refuse to conduct the procedure or be changed if:
a/ They fall into one
of the cases prescribed in Article 42 of this Code;
b/ They have conducted
the procedure in such cases in the capacity as procurator, judge, juror or
court clerk.
2. The change of
investigators shall be decided by the heads of investigating bodies.
If the investigators
being the heads of investigating bodies fall into one of the cases prescribed
in Clause 1 of this Article, the investigation of the cases shall be conducted
by the immediate superior investigating bodies.
Article
45.- Change of procurators
1. Procurators must
refuse to conduct the procedure or be changed if:
a/ They fall into one
of the cases prescribed in Article 42 of this Code;
b/ They have conducted
the procedure in such cases in the capacity as investigator, judge, juror or court
clerk.
2. The change of
procurators before the opening of court sessions shall be decided by the
chairmen of the procuracies of the same level.
If the to be-changed
procurators are procuracy chairmen, such change shall be decided by the
chairmen of the immediate superior procuracies.
In cases where the
procurators must be changed at court sessions, the trial panels shall issue
decisions to postpone the court sessions.
The appointment of
other procurators shall be decided by the chairmen of the procuracies of the
same level or the chairmen of the immediate superior procuracies.
Article
46.- Change of judges, jurors
1. Judges or jurors
must refuse to participate in the trial or be changed if:
a/ They fall into one
of the cases prescribed in Article 42 of this Code;
b/ They sit on the same
trial panel and are next of kin;
c/ They have
participated in the first-instance trial or appellate trial, or conducted the
procedure in such cases in the capacity as investigator, procurator or court
clerk.
2. The change of
judges and/or jurors before the opening of court sessions shall be decided by
the presidents of the courts. If the to be-changed judges are the presidents of
the courts, such change shall be decided by the presidents of the immediate
superior courts.
The change judges
and/or jurors at court sessions shall be decided by the trial panels before
starting the inquiry by voting at the deliberation chambers. When a member is
considered, he/she may present his/her opinions; the panels shall make
decisions by majority.
In case of change of
judges and/or jurors at court sessions, the trial panels shall issue decisions
to postpone the court sessions.
The appointment of new
trial panel members shall be decided by the presidents of the courts.
Article
47.- Change of court clerks
1. Court clerks must
refuse to conduct the procedure or be changed if:
a/ They fall into one
of the cases prescribed in Article 42 of this Code;
b/ They have conducted
the procedure in such cases in the capacity as procurator, investigator, judge
or juror.
2. The change of court
clerks before the opening of court sessions shall be decided by the presidents
of the courts.
The change of court
clerks at court sessions shall be decided by the trial panels.
In cases where court
clerks must be changed at court sessions, the trial panels shall issue
decisions to postpone the court sessions.
The appointment of
other court clerks shall be decided by the presidents of the courts.
Chapter IV
PARTICIPANTS IN THE
PROCEDURE
Article
48.- Persons held in custody
1. Persons held in
custody are persons arrested in urgent cases, offenders caught red-handed,
persons arrested under pursuit decisions, or confessing or self-surrendering
offenders against whom custody decisions have been issued.
2. Persons held in custody
shall have the following rights:
a/ To be informed of
the reasons for their custody;
b/ To be explained on
their rights and obligations;
c/ To present their
statements;
d/ To defend by
themselves or ask other persons to defend them;
e/ To present documents,
objects as well as claims;
f/ To complain about
their custody, procedural decisions or acts of the bodies and/or persons with
procedure-conducting competence.
3. Persons held in
custody shall have the obligation to observe the law provisions on custody.
1. The accused are
persons against whom criminal proceedings have been initiated.
2. The accused shall
have the following rights:
a/ To be informed of
the offenses which they have been accused of;
b/ To be explained on
their rights and obligations;
c/ To present their
statements;
d/ To present
documents, objects as well as claims;
e/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with the provisions of this Code;
f/ To defend by
themselves or ask other persons to defend them;
g/ To receive
decisions to institute the criminal cases; decisions to apply, change or cancel
deterrent measures; written investigation conclusions; decisions to cease
investigation or suspend investigation; decisions to cease or suspend the
criminal cases; indictments; decisions on their prosecution; and other
procedural decisions as prescribed by this Code;
h/ To complain about
procedural decisions and acts of the bodies and persons with procedure-conducting
competence.
3. The accused must
appear in response to the summonses of investigating bodies or procuracies; in
case of non-appearance without plausible reasons, they may be escorted; if they
escape, they shall be pursued.
1. Defendants are
persons whom the courts have decided to bring for trial.
2. Defendants have the
following rights:
a/ To receive
decisions to bring the cases for trial; decisions to apply, change or cancel
deterrent measures; decisions to cease the cases; judgments and/or decisions of
the courts; and other procedural decisions as prescribed by this Code;
b/ To participate in
court sessions;
c/ To be explained on
their rights and obligations;
d/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with this Code;
e/ To present
documents, objects as well as claims;
f/ To defend by
themselves or ask other persons to defend them;
g/ To present opinions,
argue at court sessions;
h/ To have final words
before the judgment deliberation;
i/ To appeal against
judgments and decisions of the courts;
j/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence.
3. Defendants must
appear in response to the subpoenas of the courts; in case of non-appearance
without plausible reasons, they may be escorted; if they escape, they shall be
pursued.
1. Victims are persons
suffering from physical, spiritual and/or property damage caused by offenses.
2. Victims or their
lawful representatives shall have the following rights:
a/ To present
documents, objects as well as claims;
b/ To be informed of
the investigation results;
c/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with the provisions of this Code;
d/ To suggest the
compensation levels and measures to secure such compensation;
e/ To participate in
court sessions; present their opinions and arguments at court sessions in order
to protect their legitimate rights and interests;
f/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence; to appeal against court judgments and
decisions regarding the compensations to be paid by, as well as the penalties
imposed on, the defendants.
3. Where the criminal
cases are instituted at the requests of victims as prescribed in Article 105 of
this Code, the victims or their lawful representatives shall present their
accusations at court sessions.
4. Victims must appear
in response to the summonses of investigating bodies, procuracies or courts; if
they refuse to give testimonies without plausible reasons, they may bear penal
liability according to Article 308 of the Penal Code.
5. In cases where
victims are deceased, their lawful representatives shall have the rights
defined in this Article.
1. Civil plaintiffs
are individuals, agencies or organizations suffering from damage caused by
offenses and file claims for damages.
2. Civil plaintiffs or
their lawful representatives shall have the following rights:
a/ To present
documents, objects as well as claims;
b/ To be informed of
the investigation results;
c/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with the provisions of this Code;
d/ To suggest the
compensation levels and measures to secure such compensation;
e/ To participate in
court sessions; to present their opinions and arguments at court sessions in
order to protect their legitimate rights and interests;
f/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
g/ To appeal against
court judgments and decisions regarding damage compensation.
3. Civil plaintiffs
must appear in response to the summonses of investigating bodies, procuracies
or subpoenas of courts, and present honestly details related to their claims
for damages.
1. Civil defendants
are individuals, agencies or organizations prescribed by law to pay
compensation for damage caused by criminal acts.
2. Civil defendants or
their lawful representatives shall have the following rights:
a/ To complain about
the civil plaintiffs’ claims for damages;
b/ To present
documents, objects as well as claims;
c/ To be informed of
the investigation results related to the compensation requests;
d/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with this Code;
e/ To participate in
court sessions; to present their opinions and arguments at court sessions to
protect their legitimate rights and interests;
f/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
g/ To appeal against
court judgments and decisions regarding damage compensation.
3. Civil defendants
must appear in response to the summonses of investigating bodies, procuracies
or subpoenas of courts, and present honestly details related to the damage
compensation.
Article
54.- Persons with interests and obligations
related to criminal cases
1. Persons with
interests and obligations related to criminal cases or their lawful
representatives shall have the following rights:
a/ To present
documents, objects as well as claims;
b/ To participate in
court sessions; to present their opinions and arguments at court sessions in
order to protect their legitimate rights and interests;
c/ To appeal against
court judgments and decisions regarding matters directly related to their
interests and obligations;
d/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
2. Persons with
interests and obligations related to criminal cases must be present in response
to the summonses of investigating bodies, procuracies or subpoenas of courts,
and present honestly details directly related to their interests and
obligations.
1. Those who know
details pertaining to criminal cases may all be summoned to give testimonies.
2. The following
persons shall not be allowed to act as witnesses:
a/ Defense counsels of
the accused or defendants;
b/ Persons with
physical or mental defects which render them incapable of perceiving details of
the criminal cases or incapable of giving truthful statements.
3. Witnesses shall
have the following rights:
a/ To ask the bodies
which have summoned them to protect their life, health, honor, dignity,
property and other legitimate rights and interests when participating in the
procedure;
b/ To complain about
procedural decisions and acts of agencies and persons with procedure-conducting
competence;
c/ To be paid by the
summoning agencies the travel and other expenses as prescribed by law.
4. Witnesses shall
have the following obligations:
a/ To appear in
response to the summonses of investigating bodies, procuracies or subpoenas of
courts; in case of deliberate absence without plausible reasons and their
absence causes impediments to the investigation, prosecution or trial, they may
be escorted;
b/ To honestly state
all details they know about the cases.
Witnesses who refuse
or shirk to testify without plausible reasons shall bear penal liability
according to Article 308 of the Penal Code; if giving false testimonies, they
shall bear penal liabilities according to Article 307 of the Penal Code.
1. Defense counsels
may be:
a/ Lawyers;
b/ Lawful
representatives of the persons in custody, the accused or defendants;
c/ People’s advocates.
2. The following
persons shall not be allowed to act as defense counsels:
a/ Persons who have
conducted the procedure in such cases; are next of kin of persons who conducted
or are conducting the procedure in such cases;
b/ Persons who
participate in such cases in the capacity as witness, expert or interpreter.
3. One defense counsel
may defend many persons in custody, accused or defendants in the same case
provided that the rights and interests of such persons are not conflicting.
Many defense counsels may defend one person held in custody, accused or
defendant.
4. Within three days
counting from the date of receiving the requests of the defense counsels
enclosed with papers related to the defense, the investigating bodies,
procuracies or courts must consider and grant them the defense counsel’s certificates so that they can perform the defense. If refusing to
grant such certificates, they must state clearly the reasons therefor.
In case of keeping
persons in custody, within 24 hours as from the time of receiving the requests
of the defense counsels enclosed with the papers related to the defense, the
investigating bodies must consider and grant them the defense counsel’s certificates so that they can perform the defense. If refusing to grant such
certificates, they must state clearly the reasons therefor.
Article
57.- Selection and change of defense counsels
1. Defense counsels
shall be selected by persons kept in custody, the accused, defendants or their
lawful representatives.
2. In the following
cases, if the accused, defendants or their lawful representatives do not seek
the assistance of defense counsels, the investigating bodies, procuracies or
courts must request bar associations to assign lawyers’ offices to appoint defense counsels for such persons or request the Vietnam
Fatherland Front Committees or the Front’s member organizations
to
appoint defense counsels for their organizations’ members:
a/ The accused or
defendants charged with offenses punishable by death as the highest penalty as
prescribed by the Penal Code;
b/ The accused or
defendants being minors or persons with physical or mental defects.
In the cases specified
at Point a and Point b, Clause 2 of this Article, the accused or defendants and
their lawful representatives stall have the right to request the change of, or
refuse to have, defense counsels.
3. The
Article
58.- Rights and obligations of defense counsels
1. Defense counsels
shall participate in the procedure from the initiation of criminal proceedings
against the accused. In case of arresting persons under the provisions of
Article 81 and Article 82 of this Code, defense counsels shall participate in
the procedure from the time the custody decisions are issued. In case of
necessity to keep secret the investigation of the crimes of infringing upon
national security, the chairmen of procuracies shall decide to allow defense
counsels to participate in the procedure from the time of termination of
investigation.
2. Defense counsels
shall have the following rights:
a/ To be present when
testimonies are taken from the persons in custody, when the accused are
interrogated, and, ask questions to the persons in custody or the accused if so
consented by investigators; and to be present in other investigating
activities; to read the minutes of the proceedings in which they have
participated, and procedural decisions related to the persons whom they defend;
b/ To request
investigating bodies to inform them in advance of the time and places of
interrogating the accused so as to be present when the accused are
interrogated;
c/ To request the
change of procedure-conducting persons, experts and/or interpreters in
accordance with the provisions of this Code;
d/ To collect
documents, objects and details related to their defense from the persons in
custody, the accused, defendants, their next of kin or from agencies,
organizations and individuals at the requests of the persons in custody, the
accused or defendants, provided that they are not classified as State secrets
or working secrets;
e/ To present
documents, objects as well as claims;
f/ To meet the persons
kept in custody; to meet the accused or defendants being under temporary
detention;
g/ To read, take notes
of and copy records in the case files, which are related to their defense,
after the termination of investigation according to law provisions;
i/ To participate in
questioning and arguing at court sessions;
j/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence;
k/ To appeal against
court judgments or decisions if the defendants are minors or persons with
physical or mental defects as prescribed at Point b, Clause 2 of Article 57 of
this Code.
3. Defense counsels
shall have the following obligations:
a/ To apply every
measure prescribed by law to clarify the details to prove the innocence of the
persons in custody, the accused or defendants as well as circumstances to
mitigate the penal liability of the accused or defendants.
Depending on each
stage of the procedure, when collecting documents and/or objects related to the
cases, defense counsels shall have to deliver them to investigating bodies,
procuracies or courts. The delivery and receipt of such documents and objects
between defense counsels and the procedure-conducting bodies must be recorded
in a minutes according to Article 95 of this Code;
b/ To provide legal
assistance to the persons in custody, the accused or defendants in order to
defend their legitimate rights and interests;
c/ Not to refuse to
defend the persons in custody, the accused or defendants whom they have
undertaken to defend if they have no plausible reasons therefor.
d/ To respect truth and
law; not to bribe, force or incite other persons to give false statements or
supply untruthful documents;
e/ To appear in
response to court subpoenas;
d/ Not to disclose
investigation secrets they know while performing the defense; not to use notes
taken and/or copied from the case files for the purpose of infringing upon the
State’s interests; the legitimate rights and interests of agencies,
organizations and individuals;
4. Defense counsels
who act against laws shall, depending on the nature and seriousness of their
violations, have their defense counsel’s certificates revoked, be
disciplined, administratively sanctioned or examined for penal liability; if
causing damage, they shall have to pay compensation therefor according to law
provisions.
Article
59.- Defense counsels of interests of involved
parties
1. Victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
criminal cases shall all have the right to ask lawyers, people’s advocates or other persons, who are accepted by investigating
bodies,
procuracies or courts, to protect their interests.
2. Defense counsels of
the interests of the involved parties may participate in the procedure from the
time when criminal proceedings are initiated against the accused.
3. Defense counsels of
the interests of the involved parties shall have the following rights:
a/ To produce
documents, objects as well as claims;
b/ After the
investigation completes, to read, take note of and copy documents in the case
files, which are related to the protection of the interests of the involved
parties according to law provisions;
c/ To participate in
questioning and arguing at court sessions; to read the minutes of court
sessions;
d/ To complain about
procedural decisions and acts of the bodies and persons with
procedure-conducting competence.
Defense counsels of
the interests of victims, civil plaintiffs, civil
defendants shall have the right to request the change of procedure-conducting
persons, experts and/or interpreters in accordance with the provisions of this
Code.
For involved parties
being minors or persons with physical or mental defects, the defense counsels
of their interests shall have the right to be present when the
procedure-conducting bodies are taking statements from the persons whom they
protect; to appeal parts of court judgments or decisions regarding the
interests and obligations of the persons whom they protect.
4. The defense
counsels of the interests of the involved parties shall have the following
obligations:
a/ To apply all
measures prescribed by law to contribute to clarifying the truths of the cases;
b/ To provide the
involved parties with legal assistance in order to protect their legitimate
rights and interests.
1. Experts are persons
possessing necessary knowledge about the domains to be expertised, who are
invited by the procedure-conducting bodies according to law provisions.
2. Experts shall have
the following rights:
a/ To study documents
of the cases, which are related to the to be-expertized objects;
b/ To request the
expertise-soliciting bodies to supply documents necessary for the conclusion;
c/ To join the
interrogation, taking of statements and to ask questions about matters related
to the to be-expertized objects;
d/ To refuse to
expertise in cases if they are not given enough time for the expertise; are
supplied with documents which are inadequate or invalid for making conclusions;
or the contents asked to be expertised are beyond their expert knowledge;
e/ To write their own
conclusions in the written general conclusions if disagreeing with the general
conclusions in cases where the expertise has been conducted by a group of
experts.
3. Experts must appear
in response to the summonses of investigating bodies, procuracies or subpoenas
of courts; they must not disclose investigation secrets which they know while
participating in the procedure in the capacity as expert.
Experts who refuse to
make expertise conclusions without plausible reasons shall bear penal liability
under Article 308 of the Penal Code. If making false conclusions, they shall
bear penal liability under Article 307 of the Penal Code.
4. Experts must refuse
to participate in the criminal procedure or be changed if:
a/ They fall into one
of the cases defined in Clause 1 and Clause 3, Article 42 of this Code;
b/ They have conducted
the procedure in the capacity as head, deputy head of the investigating body,
investigator, chairman or vice-chairman of the procuracy, procurator, president
or vice-president of the court, judge, juror or court clerk, or have
participated in the capacity as defense counsel, witness or interpreter in such
cases.
The change of experts
shall be decided by the expertise-soliciting agencies.
1. Interpreters shall
be required by investigating bodies, procuracies or courts in cases where the
procedures are participated by persons who cannot use
Vietnamese.
2. Interpreters must
appear in response to the summonses of investigating bodies, procuracies or subpoenas
of courts and must interpret truthfully, must not disclose investigation
secrets; if they interpret falsely, the interpreters shall bear penal liability
according to Article 307 of the Penal Code.
3. Interpreters must
refuse to participate in the procedure or be changed if:
a/ They fall into one
of the cases defined in Clause 1 and Clause 3, Article 42 of this Code;
b/ They have conducted
the procedure in the capacity as head, deputy head of the investigating body,
investigator, chairman or vice-chairman of the procuracy, procurator, president
or vice-president of the court, judge, juror or court clerk, or have
participated in the capacity as defense counsel, witness or expert in such
cases.
The change of
interpreters shall be decided by the requesting agencies.
4. The provisions of
this Article shall also apply to persons who know signs of the dumb and the
deaf.
Article
62.- Responsibility to explain and guarantee the
exercise of the rights and the performance of obligations of participants in
the procedure
The
procedure-conducing bodies and persons shall have to explain and guarantee the
exercise of the rights and the performance of obligations of participants in
the procedure in accordance with of this Code. The explanation must be recorded
in a minutes.
Chapter V
EVIDENCES
Article
63.- Matters to be proved in criminal cases
When investigating,
prosecuting and adjudicating criminal cases, the investigating bodies,
procuracies and courts must prove:
1. Whether or not
criminal acts have occurred, time, places and other circumstances of the
criminal acts;
2. Who have committed
the criminal acts; being at fault or not, intentionally or unintentionally,
whether or not they have the penal liability capacity; purposes and motives of
the commission of such crimes;
3. Circumstances
aggravating and circumstances extenuating the penal liability of the accused or
defendants, and personal details of the accused or defendants;
4. The nature and
extent of damage caused by the criminal acts.
1. Evidences are facts
which are collected in the order and procedure prescribed by this Code, which
are used by the investigating bodies, procuracies and courts as grounds to
determine whether or not criminal acts have been committed, persons committing
such acts as well as other circumstances necessary for the proper settlement of
the cases.
2. Evidences are
determined by:
a/ Exhibits;
b/ Testimonies of
witnesses, victims, civil plaintiffs, civil defendants, persons with interests
and obligations related to the cases, the arrestees, persons kept in custody,
the accused or defendants;
c/ Expertise
conclusions;
d/ Minutes of
investigating and adjudicating activities, and other documents and things.
Article
65.- Collection of evidences
1. In order to collect
evidences, the investigating bodies, procuracies and courts may summon persons
who know about the cases to ask and listen to their statements on the matters
pertaining to the cases, solicit expertise, conduct searches, examinations and
other investigating activities according to the provisions of this Code;
request agencies, organizations and individuals to supply documents, objects
and relate circumstances to clarify the cases.
2. Participants in the
procedure, agencies, organizations or any individuals may all present
documents, as well as matters related to the cases.
Article
66.- Evaluation of evidences
1.
Each evidence must be evaluated in order to determine its legality,
authenticity and relevance to the cases. The collected evidences must be
sufficient for the successful settlement of criminal cases.
2. Investigators,
procurators, judges and jurors shall identify and evaluate all evidences with a
full sense of responsibility after studying generally, objectively,
comprehensively and fully all circumstances of the cases.
Article
67.- Statements of witnesses
1. Witnesses shall
present what they know about the cases, personal details of the arrestees,
persons in custody, the accused or defendants, victims, their relationships
with the arrestees, persons in custody, the accused or defendants, and/or
victims, with other witnesses, and answer questions put to them.
2. Circumstances
presented by witnesses must not be used as evidences if the witnesses cannot
say clearly why they have known such circumstances.
Article
68.- Statements of victims
1. Victims shall
present circumstances of the cases, their relationships with the arrestees,
persons in custody, the accused or defendants, and answer questions that are
raised.
2. Circumstances
presented by victims must not be used as evidences if they cannot say clearly
why they have known such circumstances.
Article
69.- Statements of civil plaintiffs, civil
defendants
1. Civil plaintiffs,
civil defendants shall present circumstances related to the compensation of
damage caused by criminal acts.
2. Circumstances
presented by civil plaintiffs or civil defendants must not be used as evidences
if they cannot say clearly why they have known such circumstances.
Article
70.- Statements of persons with interests and
obligations related to criminal cases
1. Persons with
interests and obligations related to criminal cases shall present circumstances
directly related to their interests and obligations.
2. Circumstances
presented by persons with interests and obligations related to criminal cases
must not be used as evidences if they cannot say clearly why they have known
such circumstances.
Article
71.- Statements of arrestees, persons in custody
Arrestees, persons in
custody shall present circumstances related to their being suspected of having
committed criminal acts.
Article
72.- Statements of the accused or defendants
1. The accused or
defendants shall present circumstances of the cases.
2. Confessions of the
accused or defendants shall only be regarded as evidences if they are consistent
with other evidences of the cases.
Confessions of the
accused or defendants must not be used as sole evidences for conviction.
Article
73.- Expertise conclusions
1. Experts shall
conclude on the matters required to be expertised and bear personal responsibility
for their conclusions.
Expertise conclusions
must be expressed in writing.
If the expertise has
been conducted by a group of experts, all the group members shall sign the
written general conclusions. In cases where their opinions are divergent, each
person shall write his/her own conclusion therein.
2. In cases where the
procedure-conducting bodies disagree with the expertise conclusions, they must
clearly state the reasons, if such conclusions are unclear or incomplete, the
procedure-conducting bodies shall decide to solicit additional expertise or
re-expertise according to general procedures.
Exhibits are articles
which have been used as tools or means for the commission of crimes; items
carrying traces of crimes, things being the targets of crimes, as well as money
and other things which can be used to prove the crimes and criminals.
Article
75.- Collection and preservation of exhibits
1. Exhibits should be
collected in time, fully and described according to their actual conditions in
the minutes and inserted in the case files.
Where exhibits cannot
be inserted into the case files, they must be photographed and may be
video-recorded for insertion in the case files. Exhibits must be sealed up and
preserved.
2. Exhibits must be
preserved intact, not letting them be lost, confused or damaged. The sealing
and preservation of exhibits shall be as follows:
a/ Exhibits required to
be sealed up must be sealed up immediately after being collected. The sealing
and unsealing must comply with law provisions and recorded in a minutes to be
inserted in the case file;
b/ Exhibits being
money, gold, silver, precious metals, gems, antiques, explosives, inflammables,
toxins or radioactive substances must be expertized immediately after being collected
and delivered to banks or other specialized agencies for preservation;
c/ Exhibits which
cannot be taken to the offices of the procedure-conducting bodies for
preservation shall be handed over by the procedure-conducting bodies to the
owners or lawful managers of objects or properties, their relatives or local
administrations, agencies or organizations where the exhibits exist for
preservation.
d/ For exhibits being
easy-to-deteriorate or difficult-to-preserve goods, if they do not fall into
the case prescribed in Clause 3, Article 76 of this Code, competent bodies
defined in Clause 1, Article 76 of this Code shall, within the scope of their
powers, decide to sell them according to law and remit the proceeds therefrom
into their custody accounts at State treasuries for management;
e/ For exhibits
brought to the offices of the procedure-conducting bodies for preservation, the
police agencies shall have to preserve them at the investigating and
prosecuting stages; the judgment-executing agencies shall have to preserve them
at the adjudicating and judgment-executing stages.
3. If the persons
responsible for preserving exhibits of criminal cases let them lost or damaged,
break the seals, consume, transfer, fraudulently swap, conceal or destroy them,
they shall, depending on the nature and seriousness of their violations, be
disciplined or examined for penal liability according to Article 310 of the
Penal Code; if they add, appropriate, modify, fraudulently swap, destroy or
damage exhibits of criminal cases in order to distort the case files, they
shall bear penal liability according to Article 300 of the Penal Code; if
causing damage, they shall have to pay compensation therefor according to law
provisions.
Article
76.- Handling of exhibits
1. The handling of
exhibits shall be decided by investigating bodies if the criminal cases are
ceased at the investigating stage; by the procuracies if the cases are ceased
at the prosecuting stage; or by courts or trial panels at the adjudicating
stage. The execution of decisions on handling exhibits must be recorded in
minutes.
2. Exhibits shall be
handled as follows:
a/ Exhibits being tools
and means used for the commission of crimes, or articles banned from
circulation shall be confiscated and forfeited into the State fund or be
destroyed.
b/ Exhibits being
items, money owned by the State, organizations or individuals but appropriated
by offenders or used as tools and means for the commission of crimes shall be
returned to their owners or lawful managers; in cases where their owners or
lawful managers are unidentifiable, they shall be forfeited into the State
fund;
c/ Exhibits being money
or property acquired from the commission of crimes shall be confiscated and
forfeited into the State fund;
d/ Exhibits being
easy-to-deteriorate or difficult-to-preserve goods may be sold according to
law;
e/ Exhibits of no value
or no use shall be confiscated and destroyed.
3. In the course of
investigation, prosecution or adjudication, competent bodies defined in Clause
1 of this Article shall have the right to decide to return the exhibits stated
at Point b, Clause 2 of this Article to their owners or lawful managers if they
deem that such will not affect the handling of the cases.
4. Disputes over the
right to own exhibits shall be settled according to civil procedures.
Article
77.- Minutes of investigating and adjudicating
activities
The circumstances
recorded in the minutes of arrests, searches, scene examinations, autopsies,
confrontations, identification and investigation experiments, in the minutes of
court sessions and the minutes of other proceedings conducted in accordance
with this Code may be regarded as evidences.
Article
78.- Other documents and objects in criminal cases
The circumstances
related to criminal cases, which are recorded in documents as well as objects
supplied by agencies, organizations and individuals may be regarded as
evidences.
Where these documents
and objects show signs specified in Article 74 of this Code, they shall be
regarded as exhibits.
Chapter VI
DETERRENT MEASURES
Article
79.- Grounds for application of deterrent measures
In order to stave off
crimes in time or when there are grounds proving that the accused or defendants
would cause difficulties to the investigation, prosecution or adjudication, or
they would continue committing offenses, as well as when it is necessary to
secure the judgment execution, the investigating bodies, procuracies or courts,
within the scope of their procedural jurisdiction, or competent persons defined
by this Code may apply one of the following deterrent measures: arrest,
custody, temporary detention, ban from travel outside one’s residence, guaranty, deposit of money or valuable property as bail.
Article
80.- Arresting the accused or defendants for
temporary detention
1. The following
persons shall have the right to order the arrest of the accused or defendants
for temporary detention:
a/ Chairmen and vice-
chairmen of people’s procuracies and military procuracies at all
levels;
b/ Presidents,
vice-presidents of people’s courts and military courts at all levels;
c/ Judges holding the
post of president or vice-president of the Court of Appeal of the
d/ Heads, deputy heads
of investigating bodies at all levels. In this case, arrest warrants must be
approved by the procuracies of the same level before they are executed.
2. An arrest warrant
must be clearly inscribed with the date, full name and post of the warrant
issuers, the full name, address of the arrestee and the reason for the arrest.
Arrest warrants must be signed by the issuers and stamped.
The executors of
arrest warrants must read the warrants, explain the warrants, rights and
obligations of the arrestees, and make minutes of the arrests.
When
arresting persons at their residences, representatives of the commune, ward or
township administrations and the neighbors of the arrestees must be present as
witnesses. When arresting persons at their working places, representatives
of the agencies or organizations where such persons work must be present as
witnesses. When arresting persons at other places, representatives of the
commune, ward or township administrations of the places where the arrests are
made must be present as witnesses.
3. It is forbidden to
arrest persons at night, except for cases of urgent arrest, arrest of offenders
red-handed or arrest of wanted persons as prescribed in Article 81 and Article
82 of this Code.
Article
81.- Arresting persons in urgent cases
1. In the following
cases, urgent arrests can be made:
a/ When there exist
grounds to believe that such persons are preparing to commit very serious or
exceptionally serious offenses;
b/ When victims or
persons present at the scenes where the offenses occurred saw with their own
eyes and confirmed that such persons are the very ones who committed the
offenses and it is deemed necessary to immediately prevent such persons from
escaping;
c/ When traces of
offenses are found on the bodies or at the residences of the persons suspected
of having committed the offenses and it is deemed necessary to immediately
prevent such persons from escaping or destroying evidences.
2. The following
persons shall have the right to order the arrest of persons in urgent cases:
a/ Heads, deputy heads
of investigating bodies at all levels;
b/ Commanders of
independent military units of the regiment or equivalent level; commanders of
border posts in islands or border areas;
c/ Commanders of
aircraft, sea-going ships which have left airports or seaports.
3. The contents of
arrest warrants in urgent cases and the execution thereof must comply with the
provisions of Clause 2, Article 80 of this Code.
4. In all cases, the
urgent arrests must be immediately notified in writing to the procuracies of
the same level, enclosed with documents related to the urgent arrests, for
consideration and approval.
The procuracies must
closely supervise the grounds for urgent arrest prescribed in this Article. In
case of necessity, the procuracies must meet and question the arrestees in
person before considering and deciding to approve or not to approve the
arrests.
Within 12 hours after
receiving the requests for approval of, and documents related to, the urgent
arrests, the procuracies must issue decisions to approve or not to approve such
arrests. If the procuracies decide not to approve the arrests, the issuers of
arrest warrants must immediately release the arrestees.
Article
82.- Arresting offenders red-handed or wanted
offenders
1. For persons who are
detected or chased while committing offenses or immediately after having
committed offenses as well as for wanted persons, any persons shall have the
right to arrest and take them to the police agencies, procuracies or People’s Committees at the nearest places. These agencies must make minutes thereof
and immediately take the arrestees to the competent investigating bodies.
2. When arresting
offenders red-handed or wanted persons, any persons shall have the right to
deprive the arrestees of their weapons and/or dangerous tools.
Article
83.- Actions to be taken promptly after arresting
persons or receiving arrestees
1. Immediately after
arresting persons in urgent cases or offenders red-handed or receiving such
arrestees, the investigating bodies must take their statements and must, within
24 hours, issue decisions to keep the arrestee in custody or release them.
2. For arrestees being
wanted persons, after taking their statements, the investigating bodies that
have received them must immediately notify such to the bodies which have issued
the pursuit decisions for coming to receive the arrestees.
After receiving the
arrestees, the bodies which have issued the pursuit decisions must immediately
issue decisions to cease the pursuit. In cases where the investigating bodies
which have received the arrestees deem that the bodies which have issued the
pursuit decisions cannot immediately come to receive the arrestees, they shall,
after taking their statements, immediately issue custody decisions and at the
same time immediately notify such to the agencies which have issued the pursuit
decisions.
After receiving the
notices, the agencies which have issued the pursuit decisions and have
jurisdiction to arrest persons for temporary detention must immediately issue
temporary detention warrants and send them, after being approved by the
procuracies of the same level, to the investigating bodies which have received
the arrestees. After receiving the temporary detention warrants, the
investigating bodies which have received the arrestees shall have to escort
such persons to the nearest temporary detention centers.
1. The persons
executing arrest warrants must make minutes in all cases.
A
minutes must clearly state the date, hour and place of arrest,
minute-making place; actions already taken, the developments when the arrest
warrant is being executed, objects and documents seized and complaints of the
arrestee.
The minutes must be
read to the arrestee and witnesses. The arrestee, the executor of the arrest
warrant and witnesses must all sign the minutes, if any of them holds opinions
different from or disagrees with the minutes’ contents, he/she shall have the
right to write such in the minutes and sign.
The seizure of
articles and documents of the arrestees must comply with the provisions of this
Code.
2. When delivering and
receiving the arrestees, the delivering and receiving parties must make the
minutes thereof.
Apart from the points
stated in Clause 1 of this Article, the delivery and receipt minutes must
clearly state the handing of the minutes of the statements, objects and
documents already collected, the health conditions of the arrestees and all
happenings at the time of the delivery and receipt.
Article
85.- Notices on arrests
The arrest warrant
issuers and the arrestee-receiving investigating bodies must immediately notify
the arrests to the arrestees’ families, the administrations of
the communes, wards or townships where the arrestees reside or the agencies or
organizations where they work. If such notification can impede the
investigation, after the impediment no longer exists, the arrest warrant
issuers or the arrestee-receiving investigating bodies must immediately effect
such notification.
1. Custody may apply
to persons arrested in urgent cases, offenders caught red-handed, offenders who
confessed or surrendered themselves or persons arrested under pursuit warrants.
2. The persons with
the right to issue urgent arrest warrants, who are defined in Clause 2, Article
81 of this Code, and regional coast guard commanders shall have the right to
issue custody decisions.
The executors of
custody decisions must explain to the persons kept in custody their rights and
obligations defined in Article 48 of this Code.
3. Within 12 hours
after their issuance, the custody decisions must be sent to the procuracies of
the same level. If deeming that the custody is ungrounded or unnecessary, the
procuracies shall issue decisions to cancel the custody decisions and the
custody decision issuers must immediately release the persons kept in custody.
Custody decisions must
clearly state the custody reasons and the custody expiry dates, and one copy
must be handed to the persons kept in custody.
Article
87.- Custody time limits
1. The custody time
limit must not exceed three days, counting from the time the investigating
bodies receive the arrestees.
2. In case of
necessity, the custody decision issuers may extend the custody time limit but
for no more than three days. In special cases, the custody decision issuers may
extend the custody time limit for the second time but for no more than three
days. All cases of extension of the custody time limit must be approved by the
procuracies of the same level; within 12 hours after receiving the extension
requests and documents related to the custody time limit extension, the
procuracies must issue decisions to approve or disapprove such requests.
3. In the custody
period, if there are insufficient grounds to initiate criminal proceedings
against the accused, the persons kept in custody must be released immediately.
4. The custody
duration shall be subtracted from the temporary detention duration. A custody
day shall be counted as one temporary detention day.
Article
88.- Temporary detention
1. Temporary detention
may apply to the accused or defendants in the following cases:
a/ The accused or
defendants have committed especially serious offenses or very serious offenses.
b/ The accused or
defendants have committed serious or less serious offenses punishable under the
Penal Code by imprisonment for over two years and there are grounds to believe
that they may escape or obstruct the investigation, prosecution or trial or may
continue committing offenses.
2. The accused or
defendants being women who are pregnant or nursing children aged under thirty
six months, being old and feeble people, or suffering from serious diseases and
having clear residences shall not be detained but be applied other deterrent
measures, except for the following cases:
a/ The accused or
defendants who escaped but then were arrested under pursuit warrants;
b/ The accused or
defendants who were subject to other deterrent measures but then continue
committing offenses or intentionally seriously obstruct the investigation,
prosecution or adjudication;
c/ The accused or
defendants who committed offenses of infringing upon national security and
there are sufficient grounds to believe that if they are not detained, they
shall be detrimental to national security.
3. The persons with
competence to issue arrest warrants, who are defined in Article 80 of this
Code, shall have the right to issue temporary detention warrants. Temporary
detention warrants issued by the persons defined at Point d, Clause 1, Article
80 of this Code must be approved by the procuracies of the same level before
being executed. Within three days after receiving the temporary detention
warrants, requests for consideration and approval, files and documents related
to the temporary detention, the procuracies must issue decisions to approve or
disapprove the temporary detention. The procuracies must return the files to
the investigating bodies immediately after finishing the consideration and
approval.
4. The bodies which
have issued the temporary detention warrants must examine the detainees’ identity cards and immediately notify such to their families and the administrations
of the communes, wards or townships where such persons reside or agencies or
organizations where they work.
Article
89.- Regime of custody and temporary detention
The regime of custody
and temporary detention is different from the regime applicable to persons
serving imprisonment penalties.
The temporary
detention and custody places, the regimes of daily life, receipt of gifts,
contact with families and other regimes shall comply with the regulations of
the Government.
Article
90.- Care of relatives and preservation of
properties of persons in custody or temporary detention
1. When the persons in
custody or temporary detention have children aged under
14 years or relatives being disabled, old and feeble without anyone to look
after, the bodies which have issued the custody decisions or temporary
detention warrants shall assign such persons to their relatives for care. Where
the persons in custody or temporary detention have no relatives, the bodies
which have issued the custody decisions or temporary detention warrants shall
assign such persons to the administrations of the places where they live for
care.
2. In cases where the
persons in custody or temporary detention have houses or other properties
guarded or preserved by nobody, the bodies which have issued the custody
decisions or temporary detention warrants shall apply appropriate guard or
preservation measures.
3. The bodies which
have issued the custody decisions or temporary detention warrants shall notify the
persons in custody or temporary detention of the applied measures.
Article
91.- Ban from travel outside one’s residence place
1. Ban from travel
outside one’s residence place is a measure applicable to the accused or
defendants with clear residence places in order to ensure their appearance in
response to the summonses of investigating bodies, procuracies or subpoenas of
courts.
2. The persons defined
in Clause 1, Article 80 of this Code, judges assigned to preside over court
sessions shall have the right to order the ban from travel outside one’s residence place.
The accused or
defendants must make written pledges not to travel outside their residence
places, to appear on time and at the place stated in the summonses.
The persons who have
ordered the ban from travel outside one’s residence place must notify the
application of this measure to the administrations of the communes, wards or
townships where the accused or defendants reside and assign the accused or
defendants to the commune, ward or township administrations for management and
supervision. Where the accused or defendants have plausible reasons to
temporarily travel outside their residence places, they must obtain the consent
of the administrations of the communes, wards or townships where they reside as
well as permits of the bodies which have applied such deterrent measure.
3. The accused or
defendants who violate the orders on ban from travel outside their residence
places shall be subject to the application of other deterrent measures .
1. Guarantee is a
deterrent measure to replace the temporary detention measure. Depending on the
criminal acts’ nature and extent of danger to the society and the
personal details of the accused or defendants, the investigating bodies, procuracies
or courts may decide to let them be guaranteed.
2. Individuals who may
stand guarantee for the accused or defendants are their relatives. For this
case at least two persons are required. Organizations may stand guarantee for
the accused or defendants being their members. When standing guarantee,
individuals or organizations must make written pledges not to let the accused
or defendants continue committing offenses and ensure their appearance in
response to the summonses of the investigating bodies, procuracies or subpoenas
of courts. When making such written pledges, the guaranteeing individuals or
organizations shall be informed of the circumstances of the cases related to
their guarantee.
3. The persons defined
in Clause 1, Article 80 of this Code, judges assigned to preside over court
sessions shall have the right to issue decisions on the guarantee.
4. Individuals
standing guarantee for the accused or defendants must have good conduct and
qualities, and have strictly observed law. The guarantee must be certified by
the local administrations of the places where the guaranteeing persons reside
or the agencies or organizations where they work. For organizations standing
guarantee, the certification of their heads shall be required
.
5. If guaranteeing
individuals or organizations violate the pledged obligations, they must bear
responsibility for such pledged obligations and in this case the guaranteed
accused or defendants shall be subject to the application of other deterrent measures .
Article
93.- Depositing money or valuable property as bail
1. Depositing money or
valuable property as bail is a deterrent measure to replace the temporary
detention measure. Depending on the criminal acts’ nature and extent of danger
to the society, personal details and property status of the accused or
defendants, the investigating bodies, procuracies or courts may decide to allow
them to deposit money or valuable property as security for their appearance in
response to summonses.
2. The persons defined
in Clause 1, Article 80 of this Code, judges assigned to preside over court
sessions shall have the right to issue decisions on the deposit of money or
property as bail. Decisions of the persons defined at Point d, Clause 1,
Article 80 of this Code must be approved by the procuracies of the same level
before being executed.
3. The bodies which
have issued decisions on depositing money or valuable property as bail must
make the minutes clearly stating the sum of money, names and conditions of
property deposited, and hand one copy of the minutes to the accused or
defendants.
4. Where the accused
or defendants have been summoned by the investigating bodies, procuracies or
courts but they do not appear without plausible reasons, the deposited money
sum or property shall be forfeited into the State fund, and in this case other
deterrent measures shall be applied to the accused or defendants.
Where the accused or
defendants have fulfilled all pledged obligations, the procedure-conducting
bodies shall have to return to them the deposited money sum or property.
5. The order,
procedures, the money amounts or value of property required to be deposited as
bail, the custody, return or non-return of the deposited money sums or property
put as bail shall comply with law provisions.
Article
94.- Cancellation or replacement of deterrent
measures
1. When the cases are
ceased, all applied deterrent measures shall be canceled.
2. Investigating
bodies, procuracies and courts shall cancel deterrent measures when they are
deemed no longer needed or may be replaced by another one.
For deterrent measures
which have been approved by the procuracies, the cancellation or replacement
thereof must be decided by the procuracies.
Chapter VII
MINUTES, TIME LIMITS,
LEGAL COSTS
1. When carrying out
proceedings, it is compulsory to make minutes thereon according to set forms.
A minutes must clearly
indicate the place, date and hour when the proceeding is conducted, the
starting and ending time, contents of the proceeding, the persons conducting,
participating in, or related to, the proceeding, their complaints, requests or
proposals.
2. Minutes of court
sessions must be signed by the presiding judges and court clerks. Minutes of
other proceedings must be signed by the persons prescribed by this Code for
each specific case. Any corrections made in minutes must be also confirmed by
the signatures of such persons.
Article
96.- Calculation of time limits
1. Time limits
prescribed by this Code shall be counted in hours, days and months. Night time
shall be counted from 22:00 hrs to 6:00 hrs of the following day.
When a time limit is
counted in days, it shall expire at 24:00 hrs of its last day. When a time
limit is counted in months, it shall expire on the same date of the subsequent
month; if that month has no same date, the time limit shall expire on the last
day of that month; if a time limit expires on a holiday, the first following
working day shall be counted as the last day of that time limit.
When calculating a
custody or temporary detention time limit, the expiry date of that time limit
shall be inscribed in the order. If a time limit is counted in months, a month
shall consist of thirty days.
2. Where applications
or papers are sent by post, the time limit shall be counted according to the
postmarks of the sending places. If applications or papers are sent through the
superintendence boards of the temporary detention centers or prisons, the time
limit shall be counted from the date the superintendence boards of the
temporary detention centers or prisons receive such applications or papers.
Article
97.- Restoration of time limits
For expired time
limits, if plausible reasons do exist, the procedure-conducting bodies must
restore such time limits.
Legal costs are all
expenses for conducting criminal proceedings, including remuneration for
witnesses, victims, experts, interpreters or defense counsels in cases where
they are appointed by the procedure-conducting bodies, and other expenses
prescribed by law; civil legal costs in criminal cases.
Article
99.- Responsibility to incur legal costs
1. Legal costs shall
be incurred by the convicts or by the State according to law provisions.
2. The convicts must
pay legal costs under court decisions.
3. Where a case is
instituted at the request of the victim, if the defendant is pronounced not
guilty by the court or the case is ceased under the provisions of Clause 2,
Article 105 of this Code, the victim shall have to pay legal costs.
Part Two
INSTITUTION,
INVESTIGATION OF CRIMINAL CASES AND DECISION ON PROSECUTION
Chapter VIII
INSTITUTION OF
CRIMINAL CASES
Article
100.- Grounds for instituting criminal cases
Criminal cases shall
be instituted only when criminal signs have been identified. The identification
of criminal signs shall be based on the following grounds:
1. Denunciations of
citizens;
2. Information
reported by agencies or organizations;
3. Information
reported on the mass media;
4. Criminal signs
directly detected by investigating bodies, procuracies, courts, border guard,
customs, ranger, coast guard forces and other agencies of the People’s Police or the People’s Army, which are assigned to conduct a
number of
investigating activities;
5. Confession by
offenders.
Article 101.- Denunciations and
information on offenses
Citizens may denounce
offenses to investigating bodies, procuracies, courts or other bodies,
organizations. If a denunciation is made orally, the receiving agency or
organization must make a minutes thereof with the
signature of the denouncer.
Agencies,
organizations, when detecting or receiving denunciations of citizens, must
promptly report such information in writing to the investigating bodies.
Article 102.- Confession by
offenders
When offenders come to
give confessions, the receiving agencies or organizations must make minutes
thereof, clearly inscribing the full names, ages, occupations, residences and
statements of the confessors. They shall have to immediately inform the
investigating bodies or procuracies thereof.
Article 103.- Tasks of settling
offence denunciations and information and proposals for institution of criminal
cases
1. Investigating
bodies and procuracies shall have the responsibility to receive all offense
denunciations and information from individuals, agencies and organizations as
well as criminal case institution proposals transferred by State agencies.
Procuracies shall have the responsibility to immediately transfer offense
denunciations and information and criminal case institution proposals enclosed
with relevant documents they have received to competent investigating bodies.
2. Within twenty days
after receiving offense denunciations, information, and/or criminal case
institution proposals, the investigating bodies must, within the scope of their
responsibilities, examine and verify the information sources and decide to
institute or not to institute criminal cases.
In cases where the
denounced events, offense information or criminal case institution proposals
involve many complicated circumstances or where the examination and
verification thereof must be conducted at many different places, the time limit
for settling denunciations and information may be longer, but must not exceed
two months.
3. The results of
settlement of offense denunciations or information or criminal case institution
proposals of State bodies must be sent to the procuracies of the same level and
be notified to the reporting agencies, organizations or the offense denouncers.
The investigating
bodies must apply necessary measures to protect the offense denouncers.
4. The procuracies
shall have to supervise the settlement by the investigating bodies of offence
denunciations and information or criminal case institution proposals.
Article 104.- Decisions to
institute criminal cases
1, When
determining that criminal signs have existed, the investigating bodies must
issue decisions to institute criminal cases. The heads of border guard units,
customs or ranger offices, the coast guard force and the heads of other
agencies of the People’s Police or the People’s Army, which
are assigned to conduct a number of investigating activities, shall issue
decisions to institute criminal cases in the cases specified in Article 111 of
this Code.
The procuracies shall
issue decisions to institute criminal cases in cases where they cancel
decisions not to institute criminal cases, which have been issued by the bodies
stated in this Clause, and in cases where the trial panels request to institute
the criminal cases.
The trial panels shall
issue decisions to institute criminal cases or request the procuracies to
institute criminal cases if they, in the course of trial at court sessions,
detect new offenses or offenders required to be investigated.
2. Decisions to
institute criminal cases must clearly state the time and grounds for
institution, the applicable articles of the Penal Code, and the full names and
positions of the decision issuers.
3. Within 24 hours
after issuing decisions to institute criminal cases, the procuracies must send
such decisions to the investigating bodies for investigation; institution
decisions enclosed with documents related to the institution of criminal cases,
which have been issued by the investigating bodies, border guard, customs and
ranger, coast guard force, or other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of
investigating activities, must be sent to the procuracies for procuration of
the institution; institution decisions of the trial panels must be sent to the
procuracies for consideration and decision on the investigation; institution
requests of the trial panels shall be sent to the procuracies for consideration
and decision on the institution.
Article 105.- Institution of
criminal cases at victims’ requests
1. The cases involving
the offenses prescribed in Clauses 1 of Articles 104, 105, 106, 108, 109, 111,
113, 121, 122, 131 and 171 of the Penal Code shall only be instituted at the
requests of victims or lawful representatives of victims who are minors or
persons with physical or mental defects.
2. In cases where the
criminal case institution requesters withdraws their
requests before the opening of court sessions of first-instance trial, the
cases must be ceased.
Where exist grounds to
determine that the institution requesters have withdrawn their requests against
their own will due to force or coercion, the investigating bodies, procuracies
or courts may, though such institution requesters have withdrawn their
requests, still continue conducting the procedure for the cases.
Victims who have withdrawn
their criminal case institution requests shall have no right to file their
requests again, except for cases where their withdrawal is due to force or
coercion.
Article 106.- Change or
supplementation of decisions to institute criminal cases
1. When they have
grounds to determine that the instituted criminal cases are not true to the
committed criminal acts or there remain other offences, the investigating
bodies or procuracies shall issue decisions to change or supplement the
decisions to institute the criminal cases.
2. In cases where the
investigating bodies decide to change or supplement the decisions to institute
criminal cases, within 24 hours after issuing such decisions, the investigating
bodies must send them to the procuracies for supervision of such institution.
Where the procuracies
decide to change or supplement the decisions to institute criminal cases,
within 24 hours after issuing such decisions, the procuracies must send them to
the investigating bodies for investigation.
Article 107.- Grounds for not
instituting criminal cases
Criminal cases shall
not be instituted when one of the following grounds exists:
1. There is no
offence;
2. The committed acts
do not constitute an offence;
3. The persons
committing acts dangerous to the society have not yet reached the age to bear
penal liability;
4. The persons
committing criminal acts have got the legally valid judgments or decisions to
cease their cases.
5. The statute of
limitations for penal liability examination has expired;
6. The offenses have
been granted general amnesty;
7. The persons
committing acts dangerous to the society are deceased, except for cases where
the reopening review of the cases is required for other persons.
Article 108.- Decisions not to
institute criminal cases
1. When there exists
one of the grounds prescribed in Article 107 of this Code, the persons with
competence to institute criminal cases shall issue decisions not to institute
criminal cases; if they have instituted criminal cases, they must issue
decisions to cancel such institution decisions and notify the
offense-denouncing or reporting agencies, organizations or individuals of the
reasons therefor; if deeming it necessary to handle the cases by other
measures, they shall send the files thereof to the concerned agencies or
organizations for settlement.
Within 24 hours after
their issuance, decisions not to institute criminal cases, decisions to cancel
decisions to institute criminal cases and related documents must be sent to the
procuracies of the same level.
2. The agencies,
organizations or individuals that have denounced or reported on the offenses
shall have the right to complain about the decisions not to institute criminal
cases. The competence and procedures for settling such complaints shall comply with
the provisions of Chapter XXXV of this Code.
Article 109.- Powers and
responsibilities of procuracies in instituting criminal cases
1. The procuracies
shall exercise the right to prosecute and supervise the law observance in the
institution of criminal cases, ensuring that criminal cases be instituted for
all detected offenses and the institution of criminal cases be grounded and
lawful.
2. In cases where the
decisions to institute criminal cases, which are issued by investigating
bodies, border guard, customs, ranger, the coast guard force, or other agencies
of the People’s Police or the People’s Army, which
are
assigned to conduct a number of investigating activities, are ungrounded, the
procuracies shall issue decisions to cancel such decisions; if the decisions
not to institute criminal cases, which are issued by such agencies, are
ungrounded, the procuracies shall cancel them and issue decisions to institute
criminal cases.
3. Where the decisions
to institute criminal cases, which are issued by the trial panels, are
ungrounded, the procuracies shall file protests against them with the superior
courts.
Chapter IX
GENERAL PROVISIONS ON
INVESTIGATION
Article 110.- Investigating
competence
1. Investigating
bodies of the People’s Police shall investigate all kinds
of
offenses, excluding ones falling under the investigating competence of the
investigating bodies in the People’s Army or the
investigating body of the Supreme People’s Procuracy.
2. Investigating
bodies of the People’s Army shall investigate offenses falling under the
adjudicating competence of military courts.
3. The investigating
body of the Supreme People’s Procuracy shall
investigate
some kinds of offenses of infringing upon judicial activities, which are
committed by officials of judicial bodies.
4. Investigating
bodies shall have competence to investigate criminal cases of offenses
occurring in their respective geographical areas. Where the places where the
offenses were committed are unknown, the investigation thereof shall fall under
the competence of the investigating bodies of the places where the offenses
were detected or where the accused reside or are arrested.
The district-level
investigating bodies, regional military investigating bodies shall investigate
criminal cases of offenses falling under the adjudicating competence of the
district-level people’s courts or regional military courts; the
provincial-level and military zone-level military investigating bodies shall
investigate criminal cases of offenses falling under the adjudicating
competence of the provincial-level people’s courts or
military
zone-level military courts or cases falling under the investigating competence
of the subordinate investigating bodies, which they deem it necessary to
directly investigate. The central investigating body shall investigate criminal
cases of especially serious and complicated offenses falling under the
investigating competence of the provincial-level investigating bodies or
military zone-level military investigating bodies, which they deem it necessary
to directly investigate such cases.
5. The apparatus
organization and specific competence of investigating bodies shall be provided
for by the National Assembly Standing Committee.
Article 111.- Investigating powers
of the border guard, customs, ranger, the coast guard forces and other agencies
of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities
1. When detecting
criminal acts for which penal liability must be examined in their respective
management domains, the border guard, customs, ranger and the coast guard
forces shall have the competence:
a/ For less serious
offenses committed by offenders who are caught red-handed , evidences and the
offenders’ personal details are clear, to issue decisions to institute criminal
cases and initiate criminal proceedings against the accused, conduct
investigation and transfer the case files to the competent procuracies within
twenty days after the date of issuing the decisions to institute criminal cases;
b/ For serious
offenses, very serious offenses or especially serious offenses or less serious
but complicated offenses, to issue decisions to institute criminal cases,
conduct initial investigating activities and transfer the case files to
competent investigating bodies within seven days after issuing the decisions to
institute criminal cases.
2. In the People’s Police and the People’s Army, apart from the investigating bodies prescribed in
Article 110 of this Code, if other agencies assigned to conduct a number of
investigating activities detect cases showing criminal signs while performing
their tasks, they shall have the right to institute criminal cases, conduct
initial investigating activities and transfer the case files to competent
investigating bodies within seven days after issuing the decisions to institute
criminal cases.
3. When conducting
investigating activities, the border guard, customs, ranger, the coast guard
force, and other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities,
must, within the scope of their respective procedural competence, comply with
the procedural principles, order and proceedings for investigating activities
as prescribed by this Code. The procuracies shall have to supervise the law
observance by these agencies in their investigating activities.
4. The specific tasks
and powers of the border guard, customs, ranger, the coast guard force, and
other agencies of the People’s Police or the People’s Army, which are
assigned to conduct a number of investigating activities, in investigating
activities shall be prescribed by the National Assembly Standing Committee.
Article 112.- Tasks and powers of
procuracies in exercising the right to prosecute at the investigating stage
When exercising the
right to prosecute at the investigating stage, the procuracies shall have the
following tasks and powers:
1. To institute
criminal cases, to initiate criminal proceedings against the accused; to
request the investigating bodies to institute criminal cases or change the
decisions to institute criminal cases or initiate criminal proceedings against
the accused in accordance with this Code;
2. To set
investigation requirements and request the investigating bodies to conduct
investigation; when deeming it necessary, to directly conduct a number of
investigating activities under the provisions of this Code;
3. To request the
heads of investigating bodies to change investigators under the provisions of
this Code; if the investigators’ acts show criminal signs,
to institute criminal cases against such investigators;
4. To decide to apply,
change or cancel arrest, custody, temporary detention and other deterrent
measures; to decide to approve or disapprove the decisions of investigating
bodies under the provisions of this Code. In case of disapproval, the
disapproval decision must clearly state the reasons therefor;
5. To cancel
ungrounded and illegal decisions of investigating bodies; to request the
investigating bodies to pursue the accused;
6. To decide to
prosecute the accused; to decide to cease or suspend criminal cases.
Article 113.- Tasks and powers of
procuracies in supervising investigation
In performing the work
of supervising the investigation, the procuracies shall have the following
tasks and powers:
1. To supervise the
institution of criminal cases, supervise investigating activities and the
compilation of case files by investigating bodies;
2. To supervise the
law observance by participants in the proceeding;
3. To settle disputes
over the investigating competence;
4. To request the
investigating bodies to remedy law violations in their investigating
activities; to request investigating bodies to supply necessary documents on
the law violations committed by investigators; to request the heads of
investigating bodies to strictly handle the investigators who have committed
law violations while conducting investigation;
5. To propose
concerned agencies and organizations to apply measures to preclude offenses and
law violations.
Article 114.- Responsibilities of
investigating bodies in complying with requests and decisions of procuracies
Investigating bodies
shall have to comply with the requests and decisions of procuracies. For
requests and decisions prescribed at Points 4, 5 and 6, Article 112 of this
Code, if disagreeing with them, the investigating bodies shall still have to
execute them but have the right to make proposals to the immediate superior
procuracies. Within twenty days after receiving the proposals of the investigating
bodies, the immediate superior procuracies must consider and settle them and
notify the settlement results to the proposing bodies.
Article 115.- Responsibilities to
comply with decisions and requests of investigating bodies and procuracies
Decisions and requests
of investigating bodies and procuracies at the stage of investigating criminal
cases must be strictly complied with by agencies, organizations and citizens.
Article 116.- Transfer of cases for
investigation according to competence
Where cases do not
fall under their investigating competence, the investigating bodies shall
propose the procuracies of the same level to issue decisions to transfer the
cases to the competent investigating bodies for further investigation; within
three days after receiving such proposals of the investigating bodies, the
procuracies of the same level shall have to issue decisions to transfer the
cases.
The transfer of cases
outside the territories of provinces or centrally run cities or military zones
shall be decided by the provincial-level procuracies or military zone-level
military procuracies.
Article 117.- Joinder or separation
of criminal cases for investigation
1. Investigating
bodies may join in the same case for investigation several offenses committed
by a person, several persons together committing an offense or offenders and
other persons harboring or not denouncing the offenses as prescribed in Article
313 and Article 314 of the Penal Code.
2. Investigating
bodies may only separate cases in case of extreme necessity when the
investigation of all offenses cannot be completed early, provided that such
separation would not affect the determination of the objective and
comprehensive truths of the cases.
3. Decisions to join
or separate criminal cases must be sent to the procuracies of the same level
within 24 hours after their issuance.
Article 118.- Entrustment of
investigation
In case of necessity,
investigating bodies may entrust other investigating bodies to conduct a number
of investigating activities. Investigation entrustment decisions must clearly
state the specific requirements. The entrusted investigating bodies shall have
to perform fully the entrusted work within the time limits set by the
entrusting investigating bodies.
Article 119.- Investigation time
limits
1. The time limits for
investigating criminal cases shall not exceed two months for less serious
offenses, not exceed three months for serious offenses, not exceed four months
for very serious offenses and especially serious offenses, counting from the
time of institution of criminal cases to the time of termination of
investigation.
2. In case of
necessity to prolong investigation due to the complexity of the cases, at least
ten days before the expiry of the investigation time limit, the investigating
bodies must request in writing the procuracies to extend the investigation time
limit.
The extension of
investigation time limits is prescribed as follows:
a/ For less serious
offenses, the investigation time limit may be extended once for no more than
two months;
b/ For serious
offenses, the investigation time limit may be extended twice, for no more than
three months for the first time and no more than two months for the second
time;
c/ For very serious
offenses, the investigation time limit may be extended twice, for no more than
four months each;
d/ For especially
serious offenses, the investigation time limit may be extended three times, for
no more than four months each.
3. The competence of
procuracies to extend investigation time limits is prescribed as follows:
a/ For less serious
offenses, the district-level people’s procuracies or regional Military
Procuracies shall extend investigation time limits. Where the cases are
received for investigation at the provincial or military-zone level, the
provincial-level people’s procuracies or military zone-level
military
procuracies shall extend investigation time limits;
b/ For serious
offenses, the district-level people’s procuracies or regional military
procuracies shall extend investigation time limits for the first time and the
second time. Where the cases are received for investigation at the provincial
or military-zone level, the provincial-level people’s procuracies or military zone level military procuracies shall extend
investigation time limits for the first time and the second time;
c/ For very serious
offenses, the district-level people’s procuracies or regional military
procuracies shall extend investigation time limits for the first time; the
provincial-level people’s procuracies or the military
zone-level
military procuracies shall extend investigation time limits for the second
time. Where the cases are received for investigation at the provincial or
military-zone level, the provincial-level people’s
procuracies or military zone-level military procuracies shall extend investigation time
limits for the first time and the second time.
d/ For especially
serious offenses, the provincial-level people’s
procuracies
or military zone level military procuracies shall extend investigation time
limits for the first time and the second time; the Supreme People’s Procuracy or the central Military Procuracy shall extend investigation
time limits for the third time
4. Where the cases are
received for investigation at the central level, the extension of investigation
time limits shall fall under the competence of the Supreme People’s Procuracy or the central Military Procuracy.
5. For especially
serious offenses for which the extended investigation time limit has expired
but, due to the very complicated nature of the cases, the investigation cannot
be completed, the Chairman of the Supreme People’s Procuracy may extend
the investigation time limit once for no more than four months.
For the offenses of
infringing upon national security, the Chairman of the Supreme People’s Procuracy shall have the right to extend the investigation time limit once more for
no more than four months.
6. Upon the expiry of
the extended investigation time limit but it is impossible to prove the accused
to have committed the offenses, the investigating bodies must issue decisions
to cease the investigation.
Article 120.- Time limits of
temporary detention for investigation
1. The time limit of
temporary detention of the accused for investigation shall not exceed two
months for less serious offenses, not exceed three months for serious offenses,
not exceed four months for very serious offenses and especially serious
offenses.
2. Where the cases
involving many complicated circumstances and it is deemed that the
investigation should take a longer time and there exists no ground to change or
cancel the temporary detention measure, at least ten days before the temporary
detention time limit expires, the investigating bodies must send written
requests to the procuracies to extend the such temporary detention time limit.
The extension of
temporary detention time limits is prescribed as follows:
a/ For less serious
offenses, the temporary detention time limit may be extended once for no more
than one month;
b/ For serious
offenses, the temporary detention time limit may be extended twice, for no more
than two months for the first time and no more than one month for the second
time;
c/ For very serious
offenses, the temporary detention time limit may be extended twice, for no more
than three months for the first time and no more than two months for the second
time;
d/ For especially
serious offenses, the temporary detention time limit may be extended three
times, for no more than four months each.
3. The competence of
procuracies to extend temporary detention time limits is prescribed as follows:
a/ The district-level
people’s procuracies or regional military procuracies shall have the right
to extend temporary detention time limits for less serious offenses, extend
temporary detention time limits for the first time for serious offenses and
very serious offenses. Where the cases are received for investigation at the
provincial or military-zone level, the provincial-level people’s procuracies or military zone-level military procuracies shall have
the right
to extend temporary detention time limits for less serious offenses, extend
temporary detention time limits for the first time for serious offenses, very
serious offenses and especially serious offenses.
b/ In cases where the
first-time extended temporary detention time limits prescribed at Point a of
this Clause have expired but the investigation cannot be completed and there
emerges no ground to change or cancel the temporary detention measure, the
district-level people’s procuracies or the regional military procuracies
may extend the temporary detention time limits for the second time for serious
offenses. The provincial-level people’s procuracies or military
zone-level military procuracies may extend temporary detention time limits for
the second time for serious offenses, very serious offenses or especially
serious offenses.
4. Where the cases are
received for investigation at the central level, the extension of temporary
detention time limits shall fall under the competence of the Supreme People’s Procuracy or the Central Military Procuracy.
5. For especially
serious offenses, in cases where the second-time extended temporary detention
time limits prescribed at Point b, Clause 3 of this Article have expired and
the cases involve many very complicated circumstances while there emerges no
ground to change or cancel the temporary detention measure, the Chairman of the
Supreme People’s Procuracy may extend the
temporary detention time limits for the third time.
In case of necessity
for offenses of infringing upon national security, the Chairman of the Supreme
People’s Procuracy may extend the temporary detention time limits once more
for no more than four months.
6. When keeping
persons in temporary detention, if deeming it unnecessary to continue the
temporary detention, the investigating bodies must propose in time the
procuracies to cancel the temporary detention in order to release the detainees
or shall, if deeming it necessary, apply other deterrent measures.
Upon the expiry of the
temporary detention time limits, the temporary detention order issuers must
release the detainees or shall, if deeming it necessary, apply other deterrent
measures.
Article 121.- Time limits for
investigation resumption, additional investigation and re-investigation
1. In case of
investigation resumption prescribed in Article 165 of this Code, the time limit
for further investigation shall not exceed two months for less serious
offenses, serious offenses or very serious offenses, not exceed three months
for especially serious offenses, counting from the time of issuance of the
investigation resumption decisions to the time of termination of investigation.
Where it is necessary
to extend investigation time limits due to the complicated nature of the cases,
at least ten days before the investigation time limits expire, the
investigating bodies must send written requests to the procuracies to extend
the investigation time limits. The extension of investigation time limits is
prescribed as follows:
a/ For serious offenses
and very serious offenses, the investigation time limit may be extended once
for no more than two months.
b/ For especially
serious offenses, the investigation time limit may be extended once for no more
than three months.
The competence to
extend investigation time limits for each kind of offense shall comply with the
provisions of Clause 3, Article 119 of this Code.
2. Where the cases are
returned by the procuracies for additional investigation, the time limit for
additional investigation shall not exceed two months; if the cases are returned
by courts for additional investigation, the time limit for additional
investigation shall not exceed one month. The procuracies or courts may only
return the case files for additional investigation for no more than twice. The
time limit for additional investigation shall be counted from
the date the investigating bodies receive back the case files and
investigation requests.
3. Where the cases are
returned for re-investigation, the investigation time limit and the extension
thereof shall comply with the general procedures prescribed in Article 119 of
this Code.
The investigation time
limit shall be counted from the time when the investigating bodies receive the
files and re-investigation requests.
4. When resuming investigation,
conducting additional investigation or re-investigation, the investigating
bodies shall have the right to apply, change or cancel the deterrent measures
under the provisions of this Code.
In cases where there
exist grounds prescribed by this Code for temporary detention, the temporary
detention time limit for investigation resumption or additional investigation
must not exceed the time limit for investigation resumption or additional
investigation prescribed in Clause 1 and Clause 2 of this Article.
The temporary
detention time limit and the extension thereof in the cases of re-investigation
shall comply with general procedures prescribed in Article 120 of this Code.
Article 122.- Settlement of
requests of participants in the procedure
When participants in
the procedure make requests on matters related to the cases, the investigating
bodies or procuracies shall, within the scope of their respective
responsibilities, settle their requests and inform them of the settlement
results. If rejecting such requests, the investigating bodies or procuracies
must reply, clearly stating the reasons therefor.
If disagreeing with
the settlement results of the investigating bodies or procuracies, participants
in the procedure shall have the right to complain. Complaints and the
settlement thereof shall comply with the provisions of Chapter XXXV of this
Code.
Article 123.- Participation by
witnesses
Witnesses shall be
invited to participate in investigating activities in the cases prescribed by
this Code.
Witnesses shall have
the duty to confirm the contents and results of the work performed by
investigators in their presence and may present their personal opinions. These
opinions shall be recorded in the minutes.
Article 124.- Non-disclosure of
investigation secrets
In case of necessity
to keep investigation secrets, investigators and procurators must notify in
advance the participants in the procedure and witnesses not disclose
investigation secrets. Such notification must be recorded in the minutes.
Investigators, procurators,
participants in the procedure or witnesses who disclose investigation secrets
shall, on a case-by-case basis, bear penal liability under Articles 263, 264,
286, 287, 327 and 328 of the Penal Code.
Article 125.- Investigation minutes
1. In conducting
investigation, the minutes thereof must be made according to Article 95 of this
Code.
Investigators who have
made the minutes must read them to the participants in the procedure, explain
to them the right to supplement and give comments on the minutes. Such comments
shall be recorded in the minutes. Participants in the procedure and
investigators shall all sign the minutes.
2. Where the
participants in the procedure refuse to sign the minutes, such refusal must be
written in the minutes with reasons therefor clearly stated.
3. If the participants
in the procedure, for their physical or mental defects or other reasons, cannot
sign the minutes, such reasons must be clearly recorded in the minutes and
confirmed jointly by investigators and witnesses.
Illiterate persons may
put their fingerprints on the minutes.
Chapter X
INITIATION OF CRIMINAL
PROCEEDINGS AGAINST THE ACCUSED AND INTERROGATION OF THE ACCUSED
Article 126.- Initiation of
criminal proceedings against the accused
1. When having
sufficient grounds to determine that persons have committed criminal acts, the
investigating body shall issue decisions to initiate criminal proceedings
against the accused.
2. A decision to
initiate criminal proceedings against the accused shall contain the time and
place of its issuance; full name and position of its issuer; full name, birth
date, occupation and family conditions of the accused; which offense the
accused is charged with, under which articles of the Penal Code; time and place
of commission of the offense, and other circumstances of the offense.
If the accused is
charged with many different offenses, the decision to initiate criminal
proceedings against him/her must contain the title of each offense and the
applicable articles of the Penal Code.
3. After initiating
proceedings against the accused, investigating bodies must take photographs and
compile personal records of the accused and put them in the case files.
4. Within 24 hours
after issuing the decisions to initiate criminal proceedings against the accused,
the investigating bodies must send them to the procuracies of the same level
for consideration and approval. Within three days after receiving such
decisions, the procuracies must issue decisions to approve or cancel them and
immediately send their decisions to the investigating bodies.
5. Where they detect
that there are offenders against whom criminal proceedings have not yet been
initiated, the procuracies shall request the investigating bodies to issue the
decisions to initiate criminal proceedings against such offenders.
After receiving the
files and investigation conclusions, if the procuracies detect other offenders
in the cases against whom criminal proceedings have not yet been initiated, the
procuracies shall issue decisions to initiate criminal proceedings against the
accused. Within 24 hours after issuing such decisions, the procuracies must
send them to the investigating bodies for investigation.
6. The investigating
bodies must immediately hand their decisions or the procuracies’ decisions to initiate criminal proceedings against the accused
or such
to the accused and explain on their rights and obligations prescribed in
Article 49 of this Code. After receiving the procuracies’ decisions to approve or cancel the decisions to initiate criminal
proceedings against the accused, the investigating bodies must immediately hand
them to the persons against whom criminal proceedings are initiated. The
handing and receipt of these decisions must be recorded in the minutes
prescribed in Article 95 of this Code.
Article 127.- Change or
supplementation of decisions to initiate criminal proceedings against the
accused
1. While conducting
investigation, if having grounds to determine that the criminal acts committed
by the accused do not constitute the offenses for which criminal cases have
been instituted against them or there remain other criminal acts, the
investigating bodies or procuracies shall issue decisions to change or
supplement the decisions to initiate criminal proceedings against the accused.
2. Within 24 hours
after issuing the decisions to change or supplement the decisions to initiate
criminal proceedings against the accused, the investigating bodies must send
their decisions together with documents related to such change or
supplementation to the procuracies of the same level for consideration and
approval. Within three days after receiving the decisions to change or
supplement the decisions to initiate criminal proceedings against the accused,
the procuracies must decide to approve or cancel such decisions.
Within 24 hours after
issuing the decisions to change or supplement the decisions to initiate
criminal proceedings against the accused, the procuracies must send them to the
investigating bodies for investigation.
3. The investigating
bodies must immediately hand to the accused the decisions to change or
supplement their decisions to initiate criminal proceedings against the accused
or the procuracies’ decisions to change or supplement their
decisions to initiate criminal proceedings against the accused and explain on
their rights and obligations prescribed in Article 49 of this Code. After
receiving the procuracies’ decisions to approve or cancel the decisions to change
or supplement the decisions to initiate criminal proceedings against the
accused, the investigating bodies must immediately hand them to the accused.
The handing and receipt of the above-said decisions must be recorded in the
minutes prescribed in Article 95 of this Code.
Article 128.- Suspension of the
accused from their current positions
When deeming that the
accused’s continued holding of their positions would cause difficulties to
the investigation, the investigating bodies or procuracies shall have the right
to propose the agencies or organizations with competence to manage the accused
to suspend the accused from their positions. Within seven days after receiving
such proposals, these agencies or organizations must reply in writing the
proposing investigating bodies or procuracies.
Article 129.- Summoning of the
accused
1. When summoning the
accused, investigators must send summonses to them. Such summons must contain
the full name and residence of the accused, date, hour, and place of his/her
presence; the person he/she will meet, and his/her responsibility for non-appearance
without plausible reasons.
2. The summonses to
the accused shall be sent to the administrations of the communes, wards or
townships where the accused reside or to the agencies or organizations where
they work. The agencies or organizations receiving the summonses shall have to
immediately deliver them to the accused.
Upon receiving the
summonses, the accused must sign for certification of the receipt thereof,
clearly writing the hour and date of receipt thereon. The deliverers of the
summonses must deliver the portions of the summonses containing the signatures
of the accused to the summoning bodies; if the accused refuse to sign, the
minutes thereof must be made and sent to the summoning bodies; if the accused
are absent, the summonses may be handed to an adult member of their families to
sign for certification and hand the summonses to the accused. For the accused
being in temporary detention, they shall be summoned through the superintending
boards of the detention centers.
3. The accused must
appear in response to the summonses. If they are absent without plausible
reasons or show signs of escape, investigators may issue decisions to escort
them.
4. In case of
necessity, procurators may summon the accused. The summoning of the accused
shall comply with the provisions of this Article.
Article 130.- Escort of the accused
on bail
1. A decision to
escort the accused shall contain the time and place of its issuance; full name
and position of its issuer; full name, birth date and residence of the accused;
the offense with which the accused has been charged; the time and the place for
the accused to appear;
2. Executors of the
escort decisions must read, explain the decisions, and make minutes of the
escort as prescribed in Article 95 of this Code.
3. It is forbidden to
escort the accused at night.
Article 131.- Interrogation of the
accused
1. The interrogation
of the accused must be conducted by investigators immediately after the
decisions to initiate criminal proceedings against the accused are issued. The
accused may be interrogated at the places of investigation or at their
residences.
Before conducting the
interrogation, investigators must read the decisions to initiate criminal
proceedings against the accused and clearly explain to the accused about their
rights and obligations prescribed in Article 49 of this Code. This must be
recorded in the minutes.
If a case involves
many accused, each of them shall be questioned separately and they shall not be
allowed to contact one another. The accused may be allowed to write by
themselves their statements.
2. It is forbidden to
conduct interrogation at night, except for cases where interrogation cannot be
delayed, provided that the reasons therefor must be clearly recorded in the
minutes.
3. In case of
necessity, procurators may interrogate the accused. The interrogation of the
accused shall comply with the provisions of this Article.
4. Investigators or
procurators who extort statements from the accused or apply corporal punishment
to the accused must bear penal liability prescribed in Article 299 or Article
298 of the Penal Code.
Article 132.- Minutes of
interrogation of the accused
1. The minutes of
interrogation of the accused must be made according to Article 95 and Article
125 of this Code.
A
minutes must be made for each time of interrogation. It must contain all
statements of the accused, questions and answers. Investigators are strictly
forbidden to add, cut or modify by themselves the statements of the accused.
2. After the
interrogation, investigators shall read the minutes to the accused or let the
accused read them. In case of supplementing or modifying the minutes, the
accused and investigators both sign for certification. If the minutes consist
of many pages, the accused shall sign every page. Where the accused write their
statements by themselves, the investigators and the accused shall sign such
written statements for certification.
Should the
interrogation is audio-recorded, such records, at the end of the interrogation,
must be played back for the accused and the investigators to listen to. The
minutes must be recorded with the contents of the interrogation and be signed
for certification by the accused and the investigators.
Where the
interrogation of the accused is conducted with the aid of interpreters, the
investigators must explain the interpreters’ rights and obligations, and also
inform the accused of their right to request change of the interpreters. The
interpreters and the accused shall both sign every page of the interrogation
minutes.
3. When conducting
interrogations in the presence of the defense counsels and/or lawful
representatives of the accused, the investigators must explain to these persons
their rights and obligations in the course of interrogation of the accused. The
accused, the defense counsels and/or lawful representatives shall all sign the
interrogation minutes.
Where the counsel
defenses are allowed to question the accused, the minutes must contain fully
the questions of the defense counsels and the answers of the accused.
4. In cases where
procurators interrogate the accused, they must observe the provisions of this
Article.
Chapter XI
TAKING STATEMENTS OF
WITNESSES, VICTIMS, CIVIL PLAINTIFFS, CIVIL DEFENDANTS, PERSONS WITH INTERESTS
AND OBLIGATIONS RELATED TO THE CASES, CONFRONTATION AND IDENTIFICATION
Article 133.- Summoning of
witnesses
1. To summon
witnesses, investigators must send to them summonses. Such a summons must
contain the full name and residence of the witness, the date, hour and place
for his/her appearance; the person whom he/she will meet and his/her
responsibility for non-appearance without plausible reasons.
2. Summonses shall be
handed directly to the witnesses or through the administrations of the
communes, wards or townships where they reside or the agencies or organizations
where they work. These agencies or organizations shall have to create
conditions for the witnesses to perform their obligations.
Under all
circumstances, signatures shall be required for the handing and receipt of
summonses.
3. Summonses of
witnesses aged under full 16 years shall be handed to their parents or other
lawful representatives.
4. In case of
necessity, procurators may summon witnesses. The summoning of witnesses shall
comply with the provisions of this Article.
Article 134.- Escort of witnesses
1. Where witnesses
have been summoned by investigating bodies, procuracies or courts but they
deliberately refuse to appear without plausible reasons and their absence
causes obstruction to the investigation, prosecution or adjudication, the
bodies which have summoned them may issue decisions to escort them.
2. Decisions to escort
witnesses must contain the time and place of their issuance; full names and
positions of their issuers; full names, birth dates and residential places of
the witnesses; the time and places for their appearance.
3. The executors of
escort decisions must read the decisions to the witnesses, explain their rights
and obligations, and make the minutes of the escort as prescribed in Article 95
of this Code.
4. It is forbidden to
escort witnesses at night.
Article 135.- Taking statements of
witnesses
1. Statements of
witnesses shall be taken at the places of investigation or at their residences
or working places.
2. If a case involves
many witnesses, the statements of each witness must be taken separately and the
witnesses shall not be let contact one another in the course of taking
statements.
3. Before taking
statements from witnesses, investigators must explain to them their rights and
obligations. This must be recorded in the minutes.
4. Before inquiring
into the contents of the cases, investigators should verify the relationships
between the witnesses and the accused, victims and other details related to the
witnesses’ personal identity. Before asking questions, investigators
should request witnesses to relate or write what they know about the cases.
Raising questions of suggestive nature shall not be allowed.
5. When taking
statements of witnesses aged under 16 years, their
parents, other lawful representatives or their teachers must be invited to
attend.
6. In case of
necessity, procurators may take statements of witnesses. The taking of
statements of witnesses shall comply with the provisions of this Article.
Article 136.- Minutes of witnesses’ statements
Minutes of witnesses’ statements must be made according to Articles 95, 125 and 132 of this Code.
Article 137.- Summoning, and taking
statements of, victims, civil plaintiffs, civil defendants, persons with
interests and obligations related to the cases
The summoning, and
taking statements of, victims, civil plaintiffs, civil defendants and persons
with interests and obligations related to the cases shall comply with the
provisions of Articles 133, 135 and 136 of this Code.
1.
Where exist contradictions in the statements of two or more persons,
investigators shall conduct confrontation.
2. If witnesses or
victims participate in the confrontation, investigators must, first of all,
explain to them their responsibility for refusing or shirking to give
statements or deliberately giving false statements. This must be recorded in
the minutes.
3. To begin the
confrontation, investigators shall ask about the relationships between persons
participating in the confrontation, then about circumstances required to be
clarified. After hearing statements in the confrontation, investigators may
further put questions to each person.
Investigators may also
let persons participating in the confrontation ask one another and their
questions and answers must be recorded in the minutes.
Only after persons
participating in the confrontation give their statements shall their previous
statements be repeated.
4. Confrontation
minutes must be made according to the provisions of Articles 95, 125 and 132 of
this Code.
5. In case of
necessity, procurators may conduct confrontation. Such confrontation shall
comply with the provisions of this Article.
1. When necessary,
investigators may invite persons or give objects or photos to witnesses, victims
or the accused for identification.
Investigators must ask
in advance the identifying persons about details, traces and characteristics
owing to which they may make identification.
2. The number of
persons, things or photos presented for identification must be at least three
and their appearances must be similar. For identification of corpses, this
principle shall not be applied.
In special cases,
identification of persons may be made through their voices.
3. If witnesses or
victims act as identifying persons, before conducting the identification,
investors must explain to them their responsibility for refusing or shirking to
give statements or deliberately giving false statements. Such explanation must
be recorded in the minutes.
4. In the course of identification,
investigators must not put questions of suggestive nature. After the
identifying persons have identified a person, an object or a photo among those
presented for identification, investigators shall request them to explain which
traces or characteristics they have relied on for identifying such person,
object or photo.
Identification must be
conducted in the presence of witnesses.
5. Identification
minutes must be made according to Articles 95, 125 ad
132 of this Code. Such a minutes should contain the
personal details of identifying persons and persons shown for identification;
characteristics of objects or photos presented for identification; statements
and presentations given by identifying persons.
Chapter XII
SEARCH, FORFEITURE,
SEIZURE, DISTRAINMENT OF PROPERTY
Article 140.- Grounds for body
search, search of residences, working places, premises, objects,
correspondence, telegraphs, postal parcels and matters
1. Body search, search
of residences, working places and premises shall be conducted only when there
are grounds to judge that on the bodies, in the residences, working places
and/or premises of persons there are instruments and means of offense
commission, objects and property acquired from offense commission or other
objects and documents related to the cases.
Search of residences,
working places or premises shall also be conducted in case of necessity to
detect wanted persons.
2. In case of
necessity to collect documents and objects related to the cases,
correspondence, telegraphs, postal parcels and matters may be searched.
Article 141.- Competence to issue
search warrants
1. The persons defined
in Clause 1, Article 80 of this Code shall have the right to issue search
warrants in all cases. Search warrants of the persons defined at Point d,
Clause 1, Article 80 of this Code must be approved by the procuracies of the
same level before they are executed.
2. In case of urgency,
the persons defined in Clause 2, Article 81 of this Code shall have the right
to issue search warrants. Within 24 hours after the completion of the search,
the search warrant issuers must notify in writing the procuracies of the same
level thereof.
1. To start a body
search, the search warrant must be read and handed to the to
be-searched person for reading; the to be-searched person and other persons
present shall be informed of their rights and obligations.
The persons conducting
the search must request the to be-searched persons to
give out objects and documents related to the cases; if the to be-searched
persons disobey, they shall be searched.
2. The search of a
person must be conducted by a person of the same sex and to the witness of a
person also of the same sex.
3. Body search may be
conducted without a search warrant in case of arrest or when there are grounds
to confirm that the person present at the searched place hides on his/her body
objects and documents required to be seized.
Article 143.- Search of residences,
working places, premises
1. Search of
residences, working places or premises shall be conducted in accordance with
the provisions of Articles 140, 141 and 142 of this Code.
2. Search of
residences or premises must be conducted in the presence of the owners or their
families’ adult members, the representatives of the commune, ward or township
administrations and neighbors as witnesses; in cases where the involved persons
and their families’ members are deliberately absent,
have
escaped or have been away for a long time while the search cannot be delayed,
the search must be witnessed by the local administrations’ representatives and two neighbors.
3. Search of
residences must not be conducted at night, except where it cannot be delayed,
provided that the reasons therefor must be clearly stated in the minutes.
4. Search of working
places must be conducted in the presence of such persons, except where it
cannot be delayed, provided that the reason therefor must be clearly stated in
the minutes.
Search of working
places of persons must be witnessed by the representatives of the agencies or
organizations where such persons work.
5. When the search of
residences, working places or premises is taking place, the persons present
must neither leave the searched places without permission nor contact, discuss
with one another or with other persons until the search completes.
Article 144.- Forfeiture of
correspondence, telegraphs, postal parcels and matters at post offices
In case of necessity
to forfeit correspondence, telegraphs, postal parcels and matters at post
offices, the investigating bodies shall issue forfeiture warrants. These
warrants must be approved by the procuracies of the same level before they are
executed, except for cases where the execution thereof cannot be delayed,
provided that the reasons therefor must be clearly stated in the minutes and
the forfeiture, once completed, be immediately notified to the procuracies of
the same level.
Before effecting the forfeiture, the executors of forfeiture
warrants must notify such to the persons in charge of the post offices concerned.
The persons in charge of the post offices concerned must assist the executors
of seizure warrants in fulfilling their tasks.
The forfeiture of
correspondence, telegraphs, postal parcels and matters must be witnessed by the
representatives of the post offices, who shall sign for certification the
minutes thereof.
The forfeiture
warrant-issuing bodies must notify the persons having the to
be forfeited correspondence, telegraphs, postal parcels and/or matters of the
forfeiture warrants. If such notification will impede the investigation,
immediately after such impediment no longer exists, the forfeiture
warrant-issuing bodies must make such notification.
Article 145.- Seizure of objects
and documents during a search
While conducting
search, investigators may seize objects which are exhibits as well as documents
directly related to the cases. For objects falling into the categories banned
from storage or circulation, they must be forfeited and immediately delivered
to competent management bodies. In case of necessity to seal objects up, such
sealing must be conducted in the presence of the owners of such objects or
their families’ representatives, the
administration’s representatives as well as witnesses.
The seizure of objects
and documents during a search must be recorded in a minutes. Seizure minutes
must be made in four copies, one of which to be handed to the owner of the
objects and/or documents, one to be put in the case files; one to be sent to
the procuracy of the same level, and one to the agency managing the seized
objects and/or documents.
Article 146.- Distrainment of
property
1. Distrainment of
property shall only apply to the accused or defendants charged with offenses
which, as prescribed by the Penal Code, may be subject to property confiscation
or fine penalty as well as to persons liable to pay damage compensation
according to law provisions.
The competent persons
defined in Clause 1, Article 80 of this Code shall have the right to issue
property distrainment warrants. Distrainment warrants of persons defined at
Point d, Clause 1, Article 80 of this Code must be immediately notified to the
procuracies of the same level before they are executed.
2. Distrainment shall
be made only of a portion of property corresponding to the amount likely to be
confiscated, to the pecuniary fine or the damage compensation.
Distrained property
shall be assigned to their owners or their relatives for preservation. If the
persons assigned to preserve such property commit acts of consuming,
transferring, fraudulently swapping, concealing or destroying the distrained
property, they shall bear penal liability under the provisions of Article 310
of the Penal Code.
3. Property
distrainment must be witnessed by the involved persons or their families’ adult members, representatives of the commune, ward or township administrations
and neighbors. The distraining persons must make the minutes, clearly stating
the name and condition of each distrained property item. Such minutes must be
made according to Articles 95 and 125 of this Code, read to the involved
persons and other present persons, and signed by these persons. Any complaints
of the involved persons shall be recorded in the minutes, with the signatures
for certification of such persons and the distraining persons.
A distrainment minutes
shall be made in three copies, one to be handed to the involved person
immediately after the distrainment is completed, one to be sent to the
procuracy of the same level, and one to be put in the case file.
4. When deeming that
distrainment is no longer necessary, the competent persons defined in Clause 1,
Article 80 of this Code must issue in time decisions to cancel distrainment
warrants.
Article 147.- Responsibility to
preserve objects, documents, correspondence, telegraphs, postal parcels and/or
matters which are forfeited, seized or sealed up
Objects, documents,
correspondence, telegraphs, postal parcels and/or matters which are forfeited,
seized or sealed up under the provisions of Articles 75, 144 and 145 of this
Code must be preserved intact.
If persons assigned to
preserve property break up seals, consume, transfer, fraudulently swap or
destroy such property, they shall bear penal liability under Article 310 of the
Penal Code.
Article 148.- Minutes of search,
forfeiture, seizure of objects, documents, correspondence, telegraphs, postal
parcels and matters
The search, forfeiture
or seizure of objects, documents, telegraphs, postal parcels and/or matters
must be recorded in the minutes prescribed in Articles 95 and 125 of this Code.
Article 149.- Responsibilities of
issuers and executors of warrants to search, distrain property, forfeit or
seize objects, documents, correspon-dence, telegraphs, postal parcels and
matters
Persons who have
illegally issued and persons who have illegally executed warrants to search or
distrain property, forfeiture or seize objects, documents, correspondence,
telegraphs, postal parcels and/or matters shall, depending on the seriousness
of their violations, be disciplined or examined for penal liability.
Chapter XIII
SCENE EXAMINATION,
AUTOPSY, EXAMINATION OF TRACES ON HUMAN BODIES, INVESTIGATION EXPERIMENTS,
EXPERTISE
Article 150.- Scene examination
1. Investigators shall
examine scenes where offenses have been committed or detected in order to find
out traces of offense, exhibits and to clarify circumstances significant to the
cases.
2. Scene examination
may be conducted prior to the institution of criminal cases. Under all
circumstances, before conducting the examination, investigators must notify the
procuracies of the same level thereof. Procurators must come to supervise the
scene examination. In the course of examination, there must be witnesses; the
accused, victims and/or witnesses may be allowed to attend, and specialists may
be invited to participate in, the examination.
3. While conducting
scene examination, investigators shall take photos, draw plans describing the
scenes, take measurements, make mock-ups, collect and examine on spot traces of
offense, objects, documents related to the cases; and clearly write the
examination results in the scene examination minutes.
Where the collected
objects and documents cannot be scrutinized immediately, they must be
preserved, kept intact or sealed up and taken to the investigation places.
Autopsy shall be
conducted by investigators with the participation of forensic doctors and in
the presence of eyewitnesses.
In case of necessity
to exhume corpses, decisions of investigating bodies shall be required and the
deceased persons’ families must be notified thereof before the exhumation
starts. The corpse exhumation must be participated by
forensic doctors.
When necessary,
experts may be summoned to and there must be witnesses at the exhumation.
Under all
circumstances, autopsy must be notified in advance to the procuracies of the
same level. Procurators must come to supervise the autopsy.
Article 152.- Examination of traces
on human bodies
1. Investigators shall
examine the bodies of the persons arrested or taken into custody, the accused,
victims and witnesses in order to detect thereon traces of offense or other
traces of significance to the cases. In case of necessity, the investigating
bodies shall request forensic examination.
2. Examination of the
body of a person must be conducted by a person of the same sex and witnessed by
a person also of the same sex. In case of necessity, medical doctors may
participate in body examination.
It is forbidden to
infringe upon the honor, dignity or the health of the examined persons.
Article 153.- Investigation
experiments
1. In order to check
and verify documents and circumstances of significance to the cases, the
investigating bodies shall have the right to conduct investigation experiments
by reproducing the scenes, replaying acts, circumstances or all other details
of certain facts, and conduct necessary experiments. They may, when deeming it
necessary, take measurements, photographs, video and
draw plans.
2. Investigation
experiments must be conducted in the presence of witnesses. In case of necessity,
the persons in custody, the accused, victims and/or witnesses may participate
therein.
It is forbidden to
infringe upon the honor and dignity or cause harm to the health of persons
participating in investigation experiments.
3. In case of
necessity, the procuracies may conduct investigation experiments. Investigation
experiments shall be conducted in accordance with the provisions of this
Article.
Article 154.- Minutes of scene
examination, autopsy, examination of traces on human bodies and investigation
experiments
Scene examination,
autopsy, examination of traces on human bodies and investigation experiments
must be recorded in the minutes as prescribed in Article 95 and Article 125 of
this Code.
Article 155.- Solicitation of
expertise
1. When arise matters which need to be determined under Clause 3 of
this Article or when deeming it necessary, the procedure-conducting bodies
shall issue decisions to solicit expertise.
2. Decisions to
solicit expertise must clearly state the matters required to be examined, full
names of experts requested to examine or names of the expertising agencies as
well as the rights and obligations of experts as prescribed in Article 60 of
this Code.
3. Expertise is
compulsory when it is necessary to determine:
a/ Causes of human
death, injury nature, degree of harm to the health or working capability;
b/ The psychiatric
state of the accused or defendants in cases where there is suspicion about
their penal liability capacity;
c/ The psychiatric
state of witnesses or victims in cases where there is suspicion about their
perception capacity and truthful statements on circumstances of the cases;
d/ The ages of the
accused or defendants or victims if such is significant to the cases and there
are no documents proving their ages or there is suspicion about the
authenticity of such documents;
e/ Noxious substances,
narcotics, radioactive substances, counterfeit currencies.
Article 156.- Conducting expertise
1. Expertise may be
conducted at the expertising agencies or at the places of investigation of the
cases immediately after the issuance of decisions to solicit expertise.
Investigators and
procurators shall have the right to participate in the expertise provided that
they must notify in advance the experts thereof.
2. In cases where the
expertise cannot be conducted within the time limit requested by the
expertise-soliciting agencies, the expertising agencies or experts must
immediately notify such in writing and clearly state the reasons therefor to
the expertise-soliciting agencies.
Article 157.- Contents of expertise
conclusions
1. Expertise
conclusions must clearly state the time and place of the conducted expertise;
full names, educational levels and professional qualifications of experts;
participants in the expertise; traces, objects, documents and all other things
already examined, applied methods and answers with specific grounds to the
raised matters.
2. In order to clarify
or supplement expertise conclusions, the expertise-soliciting agencies may put
additional questions to the experts about necessary circumstances and may
decide on additional expertise or re-expertise.
Article 158.- Rights of the accused
and participants in the procedure with regard to expertise conclusions
1. After the expertise
completes, the agencies which have solicited the expertise must notify the
contents of the expertise conclusions to the accused and other participants in
the procedure if the latter so request.
The accused, other
participants in the procedure may express their opinions on the expertise conclusions
and requests for additional expertise or re-expertise. These opinions and
requests shall be recorded in the minutes.
2. Where the
investigating bodies or procuracies reject the requests of the accused or other
participants in the procedure, they must clearly state the reasons therefor and
inform such persons thereof.
Article 159.- Additional expertise
or re-expertise
1. Additional
expertise shall be conducted in cases where the contents of the expertise
remain unclear, incomplete or when arise new matters related
to the cases’ circumstances already concluded earlier.
2. Re-expertise shall
be conducted where there is suspicion about the expertise results or there are
contradictions in the expertise conclusions on the same expertised matter. The
re-expertise must be conducted by other experts.
3. Additional
expertise or re-expertise shall be conducted according to general procedures
prescribed in Articles 155, 156, 157 and 158 of this Code.
Chapter XIV
SUSPENSION OF
INVESTIGATION AND TERMINATION OF INVESTIGATION
Article 160.- Suspension of
investigation
1. When the accused
suffer from mental diseases or other dangerous ailments with certification by
the forensic examination councils, the investigation may be suspended ahead of
the investigation time limit. In cases where the accused are not yet identified
or their whereabouts are unknown, the investigation shall be suspended only
upon the expiry of the investigation time limit.
Where expertise has
been solicited but the expertise results are not yet available upon the expiry
of the investigation time limit, the investigation shall be suspended while the
expertise shall still continue till its results are obtained.
Where a case involves
many accused while the reason for suspension of investigation does not relate
to all of the accused, the investigation may be suspended for each of them.
If the accused’s whereabouts are unknown, the investigating bodies must issue pursuit warrants
before suspending the investigation.
2. Investigating
bodies which have issued decisions to suspend the investigation must send such
decisions to the procuracies of the same level, the accused and victims.
Article 161.- Pursuit of the
accused
When the accused
abscond or their whereabouts are unknown, investigating bodies shall issue
warrants to pursue them.
A pursuit warrant must
clearly state the date, hour and place of its issuance; full name and position
of its issuer; full name, age and residence of the accused, characteristics for
identification of the accused, affixed with the accused’s photo, if any; and the offense with which the accused has been charged.
Pursuit warrants shall
be announced on the mass media for everyone to detect,
arrest and detain the wanted persons.
Article 162.- Termination of
investigation
1. Upon the
termination of investigation, the investigating bodies must make investigation
conclusion reports
2. The investigation
shall be terminated when the investigating bodies issue investigation
conclusion reports proposing the prosecution or investigation conclusion
reports and decisions to cease the investigation.
3. An investigation
conclusion report must clearly state the date, full name, position and
signature of the conclusion maker.
4. Within two days
after issuing the investigation conclusion reports, the investigating bodies
must send the investigation conclusion reports proposing the prosecution or the
investigation conclusion reports enclosed with the decisions to cease the
investigation together with the case files to the procuracies of the same level;
send the investigation conclusion reports proposing the prosecution or
decisions to cease the investigation to the accused and defense counsels.
Article 163.- Proposals for
prosecution
1. When having
sufficient evidences to determine the offenses and the accused, the
investigating bodies shall make investigation conclusion reports proposing the
prosecution. An investigation conclusion report shall describe the development
of the criminal act, evidences proving the offense, proposals on solving the case,
including reasons and grounds for the prosecution proposal.
2. An investigation
conclusion report shall be enclosed with the statement on the investigation
periods, deterrent measures already applied, clearly stating the duration of
custody or temporary detention, exhibits, civil suits, measures to secure the
payment of fines, compensations and confiscation of assets, if any.
Article 164.- Investigation
cessation
1. In case of
investigation cessation, the investigation conclusion reports shall clearly describe
the investigation process, reasons and grounds for investigation cessation.
2. The investigating
bodies shall issue investigation cessation decisions in the following cases:
a/ There exists one of
the grounds prescribed in Clause 2 of Article 105, and Article 107 of this Code
or in Article 19, Article 25 and Clause 2 of Article 69 of the Penal Code.
b/ The investigation
time limits have expired but it cannot be proved that the accused have
committed the offense.
3. An investigation
cessation decision shall contain the date and place of its issuance, reasons
and grounds for investigation cessation, the cancellation of the deterrent
measure, the return of seized objects, documents, if any, and other related
matters.
If a case involves
many accused while the grounds for investigation cessation are not related to
all of them, the investigation may be ceased for each of them.
4. If deeming that the
investigation cessation decisions of the investigating bodies are grounded,
within fifteen days after receiving such decisions, the procuracies must return
the case files to the investigating bodies for settlement according to the
latter’s competence; if deeming that such investigation
cessation decisions are ungrounded, the procuracies shall cancel them and
request the investigating bodies to resume investigation; if deeming that there
are sufficient grounds for prosecution, the procuracies shall cancel such
decisions and issue prosecution decisions. The time limit for issuing
prosecution decisions shall comply with the provisions of Article 166 of this
Code.
Article 165.- Investigation
resumption
1. Where there exist grounds to cancel the decisions to cease or suspend
the investigation, the investigating bodies shall issue decisions to resume
investigation if the statute of limitations for penal liability examination has
not yet expired. Within two days after issuing the decisions to resume
investigation, the investigating bodies must send them to the procuracies of
the same level.
2. If the
investigation is ceased under Points 5 and 6, Article 107 of this Code but the
accused disagree and request re-investigation, the investigating bodies or
procuracies of the same level shall issue decisions to resume the
investigation.
Chapter XV
PROSECUTION DECISION
Article 166.- Time limit for
prosecution decision
1. Within twenty days
for less serious offenses and serious offenses, within thirty days for very
serious offenses and especially serious offenses, after receiving the case
files and investigation conclusion reports, the procuracies must issue one of
the following decisions:
a/ To prosecute the
accused before court by an indictment.
b/ To return the file
for additional investigation;
c/ To cease or suspend
the case.
In case of necessity,
the procuracy chairmen may extend the time limits but for no more than ten days
for less serious offenses and serious offenses, no more than fifteen days for
very serious offenses, and no more than thirty days for especially serious
offenses.
Within three days
after issuing one of the above-said decisions, the procuracies must notify the
accused and defense counsels thereof; and hand the indictments, decisions to
cease the cases or decisions to suspend the cases to the accused. Defense
counsels may read the indictments, take notes and copy documents in the case
files related to the defense under the provisions of law and put forward
requests.
2. After receiving the
case files, the procuracies shall be entitled to decide to apply, change or
cancel deterrent measures or to request the investigating bodies to pursue the
accused. The temporary detention duration must not exceed the time limit
prescribed in Clause 1 of this Article.
3. In case of
prosecution, within three days after issuing the prosecution decisions in the
form of indictment, the procuracies must send the files and indictments to the
courts.
4. For cases not
falling under their prosecuting competence, the procuracies shall immediately
issue decisions to transfer them to the competent procuracies.
1. An indictment must
contain the date, hour and place of occurrence of the offense; trick, purpose
and motive of the commission of the offense; its consequences and other
important circumstances; evidences for determining the criminality of the
accused, circumstances aggravating and extenuating the penal liability,
personal details of the accused, and all other circumstances of significance to
the case.
The indictment’s conclusion section shall clearly state the title of the offense committed and
applicable articles and clauses of the Penal Code.
2. An indictment must
contain the date of its making, full name, position and signature of its maker.
Article 168.- Return of files for
additional investigation
The procuracies shall
decide to return the files to the investigating bodies for additional
investigation if they, through studying the case files, find out that:
1. Important evidences
of the cases are insufficient, which the procuracies cannot supplement by
themselves;
2. There are grounds
to initiate criminal proceedings against the accused for other offenses or
there are other accomplices;
3. There are serious
violations of the criminal procedure.
The matters required
to be additionally investigated must be clearly stated in the decisions
requesting the additional investigation.
Article 169.- Cessation or
suspension of cases
1. The procuracies
shall issue decisions to cease the cases when there exists one of the grounds
prescribed in Clause 2 of Article 105 and Article 107 of this Code or in
Article 19, Article 25, and Clause 2 of Article 69 of the Penal Code.
2. The procuracies
shall issue decisions to suspend the cases in the following cases:
a/ When the accused
suffer from mental diseases or other dangerous ailments, which has been
certified by the forensic examination councils;
b/ When the accused
escape and their whereabouts are unknown; in this case, they must request the
investigating bodies to pursue the accused.
3. If a case involves
many accused while the grounds to cease or suspend the case are not related to
all of them, the procuracies may cease or suspend the case for each of them.
4. In cases where the
subordinate procuracies have issued ungrounded and illegal decisions to cease
the cases, the chairmen of the superior procuracies shall have the right to
cancel such decisions and request the subordinate procuracies to issue
prosecution decisions.
Part Three
FIRST-INSTANCE TRIAL
Chapter XVI
JURISDICTION OF COURTS
AT ALL LEVELS
Article 170.- Adjudicating
jurisdiction of courts at all levels
1. The district-level
people’s courts and the regional military courts shall conduct
first-instance trial of criminal cases involving less serious offenses, serious
offenses and very serious offenses, excluding the following offenses:
a/ Offenses of
infringing upon national security;
b/ Offenses of
undermining peace, against humanity, and war crimes;
c/ Offenses prescribed
in Articles 93, 95, 96, 172, 216, 217, 218, 219, 221, 222, 223, 224, 225, 226,
263, 293, 294, 295, 296, 322 and 323 of the Penal Code.
2. The provincial-level
people’s courts and the military zone-level military courts shall conduct
first-instance trial of criminal cases involving offenses not falling under the
jurisdiction of the district-level people’s courts and the regional military
courts or cases falling under the subordinate courts, which they take for
trial.
Article 171.- Territorial
jurisdiction
1. The courts
competent to adjudicate criminal cases are the courts of the places where the
offenses were committed. Where an offense is committed in different places or
if the place where an offense was committed is unknown, the court competent to
adjudicate the case shall be the one of the place where the investigation is
completed.
2. For defendants
committing offenses abroad, if they are to be adjudicated in
For defendants
committing offenses abroad, if they fall under the adjudicating jurisdiction of
a military court, they shall be adjudicated by the Military Court of the
military-zone or higher level under decisions of the President of the
Article 172.- Jurisdiction to
adjudicate offenses committed on board aircraft or sea-going ships of the
Socialist Republic of Vietnam, which are operating outside the airspace or the
territorial
Offenses committed on
board aircraft or sea-going ships of the Socialist Republic of Vietnam which
are operating outside the airspace of the territorial
Article 173.- Adjudication of
defendants committing many offenses falling under the jurisdiction of courts at
different levels
For defendants
committing many offenses, one of which falls under the adjudicating
jurisdiction of the superior court, the superior court shall adjudicate the
entire cases.
Article 174.- Transfer of cases
When realizing that
cases do not fall under their jurisdiction, the courts shall transfer the cases
to those with jurisdiction to adjudicate. The transfer of cases to courts
outside the territory of a province or centrally run city or outside the
territory of a military zone shall be decided by the provincial-level people’s courts or military zone-level military courts.
The transfer of a case
to another court shall be effected only when the case
has not been adjudicated yet. In this case, the transfer of the case shall be
decided by the president of the court. If a case which falls under the
jurisdiction of a
Within two days after
issuing decisions to transfer the cases, the courts must notify the procuracies
of the same level and inform the accused and persons involved in the cases
thereof.
Article 175.- Settlement of
disputes over adjudicating jurisdiction
1. The settlement of
disputes over adjudicating jurisdiction shall be decided by the presidents of
the immediate superior courts.
2. The settlement of
disputes over adjudicating jurisdiction between district-level people’s courts of different provinces or centrally run cities shall be
decided by the presidents of the provincial-level people’s courts of the places where the investigation is completed.
3. The settlement of
disputes over the adjudicating jurisdiction between people’s courts and military courts shall be decided by the President of the
Chapter XVII
TRIAL PREPARATION
Article 176.- Trial preparation
time limits
1. After receiving the
case files, the judges assigned to preside over the court sessions shall have
to study the files, settle complaints and requests of the participants in the
procedure and perform other tasks necessary for opening court sessions.
2. Within thirty days
for less serious offenses, forty five days for serious offenses, two months for
very serious offenses and three months for especially serious offenses,
counting from the date of receipt of the case files, the judges assigned to
preside over court sessions must issue one of the following decisions:
a/ To bring the case
for trial;
b/ To return the file
for additional investigation;
c/ To cease or suspend
the case.
For complicated cases,
the presidents of courts may decide to prolong the trial preparation time
limits for no more than fifteen days for less serious offenses and serious
offenses, and for no more than thirty days for very serious offenses and
especially serious offenses. Such prolongation must be immediately notified to
the procuracies of the same level.
Within fifteen days
after issuing decisions to bring the cases for trial, the courts must open
court sessions; where they have plausible reasons, the courts may open court
sessions within thirty days.
For the cases returned
for additional investigation, within fifteen days after receiving back the
files, the judges assigned to preside over the court sessions must issue
decisions to bring the cases for trial.
Article 177.- Application, change
or cancellation of deterrent measures
After receiving the
case files, the judges assigned to preside over the court sessions shall have
the right to decide to apply, change or cancel deterrent measures, excluding
the application, change or cancellation of the temporary detention measure,
which shall be decided by the presidents or vice-presidents of courts.
The time limits for
temporary detention for trial preparation shall not exceed the trial
preparation time limits defined in Article 176 of this Code.
For defendants in
temporary detention but the time limit for their temporary detention expires on
the date of opening the court sessions, if deeming their continued temporary
detention necessary in order to complete the trial, the courts shall issue
orders on temporary detention till the closing of the court sessions.
Article 178.- Contents of decisions
to bring cases for trial
A decision to bring a
case for trial must contain:
1. The full name,
birth date, birth place, occupation and residence of the defendant;
2. The title of the
offense and articles of the Penal Code applied by the procuracy to the act
committed by the defendant;
3. The date, hour and
venue of opening the court session;
4. Public or
closed-door trial;
5. The full names of
the judge, jurors and court clerk; the full names of alternate judge and
jurors, if any;
6. The full name of
the procurator to participate in the court session; the full name of the
alternate procurator, if any;
7. The full name of
the defense counsel, if any;
8. The full name of
the interpreter, if any;
9. The full names of
persons summoned for questioning at the court session;
10. Exhibits to be
presented for examination at the court session.
Article 179.- Decisions to return
files for additional investigation
1. Judges shall issue
decisions to return files to procuracies for additional investigation in the
following cases:
a/ Where important
evidences in the cases need to be further examined, which cannot be
supplemented at the court session;
b/ Where there are
grounds to believe that the defendant has committed another offense or there is
another accomplice;
c/ Where serious
violations of the procedure are detected.
The matters required
to be additionally investigated must be clearly stated in the decisions
requesting the additional investigation.
2. If the additional
investigation results lead to the cessation of the cases, the procuracies shall
issue decisions to cease the cases and notify the courts thereof.
In cases where the
procuracies cannot supplement the matters as requested by the courts and keep
their prosecution decisions unchanged, the courts shall still proceed with the
trial.
Article 180.- Decisions to suspend
or cease cases
Judges shall issue
decisions to cease cases when there are grounds prescribed in Article 160 of
this Code; issue decisions to cease cases when there is one of the grounds
prescribed in Clause 2 of Article 105 and Points 3, 4, 5, 6 and 7 of Article
107 of this Code, or when the procuracies withdraw the entire prosecution
decisions before the opening of court sessions.
Where a case involves
many accused or defendants while the grounds for suspension or cessation of the
case do not relate to all of the accused or defendants, the case may be
suspended or ceased for each of them.
A decision to cease a
case must contain the contents specified in Clause 3, Article 164 of this Code.
Article 181.- Withdrawal of
prosecution decisions by procuracies
If deeming that there
is one of the grounds prescribed in Article 107 of this Code or there are
grounds to exempt the accused or defendants from penal liability under the
provisions of Article 19, Article 25, and Clause 2 of Article 69 of the Penal
Code, the procuracies shall withdraw prosecution decisions before the opening
of court sessions and propose the courts to cease the cases.
Article 182.- Handing of court
decisions
1. Decisions to bring
the cases for trial must be handed to the defendants, their lawful
representatives and defense counsels at least ten days before the opening of
court sessions.
In case of
adjudicating defendants in absentia, the decisions to bring the cases for trial
and indictments shall be handed to the defendants’ defense counsels or lawful
representatives; such decisions must be also posted up at the head offices of
the administrations of the communes, wards or townships where the defendants
reside or at their last working places.
2. The courts’ decisions to suspend or decisions to cease the cases must be handed to the accused
or defendants, defense counsels, victims, lawful representatives of the accused
or defendants; other participants in the procedure shall be informed thereof in
writing.
3. Decisions to bring
the cases for trial, decisions to cease the cases, decisions to suspend the
cases must be immediately sent to the procuracies of the same level.
4. Decisions to apply,
change or cancel deterrent measures must be immediately sent to the accused or
defendants, the procuracies of the same level, detention centers where the
accused or defendants are being held.
Article 183.- Summoning of persons
to be questioned at court sessions
Basing themselves on
the decisions to bring the cases for trial, judges shall summon persons who
need to be questioned at court sessions.
Chapter XVIII
GENERAL PROVISIONS ON
PROCEDURES AT COURT SESSIONS
Article 184.- Direct, oral and
uninterrupted trial
1. The courts must
directly determine the circumstances of the cases by asking questions and
listening to opinions of the defendants, victims, civil plaintiffs, civil
defendants, persons with interests and obligations
related to the cases, witnesses and experts, examine exhibits and listen to the
opinions of the procurators and defense counsels. Judgments shall be based only
on the evidences examined at court sessions.
2. The trial must be
conducted uninterruptedly, excluding break time.
Article 185.- Composition of
first-instance trial panels
A first-instance trial
panel shall be composed of one judge and two jurors. For serious and
complicated cases, the trial panel may be composed of two judges and three
jurors.
For cases where the
defendants brought for trial are charged with offenses punishable by death as
the highest penalty, the trial panel shall be composed of two judges and three
jurors.
The judges presiding
over court sessions shall conduct the trial and maintain the court order.
Article 186.- Replacement of trial
panel members in special cases
1. The members of
trial panels must hear the cases from the beginning to the end.
2. In the course of
trial, if a judge or juror discontinues hearing the case, the court may still
hear the case with the alternate judge or juror. Only alternate judges and
jurors who are present at the court sessions from the beginning may participate
in adjudicating the cases. Where a trial panel consists of two judges but the
judge presiding over the court session cannot continue hearing the case, the
judge being member of the trial panel shall preside over the court session and
the alternate judge shall be added to the trial panel as a member.
3. Where there is no
alternate judge or juror for replacement or if the presiding judge of a court
session must be replaced while there is no substitute judge as prescribed in
Clause 2 of this Article, the case must be re-tried from the beginning.
Article 187.- Appearance of
defendants at court sessions
1. Defendants must
appear at court sessions in response to court summonses; if they are absent
without plausible reasons, they shall be escorted according to the procedure
prescribed in Article 130 of this Code; if they are absent for plausible
reasons, the court sessions must be postponed.
If the defendants
suffer from mental diseases or other dangerous diseases, the trial panels shall
suspend the cases till the defendants recover from their illnesses.
If the defendants have
escaped, the trial panels shall suspend the cases and request the investigating
bodies to pursue them.
2. Courts may try the
defendants in absentia in the following cases:
a/ The defendant has
escaped and his/her pursuit has been in vain;
b/ The defendant stays
abroad and cannot be summoned to the court session;
c/ The absence of the
defendant causes no obstacle to the trial and he/she has been handed the
summons properly.
Article 188.- Supervision of
defendants at court sessions
1. Defendants being
held in temporary detention, when appearing at court sessions, shall only be
allowed to meet with their defense counsels. Their contacts with other persons
must be permitted by the presiding judges of the court sessions.
2. Defendants who are
not held in temporary detention must be present at the court sessions
throughout the period of adjudication.
Article 189.- Appearance of
procurators
1. Procurators of the
procuracies of the same level must participate in court sessions. For serious
and complicated cases, two procurators may together participate in court
sessions. In case of necessity, there may be alternate procurators.
2. If procurators are
absent or changed while there are no alternate ones for replacement, the trial
panels shall postpone court sessions and immediately report thereon to the
procuracies of the same level.
Article 190.- Appearance of defense
counsels
Defense counsels shall
be obliged to participate in court sessions. They may send in advance their
written defenses to the courts. If defense counsels are absent, the courts
shall still open the court sessions.
Where defense counsels
are compulsorily required under the provisions of Clause 2, Article 57 of this
Code but they are absent, the trial panels must postpone the court sessions.
Article 191.- Appearance of
victims, civil plaintiffs, civil defendants, persons with interests and
obligations related to the cases or their lawful representatives
1. If victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
the cases or their lawful representatives are absent, the trial panels shall
decide, on a case by-case basis, to postpone the court session or proceed with
the trial.
2. If deeming that the
absence of victims, civil plaintiffs or civil defendants would cause obstacles
only to the settlement of compensation questions, the trial panels may
sequester the compensation for later trial according to civil procedures.
Article 192.- Appearance of
witnesses
Witnesses shall
participate in court sessions in order to clarify the circumstances of the
cases. If an witness is absent but has earlier given
his/her statements at the investigating body, the judge presiding the court
session shall announce such statements. If a witness to important matters is
absent, the trial panel shall decide, on a case-by-case basis, to postpone the
court session or proceed with the trial.
If an
witness has been subpoenaed by the court but deliberately refuses to appear
without plausible reasons and their absence impedes the trial, the trial panel
may issue an escort decision. The procedure for escorting witnesses shall
comply with the provisions of Article 134 of this Code.
Article 193.- Appearance of experts
1. When being
subpoenaed by courts, experts shall participate in court sessions.
2. If experts are
absent, the trial panel shall decide, on a case-by-case basis, to postpone the
court session or proceed with the trial.
Article 194.- Time limit for
postponement of court sessions
For
the cases where court sessions must be postponed under Articles 45. 46, 47, 187, 189,
190, 191, 192 and 193 of this Code, the time limit for postponement of court
sessions of first-instance trial shall not exceed thirty days, counting from
the date of issuance of the decisions to postpone the court sessions.
Article 195.- Withdrawal of
prosecution decisions or conclusion on lesser offenses by procurators at court
sessions
During court sessions,
after inquiring, procurators may withdraw part or whole of the prosecution
decisions or conclude on lesser offenses, but the trial panels must try the
whole cases.
Courts shall only
adjudicate defendants and acts of the offenses which have been prosecuted by
the procuracies and decided by the courts to be brought for trial.
Courts may adjudicate
defendants according to clauses other than those in the same articles which the
procuracies have applied to prosecute them, or for other offenses equal to or
lesser than the ones prosecuted by the procuracies.
Article 197.- Internal rules of
court sessions
1. Before starting
court sessions, the court clerks must announce the internal rules of the court
sessions.
2. All people in the
courtrooms must show respect for the trial panels, keep order and obey the
instructions of the presiding judges.
3. All people in the
courtrooms must stand up when the members of the trial panels enter the
courtrooms. Those who have been summoned for inquiry may present their opinions
provided that their presentation is permitted by the presiding judges. The
persons presenting opinions must stand while being questioned, except where
they are permitted by the presiding judges to sit and present their statements
due to their poor health.
4. Persons aged under 16 years shall not be allowed to enter the courtrooms,
except where they are summoned by the courts for inquiry.
Article 198.- Measures against
persons violating order at court sessions
Persons who violate
order at court sessions shall be warned, fined, forced to leave the court rooms
by the presiding judges or arrested on a case-by-case basis.
The security guards of
court sessions shall have to keep order at court sessions and execute the
orders of the presiding judges to force the persons disturbing order at court
sessions to leave the courtrooms or arrest them.
Article 199.- Making court
judgments and decisions
1. Court judgments
shall decide on whether or not the defendants have committed the offenses,
penalties and other judicial measures. Judgments must be discussed and adopted
in the deliberation chambers.
2. Decisions to change
members of the trial panels, procurators, court clerks, experts, interpreters
to transfer the cases, to request additional investigation, to suspend or cease
the cases and to arrest or release defendants must be discussed and adopted in
the deliberation chambers and made in writing.
3. Decisions on other
matters shall be discussed and adopted by the trial panels at the courtrooms,
are not required to be made in writing but must be recorded in the minutes of
the court sessions.
Article 200.- Minutes of court
sessions
1. The minutes of a
court session must contain the date, hour and venue of the court session and
all developments thereat from commencement of trial to pronouncement of
judgment. Apart from being recorded in the minutes, developments at a court
session may be audio- and/or video-recorded,
2. All questions and
answers must be recorded in the minutes.
3. At the end of court
sessions, the judges presiding over the court sessions must examine the minutes
and sign them together with the court clerks.
4. Procurators,
defendants, defense counsels, victims, civil plaintiffs, civil defendants,
persons with interests and obligations related to the cases, defense counsels
of the interests of the involved persons or lawful representatives of such
persons may read the minutes of the court sessions and have the right to
request the writing of amendments and/or supplements in such minutes and certify
them with their signatures.
Chapter XIX
PROCEDURES FOR OPENING
COURT SESSIONS
Article 201.- Procedures for
opening court sessions
To open a court
session, the presiding judge shall read the decision to bring the case for
trial.
After listening to the
court clerk reporting on the list of summoned persons who are present, the
presiding judge shall examine the identity cards of such persons and explain to
them their rights and obligations at the court session.
Where a defendant has
not yet been handed the indictment under the provisions of Clause 2, Article 49
and decision to bring the case for trial within the time limit defined in
Clause 1, Article 182 of this Code, and if he/she requests, the trial panel
must postpone the court session.
Article 202.- Settlement of
requests for change of judges, jurors, procurators, court clerk, experts and/or
interpreters
Procurators and
participants in the procedure must be asked by the presiding judges whether or
not they request to change judges, jurors, procurators, court clerks, experts
and/or interpreters. If any of them makes such a request, the trial panel shall
consider it and make a decision thereon.
Article 203.- Explanation of the
rights and obligations of interpreters and experts
If there are
interpreters and/or experts participating in the court sessions, the presiding
judges shall introduce their full names, occupations or positions and clearly
explain their rights and obligations. These persons must pledge to properly
perform their tasks.
Article 204.- Explanation of the
rights, obligations of witnesses, and isolation of witnesses
1. After asking the
full name, age, occupation and residence place of each witness, the presiding
judges shall clearly explain their procedural rights and obligations. Witnesses
must pledge not to give false testimonies. Particularly, minor witnesses shall
not be required to make such pledge.
2. Before witnesses
are questioned about the cases, the presiding judges may decide to apply
various measures in order to prevent witnesses from hearing each other’s testimonies or meeting with other concerned persons. In cases where
the testimonies of defendants and witnesses may influence one another, the
presiding judges may decide to separate defendants from witnesses before
questioning witnesses.
Article 205.- Settlement of
requests for examination of evidences and postponement of court sessions due to
the absence of persons concerned
The presiding judges
must ask procurators and participants in the procedure whether or not they
request to summon more witnesses or to produce more exhibits and documents for
examination. If any of the participants in the procedure is absent, the
presiding judges must also ask whether or not any of the above-said persons
requests to postpone the court sessions. If any person so requests, the trial
panels shall consider and decide.
Chapter XX
PROCEDURES FOR INQUIRY
AT COURT SESSIONS
Article 206.- Reading of
indictments
Before inquiring,
procurators shall read the indictments and present additional opinions, if any.
1. The trial panels
must determine fully all circumstances of each fact and each offense in the
cases in a rational inquiring order.
2. When inquiring each
person, the presiding judge shall put questions first, then procurators,
defense counsels and defense counsels of interests of the involved persons.
Participants in the court sessions shall also have the right to request the
presiding judges to ask more questions about the circumstances required to be
clarified. Experts may ask questions about matters related to the expert
examination.
3. While inquiring,
the trial panels shall examine related exhibits in the cases.
Article 208.- Announcement of
statements at investigating bodies
1. If the persons
inquired are present at the court sessions, the trial panels and procurators
must not repeat or announce their statements at the investigating bodies before
they give their statements on the circumstances of the cases at the court
sessions.
2. Statements taken at
the investigating bodies shall only be announced in the following cases:
a/ Statements of the
persons inquired at the court sessions are contradictory to theirs at the
investigating bodies;
b/ Inquired persons
refuse to give statements at the court sessions;
c/ The persons to be
inquired are absent or deceased.
Article 209.- Inquiry of defendants
1. The trial panels
must inquire each defendant separately. If the statements of this defendant may
affect those of another, the presiding judge must isolate them. In this case, the
isolated defendants shall be informed of the statements of the previous
defendants and have the right to put questions to such defendants.
2. Defendants shall
present their opinions on the indictments and circumstances of the cases. The
trial panels shall further inquire about insufficient or contradictory points
in the defendants’ statements.
3. Procurators shall
inquire about circumstances of the cases which are related to the accusation or
exculpation of defendants. Defense counsels shall inquire about circumstances
related to the defense, defense counsels of the interests of the involved
parties shall inquire about circumstances related to the protection of
interests of the involved parties. Participants at court sessions shall have
the right to propose the presiding judges to further ask about circumstances
related to them.
4. If defendants
refuse to answer questions, the trial panels, procurators, defense counsels and
defense counsels of the interests of the involved parties shall continue to
inquire other persons and examine exhibits and documents related to the cases.
Article 210.- Inquiry of victims,
civil plaintiffs, civil defendants, persons with interests and obligations
related to the cases or their lawful representatives
Victims, civil plaintiffs,
civil defendants, persons with interests and obligations related to the cases
or their lawful representatives shall give their statements on circumstances of
the cases which are related to them. Then, the trial panels, procurators,
defense counsels and defense counsels of the interests of the involved parties
shall inquire further about insufficient or contradictory points in their
statements.
Article 211.- Inquiry of witnesses
1. The trial panels
must inquire each witness separately and not let other witnesses know the
contents of such inquiry.
2. While inquiring
witnesses, the trial panels must ask questions to clarify their relationships
with the defendants and involved parties in the cases. The presiding judges
shall request witnesses to state clearly the circumstances of the cases they
know, then inquire further about those insufficient or
contradictory points in their testimonies. Procurators, defense counsels,
defense counsels of the interests of the involved parties then may further ask
the witnesses.
3. If witnesses are
minor, the presiding judges may seek the help of their parents, mentors or
teachers in inquiring them.
4. After giving their
testimonies, witnesses shall stay on in the courtrooms for possible further
inquiry.
5. In case of necessity
to ensure safety for witnesses and their relatives, the trial panels must
decide to apply measures to protect them according to law.
Article 212.- Examination of
exhibits
1. Exhibits, photos or
minutes certifying exhibits shall be presented for examination at court
sessions.
When necessary, the
trial panels may together with procurators, defense counsels and other
participants in court sessions, come to examine on the spot exhibits which
cannot be brought to the court sessions. The on-spot examination must be
recorded in a minutes according to the provisions of Article 95 of this Code.
2. Procurators,
defense counsels and other participants in court sessions shall have the right
to present their remarks on exhibits. The trial panels may inquire further about
matters related to exhibits.
Article 213.- On-spot examination
When deeming it
necessary, the trial panels may together with procurators, defense counsels and
other participants in court sessions come to examine the scenes of offenses or
other places related to the cases. Procurators, defense counsels and other
participates at court sessions shall have the right to present their remarks on
the scenes of offenses or other places related to the cases.
The trial panels may
inquire other participants in court sessions further about matters related to
such places.
The on-spot
examination must be recorded in a minutes according to general procedures
prescribed in Article 95 of this Code.
Article 214.- Presentation and
announcement of documents of the cases and comments and reports of agencies or
organizations
Comments and reports
of agencies or organizations on circumstances of the cases shall be presented
by the representatives of such agencies or organizations; if no representatives
of such agencies or organizations are present, the trial panels shall announce
such comments and reports at the court sessions.
Documents contained in
the case files or just presented during the inquiry shall all have to be
announced at court sessions.
Procurators,
defendants, defense counsels and other participants in court sessions shall
have the right to give their remarks on such documents and inquire further
about related matters.
Article 215.- Inquiry of experts
1. Experts shall
present their conclusions on the matters assigned to them for expertise.
2. At court sessions,
experts shall have the right to give additional explanations on the basis of
the expertise conclusions.
3. If experts are
absent, the presiding judges shall announce the expertise conclusions.
4. Procurators,
defense counsels and other participants in court sessions shall have the right
to give remarks on the expertise conclusions, inquire about unclear or
contradictory matters in such conclusions.
5. When deeming it
necessary, the trial panels shall decide to solicit additional expertise or
re-expertise.
Article 216.- Termination of
inquiry
When deeming that all
circumstances of the cases have been examined fully, the presiding judges shall
ask procurators, defendants, defense counsels and other participants in the
court sessions whether they request to inquire about any matters. If any of
them makes such a request and deeming that such request is justifiable, the
presiding judges shall decide to continue the inquiry.
Chapter XXI
ARGUMENT AT COURT
SESSIONS
Article 217.- Order of presentation
of arguments
1. At the end of the
inquiry at the court sessions, procurators shall present the arraignments,
proposing the charges against the defendants on the basis of the whole or part
of the indictments or conclusions on lesser offenses; if deeming that there are
no grounds for conviction, they shall withdraw the whole prosecution decisions
and propose the trial panels to pronounce the defendants not guilty.
The arraignments
presented by procurators must be based on documents and evidences already
examined at the court sessions and opinions of the defendants, defense
counsels, defense counsels of the interests of the involved parties and other
participants in the procedure at the court sessions.
2. Defendants shall
present their defense, if they have defense counsels, such defense counsels
shall defend the defendants. Defendants shall have the right to add defense
opinions.
3. Victims, civil
plaintiffs, civil defendants and persons with interests and obligations related
to the cases or their lawful representatives may present their opinions to
protect their rights and interests; if they have defense counsels of their
interests, such defense counsels shall have the right to present and add
opinions.
Article 218.- Counter-argument
Defendants, defense
counsels and other participants in the procedure shall have the right to
present their opinions on the arraignments made by procurators and put forward
their requests. Procurators must present their arguments on each opinion.
Participants in the
arguing process shall have the right to respond to opinions of others. The
presiding judges must not restrict the arguing time, must create conditions for
participants in the arguing process to present all opinions, but they shall,
however, have the right to cut out opinions irrelevant to the cases.
The presiding judges
shall have the right to request procurators to respond to opinions related to
the cases, which are presented by defense counsels and other participants in
the procedure but have not yet been touched upon by procurators in their
arguments.
Article 219.- Reopening of inquiry
If, through the
arguing process, they deem it necessary to further examine evidences, the trial
panels may decide to reopen the inquiry. The arguing process must be continued
once the inquiry ends.
Article 220.- Final words of
defendants
When the participants
in the arguing process make no more statements, the presiding judges shall
declare to conclude the arguing process.
Defendants shall then
be allowed to say their final words. Questions must not be put while the
defendants are saying their final words. The trial panels shall have the right
to request the defendants not to dwell on matters irrelevant to the cases but
must not restrict the time for them to say.
If, in their final
words, the defendants additionally present new circumstances of important
significance to the cases, the trial panels must decide to re-open the inquiry.
Article 221.- Consideration of
withdrawal of prosecution decisions or conclusions on lesser offenses
1. When procurators
withdraw part of their prosecution decisions or conclude on lesser offenses,
the trial panels shall still continue adjudicating the cases.
2. Where procurators
withdraw the whole of the prosecution decisions, the trial panels, before
deliberating the judgments, shall request the participants in the procedure at
the court sessions to give their opinions on such withdrawal.
Chapter XXII
DELIBERATION AND
PRONUNCIATION OF JUDGMENTS
Article 222.- Deliberation of
judgments
1. Only judges and
jurors shall have the right to deliberate judgments. Members of the trial
panels must settle all matters of the cases by majority vote on each matter.
Judges shall vote last. Persons holding minority opinions shall have the right
to present their opinions in writing for inclusion in the case files.
2. Where procurators
withdraw the whole prosecution decisions, the trial panels shall still settle
matters of the cases in the order prescribed in Clause 1 of this Article. If
there are grounds to confirm that defendants are not guilty, the trial panels
shall declare the defendants not guilty; if deeming that the withdrawal of the
prosecution decisions is ungrounded, they shall decide to cease the cases and
make proposals to the immediate superior procuracies.
3. The deliberation of
judgments shall be based only on evidences and documents already verified at
the court sessions on the basis of fully and comprehensively examining all
evidences, opinions of procurators, defendants, defense counsels and other
participants in the proceedings at court sessions.
4. All opinions and
decisions of the trial panels made in the process of deliberating judgments
must be recorded in the minutes. Judgment deliberation minutes must be signed
by all members of the trial panels at the deliberation chambers before the
judgments are pronounced.
Article 223.- Reopening of inquiry
and argument
If they find, through
judgment deliberation, that some circumstances of the cases have not yet been
inquired into or have been insufficiently inquired into, the trial panels shall
decide to reopen the inquiry and argument.
1. The courts shall
hand down judgments in the name of the Socialist Republic of Vietnam.
2. A judgment should
contain the date, hour and venue of the court session; full names of members of
the trial panel and court clerk; full names of procurators; full name, birth
date, birth place, residence, occupation, educational level, social status and
previous criminal records of the defendant; the date the defendant is held in
custody and/or temporary detention; full name, age, occupation, birth place and
residence of the defendant’s lawful representative; full
name of the defense counsel; full names, ages, occupations, residences of the
victim, civil plaintiff, civil defendant, persons with interests and
obligations related to the case, and their lawful representatives.
3. A judgment must
describe the commission of the offense by the defendant, analyze evidences
arraigning and exculpating the defendant, determine where or not the defendant
is guilty, and if guilty, which offense he/she has committed under which
article and clause of the Penal Code, circumstances aggravating and extenuating
his/her penal liability and how should they be handled. If the defendant is not
guilty, the judgment must clearly state the grounds to confirm that the
defendant is not guilty and deal with the restoration of his/her honor,
legitimate rights and interests. The last part of a judgment shall contain the
court’s decisions and the right to appeal against the judgment.
Article 225.- Proposal to remedy
mistakes in the managerial work
1. Together with
handing down judgments, the courts shall issue proposals to the concerned
agencies and organizations to apply necessary measures to overcome crime causes
and conditions at their agencies and organizations. Within thirty days after
receiving the courts’ proposals, such agencies and
organizations must notify in writing the courts of the measures already applied.
2. Proposals of the
courts may be either read at the court sessions together with the judgments or
sent to the concerned agencies or organizations only. .
Article 226.- Pronouncement of
judgments
All people present in
the courtrooms must stand up when a judgment is pronounced. The presiding judge
or another member of the trial panel shall read the judgment and may, after
reading, explain further the execution of the judgment and the right to appeal.
If the defendant does
not know Vietnamese, after the judgment is pronounced, the interpreter must
read to the defendant the whole judgment in the language which the defendant
knows.
Article 227.- Release of defendants
In the following
cases, the trial panels must declare the immediate release at the court
sessions of the defendants who are temporarily detained, provided that they are
not temporarily detained for another offense:
1. The defendants are
not guilty;
2. The defendants are
exempt from penal liability or from serving the penalty;
3. The defendants are
punished with penalties other than imprisonment.
4. The defendants are
entitled to suspended judgments;
5. The imprisonment
term is equal to or shorter than the period during which the defendants have
been temporarily detained.
Article 228.- Arrest of defendants
for temporary detention after the pronouncement of judgments
1. For defendants who
are being temporarily detained and sentenced to imprisonment but their
temporary detention time limits expire on the date the court sessions end, the
trial panels shall issue decisions to hold the defendants in temporary
detention in order to secure the judgment execution, except for the cases
prescribed in Clause 4 and Clause 5 of Article 227 of this Code.
2. Where the
defendants who are not held in temporary detention are sentenced to
imprisonment, they shall only be arrested for temporary detention in order to
serve the penalties when the judgments become legally valid. The trial panels
may issue decisions to immediately arrest the defendants for temporary
detention if they have grounds to believe that the defendants may escape or
continue to commit other offenses.
3. The time limit for
temporary detention of defendants prescribed in Clause 1 and Clause 2 of this
Article is forty five days as from the date of pronouncement of the judgments.
4. For defendants
punished by capital punishment, the trial panels shall decide in the judgments
on the continued temporary detention of the defendants to secure the execution
of the judgments.
Article 229.- Handing of judgments
Within ten days after
the date of pronouncement of the judgments, the first-instance courts must hand
copies of the judgments to the defendants, the procuracies of the same level,
and defense counsels, send them to persons tried in absentia and the police
agencies of the same level; notify such in writing to the administrations of
the communes, wards or townships where the defendants reside or the agencies or
organizations where they work.
In case of trying
defendants in absentia under the provisions of Point a or Point b, Clause 2,
Article 187 of this Code, within the above-said time limit, copies of the
judgments must be posted up at the offices of the administrations of the
communes, wards or townships where the defendants last reside or of the
agencies or organizations where they last work.
Victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
the cases or their lawful representatives shall have the right to request the
courts to provide them extracts or copies of the
judgments.
Part Four
APPELLATE TRIAL
Chapter XXIII
NATURE OF APPELLATE
TRIAL AND RIGHTS TO APPEAL AND PROTEST
Article 230.- Nature of appellate
trial
Appellate trial means
the re-trial of the cases or the review of first-instance decisions by
immediate superior courts when the first-instance judgments or decisions in
such cases are appealed or protested against before they become legally valid.
Article 231.- Persons entitled to
appeal
Defendants, victims
and their lawful representatives shall have the right to appeal against
first-instance judgments or decisions.
Defense counsels shall
have the right to appeal in order to protect the interests of minors or persons
with physical or mental defects.
Civil plaintiffs,
civil defendants and their lawful representatives shall have the right to
appeal against part of the judgments or decisions, which is related to damage
compensation.
Persons with interests
and obligations related to the cases and their lawful representatives shall
have the right to appeal against part of the court judgment or decisions, which
is related to their interests and obligations.
Defense counsels of
the interests of minors or persons with physical or mental defects shall have
the right to appeal against part of the court judgments or decisions, which is
related to the interests and obligations of the persons whom they protect.
Persons who are
declared not guilty by the courts shall have the right to appeal against part
the first-instance judgments declaring them not guilty regarding the reasons
for such declaration.
Article 232.- Protests by
procuracies
The procuracies of the
same level and the immediate superior procuracies shall have the right to
protest against first-instance judgments or decisions.
Article 233.- Procedures for
lodging appeals and protests
1. Appellants must
send their written appeals to the courts which have conducted first-instance
trial or to the courts of appeal. If the defendants are under temporary
detention, the superintendence boards of the detention centers must guarantee
the defendants to exercise their right to appeal.
Appellants may also
present their appeals directly to the courts which have conducted
first-instance trials. The courts must make minutes of such appeals as
prescribed in Article 95 of this Code.
2. The procuracies of
the same level or immediate higher procuracies shall lodge written protests,
clearly stating the reasons therefor. Written protests shall be addressed to
the courts which have conducted first-instance trials.
Article 234.- Time limits for
lodging appeals and protests
1. The time limit for
lodging appeals is fifteen days after the date of pronouncement of judgments.
For defendants or involved parties absent at the court sessions, the time limit
for lodging appeals is counted from the date the copies of the judgments are
handed to them or posted up.
The time limit for the
procuracies of the same level to lodge protests is fifteen days and for
immediate higher procuracies is thirty days, counting from the date of
pronouncement of the judgments
2. If written appeals
are sent by post, the date of such appeals shall be the date of the postmarks
affixed by the sending post offices on the envelops.
Where written appeals are sent via the superintendence boards of the detention
centers, the date of such appeals shall be the date the superintendence boards
of the detention centers receive such written appeals.
1. Late appeals may be
accepted if plausible reasons can be given.
2. The courts of
appeal shall set up trial panels each consisting of three judges to consider
the reasons for late appeals. Such trial panels shall have the right to decide
to accept or reject late appeals.
Article 236.- Notification of
appeals or protests
1. Appeals and
protests must be notified in writing by the courts of first instance to the
procuracies of the same level and participants in the procedure within seven
days after their receipt.
2. Persons notified of
the appeals or protests shall have the right to send their written opinions on
the contents of such appeals or protests to the courts of appeal. Their
opinions shall be included in the case files.
Article 237.- Consequences of
appeals and protests
1. Parts of the
judgments, which are appealed or protested against, shall not be executed,
except for the cases prescribed in Clause 2, Article 255 of this Code. When the
whole judgments are appealed or protested against, the whole judgments shall
not be executed.
2. The courts of first
instance must send the case files and appeals or protests to the courts of
appeal within seven days after the expiry of the time limit for lodging appeals
or protests.
Article 238.- Supplementation,
change and withdrawal of appeals or protests
1. Before the opening
of or during the appellate-court sessions, the appellants or procuracies shall
have the right to supplement or change their appeals or protests, provided that
such supplementation or change must not aggregate the situation of the
defendants; or to withdraw part or the whole of their appeals or protests.
2. In cases where the
whole appeals or protests are withdrawn at the court sessions, the appellate
trial must be ceased. First-instance judgments shall become legally valid from
the date the courts of appeal issue decisions to cease the appellate trial.
Article 239.- Appeals and protests
against decisions of the courts of first instance
1. The time limit for
the procuracies of the same level to protest against decisions of the courts of
first instance is seven days and for immediate higher procuracies fifteen days,
counting from the date of issuance of such decisions.
2. Decisions of the
courts of first instance to suspend or cease the cases may be appealed against
within seven days, counting from the date the persons with the right to appeal
receive such decisions.
Article 240.- Validity of courts’ first-instance judgments or decisions which are not appealed or protested
against
The courts’ first-instance judgments and decisions and parts thereof which are
not appealed or protested against, shall become legally valid from the expiry
date of the time limit for lodging appeals or protests.
Chapter XXIV
APPELLATE TRIAL
PROCEDURES
Article 241.- Scope of appellate
trial
The court of appeal
shall consider the contents of appeals or protests. If deeming it necessary,
they may examine other parts of the judgments, which are not appealed or
protested against.
Article 242.- Time limit for
appellate trial
The provincial-level
people’s courts and the military zone-level military courts must open
appellate court sessions within sixty days; the Court of Appeal of the
At least fifteen days
before opening court sessions, the courts of appeal must notify in writing the
procuracies of the same level and participants in the procedure of the time and
venue of the appellate trial of the cases.
Article 243.- Application, change
or cancellation of deterrent measures by courts of appeal
1. After receiving the
case files, the courts of appeal shall have the right to decide to apply,
change or cancel deterrent measures. The application, change or cancellation of
the temporary detention measure shall be decided by the presidents or
vice-presidents of the provincial-level people’s courts
or the
military zone-level military courts or by the judges holding the post of
president or vice-president of the Court of Appeal of the
The temporary
detention time limit must not exceed the time limit for appellate trial
prescribed in Article 242 of this Code.
2. For defendants
being under temporary detention whose detention periods end on the date of
opening the appellate court sessions, if deeming it necessary to continue their
temporary detention in order to complete the trial, the courts shall issue
orders to keep them in temporary detention until the end of the court sessions.
3. For defendants
being under temporary detention and sentenced to imprisonment and whose
temporary detention periods end on the date of completion of the court
sessions, the trial panels shall issue decisions to keep them in temporary
detention in order to secure the execution of their judgments, except for the
cases prescribed in Clause 4 and Clause 5, Article 227 of this Code.
For defendants who are
not held in temporary detention but punished by imprisonment, the trial panels
may issue decisions to arrest them immediately for temporary detention after
pronouncing their judgments, except for the cases prescribed in Article 261 of
this Code.
The temporary
detention time limit shall be forty five days after the date of pronouncement
of the judgments.
Article 244.- Composition of the
appellate trial panels
An appellate-trial
panel shall be composed of three judges and possibly added two jurors in case
of necessity.
Article 245.- Participants in
appellate court sessions
1. At appellate court
sessions, the participation by procurators of the procuracies of the same level
is compulsory, if they do not appear, the court sessions must be postponed.
2. Defense counsels,
defense counsels of the interests of the involved parties, appellants, persons
with interests and obligations related to the appeals or protests shall be
summoned to attend the court sessions. If any of them is absent for plausible
reasons, the trial panels may still proceed with the trial but shall refrain
from issuing judgments or decisions unfavorable to the absent defendant or
involved party. Court sessions must be postponed in other cases.
The time limit for
postponing a court session as prescribed in Clause 1 or Clause 2 of this
Article or in Articles 45, 46 and 47 of this Code shall not exceed thirty days,
counting from the date of issuance of the decision to postpone the court
session.
3. The participation
in court sessions by other persons shall be decided by the courts of appeal if
they deem their appearance necessary.
Article 246.- Supplementation and
examination of evidences at the courts of appeal
1. Before the trial or
during the inquiry at the court sessions, the procuracies may supplement by
themselves or at the court’s request new evidences; the
appellants or persons with interests and obligations related to the appeals or
protests, defense counsels and defense counsels of the interests of the
involved parties shall also have the right to supplement documents and/or
objects.
2. Previous evidences,
new evidences, newly added materials and/or objects must all be examined at the
court sessions. Judgments of the courts of appeal must be based on both
previous and new evidences.
Article 247.- Procedures at
appellate court sessions
Appellate court
sessions shall be conducted like first-instance ones but before the inquiry,
one trial panel member must briefly present the case contents, decision(s) of
the first-instance judgment, contents of the appeal or protest. In the arguing
process, procurators must present the procuracies’ viewpoints on the
settlement of the cases.
Article 248.- Appellate judgments
and jurisdiction of courts of appeal
1. The courts of
appeal shall hand down the judgments in the name of the Socialist Republic of
Vietnam. A judgment should contain the date, hour and venue of the court
session; full names of the members of the trial panel and the court clerk; the
full names of the procurators; the full name, birth date, birth place,
residence, occupation, educational level, social status and previous criminal
records of the defendant; the date of custody or temporary detention of the
defendant; the full name of the defense counsel; full names, ages, occupations
and residences of the victim, civil plaintiff, civil defendant, persons with
interests and obligations related to the case, and their lawful
representatives.
A judgment must
contain the brief content of the case, the process of settling the case, decisions
of the first-instance judgment, the contents of the appeal or protest, and
grounds to make one of the decisions defined in Clause 2 of this Article. The
last part of a judgment shall contain the court decisions.
2. The courts of
appeal shall have the right to decide:
a/ To reject the appeal
or protest and keep the first-instance judgment unchanged;
b/ To amend the
first-instance judgment;
c/ To cancel the
first-instance judgment and transfer the case file for re-investigation or
re-trial;
d/ To cancel the
first-instance judgment and cease the case.
3. Appellate judgments
shall become legally valid from the date of their pronouncement.
Article 249.- Amendment of
first-instance judgments
1. The courts of
appeal shall have the right to amend the first-instance judgments as follows:
a/ To exempt defendants
from penal liability or penalty;
b/ To apply the Penal
Code’s article and clauses on lesser offenses;
c/ To commute penalties
for defendants;
d/ To reduce the levels
of damage compensation and amend decisions on handling exhibits;
e/ To shift to lighter
penalties; to retain the imprisonment term and hand down suspended sentences.
2. If having grounds,
the courts of appeal may also commute penalties, apply the Penal Code’s articles and clauses on lesser offenses, shift to lighter penalties; retain the
imprisonment terms and hand down suspended sentences also on defendants who do
not appeal or are not appealed or protested against.
3. Where the
protesting procuracies or the appealing victims request, the courts of appeal
may also increase penalties, apply the Penal Code’s
articles
and clauses on more serious offenses; increase the damage compensation levels;
if the procuracies protest or the victims, civil plaintiffs or civil defendants
appeal; if having grounds, the courts may also commute penalties, apply the
Penal Code’s articles and clauses on lesser offenses, shift to
lighter
penalties; retain the imprisonment terms and hand down suspended sentences, or
reduce the damage compensation levels.
Article 250.- Dismissal of
first-instance judgments for re-investigation or re-trial
1. The courts of
appeal shall dismiss the first-instance judgments when they find that the
investigation at the first-instance level is insufficient and cannot be
supplemented at the appellate level.
2. The courts of
appeal shall dismiss the first-instance judgments for re-trial at the
first-instance level with a new composition of the trial panel in the following
cases:
a/ The composition of
the first-instance trial panel did not conform to law provisions or showed
other serious violations of the criminal procedure.
b/ There are grounds to
believe that the persons who were declared not guilty by the first-instance
courts had committed offences.
3. When dismissing the
first-instance judgments for re-investigation or re-trial, the courts of appeal
must clearly state in writing the reasons therefor.
4. When dismissing the
first-instance judgments for re-trial, the courts of appeal shall neither
decide in advance on evidences which the courts of first instance must accept
or reject nor decide in advance on the Penal Code’s articles and clauses
as well as penalties the courts of first instance must apply.
5. In case of
dismissing the first-instance judgments for re-investigation or re-trial but
the defendants’ temporary detention period has
expired and if deeming it necessary to continue holding the defendants in
temporary detention, the appellate trial panels shall issue decisions to
continue keeping the defendants in temporary detention till the procuracies or
the courts of first instance re-handle the cases.
Within fifteen days
after the first-instance judgments are dismissed, the case files must be
transferred to the procuracies or the courts of first instance for handling
according to general procedures.
Article 251.- Dismissal of
first-instance judgments and cessation of cases
When having one of the
grounds prescribed at Points 1 and 2, Article 207 of this Code, the courts of
appeal shall dismiss the first-instance judgments, declare the defendants not
guilty and cease the cases; if having one of the grounds prescribed at Points
3, 4, 5, 6 and 7, Article 107 of this Code, they shall dismiss the
first-instance judgments and cease the cases.
Article 252.- Re-investigation or
re-trial of criminal cases
After the courts of
appeal dismiss the first-instance judgments for re-investigation or re-trial,
the investigating bodies shall re-investigate, the procuracies re-institute and
courts of first instance re-try the cases according to general procedures.
Article 253.- Appellate trial of
decisions of courts of first instance
1. For appealed or
protested decisions of the courts of first instance, the courts of appeal shall
not have to open court sessions but may, if deeming it
necessary, summon the necessary participants in the procedure and listen to
their opinions before issuing decisions.
2. The courts of
appeal shall have to issue decisions to settle appeals or protests within ten
days after receiving the case files.
3. When examining the
appealed or protested decisions of the courts of first instance, the courts of
appeal shall have the powers defined in Article 248 of this Code.
4. Appellate decisions
shall become legally valid from the date of their issuance.
Article 254.- Handing of appellate
judgments and decisions
Within ten days
counting from the date of pronouncing the judgments or issuing the decisions,
the courts of appeal must hand copies of the appellate judgments or decisions
to the appellants, the courts, procuracies and police agencies of places where
the cases were tried at the first-instance level, and to persons with interests
and obligations related to the appeals or protests or their lawful
representatives, the competent civil judgment-executing agencies in cases where
the appellate judgments pronounce penalties of pecuniary fines, property
confiscation and civil decisions; and notify in writing the administrations of
the communes, wards or townships where the defendants reside or the agencies or
organizations where they work. Where the appellate trial is conducted by the
Court of Appeal of the
Victims, civil
plaintiffs, civil defendants, persons with interests and obligations related to
the cases or their lawful representatives shall have the right to request the
courts to provide them with extracts or copies of the judgments.
Part Five
EXECUTION OF COURT
JUDGMENTS AND DECISIONS
Chapter XXV
GENERAL PROVISIONS ON
EXECUTION OF COURT JUDGMENTS AND DECISIONS
Article 255.- Judgments and
decisions to be executed
1. Judgments and
decisions to be executed are those which have become legally valid, including:
a/ Judgments and
decisions of the courts of first instance, which are not appealed or protested
against according to the appellate procedures;
b/ Judgments and
decisions of the courts of appeal;
c/ Decisions of the
courts of cassation or reopening trial
2. For cases where
defendants are kept in temporary detention but the courts of first instance decide
to cease the cases, not to convict them, exempt them from penal liability or
penalty, to hand down non-custodial penalties or suspended sentences or where
the imprisonment terms are equal to or shorter than the temporary detention
periods, the court judgments or decisions shall be immediately executed though
they may be protested or appealed against.
Article 256.- Procedures for
execution of court judgments and decisions
1. Within seven days
after the court judgments or decisions become legally valid or after receiving
the appellate judgments or decisions, the cassation-trial or reopening trial
decisions, the presidents of the courts which have conducted the first-instance
trials shall have to issue decisions to execute the judgments or entrust other courts
of the same level to issue decisions to execute the judgments.
2. A decision to
execute a judgment must contain the full name of its issuer; the name of the
agency tasked to execute the judgment or decision; the full name, birth date
and residence of the convict; the judgment or decision the convict must serve.
Where the convicts are
on bail, the decisions to execute the imprisonment sentences must clearly state
that within seven days after receiving the decisions, the convicts must appear
at the police offices to serve their sentences.
3. Decisions to
execute judgments and judgment or decision extracts must be sent to the
procuracies of the same level of the places where the judgments are to be
executed, the judgment-executing agencies and the convicts.
4. If the persons on
bail escape after being sentenced to imprisonment, the presidents of the courts
which have issued the decisions to execute the judgments shall request the
investigating bodies of the same level to issue pursuit warrants.
Article 257.- Agencies,
organizations tasked to execute court judgments and decisions
1. The police agencies
shall execute the penalties of expulsion, termed imprisonment, life
imprisonment and join the councils for execution of death penalties as
prescribed in Article 259 of this Code.
2. The commune, ward
or township administrations of the places where the convicts reside or agencies
or organizations where the convicts work shall be tasked to monitor, educate
and supervise the reform of the persons serving suspended sentence or
non-custodial reform.
3. The execution of
penalties of probation, residence ban, deprivation of a number of civic rights,
ban from holding certain positions, ban from practicing certain occupations or
doing certain jobs shall be undertaken by the commune, ward or township
administrations or agencies or organizations, where the judgments are executed.
4. Specialized medical
establishments shall execute decisions on compulsory medical treatment.
5. Civil
judgment-executing agencies shall execute penalties of pecuniary fine or
property confiscation and civil decisions in criminal cases. The commune, ward
or township administrations or agencies or organizations shall be tasked to
assist executors in executing the judgments. If it is necessary to apply
forcible measures to execute the judgments, the police and other concerned
agencies shall have to coordinate therein.
6. The execution of
judgments and decisions of military courts shall be undertaken by organizations
in the army, except for the penalty of expulsion.
7. Judgment-executing
agencies must report to the presidents of the courts which have issued
decisions to execute the judgments on the execution of the judgments or
decisions; and state clearly the reasons if they cannot execute them yet.
Chapter XXVI
EXECUTION OF DEATH
PENALTY
Article 258.- Procedures for
consideration of death judgments before execution
1. After the death
judgments become legally valid, the case files must be immediately sent to the
President of the
Within two months
after receiving the judgments and case files, the President of the
Within seven days
after the judgments become legally valid, the convicts may send amnesty
petitions to the State President.
2. Death judgments
shall be executed if they are not protested against by the President of the
Where the death
judgments are protested against according to cassation or reopening procedures
but the cassation trial panel or the reopening trial panel of the Supreme
People’s Court decides to reject such protests and retain the death judgments, the
Supreme People’s Court must immediately notify the
convicts
thereof so that the latter can make petitions for commutation of their death
penalties.
Where the convicts
have made petitions for commutation of their death penalties, the death
penalties shall be executed after the State President rejects their petitions.
Article 259.- Execution of death
penalty
1. The presidents of
the courts which have conducted first-instance trials shall issue execution
decisions and set up the councils for execution of death penalty, each
consisting of representatives of the court, procuracy and police. The
judgment-executing councils must check the identity cards of the convicts
before executing the judgments.
Where the convicts are
women, before issuing decisions to execute the judgments, the presidents of the
courts which have conducted first-instance trials shall have to examine the
conditions for non-application of death penalty, prescribed in Article 35 of
the Penal Code. If there are grounds that the convicts meet the conditions
prescribed in Article 35 of the Penal Code, the presidents of the courts which
have conducted first-instance trial shall not issue decisions to execute the
judgments and report such to the President of the Supreme People’s Court for consideration and commutation of the death penalty to life imprisonment for
the convicts.
Before executing women
convicts, the judgment-executing councils shall, apart from checking their
identity cards, have to check the documents related to the conditions for
non-application of the death penalty prescribed in Article 35 of the Penal
Code.
Where the
judgment-executing councils detect that the convicts meet the conditions
prescribed in Article 35 of the Penal Code, they shall postpone the execution
and report such to the presidents of the courts which have conducted first-instance
trial for reporting to the President of the Supreme People’s Court for consideration and commutation of the death penalty to
life imprisonment for the convicts.
2. Before the
execution, the convicts must be handed and read the decisions to execute the
judgments, decisions not to protest against the judgments, made by the
President of the Supreme People’s Court and decisions not to
protest
against the judgments, made by the Chairman of the Supreme People’s Procuracy; if the convicts have made petitions for commutation of
their death penalty, they must be handed and read the State President’s decisions to reject their commutation petitions.
3. Death penalties
shall be executed by shooting.
4. The execution of
death penalty must be recorded in a minutes which must clearly state the
handing of decisions to the convicts for reading, their words, correspondence
and articles they have left to their relatives.
5. In special
circumstances, the judgment-executing councils shall postpone the execution and
report such to the presidents of the courts which have issued the execution
decisions for further reporting to the President of the
Chapter XXVII
EXECUTION OF
IMPRISONMENT PENALTIES AND OTHER PENALTIES
Article 260.- Execution of imprisonment
penalties
1. If the convicts are
under temporary detention, the police agencies must permit them to meet their
relatives before serving their sentences at the requests of the convicts’ relatives.
The superintendence
boards of the prisons must notify the convicts’ families of the places where
such convicts shall serve their penalties.
2. Where the convicts
are on bail, past the time limit if they do not appear at the police offices to
serve their penalties, they shall be escorted.
3. The presidents of the
courts which have issued judgment execution decisions must monitor the
execution of the judgments. The police agencies must notify the courts of the
arrest of the convicts for execution of the judgments or of the reasons for
failure to arrest them and measures to be taken to ensure the execution of the
judgments.
4. Where the persons
who are serving their imprisonment penalties escape from the prisons, the
police agencies shall issue pursuit warrants.
Article 261.- Postponement of
serving of imprisonment penalties
1. For persons who are
sentenced to imprisonment but on bail, the presidents of the courts which have
issued judgment execution decisions may permit on their own or at the requests
of the procuracies or police agencies of the same level or the convicts to
postpone the serving of imprisonment penalties in the cases prescribed in
Clause 1, Article 61 of the Penal Code.
2. At least seven days
before the expiry of the period of postponement of the serving of imprisonment
penalties, the presidents of the courts which have permitted the postponement
must issue judgment execution decisions and immediately send them together with
the copies of the legally valid imprisonment judgments and/or decisions to the
police agencies of the same level and the convicts before the expiry of the
period of postponement of the serving of imprisonment penalties.
Past seven days after
the expiry of the period of postponement of the serving of imprisonment
penalties, if the convicts do not appear at the police offices without
plausible reasons in order to go to serve their imprisonment penalties, the
police agencies shall have to escort them to go to serve their imprisonment
penalties.
Article 262.- Suspension of serving
of imprisonment penalties
1. At
the requests of the procuracies or the superintendence boards of the prisons
where the convicts are serving their imprisonment penalties:
a/ The presidents of
the provincial-level courts of the places where the convicts are serving their
imprisonment penalties may allow such convicts to temporarily stop serving
their imprisonment penalties in the cases prescribed at Point a, Clause 1 of
Article 61, and in Article 62 of the Penal Code.
b/ The presidents of
the courts which have issued judgment execution decisions may allow the persons
serving their imprisonment penalties to temporarily stop serving their
imprisonment penalties in the cases prescribed at Points b, c and d, Clause 1
of Article 61, and in Article 62 of the Penal Code.
At least seven days
before the expiry of the period of suspension of imprisonment penalties, the
presidents of the courts which have permitted the suspension of serving of
imprisonment penalties must issue judgment execution decisions with regard to
the remaining part of their penalties and immediately send such decisions to
the police agencies of the same level in the same places of the courts which
have issued the suspension decisions and to the convicts.
Past seven days after
the expiry of the period of suspension of the serving of imprisonment penalties,
if the convicts do not appear at the police offices without plausible reasons
in order to go to serve their imprisonment penalties, the police agencies shall
have to escort them to go to serve their imprisonment penalties.
2. The suspension of
the serving of imprisonment penalties for trial according to cassation or
reopening procedures must be decided by the protestors or the courts of
cassation or reopening trial level.
Article 263.- Management of persons
enjoying postponement or suspension of serving of imprisonment penalties
1. Persons enjoying
the postponement or suspension of the serving of imprisonment penalties shall
be assigned to the commune, ward or township administrations of the places
where they reside or the agencies or organizations where they work for
management. They must not go elsewhere without the permission of the commune,
ward or township administrations or the agencies or organizations that manage
them.
2. During the period
of postponement or suspension of the serving of imprisonment penalties, if the
convicts commit serious law violations or there emerge grounds to believe that
they may abscond, the presidents of the courts which have permitted the
postponement or suspension of the serving of imprisonment penalties shall
cancel such decisions then issue judgment execution decisions to force them to
serve their imprisonment penalties. Such judgment execution decisions shall be
sent to the police agencies of the same level in the same localities of the
decision-issuing courts. Immediately after receiving the judgment execution
decisions, the police agencies must organize the arrest and escort of the
convicts to go to serve their imprisonment penalties.
Article 264.- Execution of
suspended sentences and non-custodial reform penalty
Persons subject to
suspended sentence and persons subject to non-custodial reform penalty shall be
assigned to the commune, ward or township administrations of the places where
they reside or the agencies or organizations where they work for supervision
and education.
Article 265.- Execution of
expulsion penalty
Persons subject to
expulsion must get out of the territory of the Socialist Republic of Vietnam
within fifteen days after the execution decisions are issued. Where the persons
subject to expulsion penalty must also serve other penalties or perform other
obligations, the time limit for them to get out of the territory of the
Socialist Republic of Vietnam shall be prescribed by law.
Article 266.- Execution of
probation or residence ban penalty
For persons subject to
probation, after they have completely served their imprisonment penalties, they
shall be assigned to the commune, ward or township administrations of the
places where they reside for execution of the probation penalty. Persons
subject to residence ban shall not be allowed to temporarily or permanently
reside in the localities where they are banned from residing in.
Article 267.- Execution of fine or
property confiscation penalty
Decisions to execute
fine or property confiscation judgments must be sent to the procuracies of the
same level, executors, convicts and the administrations of the communes, wards
or townships where the convicts reside.
Property confiscation
shall be conducted under the provisions of Article 40 of the Penal Code.
Chapter XXVIII
REDUCTION OF PENALTY
TERMS OR EXEMPTION FROM SERVING PENALTIES
Article 268.- Conditions for
reduction of penalty terms or exemption from serving penalties
1. Persons who are
serving imprisonment, non-custodial reform, residence ban or probation penalties
may have the terms of serving such penalties reduced under the provisions of
Articles 57, 58, 59 and 76 of the Penal Code; if they have not yet served their
penalties, they may be exempt from serving the whole penalties under the
provisions of Clauses 1, 2, 3 and 5, Article 57 of the Penal Code.
Persons who are
allowed to temporarily stop serving their imprisonment penalties may be exempt
from serving the remainder of their penalties under the provisions of Clause 4,
Article 57 of the Penal Code.
Persons who have
served part of their fine penalties may be exempt from paying the remaining
amounts of fine under the provisions of Clause 2, Article 58 and Clause 3,
Article 76 of the Penal Code.
2. Persons subject to
suspended sentence may have their testing periods shortened under the
provisions of Article 60 of the Penal Code.
Article 269.- Procedures for
reduction of penalty terms or exemption from serving penalties
1. The courts
competent to decide on the reduction of imprisonment terms shall be provincial-level
people’s courts or military zone-level military courts of
the places where the convicts serve their imprisonment penalties.
The courts competent
to decide on the exemption from serving imprisonment penalties shall be
provincial-level people’s courts or military zone-level military courts of
the places where the convicts reside or work.
The reduction of the
terms of, or exemption from serving, other penalties or reduction of the
testing periods shall be decided by the district-level people’s courts or the regional military courts of the places where the
convicts are serving their penalties or undergoing the test.
2. Dossiers of
application for exemption from serving non-custodial reform penalties,
exemption from serving the whole or remainder of imprisonment penalties,
exemption from paying remaining fine amounts must contain the proposals of the
chairmen of the procuracies of the same level.
Dossiers of
application for reduction of imprisonment terms must contain the proposals of
the agencies executing the imprisonment penalties.
Dossiers of
application for reduction of the terms of non-custodial reform penalties must
contain the proposals of the agencies, organizations or local administrations
assigned to directly supervise and educate the convicts.
Dossiers of
application for reduction of, or exemption from serving, other penalties or
shortening of the testing periods of suspended sentences must contain the
proposals or comments of the agencies or organizations tasked to execute the
judgments as prescribed in Article 257 of this Code.
3. While a court
considers the reduction of penalty terms or exemption from serving penalties,
one member of the court shall present the matters to be considered, then a
representative of the procuracy shall express his/her opinions. The court shall
issue a decision to accept or reject the application for reduction of penalty
terms or exemption from serving penalties or for shortening of the testing
period.
Chapter XXIX
REMISSION OF CRIMINAL
RECORDS
Article 270.- Automatic remission
of criminal records
At the requests of the
persons entitled to automatic remission of criminal records prescribed in
Article 64 of the Penal Code, the presidents of the courts which have conducted
the first-instance trial of their cases shall grant certificates of remission
of their criminal records.
Article 271.- Remission of criminal
records by court decisions
1. In the cases
prescribed in Article 65 and Article 66 of the Penal Code, the remission of
criminal records shall be decided by courts. The convicts must file their
applications with the courts which have conducted the first-instance trial of
their cases together with the comments of the commune, ward or township
administrations of the places where they reside or the agencies or organizations
where they work.
2. The presidents of
the courts which have conducted the first-instance trial shall transfer the
case files to the procuracies of the same level for the latter to state in
writing their opinions on the applications for remission of criminal records.
If deeming that all conditions are satisfied, the presidents shall issue
decisions to remit the criminal records; if conditions are not fully met, the
presidents of the courts shall decide to reject such applications.
Part Six
REVIEW OF LEGALLY
VALID JUDGMENTS AND DECISIONS
Chapter XXX
CASSATION PROCEDURES
Article 272.- Nature of cassation
procedures
Cassation mean the
review of a legally valid judgment or decision which is protested against
because of serious law violations detected in the handling of the case.
Article 273.- Grounds to lodge
protests according to cassation procedures
Legally valid court
judgments or decisions shall be protested according to cassation procedures if
one of the following grounds exists:
1. The inquiry at the
court session is one-sided or insufficient;
2. The conclusion in
the judgment or decision does not suit the objective circumstances of the case;
3. Serious violations
of criminal procedures are committed in the investigation, prosecution or
trial;
4. Serious mistakes
are made in the application of the Penal Code.
Article 274.- Discovery of legally
valid judgments or decisions which need to be reviewed according to cassation
procedures
The convicts,
agencies, organizations and all citizens shall have the right to discover law
violations in legally valid court judgments and decisions and notify them to
the persons with the right to protest as prescribed in Article 275 of this
Code.
If discovering law
violations in the legally valid court judgments or decisions, the procuracies
or courts must notify such to the persons with the right to protest as
prescribed in Article 275 of this Code.
Article 275.- Persons with the
right to protest according to cassation procedures
1. The President of
the
2. The President of
the
3. The presidents of
the provincial-level people’s courts and the chairmen of the provincial-level
people’s procuracies, the presidents of the military zone-level military
courts and the chairmen of the military zone-level military procuracies shall have
the right to protest according to cassation procedures against legally valid
judgments or decisions of their respective subordinate courts.
Article 276.- Suspension of
execution of judgments or decisions which have been protested against according
to cassation procedures
Those who have
protested against legally valid judgments or decisions shall have the right to
decide to suspend the execution of such judgments or decisions.
Decisions to suspend
the execution of judgments must be sent to the courts and procuracies which
have been in charge of the first-instance trial and the competent
judgment-executing agencies.
Article 277.- Protests according to
cassation procedures
1. Protests according
to cassation procedures must clearly state the reasons and sent to:
a/ The courts which
have issued the protested judgments or decisions;
b/ The courts which
will conduct the cassation trial;
c/ The convicts, and
the persons with rights and interests related to the protests.
2. If there is no
ground to protest according to cassation procedures, before the expiry of the
time limit for lodging protests as prescribed in Article 278 of this Code, the
persons with the right to protest must reply the discovering persons, agencies
or organizations, clearly stating the reasons for no protest.
3. Before the start of
a court session of cassation, the protestors shall have the right to supplement
their protests provided that the time limit for lodging protests prescribed in
Article 278 of this Code has not yet expired, or withdraw their protests.
Article 278.- Time limit for
lodging protests according to cassation procedures
1. Protests
unfavorable to the convicts must be lodged only within one year counting from
the date the judgments or decisions become legally valid.
2. Protests favorable
to the convicts may be lodged at any time, even in the cases where the convicts
are deceased and it is necessary to prove their innocence.
3. Civil protests in
criminal cases against civil plaintiffs, civil defendants or persons with
interests and obligations related to the cases shall be lodged in accordance
with the provisions of civil procedure legislation.
Article 279.- Jurisdiction to
review cases according to cassation procedures
1. The Judges’ Committees of the provincial-level people’s courts shall review according to
cassation procedures legally valid judgements or decisions of the
district-level people’s courts. The Judges’ Committees of
the military zone-level military courts shall review according to cassation
procedures legally valid judgements or decisions of the regional military
courts.
2. The Criminal
Tribunal of the
3. The Judges’ Council of the
4. For legally valid
judgments or decisions on the same criminal case falling under the cassation
jurisdiction of different levels prescribed in Clauses 1, 2 and 3 of this
Article, the competent superior level shall review the whole case according to
cassation procedures.
Article 280.- Participants in court
sessions of cassation
A court session of
cassation must be participated by the procuracy of the same level.
When deeming it
necessary, the court must summon the convict, defense counsel and possibly
persons with interests and obligations related to the protest to participate in
the court session of cassation.
Article 281.- Composition of
cassation panels
1. The cassation panel
of the Criminal Tribunal of the
Cassation decisions of
the Judges’ Committees or Judges’ Council must be approved by more than
half of the total number of members of the Judges’ Committees or Judges’ Council.
2. At the court
sessions of cassation conducted by the Judges’
Committees of the provincial-level people’s courts, the
Judges’ Committees of the military zone-level military courts, of the Judges’ Council of the Supreme People’s Court, the voting on the contents of
the protests must be in the order that opinions for the protests are followed
by opinions against the protests. If neither opinions for or against are
approved by more than half of the total number of the Judges’ Committees or Judges’ Council, the court sessions must be postponed. Within
thirty days after the issuance of the decisions to postpone the court sessions,
the Judges’ Committees or Judges’ Council must open court sessions to re-try
the cases with the participation of all of their members.
Article 282.- Preparation for and
proceedings at court sessions of cassation
1. The president of
the court shall assign one judge to make a presentation on the case at the
court session. The presentation shall summarize the contents of the case,
judgments and decisions of the courts at different levels, and the contents of
the protest. The presentation must be sent to the members of the panel at least
seven days before the date of opening the court session of cassation.
2. At the court
session, one member of the cassation panel shall read the presentation on the
case. Members of the cassation panel shall express their opinions and the
representative of the procuracy shall express his/her viewpoint on the
settlement of the case.
If the convict,
defense counsel, persons with interests and obligations related to the protests
are summoned, these persons shall present their opinions before the
representative of the procuracy. If they are absent, the cassation panel may
still conduct the trial.
Article 283.- Time limit for
cassation
Court sessions of
cassation must be conducted within four months counting from the date of
receipt of the protests.
Article 284.- Scope of cassation
The cassation panels
must examine the whole cases without restricting the review to the contents of
the protests.
Article 285.- Competence of
cassation panels
The cassation panels
shall have the right to issue decisions:
1. To reject the
protests and retain the legally valid judgments or decisions;
2. To dismiss the
legally valid judgments or decisions and cease the cases;
3. To dismiss the
legally valid judgments or decisions for re-investigation or re-trial.
Article 286.- Dismissal of
judgments or decisions and cessation of cases
The cassation panels
shall dismiss legally valid judgments or decisions if they have one of the
grounds prescribed in Article 107 of this Code.
Article 287.- Dismissal of legally
valid judgments or decisions for re-investigation or re-trial
The cassation panels
shall dismiss legally valid judgments or decisions which are protested against
for re-investigation or re-trial if they have one of the grounds prescribed in
Article 273 of this Code. If they find re-trial necessary, the cassation panels
may, on a case-by-case basis, decide on the re-trial from the first-instance
level or at the appellate level.
In case of dismissing
the protested judgments or decisions for re-investigation or re-trial, if
deeming it necessary to continue the temporary detention of defendants, the
cassation panels shall issue orders to keep such defendants in temporary
detention until the procuracies or courts re-handle the cases.
Article 288.- Effect of cassation
decisions and handing of cassation decisions
1. Decisions of the
cassation panels shall become legally valid as from the date of their issuance.
2. Within ten days as
from the date of issuing the cassation decisions, the cassation panels must
send them to the convicts, protestors, courts and police agencies which have
been involved in the first-instance trial, persons with interests and
obligations related to the protests or their lawful representatives, and
competent judgment-executing agencies; and send notices thereon to the
administrations of the communes, wards or townships where the convicts reside
or the agencies or organizations where they work.
Article 289.- Re-investigation,
re-trial of cases after the cassation panels dismiss judgments or decisions
If the cassation
panels decide to dismiss legally valid judgments or decisions for
re-investigation, within fifteen days counting from the date of issuance of
such decisions, the case files must be transferred to the procuracies of the
same level for re-investigation according to general procedures.
If the cassation
panels decide to dismiss legally valid judgments or decisions for re-trial of
the cases at the first-instance level or appellate level, within fifteen days
after the date of issuance of such decisions, the case files must be
transferred to the competent courts for re-trial according to general
procedures.
Chapter XXXI
REOPENING PROCEDURES
Article 290.- Nature of reopening
procedures
Reopening procedures
shall be applied to legally valid judgments or decisions which are protested
against due to newly discovered new circumstances which may substantially
change the contents of such judgments or decisions but were unknown to the
courts when they issued such judgments or decisions.
Article 291.- Grounds to protest
according to reopening procedures
Circumstances to be
used as grounds to protest according to reopening procedures include:
1. Statements of witnesses,
expertise conclusions, oral interpretations of interpreters contain important
contents discovered to be untruthful;
2. Investigators,
procurators, judges or jurors made incorrect conclusions, thus leading to the
wrong trial of the cases;
3. Exhibits,
investigation records, records of other proceedings or other documents in the
cases are forged or not truthful;
4. Other circumstances
which have rendered the settlement of the cases untruthful.
Article 292.- Notification and
verification of newly discovered circumstances
1. The convicts,
agencies, organizations and all citizens shall have the right to discover new
circumstances of the cases and report them to the procuracies or courts. The
chairmen of the procuracies competent to protest according to reopening
procedures shall issue decisions to verify such circumstances.
2. If there exists one
of the grounds prescribed in Article 291 of this Code, the chairmen of the
procuracies shall issue decisions to protest according to reopening procedures
and transfer the case files to the competent courts. If none of such grounds
exists, the chairmen of the procuracies shall reply the discovering agencies,
organizations or persons, clearly stating the reasons for not lodging protests.
Article 293.- Persons with the
right to protest according to reopening procedures
1. The Chairman of the
Supreme People’s Procuracy shall have the right to protest according to
reopening procedures against legally valid judgments or decisions of courts of
different levels, except for decisions of the Judges’ Council of the
2. The Chairman of the
Central Military Procuracy shall have the right to protest according to
reopening procedures against legally valid judgments or decisions of
subordinate military courts.
3. The chairmen of the
provincial-level people’s procuracies shall have the right to protest
according to reopening procedures against legally valid judgments or decisions
of the district-level people’s courts. The chairmen of the military
zone-level military procuracies shall have the right to protest according to
reopening procedures against legally valid judgments or decisions of the
regional military courts.
4. Written protests of
the persons prescribed in this Article must be sent to the convicts and persons
with interests and obligations related to the protests.
Article 294.- Suspension of
execution of judgments or decisions which are protested against according to
reopening procedures
Those who have lodged
protests according to reopening procedures shall have the right to suspend the
execution of the protested judgments or decisions.
Article 295.- Time limit for
lodging protests according to reopening procedures
1. Review according to
reopening procedures unfavorable to the convicts must be conducted within the
statute of limitations for penal liability examination prescribed in Article 23
of the Penal Code and the time limit for lodging such protests shall not exceed
one year after the date the procuracies receive information on newly discovered
circumstances.
2. Review according to
reopening procedures favorable to the convicts shall not be restricted
temporally and shall be conducted even in the cases where the convicts are
deceased and it is necessary to prove their innocence.
3. Civil protests in
criminal cases against civil plaintiffs, civil defendants or persons with
interests and obligations related to the cases shall be lodged in accordance
with the provisions of civil procedure legislation.
Article 296.- Jurisdiction to
review cases according to reopening procedures
1. The Judges’ Committees of the provincial-level people’s courts shall review according to
reopening procedures legally valid judgements or decisions of the
district-level people’s courts. The Judges’ Committees of
the military
zone-level military courts shall review according to reopening procedures
legally valid judgements or decisions of the regional military courts.
2. The Criminal
Tribunal of the
3. The Judges’ Council of the
Article 297.- Conducting of
reopening procedures
The provisions of
Articles 280, 281, 282 and 283 of this Code shall also apply to the reopening
procedures.
Article 298.- Jurisdiction of
reopening procedure panels
The reopening
procedure panels shall have the right to issue decisions:
1. To reject the
protests and retain the legally valid judgments or decisions;
2. To dismiss the
protested judgments or decisions for re-investigation or re-trial.
3. To dismiss the
protested judgments or decisions and cease the cases;
Article 299.- Effect of reopening
procedure decisions and handing of reopening procedure decisions
1. Decisions of the
reopening procedure panels shall take legal effect as from the date of their
issuance.
2. Within ten days
after issuing the reopening procedure decisions, the reopening procedure panels
must send them to the convicts, protestors, courts and police agencies which
have been involved in the first-instance trial, persons with interests and
obligations related to the protests or their lawful representatives, and competent
judgment-executing agencies; and send notices thereon to the administrations of
the communes, wards or townships where the convicts reside or the agencies or
organizations where the convicts work.
Article 300.- Re-investigation,
re-trial of cases
1. If the reopening
procedure panels decide to dismiss legally valid judgments or decisions for
re-investigation, within fifteen days as from the date of issuance of such
decisions, the case files must be transferred to the competent procuracies for
re-investigation according to general procedures.
2. If the reopening
procedure panels decide to dismiss legally valid judgments or decisions for
first-instance re-trial of the cases, within fifteen days as from the date of
issuance of such decisions, the case files must be transferred to the competent
courts for re-trial according to general procedures.
Part Seven
SPECIAL PROCEDURES
Chapter XXXII
PROCEDURES APPLICABLE
TO MINORS
Article 301.- Scope of application
The criminal procedure
applicable to arrestees, persons kept in custody, accused and defendants, who
are minors, shall comply with the provisions of this Chapter, and concurrently
with other provisions of this Code which are not contrary to those of this
Chapter.
Article 302.- Investigation,
prosecution and trial
1. Investigators,
procurators and judges who carry out the criminal procedure towards minor
offenders must possess necessary knowledge about the psychology and education
of minors as well as activities of preventing and fighting crimes committed by
minors.
2. In the process of
investigation, prosecution and trial, the following information must be
clarified:
a/ The ages, physical
and mental development levels, the level of perception of criminal acts of
minors;
b/ Living and education
conditions;
c/ Whether or not they
are incited by adults;
d/ Causes and
conditions of the commission of offenses.
Article 303.- Arrest, custody and
temporary detention
1. Persons aged
between full 14 years and under 16 years may be
arrested, held in custody or temporary detention if there are sufficient
grounds prescribed in Articles 80, 81, 82, 86, 88 and 120 of this Code, but
only in cases where they commit very serious offenses intentionally or commit
especially serious offenses.
2. Persons aged
between full 16 years and under 18 years may be
arrested, held in custody or temporary detention, if there are sufficient
grounds prescribed in Articles 80, 81, 82, 86, 88 and 120 of this Code, but
only in cases where they commit serious offenses intentionally or commit very
serious or especially serious offenses.
3. The bodies ordering
the arrest, custody or temporary detention of minors must notify their families
or lawful representatives thereof immediately after the arrest, custody or
temporary detention is effected.
Article 304.- Supervision of minor
offenders
1. The investigating
bodies, procuracies or courts may issue decisions to assign minor offenders to
their parents or guardians for supervision so as to secure their appearance in
response to the summonses of the procedure-conducting bodies.
2. Persons assigned to
supervise minor offenders shall have to closely supervise them, oversee their
behaviors, ethics and educate them.
1. Lawful
representatives of persons kept in custody, the accused or defendants who are
minors may select defense counsels to defend or defend by themselves the
persons kept in custody, the accused or defendants.
2. Where the accused
or defendants are minors or their lawful representatives refuse to select
defense counsels for them, the investigating bodies, procuracies or courts must
request bar associations to assign lawyers’ offices to appoint defense
counsels for them or propose the Vietnam Fatherland Front Committee or the
Front’s member organizations to appoint defense counsels for their organizations’ members.
Article 306.- Participation in the
procedure by families, schools and organizations
1. Representatives of
the families of the persons kept in custody, the accused or defendants,
teachers or representatives of schools, the Ho Chi Minh Communist Youth Union
or other organizations where the persons kept in custody, the accused or
defendants study, work and live shall have the right as well as obligation to
participate in the procedure under decisions of the investigating bodies,
procuracies or courts.
2. Where the persons
kept in custody or the accused are between full 14 years and under
16 years old or minors with mental or physical defects, or in other necessary
cases, the taking of their statements and interrogation must be attended by
their families’ representatives, except for the
cases where their families’ representatives are deliberately
absent without plausible reasons. The families’ representatives
may inquire the persons kept in custody or the accused, if the investigators so
agree; they may produce documents, objects, make requests or complaints, and
read the case files upon the termination of the investigation.
3. At
the court sessions to try minor defendants, the presence of their families’ representatives, except for the cases where their families’ representatives are
deliberately absent without plausible reasons, of their schools’ and/or organizations’ representatives is compulsory.
Representatives of the
defendants’ families and representatives of their schools and/or
organizations attending the court sessions shall have the rights to produce
documents, exhibits, to request or propose to change the procedure-conducting
persons; to join in the arguing process, and lodge complaints about procedural
acts of the persons with procedure-conducting competence, and court decisions.
1. The composition of
a trial panel must include a juror being a teacher or a Ho Chi Minh Communist
Youth Union cadre.
In case of necessity,
the courts may decide to conduct the trial behind closed door.
2. In the course of
trial, if deeming it unnecessary to impose penalties on the defendants, the
courts may apply one of the judicial measures prescribed in Article 70 of the
Penal Code.
Article 308.- Serving of
imprisonment penalties
1. Minor offenders
shall serve their imprisonment penalties according to a separate detention
regime prescribed by law.
It is forbidden to
keep minor offenders together with adult offenders.
2. The minor convicts
must be provided with job training or general education while they are serving
their imprisonment penalties.
3. If the minors reach
the age of full 18 years while serving their imprisonment penalties, they shall
be shifted to be subject to the imprisonment regime applicable to adults.
4. For minors who have
completely served their imprisonment penalties, the superintendence boards of
their prisons shall have to coordinate with the administrations and social
organizations in the communes, wards or townships in helping them to lead a
normal life in the society.
Article 309.- Termination of
serving of judicial measures, commutation of penalties or exemption from
serving of penalties
If they fully meet the
conditions prescribed in Article 70 or Article 76 of the Penal Code, the minor
offenders may be permitted to stop serving judicial measures, have their
penalties commuted or be exempt from serving their penalties.
Article 310.- Remission of criminal
records
The remission of
criminal records for minor offenders who fully meet the conditions specified in
Article 77 of the Penal Code shall comply with general procedures.
Chapter XXXIII
PROCEDURES FOR
APPLICATION OF THE COMPULSORY MEDICAL TREATMENT MEASURE
Article 311.- Conditions for
application of, and competence to apply, the compulsory medical treatment
measure
1. Where there are
grounds to believe that the persons having committed acts dangerous to the
society have no capacity for penal liability as provided for in Article 13 of
the Penal Code, depending each particular proceeding
stage, the investigating bodies, procuracies or courts must solicit forensic
examination.
2. Basing themselves
on the conclusions of the forensic examination councils, the procuracies shall
decide to apply the compulsory medical treatment measure at the investigation
and prosecution stages; the courts shall decide to apply the compulsory medical
treatment measure at the trial and judgment execution stages.
1. For the cases
involving grounds specified in Clause 1, Article 311 of this Code, the investigating
bodies must clarify:
a/ Committed acts
dangerous to the society;
b/ The mental
conditions and mental diseases of the persons having committed acts dangerous
to the society;
c/ Whether or not the
persons having committed acts dangerous to the society have lost their capacity
to perceive or control their acts.
2. When conducting the
procedure, the investigating bodies must ensure the participation by defense
counsels in the procedure from the time it is determined that the persons
having committed acts dangerous to the society suffer from mental diseases. In
case of necessity, lawful representatives of such persons may participate in
the proceedings.
Article 313.- Decisions of
procuracies upon termination of investigation
After receiving the
case files and the written investigation conclusions, the procuracies may issue
one of the following decisions:
1. To suspend or cease
the case;
2. To cease the case
and decide to apply the compulsory medical treatment measure.
3. To prosecute the
accused before court.
1. The courts may
issue one of the following decisions:
a/ To exempt the penal
liability or penalties and apply the compulsory medical treatment measure;
b/ To cease the case
and decide to apply the compulsory medical treatment measure;
c/ To suspend the case
and decide to apply the compulsory medical treatment measure;
d/ To return the file
for re-investigation or additional investigation.
2. Apart from deciding
to apply the compulsory medical treatment measure, the courts may settle the
issue of damage compensation or other matters related to the cases.
Article 315.- Application of the
compulsory medical treatment measure to persons serving imprisonment penalties
Where there are
grounds to believe that the persons who are currently serving imprisonment
penalties suffer from mental diseases or other ailments which have deprived
them of the capacity to perceive or control their acts, at the requests of the
imprisonment penalty-executing agencies, the presidents of the provincial-level
people’s courts or the presidents of the military zone-level military courts in
the localities where the convicts are serving their penalties must solicit
forensic examination.
Basing themselves on
the conclusions of the forensic examination councils, the presidents of the
provincial-level people’s courts or the presidents of the military zone-level
military courts in the localities where the convicts are serving their
penalties may decide to send them into specialized medical establishments for
compulsory medical treatment. After recovery, such persons shall have to
continue serving their penalties if they have no reasons for exemption from
serving their penalties.
Article 316.- Complaints, protests,
appeals
1. When the
procuracies’ decisions to apply the compulsory medical treatment measure are
complained about, the cases must be brought for first-instance trial by the
courts of the same level.
2. Protests or appeals
against the courts’ decisions to apply the compulsory medical treatment
measure shall be lodged in the same way as against first-instance judgments.
3. Despite complaints,
protests or appeals, the courts’ decisions to apply the compulsory
medical treatment measure shall still take implementation effect.
Article 317.- Implementation, suspension
of implementation of the compulsory medical treatment measure
1. The compulsory
medical treatment measure shall be implemented at specialized medical
establishments designated by the procuracies or courts.
2. When there are
reports of the medical treatment establishments and written requests of the
relatives of the persons subject to compulsory medical treatment or requests of
the procuracies, on the basis of the conclusions of the forensic medicine
examination councils, the procuracies or courts which have issued the decisions
to apply the compulsory medical treatment measure may issue decisions to cease
the implementation of the compulsory medical treatment measure and may
concurrently decide to resume the suspended proceedings.
Chapter XXXIV
SUMMARY PROCEDURES
Article 318.- Scope of application
of summary procedures
The summary procedures
for investigation, prosecution as well as first-instance trial shall be applied
under the provisions of this Chapter, and concurrently under other provisions
of this Code which are not contrary to those of this Chapter.
Article 319.- Conditions for
application of summary procedures
Summary procedures
shall be applied only when the following conditions are fully met:
1. The persons
committing criminal acts are caught red-handed;
2. The offenses are
simple with obvious evidences;
3. The committed
offences are less serious ones;
4. The offenders have
clear personal identifications and records.
Article 320.- Decisions to apply
summary procedures
1 After the criminal
cases are instituted, at the requests of the investigating bodies or if deeming
that the cases fully meet the conditions prescribed in Article 319 of this
Code, the procuracies may issue decisions to apply summary procedures.
2. Decisions to apply
summary procedures must be sent to the investigating bodies and the accused or
their lawful representatives within 24 hours after their issuance.
3. Decisions to apply
summary procedures may be complained about. The accused or their lawful
representatives shall have the right to complain about the decisions to apply
summary procedures; the statute of limitations for lodging such complaints is
three days after the decisions are received. Complaints shall be sent to the
procuracies which have issued the decisions to apply summary procedures and
must be settled within three days after they are received.
1. The time limit of
investigation according to summary procedures is twelve days after the issuance
of the decisions to institute the criminal cases.
2. Upon the
termination of the investigation, the investigating bodies shall not have to
make written investigation conclusions but issue decisions proposing the
prosecution and send the case files to the procuracies.
Article 322.- Custody and temporary
detention for investigation and prosecution
1. The grounds,
competence and procedures for custody and temporary detention shall comply with
the provisions of this Code.
2. The time limit for
custody shall not exceed three days as from the date the investigating bodies
receive the arrestees.
3. The time limit for
temporary detention for investigation and prosecution shall not exceed sixteen
days.
Article 323.- Decision on
prosecution
1. Within four days
after receiving the case files, the procuracies shall have to issue one of the
following decisions:
a/ To prosecute the
accused before court by a prosecution decision;
b/ To return the file
for additional investigation;
c/ To suspend the case;
d/ To cease the case.
2. In case of
returning the files for additional investigation or suspending the cases
prescribed at Point b or c, Clause 1 of this Article, the procuracies must
issue decisions to cancel the decisions to apply the summary procedures and the
cases shall then be settled according to general procedures
1. Within seven days
after receiving the case files, the judges assigned to preside over the court
sessions shall have to issue one of the following decisions:
a/ To bring the case
for trial;
b/ To return the file
for additional investigation;
c/ To suspend the case;
d/ To cease the case.
2. In case of issuing
decisions to bring the cases for trial prescribed at Point a, Clause 1 of this
Article, within seven days as from the date of issuing such decisions, the
courts must open court sessions to try the cases. The first-instance trial
shall be conducted according to general procedures.
3. In case of
returning the files for additional investigation or suspending the cases as
prescribed at Point b or c, Clause 1 of this Article, the courts shall transfer
the files to the procuracies and the cases shall then be settled according to
general procedures.
4. In case of
necessity, the courts of first instance shall decide to keep the defendants in
temporary detention in order to secure the trial. The temporary detention time
limit shall not exceed fourteen days.
5. The appellate
trial, the review according to cassation or reopening procedures of the cases
which underwent first-instance trial according to summary procedures, shall be
conducted according to general procedures.
Chapter XXXV
COMPLAINTS,
DENUNCIATIONS IN CRIMINAL PROCEDURE
Article 325.- Persons with the
right to complain
Agencies,
organizations and individuals shall have the right to complain about procedural
decisions and acts of bodies and persons with procedure-conducting competence
when they have grounds to believe that such decisions or acts are contrary to
law, infringe upon their legitimate rights and interests.
Appeals against
legally valid first-instance judgments or decisions, complaints about legally
valid judgments or decisions shall not be settled under the provisions of this
Chapter but under the provisions of Chapters XXIII, XXIV, XXX and XXXI of this
Code.
Article 326.- Rights and
obligations of complainants
1. Complainants shall
have the following rights:
a/ To lodge complaints
by themselves or through their lawful representatives;
b/ To lodge complaints
at any stage of the process of settling criminal cases;
c/ To withdraw their
complaints at any stage of the process of settling criminal cases;
d/ To receive written
replies on the settlement of their complaints;
e/ To have their
infringed legitimate rights and interests restored; and receive damage
compensation in accordance with law.
2. Complainants shall
have the following obligations:
a/ To present
truthfully the facts, supply information and documents to the complaint
settlers; to take responsibility before law for such presentation and supply of
information and documents.
b/ To abide by the
complaint settlement results.
Article 327.- Rights and
obligations of complained persons
1. Complained persons
shall have the following rights:
a/ To produce evidences
on the lawfulness of their procedural decisions or acts which are complained
about;
b/ To receive documents
on the settlement of complaints about their procedural decisions or acts.
2. Complained persons
shall have the following obligations:
a/ To explain the
complained procedural decisions or acts, supply relevant information and
documents when competent bodies, organizations or individuals so request;
b/ To abide by the
complaint settlement results;
c/ To pay compensation
for damage and overcome consequences caused by their illegal procedural
decisions or acts according to law provisions.
Article 328.- Statute of
limitations for complaining
The statute of
limitations for complaining is fifteen days after the complainants receive or
know about the procedural decisions or acts which they deem unlawful.
In case where due to
illness, natural calamities, enemy sabotage, working or studying in distant
places or other objective obstacles the complainants cannot exercise their
right to complain within the prescribed statute of limitations, the period when
such obstacles exist shall not be included in the statute of limitations for
complaining.
Article 329.- Competence and time
limit for settling complaints against investigators, deputy heads and heads of
investigating bodies
Complaints about
procedural decisions and acts of investigators, deputy heads of investigating bodies
shall be considered and settled by the heads of the investigating bodies within
seven days after receiving the complaints. If disagreeing with the settlement
results, the complainants shall have the right to lodge further complaints with
the procuracies of the same level. Within seven days after receiving the
complaints, the procuracies of the same level must consider and settle them.
The procuracies of the same level shall have the competence to make final
settlement.
Complaints about
procedural decisions or acts of the heads of investigating bodies and
procedural decisions of investigating bodies, which have been approved by the
procuracies of the same level, shall be settled by the procuracies of the same
level within seven days after receiving the complaints. If disagreeing with the
settlement results, the complainants shall have the right to lodge further
complaints with the immediate superior procuracies. Within fifteen days after
receiving the complaints, the immediate superior procuracies must consider and
settle them. The immediate superior procuracies shall have the competence to
make final settlement.
Article 330.- Competence and time
limits for settling complaints against procurators, vice-chairmen and chairmen
of procuracies
Complaints about
procedural decisions and acts of vice-chairmen of procuracies or procurators
shall be settled by the chairmen of the procuracies within seven days after
receiving the complaints. If disagreeing with the settlement results, the
complainants shall have the right to lodge further complaints with the
immediate superior procuracies. Within fifteen days after receiving the
complaints, the immediate superior procuracies must consider and settle them.
The immediate superior procuracies shall have the competence to make final
settlement.
Complaints about
procedural decisions or acts of chairmen of procuracies shall be settled by the
immediate superior procuracies within fifteen days after receiving the
complaints. The immediate superior procuracies shall have the competence to
make final settlement.
Article 331.- Competence and time
limits for settling complaints against judges, vice-presidents and presidents
of courts
Complaints about
procedural decisions and acts of judges or vice-presidents of courts before the
opening of court sessions shall be settled by the presidents of courts within
seven days after receiving the complaints. If disagreeing with the settlement
results, the complainants shall have the right to lodge further complaints with
the immediate superior courts. Within fifteen days after receiving the
complaints, the immediate superior courts must consider and settle them. The
immediate superior courts shall have the competence to make final settlement.
Complaints about
procedural decisions or acts of presidents of courts shall be settled by the
immediate superior courts within fifteen days after receiving the complaints.
The immediate superior courts shall have the competence to make final
settlement.
Article 332.- Competence and time
limits for settling complaints against persons with competence to conduct a
number of investigating activities
Complaints about
procedural decisions and acts of persons with competence to conduct a number of
investigating activities shall be considered and settled by the procuracies
with prosecuting competence within seven days after receiving the complaints.
If disagreeing with the settlement results, the complainants shall have the
right to lodge further complaints with the immediate superior procuracies.
Within fifteen days after receiving the complaints, the immediate superior
procuracies must consider and settle them. The immediate superior procuracies
shall have the competence to make final settlement.
Complaints about
procedural decisions or acts which have been approved by the procuracies shall
be settled by such procuracies within seven days after receiving the
complaints. If disagreeing with the settlement results, the complainants shall
have the right to lodge further complaints with the immediate superior
procuracies. Within fifteen days after receiving the complaints, the immediate
superior procuracies must consider and settle them. The immediate superior
procuracies shall have the competence to make final settlement.
Article 333.- Time limits for
settling complaints related to the application of arrest, custody and temporary
detention measures
Complaints related to
the application of arrest, custody and temporary detention measures must be
immediately considered and settled by the procuracies. If it takes time to conduct
further verification, the complaints must be settled within three days after
the date of receipt thereof. If disagreeing with the settlement results, the
complainants shall have the right to lodge further complaints with the
immediate superior procuracies. Within seven days after receiving the
complaints, the immediate superior procuracies must consider and settle them.
The immediate superior procuracies shall have the competence to make final
settlement.
Article 334.- Persons with the
right to denounce
Citizens shall have
the right to denounce to competent bodies or individuals law violation acts of
any persons with procedure-conducting competence, which cause damage or
threaten to cause damage to the interests of the State, the legitimate rights
and interests of citizens, agencies or organizations.
Article 335.- Rights and
obligations of denouncers
1. Denouncers shall
have the following rights:
a/ To send written
denunciations or denounce in person to competent bodies or individuals;
b/ To request the
confidentiality of their full names, addresses and autographs;
c/ To request to be
notified of the denunciation settlement results;
d/ To request the
bodies with procedure-conducting competence to protect them when they are
intimidated, harassed or revenged.
2. Denouncers shall
have the following obligations:
a/ To present
truthfully the denunciation contents;
b/ To clearly state
their full names and addresses;
c/ To take
responsibility before law for untruthful denunciation.
Article 336.- Rights and obligations
of denounced persons
1. Denounced persons
shall have the following rights:
a/ To be informed of
the denunciation contents;
b/ To produce evidences
to prove that the denunciation contents are untruthful;
c/ To have their
infringed legitimate rights and interests restored, their honor restored, and
to receive compensation for damage caused by untruthful denunciation;
d/ To request competent
bodies, organizations or individuals to handle slanderers.
2. Denounced persons
shall have the following obligations:
a/ To explain their
denounced acts; supply relevant information and documents when competent bodies
or individuals so request;
b/ To abide by the
denunciation-handling results of competent bodies or individuals;
c/ To pay compensation
for damage and overcome consequences caused by their illegal acts.
Article 337.- Competence and time
limit for settling denunciations
1. For denunciations
of law violation acts of persons with procedure-conducting competence of an
agency with procedure-conducting competence, the head of such agency shall have
the responsibility to settle them.
Where the denounced
persons are heads of investigating bodies, chairmen of procuracies or
presidents of courts, the immediate superior investigating bodies, procuracies
or courts shall have the responsibility to settle them. Denunciations of
procedural acts of persons with competence to conduct a number of investigating
activities shall be considered and settled by the procuracies with prosecuting
competence.
The time limit for
settling denunciations is sixty days counting from the date of receipt of
denunciations; for complicated cases, it may be longer but must not exceed
ninety days.
2. Denunciations of
law violation acts with criminal signs shall be settled under the provisions of
Article 103 of this Code.
3. Denunciations
related to arrest, custody or temporary detention must be immediately
considered and settled by the procuracies. If further verification is required,
the time limit shall not exceed three days.
Article 338.- Responsibilities of
persons with competence to settle complaints or denunciations
Competent bodies or
individuals shall, within the ambit of their respective tasks and powers, have
to receive and settle promptly according to law complaints and denunciations
and send notices on the settlement results to complaints and denouncers;
stringently handle violators; apply necessary measures to prevent possible
damage; ensure the settlement results be strictly implemented and take
responsibility before law for their settlement.
Persons who are
competent to settle complaints or denunciations but fail to settle them, have
settled irresponsibly or illegally such complaints or denunciations shall,
depending on the nature and seriousness of their violations, be disciplined or examined
for penal liability; if causing damage, they must pay compensation therefor
according to law.
Article 339.- Tasks and powers of
procuracies in supervising the settlement of complaints and denunciations in
the criminal procedure
1. The procuracies shall
request the investigating bodies and courts of the same and subordinate levels,
the border guard, customs, ranger and coast guard forces, and other agencies of
the people’s police and people’s army, which are assigned to
conduct a number of investigating activities:
a/ To issue written
settlements of complaints or denunciations according to the provisions of this
Chapter;
b/ To examine the
settlement of complaints or denunciations by their level and subordinate
levels; notify the examination results to the procuracies;
c/ To supply dossiers
and documents related to the settlement of complaints and denunciations to the
procuracies.
2. The procuracies
shall directly supervise the settlement of complaints and denunciations at the
investigating bodies, courts, border guard, customs, ranger offices, coast
guard offices and other agencies of the people’s police
and army’s police, which are assigned to conduct a number of investigating activities.
Part Eight
INTERNATIONAL
COOPERATION
Chapter XXXVI
GENERAL PROVISIONS ON
INTERNATIONAL COOPERATION IN CRIMINAL PROCEEDINGS
Article 340.- Principles for
international cooperation in criminal proceedings
International
cooperation in criminal proceedings between the bodies with
procedure-conducting competence of the Socialist Republic of Vietnam and
foreign authorities with corresponding competence shall be effected on the
principles of respect for each other’s national
independence, sovereignty and territorial integrity, non-intervention in each other’s internal affairs, equality and mutual benefit, compliance with the
Constitution of the Socialist Republic of Vietnam and fundamental principles of
international laws.
International
cooperation in criminal proceedings shall be carried out in conformity with the
international agreements which the Socialist Republic of Vietnam has signed or
acceded to and the laws of the Socialist Republic of Vietnam.
Where the Socialist
Republic of Vietnam has not yet signed or acceded to relevant international
agreements, the international cooperation in criminal proceedings shall be
effected on the principle of reciprocity but in contravention of the laws of
the Socialist Republic of Vietnam, international laws and international
practices.
Article 341.- Provision of judicial
assistance
When rendering
judicial assistance, the bodies as well as persons with procedure-conducting
competence of the Socialist Republic of Vietnam shall apply the provisions of
relevant international agreements which the Socialist Republic of Vietnam has
signed or acceded to and the provisions of this Code.
Article 342.- Refusal to implement
judicial assistance requests
The bodies with
procedure-conducting competence of the Socialist Republic of Vietnam may refuse
to implement judicial assistance requests in criminal proceedings in one of the
following cases:
1. Judicial assistance
requests fail to comply with the international agreements which the Socialist
Republic of Vietnam has signed or acceded to and the laws of the Socialist
Republic of Vietnam;
2. The implementation
of judicial assistance requests is detrimental to the national sovereignty,
security or other important interests of the Socialist Republic of Vietnam.
Chapter XXXVII
EXTRADITION AND
TRANSFER OF DOSSIERS, DOCUMENTS AND EXHIBITS OF CASES
Article 343.- Extradition in order
to examine penal liability or execute judgments
Basing themselves on
the international agreements which the Socialist Republic of Vietnam has signed
or acceded to on the principle of reciprocity, the bodies with
procedure-conducting competence of the Socialist Republic of Vietnam may:
1. Request the foreign
authorities with corresponding competence to extradite persons who have
committed criminal acts or convicted under legally valid judgments to the
Socialist Republic of Vietnam for being examined for penal liability or serving
their penalties.
2. Extradite
foreigners who have committed criminal acts or convicted under legally valid
judgments, who are being in the territory of the Socialist Republic of Vietnam,
to the requesting nations for being examined for penal liability or serving
their penalties.
Article 344.- Refusal to extradite
1. The bodies with
procedure-conducting competence of the Socialist Republic of Vietnam may refuse
to extradite persons in one of the following cases:
a/ The persons
requested to be extradited are citizens of the Socialist Republic of Vietnam;
b/ Under the
provisions of the laws of the Socialist Republic of Vietnam, the persons
requested to be extradited cannot be examined for penal liability or serve penalties
as the statute of limitations therefor has expired or for other lawful reasons.
c/ The persons
requested to be extradited for penal liability examination have been convicted
by the courts of the Socialist Republic of Vietnam under legally valid judgements
for the criminal acts stated in the extradition requests or the cases have been
ceased under the provisions of this Code;
d/ The persons
requested to be extradited are residing in
2. The bodies with
procedure-conducting competence of the Socialist Republic of Vietnam may refuse
to extradite in one of the following cases:
a/ Under the criminal
legislation of the Socialist Republic of Vietnam, the acts taken by the persons
requested to be extradited do not constitute offenses;
b/ The persons
requested to be extradited are being examined for penal liability in
3. The bodies with
procedure-conducting competence of the Socialist Republic of Vietnam which
refuse to extradite under the provisions of Clause 1 and Clause 2 of this
Article shall have to notify such to the foreign authorities with corresponding
competence, which have sent the extradition requests.
Article 345.- Transfer of files and
exhibits of criminal cases
1. For cases involving
foreigners who have committed offenses on the territory of the Socialist
Republic of Vietnam, if the procedure cannot be conducted because such persons
have left the country, the bodies with procedure-conducting competence which
are handling the cases may transfer the case files to the Supreme People’s Procuracy for carrying out the procedures to transfer them to the
foreign authorities with corresponding competence.
2. When transferring
the case files to the foreign authorities with corresponding competence, the
bodies with procedure-conducting competence of the Socialist Republic of
Vietnam may transfer also exhibits of the cases.
Article 346.- Delivery, receipt and
transfer of documents, objects and money related to criminal cases
1. The delivery and
receipt of documents related to criminal cases shall comply with the international
agreements which the Socialist Republic of Vietnam has signed or acceded to and
the provisions of this Code.
2. The transfer of
objects and money related to criminal cases out of the territory of the
Socialist Republic of Vietnam shall comply with the laws of the Socialist
Republic of Vietnam.
This Code was adopted
on November 26, 2003 by the XIth National Assembly of the
Chairman of the
National Assembly
NGUYEN VAN AN