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Official Gazette

Wednesday, November 20, 2019

Proposals on renewing the court system

Updated: 11:06’ - 30/08/2011

Dinh Van Que
Criminal Tribunal, Supreme People’s Court

Under the Constitution and the Law on Organization of People’s Courts (the Law), the court system of the Socialist Republic of Vietnam consists of the Supreme People’s Court, provincial-level people’s courts and district-level people’s courts. The country also has a three-tier system of military courts, the organization of which is not based on administrative boundaries, including regional military courts, military zone-level courts and the Central Military Court. As defined by the Law, the Central Military Court is a unit of the Supreme People’s Court.

Though having experienced many adjustments through different periods, the present apparatus as well as operation of the court system are no longer suitable to the national socio-economic development and international integration. The functions, tasks and operation mechanisms at courts still see many irrationalities, adjudication quality remains unsatisfactory and the settlement of civil, economic, administrative and labor disputes stills see shortcomings.

This situation necessitates an organizational and operational reform of the court system. This reform must take into account general requirements of the judicial reform set in the Political Bureau’s Resolution No. 49-NQ/TW of June 2, 2005, on the Strategy for judicial reform through 2020 (Resolution No. 49). This Resolution places the court in the central position, considers adjudication the key issue and oral argument at court hearings a breakthrough for building a clean, sound and just judiciary and a contingent of qualified judicial personnel with firm political stuff and good ethics. To realize these objectives, the organizational and operational reform of the court system should be carried out in the following directions:

For regional first-instance courts

Under Resolution No. 49, regional first-instance courts will only hear first-instance cases. These courts will be organized in one or several district-level administrative units. In other words, one or several district-level administrative units can have a regional first-instance court. However, how many regional first-instance courts the country should have remains an unanswered question. To us, what really matters is that these courts must be fully capable of adjudicating cases according to first-instance procedures and ensure convenience for procedure participants in the region. As a result, in a district-level administrative unit there can be one or more than one regional first-instance court, depending on the number of cases brought to court, size of the administrative unit and its population and socio-economic conditions. For example, in Bien Hoa city of Dong Nai province, two or three regional first-instance courts should be established to hear all cases.

As suggested by the Supreme People’s Court, provincial-level courts are now estimating the number of regional first-instance courts in their localities. For instance, Thai Binh province has eight district-level courts and plans to establish four regional first-instance courts by merging two district-level courts into one regional first-instance court. However, this way is not in line with the spirit of Resolution No. 49 because this type of regional first-instance court will still be confined to a provincial administrative unit rather than becoming independent from administrative units. The possibility of establishing a regional first-instance court to hear cases in two or three adjacent provinces should be considered. For example, a regional first-instance court may be established in Nam Dinh province to adjudicate first-instance cases in both Nam Dinh and Ninh Binh provinces.

Regarding the organizational structure of regional first-instance courts, in order to be able to properly perform their tasks, these courts should have new specialized divisions (boards) and an assisting apparatus equivalent to that of provincial-level courts.

Some experts suggest further extending the jurisdiction of regional first-instance courts to try most of cases (some 98%) and providing their judges with adequate professional training and entitlements. In our opinion, for the near future, these courts should be empowered to hear first-instance cases like district-level courts at present. Their physical foundations and judges’ capacity and skills need to be further improved so that by 2020 they will be able to try most of first-instance cases.

For courts of appeals

Under Resolution No. 49, courts of appeals will hear appellate cases and adjudicate some first-instance cases.

These courts should not be called courts of appeals as they also adjudicate first-instance cases. Neither should they be referred to as provincial-level courts because under Resolution No. 49 courts will be organized according to their jurisdiction and independently from administrative units.

We advocate the opinion that courts of appeals should be referred to as “secondary courts” as in the 1946 Constitution or “intermediate courts”. Likewise, first-instance courts should be called “primary courts” and superior courts high-level courts. As such, the court system would consist of four tiers: primary courts, intermediate courts, superior courts and the Supreme Court.

The establishment of intermediate courts (courts of appeals) must ensure the principle of independence from administrative units. Therefore, it is unnecessary to establish in each province or centrally run city a court of appeals. The number of these courts should depend on the number of cases handled by regional first-instance courts and the geographical areas of localities. A court of appeals may be formed in a locality bordering on two or three provinces to hear appellate cases from seven or nine regional first-instance courts and to adjudicate some first-instance cases according to their jurisdiction. For example, in Bac Ninh province an intermediate court can be set up to hear appellate cases previously adjudicated by seven regional first-instance courts, including those located in Long Bien, Gia Lam and Dong Anh districts of Hanoi city, instead of only cases tried by regional first-instance courts located within Bac Ninh province.

Organizationally, intermediate courts would no longer have the judges’ committee and specialized tribunals, like provincial-level courts at present, but only specialized boards (criminal, civil, etc.).

In addition to hearing appellate cases, intermediate courts would try some first-instance cases specified by law. For this reason, some argue that they should be more appropriately called intermediate courts. Presidents of these courts, which will no longer handle cassation or reopening cases, will have no jurisdiction to file protests according to cassation or reopening procedures.

For superior courts (high-level courts)

Under Resolution No. 49, superior courts established in main regions will have the sole function of appellate adjudication, and the position, role and jurisdiction similar to those of the courts of appeals of the Supreme People’s Court. Therefore, the establishment of superior courts will encounter no problem. At present, there are three courts of appeals in three (northern, central and southern) regions nationwide which are all attached to the Supreme People’s Court. If transformed into superior courts, these courts will constitute a tier of the court system. Then, the remaining questions are how to name these courts, superior or high-level courts, and how many should be established nationwide?

The draft Scheme on renewal of the organization and operation of courts, procuracies and investigative agencies suggests to name these courts superior courts and maintain the number of these courts at three on the basis of transformation of the three courts of appeals of the Supreme Court. To us, this number is appropriate only for the near future. In the long run, more superior courts should be set up to meet requirements of adjudication in the context of the judicial reform and each should hear appellate cases from 13-15 intermediate courts. A total of five to seven superior courts should be established nationwide.

Regarding the organizational structure of superior courts, specialization is necessary. However, it is unnecessary that every superior court has its own specialized tribunals, which should be re-organized into boards. This move will make the court system more compatible with international and regional court systems.

Regarding the jurisdiction of superior courts, opinions remain divergent. Some opine that these courts’ should only hear appellate cases from intermediate courts. Others recommend the assignment of an additional function to adjudicate cases according cassation or reopening procedures in order to lessen the work load for the Supreme Court. We support the first set of opinions and find it possible to additionally assign them to inspect adjudication work of courts of appeals (intermediate courts) in localities under their jurisdiction and report inspection results to the Supreme Court. They should also review adjudication activities of their own and courts of appeals under their management and coordinate with other superior courts in evaluating appellate adjudication activities nationwide and reporting evaluation results to the Supreme Court.

For the Supreme Court

According to Resolution No. 49, the Supreme Court will have the tasks of summarizing adjudication experience, guiding the uniform application of law, developing precedents and conducting adjudication according to cassation or reopening procedures. Compared to its current functions and tasks, it will no longer conduct appellate adjudication and have a new task of developing precedents.

Over the recent time, the Supreme Court has initially developed precedents by publishing rulings of its Judges’ Council. However, in order to become a legal institution, precedents must be provided and promulgated according to the order and procedures applicable to legal documents.

Under the Strategy for judicial reform, the name of the Supreme Court will no longer have the word “people’s” in order to be consistent with the names of courts at all levels in the reorganized court system. However, the removal of the word “people’s” from its name does not mean that the court is no longer of the people, because the court is and will always be a body exercising the judicial rights empowered by the people and the “people’s” nature of the Vietnamese court stems from the nature of the Vietnamese State, not from its name.

The Supreme Court is the highest judicial body of the Socialist Republic of Vietnam. Defining the Supreme Court as the highest judicial body rather than the highest adjudicative body implies that it has not only the function of adjudication but also the overall function of exercising the judicial power which no other bodies or organizations in the political system have.

The Supreme Court should be staffed with leading judges (in a much smaller number) and experts in all legal fields. These leading legal experts are key to the successful discharge of the tasks of the Supreme Court.

Regarding the structure of the reorganized Supreme Court, the draft Scheme on renewal of the organization and operation of courts, procuracies and investigative agencies sets only a general orientation that “The structure of the Supreme Court will consist of the Judges’ Council composed of between 13 and 17 members, including the President, Vice Presidents and other judges of the Supreme Court and an assisting apparatus. The assisting apparatus of the Supreme Court should be reorganized on the basis of renewing the organization and operation of the existing assisting units toward consolidation and uniformity to ensure higher effectiveness and quality of work and serve the prompt, judicious and thorough direction of the leadership over activities of the Supreme Court and courts at all levels.” The Scheme does not mention how specialized tribunals of the Supreme Court will exist and operate and what functions and tasks these courts will have in the future: will they continue conducting cassation or reopening cases or only act as assisting units?

In order to properly play its role and properly perform its functions and tasks under Resolution No. 49, the Supreme Court should first of all reorganize its specialized tribunals and assisting units. At present, the tasks of summarizing adjudication experience, guiding the uniform application of law, developing precedents and conducting cassation and reopening adjudication are performed by different units of the Supreme Court, including the criminal, civil, economic, administrative and labor tribunals, the Inspectorate, the Secretariat and the Institute for Adjudicative Science. Meanwhile, supervision of the adjudication of cases for which judgments have become legally effective and provision of guidance on the uniform application of law for courts at all levels is primarily assumed by the specialized tribunals in coordination with related units. Therefore, the reform of the organizational structure of the Supreme Court and its specialized tribunals is extremely important and must be concretized into specific jobs.

The tribunals of the Supreme Court are tasked to supervise the adjudication of cases in the entire court system and propose the President of the Supreme Court to protest according to cassation procedures against legally effective judgments or rulings of courts at all levels. They also advice the leadership of the Supreme Court on summarizing adjudication experience, guiding the uniform application of law and building laws, especially those in the fields they are in charge of. Under Resolution No. 49, after the judicial reform is completed, courts of appeals (previous provincial-level people’s courts) will no longer have their judges’ committees and the supervision of the adjudication of cases with legally effective judgments of regional first-instance courts will be transferred to specialized tribunals of the Supreme Court. This will substantially increase the work load of these tribunals and therefore require their higher capacity.

Among these tribunals, the criminal tribunal has a peculiar task of regularly coordinating with the Ministry of Public Security, the Supreme Procuracy and the Ministry of National Defense in preventing and combating crimes.

Based on Resolution No. 49, requirements of the judicial reform and the adjudication supervision by the criminal tribunal in the recent years, the criminal tribunal should be reorganized in the following direction:

It should be built into a “think-tank” of the court system in adjudicating criminal cases and supervising the adjudication of criminal cases, advising the leadership of the Supreme Court on guiding courts at all levels in uniformly applying the criminal law nationwide, regularly coordinating with central procedure-conducting agencies in settling major cases, reviewing the adjudication of criminal cases, taking part in the elaboration of laws, especially criminal and criminal procedure laws, and supervising the adjudication of cases with legally effective judgments of courts at all levels.

It should consist of different departmental-level boards in charge of specific fields and coordinating with investigative agencies and procuracies in crime prevention and combat.

In addition to units supervising the specialized adjudication (boards or divisions), it would also need assisting units, such as an administration office with sections in charge of petition processing, statistics and general affairs, and record archive.

Its personnel would be trained to qualify as senior or principal experts. Its judges and experts must be capable of and experienced in adjudication work, and able to assess the correctness of criminal judgments handed down by courts at all levels.

Other specialized tribunals (civil, economic, labor and administrative) should also be reorganized like the criminal tribunal but in different directions appropriate to their particularities. For example, the civil tribunal could be divided into a civil tribunal and a marriage and family tribunal.

The functions and tasks of some assisting units of the Supreme Court should also be redefined. For example, the function of the Inspectorate to examine the correctness of legally effective criminal judgments should be transferred to a specialized tribunal, or the function of the Secretariat to assist the President of the Supreme Court in examining case files of criminals sentenced to death who plead with the State President for commutation should be returned to the criminal tribunal.

Regarding jurisdiction, in reality, judgments of the courts of appeals of the Supreme Court and even cassation or reopening rulings of the specialized tribunals can be protested against to the Judges’ Council of the Supreme Court. In other words, at present there are two tiers of cassation or reopening adjudication in the Supreme Court. In order to make the Supreme Court truly the highest adjudicative body, there should be only one tier of cassation or reopening adjudication. Depending on specific cases, the President of the Supreme Court will assign judges to adjudicate cassation or reopening cases. For example, for a protested judgment of a regional first-instance court, a court of appeals (intermediate court) or a superior court (high-level court), a trial panel of three, five or seven judges of the Supreme Court, respectively, would be formed. A panel of all judges of the Supreme Court should be set up only to deal with complicated cases. Cassation or reopening rulings of these panels would be final.

The specialized tribunals of the Supreme Court would no longer adjudicate cassation or reopening cases. Only judges of the Supreme Court working in these tribunals could participate, as assigned by the President of the Supreme Court, in cassation or reopening adjudication, and make cassation or reopening rulings on behalf of the Supreme Court.

The total number of judges of the Supreme Court should be between 15 and 17, including the President, the Vice President(s) and other judges, who must be leading experts in civil, criminal, economic, administrative and labor laws and members of the Judges’ Council. Only specialized tribunals of the Supreme Court would have judges of the Supreme Court as their members.-

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