Tóm tắt Luận án The role of the court in protecting human rights in present Vietnam

To ensure for suggested solutions promote practical effectiveness, it’s necessary to study and clarify the theriotical and practical basis of the following scientific issues: - Continue studying theoretical and practical basis on the scope, content and structure of the act on ensuring the independent judgment of the Court; - Continue studying theoretical and practical basis on scope, content and structure of the Constitution preceeding proceedings; - Continue studying relevant law to amend and supplement to create a uniform legal basis which is suitable with serving the change of selection process and appointment of judges; - Research the theory and practice to establish the system of ethical standards of Judges.

pdf27 trang | Chia sẻ: toanphat99 | Ngày: 20/07/2016 | Lượt xem: 938 | Lượt tải: 0download
Bạn đang xem trước 20 trang tài liệu Tóm tắt Luận án The role of the court in protecting human rights in present Vietnam, để xem tài liệu hoàn chỉnh bạn click vào nút DOWNLOAD ở trên
ing a socialist law-governed State of the people, by the people and for the people. That is the reason why the author chose the topic "The role of the Court in protecting human rights in present Vietnam" as a doctoral thesis on law. 2. Research purpose and mission 2.1. Research purpose The thesis analyzes and demonstrates theoretical aspects showing the role of Courts in protecting human rights. On the basis of theories being proven, the thesis assesses the situation of protecting human rights by judgment in Vietnam today and proposes a number of scientific solutions aiming at improving science the role of courts in protecting human rights in Vietnam. 2.2. Research mission - Analysing and demonstrating basic dimensions showing the role of Courts in protecting human rights; - Analysing and clarifying the situation of "protecting the human rights by Court," especially limitation and existance of this activity; - Researching and clarifying reasons influencing negatively to the role of Court in protecting human rights in Vietnam today; - Building the orientation and proposing solutions on enhancing the role of Vietnamese Court in protecting human rights. 3. Research methods (1) The indirect research method by summarizing and analysising documents, especially primary documents, comparing research issues among selected objects; (2) The direct research method by contacting and exchanging directly with researchers, officers in charge and investigate politics and law; (3) Using the systematic approach method, social sciences and humanities, especially paying attention to law (mainly the approach method of constitutional law, state theory and law, criminal procedure law, civil procedure code); To solve the research object and task of the topic, the author uses specific research methods such as: - Methods of analysising, summarizing, comparing and abstracting used in the process of establishing the concept of protecting human rights by Court; analysising, demonstrating and explaining characteristics, advantages and roles of protecting human rights by the Court; - The method of legal comparison is used in the process of proving the popularity of "the role of courts in protecting human rights" (mainly compare the regulation on constitutional of some countries and some international conventions on human rights); this method is also used in justifying scientific basis of solutions on enhancing the role of Courts in protecting human rights. - The method describing and analysising rules is mainly used in the process of clarifying legal limitations on the position, role, function, authority, order and proceedings of the Court; legal limitations ensure the independence of judicial activities, legal systematic organization, and the process of selecting and appointing judges; - The method of analysising and summarizing statistic figures is used to demonstrate limitations in the judgment of the court (mainly used in chapter 3). In addition, to ensure the practical basis, the urgency of scientific problems need to be solved, especially to enhance the persuasiveness of scientific solutions, the method of analysising and summarizing statistic figures is used in the thesis showing aspects of the proposed solution - The method of scientific analysis and forecast forecasts the development trend of social demand on the position and role of courts in protecting human rights and requirements of the socialist law-governed State for the Court in a near future 4. Research object and scope 4.1. Research object The thesis studies the scientific issues relating to the position and role of the Court in protecting human rights in Vietnam nowadays. It mainly focuses on the following basic content: - The theoretical and legal basis about the Court's role in protecting human rights; - Law status and practical judgment of Vietnamese Court today; - The current direction of judicial reform and the solution on enhancing the role of Courts in protecting human rights in Vietnam 4.2. Research scope - Scope of space: Theory and practice in Vietnam. - Scope of time: From 1945 to the present 5. New contributions of the Thesis The thesis is a comprehensive study about the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam. Firstly, the thesis has established basic theoretical aspects in order to supplement on the argument system about the role of Courts in protecting human rights, including: - The concept of "protecting human rights by the Court"; - Analyzing and demonstrating basic characteristics of protecting human rights by the Court; - Justifying basic dimensions showing the important role of Courts in protecting human rights; - Clarifying basic elements ensuring the role of Courts in protecting human rights in the context of building socialist law-governed State in Vietnam. Secondly, the thesis comprehensively assesses the limitations of Vietnam Court in protecting human rights on the basis of the aspects showing the role of the Court in this field. In addition, it points out basic reasons of those shortcomings and existance. Thirdly, the thesis has developed a system of scientific solutions which are in accordance with conditions and directions of socialist law- governed State in order to enhance the role of Courts in protecting human rights, including the following solutions: - Perfecting the law on recognizing the role of Courts in protecting human rights, including: constitutional right of judging acts on violating human rights made by the legislative power, executive power; entrusting the right of explaining the Constitution and laws to the Court. - Improving the independence of judgment activities by broadening constitutional content of judiciary independence in the Constitution; building act to ensure the judicial independence; renovating leadership methods of the Vietnamese Communist Party for the judgment activity; building ethnic standard code on Judge; and removing the right of controlling the judgement activity of the People's Procuracy during the criminal trial. - Developing the order and procedure of scientific justice comprehensively and suitably with international law on human rights such as amending and supplementing the criminal law; amending and supplementing the civil procedure law; amending and supplementing the administrative procedure law. - Improving the quality of judges, including: Establishing the process of recruiting and appointing new judges; reforming the curriculum of training bachelor on law. - Improving the awareness of the Party, State and people about the role of Courts in protecting human rights - Improving the quality of civil enforcement 6. The structure of the Thesis Introduction; Chapter 1. General view about thesis research Chapter 2. Theoretical basic on role of courts in protecting hman rights Chapter 3. Evaluating the roles off the court in protecting human rights in Vietnam today Chapter 4. Direction and Advanced solutions role in the court of human rights protection in Vietnam Conclusions and next research recommendations Chapter 1 GENERAL VIEW ABOUT THESIS RESEARCH 1.1. The overseas research Through some examined research works, it is confirmed that the roles of court in human rights protection are researched in many countries in the world. Some research works have made the remarkable contributions in clarifying the position, role of court in protecting human rights and basic elements to ensure this judicial position of court. These research results are considered as the important theoretical and practical basis as scientific foundation for the author to build theoretical basis and evaluate the roles of court in human rights protection in Vietnam. In the scientific values inherited by the thesis, ensuring judicial independence and legal judging right of legislative and excutive power are concerned specially. 1.2. The research in Vietnam The examined research works mainly mention the requirements of jurisdiction state for the judicial power, the position and role of the court in the control of state power and the protection of justice for the people. Besides, they are analyzed the limitations of law, organization status and operation reality of current court. In the articles, the authors proposed scientific solutions to enhance the independence of courts and judges, as well as the reform of the the system of court of the different judging levels oriented in the Resolution No. 49/NQ-TW dated June 2nd, 2005 from Ministry of Politics for judicial reform strategy up to 2020. 1.3. The evaluation of thesis research 1.3.1. The advantages and research results in which the thesis will inherit and continue to develop The research works (domestically) mentioned and analyzed theoretical basis of ensuring human rights in judicial proceedings, firstly came from the relationship between human rights and ensuring human rights in the legal relations arising in judicial proceedings. Judging activity has jurisdictional characteristic and is secured by coercive power of the state, together with judging activities they are arising, restriction or termination of some individual’s authorities. In court proceedings, the legal measures to guarantee the rights of the participants in the proceedings, including the basic principles of criminal procedures, civil and administrative proceedings; the rules of procedures, the proceedings, the stages of criminal proceedings, the prosecution activities to comply with the law and the responsibilities of proceedings authorities. This is a very important beginning, the theoretical basis as the premise for the author to analyze more deeply theoretical basis about the role of court in protecting human rights. The research works in Vietnam and in overseas provided a comprehensive overview of the concept of ensuring human rights, protecting human rights and the effect of protecting human rights by judging activities. The knowledge (mainly from the overseas research works) is the basis for the author to explain, analyse the advantages of protecting human rights by the court under the comparative law aspect and constitutional law science. One of the research results brings the importance to the author's thesis is that the research works above have fairly complete overview of the status of international law and the democratic jurisdiction state’s Constitution for the position and role of national courts in the protection of human rights, thus help the writer have scientific basis to study and compare with the status of position, role of Vietnam Court in protecting human rights, as well as giving the solution to improve the position and role of courts in protecting human rights . The research works in Vietnam also initially approach and analyze some aspects (viewpoints) that demonstrate the role of courts in human rights protection. This analysis continue to be evaluated and commented by the thesis writer, from then give his own assessment of the concept, characteristics and content of human rights protection by the court, as well as the basic aspects expressing the court's role in protecting human rights . The works are explained and analyzed the basic dimensions demonstrating the position and role of the court in the relationship with other Institutions of Justice, as well as the one between the judicial power, the executive power and legislative power. In terms of external relations (with legislative power and executive one) or inside ones (with other Institutions of Justice), the Court remains the most important institution in performing judicial power; plays an important role in deciding the capacity and effect of judicial power in particular and the state power in general. In addition, the research works mentioned the negative factors to the effectiveness of human rights protection of the court in particular, judicial system in general and also suggest some directions, solutions to improve the capacity and effectiveness of protecting human rights of judicial system and the court in the context of building a socialist jurisdiction state. The assessment of the reality of organization and operation of Vietnam court in the research works is important for the thesis to collect, compare and clarify the limitations of the courts in human rights protection in Vietnam. 1.3.2. The problems have not solved thoroughly and need to be studied further The examination of research works mentioned above demonstrates research issues about the role of courts in protecting human rights in Vietnam today still remaining limitations and gaps that need to be studied, include as follows: - The concept of human rights protection has not been studied in Vietnam thoroughly and convincingly; - The difference between the human rights protection and guarantee has not been clarified; - The concept of "protecting human rights by the court" has been used but the internal content is not still clear so it is necessary to analyze, demonstrate and clarify the internal content and characteristics "protecting human rights by the court"; - The analysis and demonstration the advantages of protecting human rights through judging activities on the basis of comparison with the operation of the National Assembly, the Government in this field still need to be studied to clarify; - The position and role of the court in the system of Institutions of Justice in protecting human rights; - The basic factors to ensure the role of court in protecting human rights in the context of building jurisdiction state and international integration have not been clarified so they need to be studied further; - The system of evaluation criteria the role of court in protecting human rights has not been established comprehensively; - The reality of protecting human rights in judging activities should be studied. Therefore, the assessment of rights protection from the court in Vietnam from 1945 to 2012 should be researched. Overseas studies analyzed and demonstrated the practical effectiveness of protecting human rights by judging activities of the court. However, there are not any comprehensive research works in protecting the human rights of the court. 1.4. Theoretical basis and research hypotheses 1.4.1. Theoretical basis The thesis "The role of court in protecting human rights in Vietnam today" is studied based on the theoretical basis of Marxism - Leninism and Ho Chi Minh Ideology about the state and socialist law, the relationship between the state and individuals, human rights, socialist democracy and build socialist jurisdiction state. Besides, other scientific fields such as philosophy, sociology, criminology, psychology, etc studying the human beings, human rights have been also used to solve the problems of thesis, in which mainly promote the theories and ideas, including: - The theory of Marxism - Leninism and Ho Chi Minh Ideology about the state and the law - The viewpoints of the Party, the state about the country's comprehensive renovation, renew of the state organization and operation in accordance with the requirements of building socialist jurisdiction state of the people, by the people and for the people; - The opinions of the Party and the state on "The work of human rights in the new situation" according to the Directive No. 44 CT/TW dated July 20th, 2010 from Board of Secretary; - The thesis also acquires selectively the human essence ideas about the law, democracy and human rights, like the theory of "power limit" of John Locke; decentralization theory of Montesquieu (1689-1715). 1.4.2. Research hypotheses In socialist jurisdiction state, the court is "the last protection” of human rights In order to demonstrate the scientific hypothesis, the thesis directly solves scientific problems, including: 1. Why does the court play the important and supreme role in protecting the human rights in socialist jurisdiction state? 2. Which factors ensure the important role of the court in protecting human rights in the current situation and development orientation up to 2020? 3. Research, analyze and clarify the limitations of the court in protecting human rights, the reasons and solutions to these limitations in order to ensure the court to be “the final protection” of human rights. 1.5. The research direction of the thesis The thesis demonstrates the research hypothesis" In socialist jurisdiction state, the court is "the final protection" of the human rights" on the basis of analyzing, explaining and demonstrating the advantages of judging activities in protecting human rights in relation to the basic characteristics of legislative power and executive one. On the basis of research orientation, the thesis solves scientific thesis according to the approach, namely: - The system approach: analyzing and evaluating the issues of the state power, judicial one, the position and role of court in the judicial system, the state machine are set in a complex of the relevant factors, interacting together to create a unity; - Interbranch approach: There is the intellectual combination of many fields of social science and humanity, such as politics, philosophy and law (criminal law, criminal proceedings one, administrative one, state and law theoretical science, constitutional law, and human rights science). - History approach: Historical perspective is consistently used in the research, especially in assessing the reality of protecting human rights by the court in Vietnam. - Comparative law approach is used (mainly compare the Constitution) to clarify the fundamental roles of judging activities in protecting human rights in the democratic jurisdiction society. Chapter 2 THEORETICAL BASIS ON ROLE OF COURTS IN PROTECTING HUMAN RIGHTS 2.1. The concept, characteristics of protecting human rights by the court 2.1.1. The concept of protecting human rights by the court On the basis of the content of judging activities and protecting human rights, “protecting human rights by the court” is an activity to punish the violation behaviours of human rights and recovering the limited and deprived human rights is implemented in the procedures of judicial proceedings law aimed to ensuring the rights of individuals to be respected and implemented in the social life. 2.1.2. The basic characteristics of protecting human rights by the court The internal content of the concept of human rights protection by the court show that these activities have the following basic characteristics: - Protecting the human rights by the court has strong coercive power - Protecting the human rights by the court is governed by the law comprehensively - Protecting the human rights by the court is formed on the needs of individuals and the state. - Protecting the human rights by the court is carried out in public, independence and fairness. 2.2. The concept, content about the role of the court in protecting human rights 2.2.1. The concept about the role of the court in protecting human rights On the basis of the internal content of the term “role”, content and characteristics of protecting the human rights by the court, the role of court in protecting the human rights is the activities of the state power carried out according to the order and procedures of judicial proceedings law aimed to oppose all violation to preserve “human dignity, interests, needs and abilities” of everyone in the society to be “intact” and implemented in the social life. Besides, this also contributes to reinforce the people’s belief in the executed justice, transparency and equality of law, the power and prestige of state machine, humanity and democracy of the jurisdiction state 2.2.2. The content about the role of court in protecting the human rights 2.2.2.1. The role of court in controlling the violation of the human rights carried out by the state 2.2.2.2. The court punishes equally to the criminal of human rights and protects the rights of the innocent 2.2.2.3. The role of court in protecting democratic freedom right and individual safety. 2.2.2.4. The trial is the last phase to recover the individual’s rights and benefits 2.2.2.5. The role of court in educating the awareness of respecting and protecting the human rights of individual and society. 2.3. The basic factors ensuring the role of court in protecting human rights in Vietnam 2.3.1. The awareness of the Party, the state and the people about the role of court in protecting human rights - The awareness of the Party and the state about the role of court in protecting human rights - The awareness of the people about the human rights and the role of court in protecting human rights Firstly, the awareness of the people about the human rights Secondly, the awareness of the people about the role of court in protecting the human rights 2.3.2. The recognition of law about the role of court in protecting human rights - The law recognizes the legal behavior judging right of the court - The law recognizes the authority of the court for protecting the right of freedom and personal safety 2.3.3. The independence of the judging activities Stipulating the independence of court is the prerequisite to ensure the judicial and political position of the court so that the court can oppose the impact and dominance of the executive and legislative power in trial process. However, the reality has shown that: The stop at the constitutional provisions, lack of legal mechanisms has made the provisions of the Constitution like political slogan than "legal regulation", together with stipulating the constitutional aspects to ensure judging independence, constitutional provisions have to be listed in detail into specific provisions in law to restrict some provisions of Constitution does not go into real social practices. 2.3.4. The order and procedure of judicial proceedings Trial operation of the court must be carried out in order, proceedings procedure according to the regulation of law so proceedings law is the legal basis for the court to ensure good performance their functions and tasks, especially the trial operation. Judicial proceedings law defines the judging authority, the order and trial procedure, the rights and obligations of the court, proceedings-conducting persons, proceedings-participating persons in the trial, therefore proceedings law impacts directly on the quality and efficiency of judging activities. Proceedings law defines the rights and obligations of the parties loosely, contradictorily and overlappingly, trial operation cannot ensure the fairness and equality. Trial operation only ensure the fairness, impartiality and objectiveness when proceedings law system is full, united and ensuring comprehensive human rights, as well as the independence of the court, judges, jury to the parties involved in the proceedings, other state agencies. 2.3.5. The organization of the court system In the jurisdiction state, the court system is organized to perform state power – state judging power. The need of beneficiary of human rights puts the court in heavy duties because individual liberty depends on the fairness of the judging activities and thus the organization of the court system has important meanings for performing judging functions and independent trial capabilities of the court. The way to organize the court system will impact strongly on the independence as well as the quality and trial efficiency of the court. Therefore, building an independent court system based on judging levels and demand of the regions will decrease the domination of court from the local administrations, ensure the trial capacity and quality of the court. This will ensure a solid base for the protection of human rights from the court more and more consolidated and enhanced. 2.3.6. The quality of judge The judges who have the task of implementing the judging power and justice protection of the regime so the judges must have morality and knowledge suitable with their jobs. They not only have to make greater social responsibility, holding the balance, but also implement the obligations of a true citizen. The society requires the judges to have the necessary political, legal, ethical, cultural to perform judging power given by the state. 2.3.7. The materials serve judging operation This factor plays an important role influencing the trial effectiveness. The trial is a complex state power activity with the participation of many different parties with high sense of responsibility, so the most important problem is to ensure the income of the people who are assigned to implement the trial directly by the state. The guarantee of cases solved with the fairness, impartiality and objectiveness requires the full materials served for scientific tools and evidence verification techniques, highly professional, skillful and experienced participants. In addition, the court is considered as the symbol of justice so it should be guaranteed the suitability of physical facilities and the rituals during the trial. The court with spacious, modern, fully equipped office will impact significantly on the social perception for the role of court as well as ensuring the solemn, formal and and civilized trial. 2.3.8. The operation quality of sentence execution Due to profound impact on the quality and efficiency for protecting the human rights of the judgment and the court's decision, improving the quality and execution efficiency is the important requirement to ensure the role of court in protecting the human rights. 2.4. The basic criteria to evaluate the role of court in protecting the human rights in Vietnam 2.4.1. The criteria to evaluate the awareness of the Party, the state and the people on the role of court in protecting the human rights - The true and comprehensive level in the conception of the Party and the state to protect the justice and human rights of judging activities in particular, judicial power in general. - The degree of consistency of the policies and guidelines of the Party and law policies of the state on protecting human rights of judging activities in the organization and implementation of the judicial power in particular, the state power in general. - The level of ensuring the independence of court, judges and jury under the judging execution of the Party. - The awareness level of the people about the human rights and the significance of judging activities in protecting the human rights. - The belief of the people in the fairness and ensuring the execution of justice of judging activites - The extent of the people's trust in the fairness and guarantee of the Court’s judicial activities. 2.4.2. Criteria for evaluating the law’s recognition on the roles of the Court in protecting human rights - The complete and comprehensive extent of the law in recognizing the jurisdiction over behaviors of violating human rights of the Court; - The degree of consistency of the law in ensuring that the Court remains the central and supreme position in enforcement activities of judicial power; - The guarantee of law on the Court's implementation of judicial power. 2.4.3. Criteria for evaluating the effectiveness in protecting human rights by judicial activities The fairness, equality and lawfulness of the Court's judgment and decisions are the basic criteria for evaluating the roles of the Court in protecting human rights through judicial activities. In addition, to ensure a comprehensive assessment of the roles of the Court in this field, it is necessary to consider the timeliness as well as the punctuation of judicial activities as stipulated by the law. CONCLUSION FOR CHAPTER 2 Protecting human rights is important activity in ensuring the implementation of human rights in the social life. Protecting human rights not only ensures human rights to be respected and safe from behaviors damaging human rights, but also remains the decisive basis and precondition to the implementation of the human rights of the people, so the State and the people always put special attention on the protection activities of human rights. The State protects human rights by various measures which are conducted by different institutions of the State power. Through judicial activities, the Court proves to be the most effective institution in protecting human rights of the people among different power institutions implementing the responsibility of protecting human rights. Protecting human rights through judicial activities not only ensures the fairness, publicity and democracy, but also the self-consciousness on protecting the rights of individuals and citizens on protection process. Fairness and equality are core values of human rights; therefore judicial activities with its nature of jurisdictional activities which are conducted under tight and strict procedures and are ensured to be implemented under the strong coercive power of the State are increasingly trusted and appreciated in protecting human rights Chapter 3 EVALUATING THE ROLES OF THE COURT IN PROTECTING HUMAN RIGHTS IN VIETNAM TODAY 3.1. The Party, the State and the people have not yet had right awareness of the roles of the Court in protecting human rights. - The Party and the State have not yet had right awareness of the roles of the Court in protecting human rights of individuals. - The people have not yet appreciated the roles of the Court in protecting human rights. 3.2. The law has not yet had full awareness of the roles of the Court in protecting human rights. - The law has not yet recognized the Court’s jurisdiction over behaviors of violating the legislative and executive which damaging human rights. - The Court has not yet had wide authority in protecting human rights and personal safety. 3.3. The Court has not yet effectively protected human rights of individual during judicial process. 3.3.1. Limitations of judicial activities in protecting human rights in Vietnam nowadays Under the provisions of the judicial procedural law, Vietnam court has jurisdiction on criminal cases, civil cases and administrative complaints. The reality of trial activities in recent years has shown that every trial remains certain restrictions. a) Limitations of criminal trial work in the protection of human rights of the accused and the innocent b) Limitations of civil trial work in protecting the rights and interests of the participants in the proceedings c) Limitations of administrative adjudicating activities in the protection of human rights 3.3.2. Underlying causes of the limitations of judicial activities in protecting human rights in Vietnam today a) The independence of the Court’s trial is not guaranteed b) The judicial proceedings and order do not create favorable conditions for the Court to protect the human rights in the judicial process c) Unscientific model of the Court system leading to the limitations of judicial capacity and the waste of investment resources of the society to the Court d) Judge team lacking in number and limited in professional qualifications and moral character CONCLUSION FOR CHAPTER 3 Beside the achievements recognized by the Party, the State and the society, Vietnam Court still have many inadequacies, especially the quality and effectiveness of trial remains many limitations which fails to meet the requirements of legal society. The situation of mistrial, unpunctual trial, unclear decisions and especially unfair and wrong trial seriously affect the trust of the people on the equality of the law and the State regime. The Court has not become the symbol of justice in the awareness of the society. The trust of the people on the Court depends on the institution ensuring the independence of the Court, the degree of impartiality and objectivity of the judge to the trial participants. All these factors are not ensured in current Vietnamese law (as analyzed in item 3.4). Together with the limitations of independent trial, the Court has not yet had the jurisdiction over behaviors of violating the legislative and executive; overlapped and conflicting judicial proceedings and order has seriously affected the roles of the Court in protecting human rights. Chapter 4 DIRECTION AND ADVANCED SOLUTIONS ROLE IN THE COURT OF HUMAN RIGHTS PROTECTION IN VIETNAM 4.1. The need to enhance the role of courts in protecting human rights in Vietnam: In order to achieve the objectives set out in the national development strategy in transition to socialism: “basically build the economic foundation of socialism with a superstructure of political, ideological, cultural fit, form the basis for our country to become a socialist country more prosperous and happy”[21] , “building a socialist law-governed State of the people, by the people, for the people”[21] has been identified as one of seven basic directions of revolutionary Vietnam in this period. Building a socialist rule requires State legislation constantly improve and enhance the capacity law enforcement of the state apparatus. the rule of law in the social law is hardly expressed in social life if the laws are not enforced or implemented improperly, so law enforcement activities become the significant activities in ensuring the success of the building of a socialist law-governed State. The judicial Power has responsible for the law enforcement, so the judicial authorities have an important role in ensuring the rule of law in society. In the judicial authority, the Court is the authority which has the "central position" perform judicial power, so the courts have an important role in determining the quality and effectiveness of the judicial power in particular, operation of law protecting of state power in general. Therefore, along with the changes in the legislative and administrative reforms, authorities need to reform the judicial system, especially the courts which ensure that resolve the urgent and particular needs of the people in the dispute resolution, conflicts, and protecting justice, protection of human rights and contributing to social stability. 4.2. The point of increasing the role of courts in protecting human rights in Vietnam: First, enhancing the role of the Court in protecting human rights must be conducted on the basis of the views of the Communist Party of Vietnam about human and promoting human factors in the construction and protection of the socialist of Vietnam. Second, linking to enhance the role of the Court in protecting human rights with judicial reform strategy in Vietnam in 2020. Third, enhancing the role of the Court in protecting human rights be closely associated with guarantee judicial independence of the Court. Fourth, enhancing the role of the Court in protecting human rights should be tied to the construction and development of socialist democracy. Fifth, enhancing the role of the Court in protecting human rights associated with the integration process of national laws with international laws on human rights. 4.3. Some solutions to enhance the role of the Court in protecting human rights in Vietnam 4.3.1. Raising awareness of the Party, State and people of the role of the Court in protecting human rights Awareness of the Party, the State and society about the role of the Court in protecting human rights have a strong influence to the performance of the role of the Court. To raise awareness of the Party, the government and people about the role of the Court in protecting human rights should implement the following measures: First, restricting the judicial activities required must give priority to facilitate their political and economic development the local tasks. Second, thoroughly understand thought to enhance the role of the Court in protecting human rights within the party. Third, educating people to respect and appreciate judicial activities of the Court. 4.3.2. Improving the Law recognized the role of the Court in protecting human rights - Constitutional jurisdiction unconstitutional behaviors which harm to human rights made by the legislature and executive agencies to the Court. - Giving to the Court the right to explain the Constitution and the Law. 4.3.3. Enhancing the judicial independence of the Court - First, changing the way of leading of the Party for adjudicating activities. - Second, expanding the content of constitutional independence of the judiciary in the Constitution. - Third, building the law to ensure judicial independence of the Court. - Fourth, building the set of standard rules for ethical of Judges. - Fifth, the Law need to remove the supervision and control to adjudicating activities of the People's Procuracies during the criminal adjudication. 4.3.4. Improving the Law of the judicial proceedings to guarantee the right to a fair trial of the people a) Completing the law of criminal proceedings - Supplementing regulations of the order and procedures for collecting evidence of the accused, the defendant and the defense counsel. - Amending Article 179, 221, 222 of the Criminal Procedure Code to ensure independence between adjudicating activities with the prosecutor's activities. - Modify the name of the chapter XX of the current Criminal Procedure Code as "dispute procedure" and modify the content of Articles 206 to Article 216 in the direction of focusing on dispute activities of the parties, between the defense and the accused, but not merely for interrogation [64]. - Amending and supplementing Article 58 of the Criminal Procedure Code in the direction of allowing defense counsel involved from the beginning of the prosecution for the offense of violating national security; supplementing the obligation to notify the defense time and place of interrogation of the accused; unlimited the number of contacts between the accused person and defense. In addition, the law need to remove regulations on certification of defenders in Clause 4, Article 56. Because the provisions of this legislation will lead to restrictions of the right to defense counsel of the accused or defendant. b) Completing the law of civil proceedings First, the regulations relating to burden of proof in civil proceedings. Second, the regulations of procedure relating to the application of temporarily and emergency measures in civil proceedings. Third, the construction of the regulations on the shortened civil proceedings. c) Completing law of administrative proceedings - Firstly, the law should be regulated: the defendant is obliged to prove the legality of administrative decisions, administrative activities litigated. If the law of administrative proceedings does not supplement this regulation, it is difficult to ensure equality between the parties in administrative proceedings because the parties litigated the initiative and unilaterally administrative decisions, perform administrative activities on the basis the regulations of the law so they prevail against the petitioners in determining the legality of administrative decisions, administrative activities litigated. - Secondly, supplementing regulations a time limit, the content of the right to "modify or cancel administrative decisions, disciplinary decisions on dismissal, the decision complaint of settlement about decisions for the next competition cases, lists of voters litigated "(Clause 3, Article 51) because in practical occurring a lot, where the defendant is abusing the right to extend time limits for settlement of administrative cases that for the rights of the petitioner serious damage. 4.3.5. Reforming the organizational model system-level the Court in accordance with adjudication and does not depend on the administrative level of the State system According to Resolution No. 49-NQ / TW, the judicial system will be organized on the basis of the principle of adjudication in the model: District Court or the Primary Court (of First Instance level); Appellate court or the intermediate Court (first instance, appellate); The Court of Appeals or the High Court (appellate review by the Court of Appeal judgment hearing at first instance) and the Supreme People's Court. The policy reforms are effective measures to limit the impact of the local administrative apparatus in adjudicating activities of the Court are limited and will tend to localize adjudicating activities of the Court are a tendency to increase. 4.3.6. Institutional reform recruitment and appointment of Judges - First, reforming the method of recruitment and training Bachelor of Laws. - Second, reforming recruitment methods and procedures to appoint judges. One of the possible solutions to overcome the shortage of number and quality of judges are selecting institutional reform for human resources appointed judges. Constructing Judges Nation Selection Council and change the sequence of training and appointment of judges under process: 2.4.7. Improving operations civil enforcement The restrictions of enforcement activities has led to a majority of people, especially those who were judged discontent and loss of confidence JUDGE CANDIDATE SELECTION JUDGES TRAINING APPOINTMENT OF PROBATIONARY JUDGES APPOINTME NT OF JUDGES in the rule of law. There are some special cases are refused deliberately to enforce a judgment or inconsistent with regulations of law by enforcement agencies, bailiffs or state agencies, the Court's ruling made public discontent, and has severely harm for the rights of judgment creditors. Therefore, improving the quality of activities of civil enforcement is one of the urgent issues need to be taken to ensure that the judgment of the Court was fully reflected in reality society CONCLUSION FOR CHAPTER 4 On the basis of the Party's views on the reform of the political system in general, reforming the state apparatus in particular, especially the party's views on judicial reform strategy in 2020, the thesis has developed the basic orientation to ensure proposed solutions to enhance the role of the Court in protecting human rights scientifically and consistent with economic and political - society conditions of Vietnam in transition degree to socialism. From the identification of specific views have been thoroughly understand by building solutions and urgent requirements of the need to improve the role of the Court in protecting human rights, scientific proposed solutions especially retriscted solution causes a negative impact on the efficiency of protection of human rights in the Court of social life, such as: Improving the independence of the judicial activities, quality of Judge; completing the judicial procedural law guarantees the right of the accused, and the accused party to resolve the case; organizational reforming model court system; extended jurisdiction to protect the human rights of the Special Court about constitutional jurisdiction unconstitutional behaviors of government agencies which is harm for human rights. CONCLUSIONS AND NEXT RESEARCH RECOMMENDATIONS Protecting human rights is a meaningful activity in the demand of human rights beneficiary of the individual. Protecting human rights is both prevention and defense in order to eliminate activities of violating human rights, and ensure the rights of being respected and implemented in social life. Protecting human rights is carried out by a lot of subjects in the society by different activities. In the mechanism of protecting human rights, protecting human rights by the Court demonstrates many advantages that other subjects are difficult to achieve. Through the judgment, the Court not only punishes the person violating the human rights; restoring the violated human rights, but also carries out the function of protecting the human rights of law-one of the most important methods of protecting the human rights of the jurisdiction society in social life. Besides the wide scope of protection, protecting human rights by the Court expresses preeminent characteristics in the protection process, such as ensuring the equality in the protection process and especially the independence of protection subject for parties disputing about rights well as in relation to other legal entities. Because protecting human rights by the Court satisfies the expectation the entity, requirements and expectations of a democratic and civilized society, the jurisdiction regime requires that the court has to be the central subject and has supreme role in protecting human rights. The jurisdiction State requires the Court to punish all subjects performing the act of violating human rights, including legislative power and executive power in case of performing acts of violating human rights, especially violating basic rights of the individual. In order to ensure the efficiency and belief of the society to the jurisdiction regime, the law on Court proceedings has to be been built fully, uniformly, coherently and scientifically; establishing the Court system meets the requirement of judgment and the right of approaching the Court easily, while ensuring the limitation of state agencies, state administration agency on the activities of the Court; In addition, the State and society needs to invest significantly physical resource serving a fair and civilization judgment. In Vietnam, logical elements of the theory of jurisdiction State have been applied to the process of renewing the state apparatus. The central institution court of the judicial power has been secured the independence in the judgment process in order to protect human rights better. In recent years, by activities of criminal judgment, civil judgment and administrative judgment, Vietnam Court prevents effectively the act of violating law, human right and restoring abused human rights. However, due to the influence of historic factors, the limited social and economic development, the contradiction and shortage of legal system, the ineligible judges make the effectiveness of protecting human right by judgmentdo not satisfy the demand and requirement of the people. In the cause affecting negatively the quality and efficiency of protecting human rights by judgment, Judge, people’s juror and the Court have not independent is one of basic reasons limiting the protective effectiveness by judgment right. Because the Courts, Judges and c people’s juror are not independent in the judgment process, some judgments and decisions of the Court are not objective and fair. This has significantly affected the people's belief in justice and social justice. In addition, contradictions and overlapping of law on judicial proceedings, court organization system and the quality of judges also seriously impact the quality and effectiveness of protecting human rights by judgment. Therefore, in order to ensure the direction of developing the socialist law-governed state, the first priority task in current period is to develop scientific and practical solutions promoting the protection effectiveness of human rights by the Court. Improving the effectiveness of protecting human rights by the Courts and building a theoretical and legal basis in order to ensure the position and role of the Court in protecting human rights is one of the initial requirements deciding the success of the construction of socialist law-governed state. Solutions on ensuring the independence of the Court; ensuring the equality of judgment; the right of controlling the state power by judicial activities; improving the quality of civil judgments aim at the final target of improving the effectiveness of protecting human rights by judicial activities, and enhancing the position and role of the Court in psychology and awareness of the society to contribute to the success of the establishiment of a socialist law-governed State of the people, by the people, for the people. To ensure for suggested solutions promote practical effectiveness, it’s necessary to study and clarify the theriotical and practical basis of the following scientific issues: - Continue studying theoretical and practical basis on the scope, content and structure of the act on ensuring the independent judgment of the Court; - Continue studying theoretical and practical basis on scope, content and structure of the Constitution preceeding proceedings; - Continue studying relevant law to amend and supplement to create a uniform legal basis which is suitable with serving the change of selection process and appointment of judges; - Research the theory and practice to establish the system of ethical standards of Judges.

Các file đính kèm theo tài liệu này:

  • pdftom_tat_tieng_anh_8649.pdf