Cao Mai Phuong
VLLF
Judicial reform is an important element in the process of building and perfecting the Vietnamese socialist state ruled by law. The Communist Party of Vietnam has adopted a number of resolutions and directives on building and perfecting the state and law, such as the Resolution of the 8th plenary meeting of the VIIth Central Committee, the Resolutions of the 3rd and 7th plenums of the VIIIth Central Committee, the Resolution of the IXth National Party Congress and, particularly, Resolution No. 08/NQ-TW of January 2, 2002, of the Party’s Political Bureau on the key tasks of judicial work in the near future (Resolution 08). These documents have emphasized the renewal of the organization and operations of judicial bodies.
However, judicial reform under Resolution 08 has focused only on solving the most urgent problems and laying a foundation for a more comprehensive judicial reform process. It is therefore an urgent need to draw up and realize a 2006-20 judicial reform strategy with content and steps compatible with administrative reform and the renewal of legislative processes in order to coordinate reform and create uniformity in the cause of national renewal and the perfection of the political system and state apparatus. Resolution No. 49-NQ/TW on the Judicial Reform Strategy to 2020 (Resolution 49), issued by the Political Bureau on June 2, 2005, comprehensively dwelt on matters related to the organization and operations of judicial bodies.
1. Orientations for judicial reform
Resolution 49 has charted the orientation of major judicial reform in various domains of the judicial work such as perfection of criminal law and procedure, civil law and judicial procedures; the building of judicial bodies; the perfection of institutions of legal aid; the building of a contingent of judicial professionals and legal aid experts; the perfection of mechanisms for supervision of judicial activities by popularly-elected bodies; the assurance of material foundations for judicial activities; the promotion of international judicial cooperation; and the mode of the Party’s leadership in judicial work.
Prominent among these goals is the building of judicial bodies, clearly establishing that the court plays the central role in the judicial system and that adjudication is the center of judicial activities.
The goals set forth in Resolution 49 reflect the following new ideas, compared to Resolution 08:
-Attention has been paid to lawyers’ activities and their clearer role in procedural activities, particularly in courtroom litigation and trials.
-Legal aid organizations and activities should be renewed toward further specialization and be made more widely available to the people.
-Supervision of judicial activities by popularly-elected bodies shall be organized to clearly define the competence, responsibility and decentralization of agencies with supervisory jurisdiction.
-The capacity of judicial bodies and professionals should be raised to protect the legitimate rights and interests of the Vietnamese State, organizations and citizens in the international arena as well as settle disputes involving foreign elements.
-Modern equipment and facilities should be acquired as conditions permit.
At the same time, Resolution 49 has indirectly defined judicial bodies in Vietnam in a broader sense, having included investigative bodies, the procuracies, the courts and judgment inforcement bodies.
2. Some specific elements of judicial reform under Resolution 49
2.1. To perfect criminal law and procedure, and institutions of civil, administrative, commercial and labor law
Resolution 49 has upheld the spirit of humanity in handling criminals, touching upon extremely important elements in amending criminal and civil law and procedure with the following specific requirements:
-To reduce the use of the penalty of imprisonment while intensifying the application of pecuniary penalties and non-custody reform for a number of offenses, as well as limit capital punishment only to extremely serious crimes.
-To perfect the institution of ownership to clearly define ownership subjects, content, scope and forms, particularly concepts of ownership by all people and state ownership. To clearly define state ownership over land and the state’s rights to manage the real estate business.
-To supplement and perfect the legal framework on intellectual property rights.
-To unify the institutions of contract (civil, commercial, and labor contracts) and to formulate and perfect the institutions of compensation, refund, and liability for extracontractual compensation.
2.2. To perfect criminal procedure
Many elements of judicial reform in Resolution 08 were institutionalized in the 2003 Criminal Procedure Code, further affirming the model of argument procedures in combination with litigation. The promotion of court sessions and the adjudication of criminal cases in trials, in the spirit of Resolution 08, has created a substantive renewal of adjucation work, contributing to raising the justness, objectivity and legality of court verdicts.
Resolution 49 continued stressing this element and the necessity to apply different measures to raise adjudication quality through litigation, specifically:
-To further define the contents of criminal procedure, clearly distinguishing the functions of prosecution, defense and adjudication.
-To reduce the number of persons authorized to decide on the application of custody measures. To clearly define the bases for custody.
-To publicize judgments, excluding criminal judgments in crimes infringing on national security or relating to fine customs and traditions.
2.3. To perfect civil, commercial, labor and administrative procedures
Judicial reform institutionalized in Resolution 08, the Civil Procedure Code, the Ordinance on Commercial Arbitration and many other regulations have created a fairly comprehensive legal framework for civil procedure. However, many of these regulations still fail to meet practical requirements. Consequently, with the emergence of Resolution 49, the procedural model has been further affirmed and improved toward the democratization of procedures, ensuring the involved parties’ rights in the settlement of their disputes, and the rights and obligations to produce material evidence and testimony. The courts shall make verdicts on the basis of material evidence produced by the parties and the results of litigation in court sessions. The Resolution spelled out some new contents:
-Developing different types of services by the State in order to create conditions for involved parties to actively gather material evidence and testimony to protect their legitimate rights and interests.
-Encouraging the settlement of civil, commercial and labor disputes by non-court modes such as negotiation, conciliation, and arbitration. Courts shall render support by recognizing settlement by such methods.
2.4. To clearly define the functions, tasks, and competence of judicial bodies and perfect their organizational apparatus
a/ People’s courts
Resolution 08 began increasing the adjudicating jurisdiction of district-level courts, and a number of such courts have been delegated more powers in trials under both the Criminal Procedure Code and Civil Procedure Code. This direction has been affirmed by Resolution 49 and must be reviewed in order to study the possibility of assign district-level courts to adjudicate almost all criminal and civil cases. The Resolution has also demanded that courts be given more powers in judicial activities and the courts be organized in compliance with the principle of two-level adjudication. It has put forth new contents:
-Promoting settlement of more disputes in order to reduce the quantity of cases processed by courts.
-Expansion of court jurisdiction in adjudicating administrative lawsuits.
-The organization of the court system should not depend on administrative units but on adjudicating jurisdiction, which includes the local court of first instance, the appellate court, the superior court and the supreme court.
b/ Procuracies
Resolution 49 has determined that, in the immediate future, the people’s procuracies shall maintain their functions of prosecution and supervision of judicial activities. However, in the long-term, they should be organized in compatibility with the organizational system of courts and be restructured toward the establishment of an Institute of Public Prosecution with the function of exercising the duties of prosecution and directing investigative activities.
c/ Investigative bodies
Resolution 08 touched on streamlining investigative bodies which have in fact been reorganized into four major bodies in the Ministry of Public Security and must be further improved to suit the organization of other judicial bodies. In addition, Resolution 49 has put out a number of new contents:
-Distinguishing reconnaissance activities in support of investigation by police offices in their capacity as agencies exercising administrative powers from investigative activities of investigative bodies which exercise procedural powers.
-Defining the tasks of investigative bodies in relation to other bodies assigned to conduct certain investigative activities along the lines that investigative bodies should investigate criminal cases while other agencies should only conduct preliminary investigation.
-Setting up independent investigative bodies compatible with the organization of courts and procuracies.
d/ Judgment enforcement bodies
At present, the Ministry of Public Security administers the enforcement of criminal judgments while the Ministry of Justice administers the enforcement of civil judgments.
Yet, in the spirit of Resolution 49, from 2010, the Ministry of Justice will be assigned to administer the enforcement of both criminal and civil judgments. The Resolution set forth the socialization of civil judgment enforcement and a number of tasks in criminal judgment enforcement.
2.5. To perfect institutions on legal representation and legal aid
Having clearly pinpointed the importance of institutions for legal aid, Resolution 49 systematically and specifically dwelt on such institutions with many new contents.
a/ The institution of lawyers
It has, on one hand, affirmed lawyers’ role and powers in procedural activities and, on the other hand, defined more clearly the legal responsibility and professional ethics of lawyers.
b/ The institution of judicial expertise
Resolution 49 clearly pointed out: in domains in which the demand for expertise is not great or regular, the socialization of expertise should be conducted through attracting professional agencies and organizations and outstanding experts in the state and non-state sectors to provide such expertise. This socialization mechanism should be perfected to ensure the right to request the expertise of people engaged in legal proceedings, particularly the involved parties’ rights to subpoena experts. Experts should be encouraged to be present and testify at court sessions.
c/ The institution of the public notary
The Resolution set forth a number of important contents to perfect the institution of the public notary under which the scope of notarization and authentication must be clearly defined and substantive notarization must be clearly distinguished from formal notarization in order to clarify the legal validity of notarized documents. The model of state administration of the public notary should be built along the lines that the State should organize appropriate public notary offices to handle substantive notarization while formal notarization can be decentralized to local administrations.
d/ The institution of bailiff
Resolution 49 initiated the establishment of a bailiff, which is totally new compared to Resolution 08.
2.6. To perfect the mechanism of supervision by popularly-elected bodies and to promote the people’s mastery
Resolution 49 has specifically dwelt on the following two new issues:
-To consider the establishment of the Judicial Committee of the National Assembly by 2010, which shall assist the National Assembly to better perform its task of supervising judicial activities, focusing on arrests, detention, prosecution, and trial.
-To increase the competence of the National Assembly, the People’s Councils, the agencies of the National Assembly, the agencies of the People’s Councils, the National Assembly deputies, and the People’s Council deputies in supervising judicial activities.
Resolution 49 was promulgated to further the goals of Resolution 08. It has comprehensively dwelt on the tasks of judicial reform during 2006-10 period with a view to contributing to the performance of the tasks of socio-economic development, national defense and construction and the perfection of the Vietnamese socialist state ruled by law as well as active international integration.-