MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING CONG THỊ HAI YEN 442951 THE ROLE OF LAWYER IN CRIMINAL PROCEDURE: A COMPARISON BETWEEN VIETNAMESE AND AMERICAN SYSTEMS ‘GRADUATION THESIS HANOILAW UNIVERSITY CÔNG THỊ HAT YEN. THE ROLE OF LAWYER IN CRIMINAL PROCEDURE: A COMPARISON BETWEEN VIETNAMESE AND AMERICAN SYSTEMS 'VAI TRÒ CUA LUAT SU TRONG TO TUNG HÌNH SU: GÓC ĐỘ SO SANH 'GIỮA HỆ THONG PHÁP LUAT VIỆT NAM VÀMỸ. Major: Conparative Law GRADUATION THESIS Supervisor Dr. Dao Le Thu Hanoi - 2023 STUDENT DECLARATION Therewith formally deciare that Imyseif have written the submitted bachelor’s Thesis independently, the conclusions and data tn the Bachelor's Thesis are trutiftl and veltable / +2023 Supervisor's confirmation Researcher's signature Dao Le Thu Cong Thi Hai Yen ACKNOWLEDGEMENT First and foremost I would like to express my deepest gratitude to my supervisor, Ms.
Dao Le Thu for her tavaluable guidance ofmy graduation thesis, for ler patience, entinsiasm tmmense knowledge and understanding She has always been dedicated devoted and thoroughly instructed me through all the stages of completing my thesis. It was a great privilege and honor to work and study trlder ler guidance My sincere thanks also go to all staffand lectwers at Hanot Law University where it has been my honor and pleasure to be educated for the past four years. On top of that, with all the lessons and the extra-curricuinim activities, I have the opportunity not ony to widen my language knowledge but also better my personality and become the person Ï mm today. Last but not least, I owe spectal thanis to my fianily and the valuable assistance of my classmates in class 4429, as well as other peers of mine in the Institute of Comparative Law during the tmplementation of the study.
They are so supportive to my work, without which this paper could not have been fulfilled TABLE OF CONTENTS STUDENT DECLARATION. LIST OF ABBREVIATIONS. 1 Rationale of the research 1 2. The object and teks of the Thesis, 8 4.
The object and delimitation ofthe Thess, 8 5. Methodology and research methods of the Thesis 9 6. Scieaific and practical implications ofthe Thesis. Suche of the Thesis 10 CHAPTER 1.
FUNDAMENTAL ISSUES ON THE ROLE OF LAWYER IN CRIMINAL PROCEDURE. Actors involved in ciminal procedure u 12. The necessity endimpostence of lawyer in ciminal procedure 2 13. The oles of lawyer in criminal provedwe la 1.1, The role of lawyer esa protector of sights snđintaesbs forthe pasties 14 1.
The role of lawyer as an advocate ofthe pestis l6 1. Role of lawyer asa defender for justice 8 1. Mein factors affecting the role of lawyer in criminal procedure 1.11 The leglficmework onthe legal stahs anu role of lawyer 18 1. The criminal procediwal models 9 1.2 Profesional sls 2 Conclusion of Chap er 1 CHAPTER 2: THE ROLE OF LAWYER IN CRIMINAL PROCEDURE UNDER AMERICAN LEGAL SYSTEM 2.
The relevant legal framework in the American legal system 1⁄4 2. The pastioular roles of lawyer in criminal procedure under the American legal system. Thesole of 1eyyer as « protector of sights end interests forthe pastes ” 2. The sole of lawyer os an advocate forthe pastes 30 2.
The sole of lawyer as defender for justice 34 Conclusion for Chapter 2 36 Chapter 3: THE ROLE OF LAWYERS IN CRIMINAL PROCEDURE UNDER VIETNAMESE LEGAL SYSTEM AS COMPARED TO THE AMERICAN SYSTEM AND PROPOSALS FOR VIETNAM 38 3. The sole of lawyer in criminal procedure under Vietnamese legal system 38 3111. The selevent legal framework in Vietnamese legal system 38 3.2, The soles of lawyer inthe cximinal procedure under Vietnamese legal system. The role of lawyer as aprotector of rights and interests for the parties.2 The role of leeyer as an advocate for the parties 2 3.
The role of lawyer as a defender for justice 45 32 Compering the roles of lawyers in criminal procedure between Vietnamese and American systems.1, Similarities in the roles of lawyers in criminal procedure between Vietnamese and American systems 4 3.2, Differences in the sole of lawyers in criminal procedure between Vietnamese and American systems 0 3.1, Factors impact on the differences in the role of lawyers in criminal ‘procedure between Tietemese and American systems.22 Particular differences in the role of lawyers between Vietnamese and American criminal procedire Ey 33, Proposals for improvement of the role of Iewyer in criminal procedwe in Vietnam 3.31, Proposals forthe improvement of Cximinel Provedwe Code 2 3.2 Proposes forthe improvement onthe precticel lls of lawyers in cima procedure “ Conclusion for Chapter3 CONCLUSION. REFERRENCES LIST OF ABBREVIATIONS ABA ‘American Bar Association CPc Criminal Procedure Code ete et cetera (and so forth) us United States INTRODUCTION 1. Rationale of the research Lawyers in general end thei soles in criminel procedure in perlicvlsr heve always been considered evidently necessary, especially in the context of the rule of lew. Their legal status and roles must be guaranteed for justice to be accessed adequately.
In other words, gusrantecing suchprocedural sights of lavyers is animportant part ofthe overall upholding of justice. At the international level, the roles of lawyer, most outstandingly the function of advocating, ae recognized in most international legel instruments. Constitutions end ews of nations over the world have indeedrecognized the sole of lawyers in criminal procedure end the state isreaponsible for guaranteeing his legel status end pesticipation in all criminal stages. More to mention, criminsl procedure is not necessarily an equel struggle between the opposing pasties! This means thet, for feimness to prevail, all parties in the proceedings, including the prosecution end the defense, must each be vested with the oppostunity to perform their functions.
On this bass the lewyer, who is qualified in terms of legal knowledge and capeble of perticipsting in proceedings in a manner, deserves to be fair to the prosecution’. Guaranteeing the roles oflawyersin criminel procedure involves ensuring thet the accused is ensured to be supported and the lawyer's function ofprotecting clients aginst the llegetions of the state is also affirmed On an international scale, the tasks of guarentesing the sole of lawyer end improving the lew of criminal procedure have attracted the attention in many nations. There heve been moves towards the continued development and improvement of legislation in order to provide complete legal mechenisms which will reinforce the participation of lawyers in criminal procedure in some counties. As to the US, a report of the National Committee Ô Nguyễn Thái Phúc (2007), “Vietnam craminal proceeding model - theoretical and practical issues (MG hin Tổ hư, "hàn Vile Nem - Ning vin đ ý bộn vitheta)” Leg Scionce Juma lu 53) 2 Sebaore Zappali (2005), mun Rights in uernatona Criminal Procedie, Oxford, 2005, pp.
` This Repart named “Tice Deed Anericats Continuing Neglect of Otr Constincional Right to CoreuelTMas ‘been supparted by gearous corres fremthe Open Society stings athe WAllace Gizbel Fan in April 1009. This Repar is avaible a come constntimproject ong> and mrad or, on the Right to Counsel has used the recommendations to try and educate state and federal policy makers regarding the critical reforms necessary to achieve a truly fair criminal justice system for all individuals, including reinforcing the defense role of lawyer end his psticipetion in criminal procedure, In Chine and other countries in Asia, criminal justice systems have been reformed One of the key tasks of these reforms is to improve the provisions of the current Imws on criminal procedure concerning the procedural sights of the Inwyer and ensure they ere in line with intemational standards. Currently, China has amended the Law on Lawyers to prepare the ground for the ratification of the Internetional Covenant on Civil and Political Rights! InVietnam, adversarial principles and the role of lewyer in criminal proceedings have been, recognized in certain legal documents Article 103.5 of the Consitution 2013 of Vietnam stipulates as follows: “The principle of institute legal proceeding against is guaranteed in trials.” Thisis the commend and the orientation for improving the edverseriel principles in the Criminel Procedure Code 2015 of Vietnam (hereinafter the CPC). According to Article 26 of the CPC, the role and participation of pasties in criminal proceedings is guaranteed to be equal.
Typicelly, during the charges, investigation, prosecution, adjudication, investigators, prosecutors, competent authorities, defendants, defense counsels and other pesticipents in proceedings ere equally entitled to present, evaluate evidence and make requests for clavificetion of objective truths of the Iewsuit, As many other netions around the world, Vietnam has been carrying out a comprehensive reform of criminal justice. One of the key tasks of the reform is to expand the proceedings et criminal trials, in which the need for further emphasis on the role of levyer. The settlement of criminal cases tends to indicate thet the practicability of lawyer on his function is still bleak. This rests from ‘various causes, of which the overlapping and contradictory nature ofthe leysis one Even.
though the CPC 2015 has undergone several amendments and supplements, it has only pastly overcome its existing shortcomings. Under these circumstances, the State must clearly show the intent to speedily improve the legal system in general and the CPC 2015 “According the repart ted Asetonnet Report n the Neinal Hamam Fights Acien Pn of Cina bem (2008-2010), <kep JRnfn dni com cnichinw2011-07/1¢cenert_1280457 0 in pasticuler Compared to countries which have made great sides in the affirmation a lawyer's role in criminal procedure, certein shortcomings and mismatches in practical spplicetion still exist, This may affect or even damage the sights end interests of both lawyers end citizens invelved in legel proceedings ‘The above shows that guarantesing legel stetus in general end the roles of lewyers in pesticuler is e global concem and not merely # matter affecting each nstion This requires Vietnam to continue further speeding up the process of judicial reform inorder tomminimize the impact of current limitetions Wishing to contribute to the enhancement of the effectiveness of improving the lew regarding the sole of lawyer in criminal procedure, the uthor chose to underteke research on the theme “The role of lawyer in criminal procedure: A comparison between Vietnamese and American systems. Literature review Most foreign scholars pay constant attention to studying the sole of lewyers from the perspectives of legal ethics, professionel responsibilities, the impact of criminal procedtval ppecacigm end the pattcipetion legal status of lawyer in terms of his legal ethics and obligetions, there waslack of analysis on about how lawyer conducts their sole accordingly to specific provisions ofthe legal framework in pesticuler stages, such as the investigation and evidence presentation The subject matter of research involving role of lawyer in criminal procedural system means thet there should be # comprehensive analysis on the sole of lawyer in multi- dimensional functions in distinct stages insteed of merely at stage In the process of researching and exploiting the topic, the author has consulted several documents and typicel reseerch reports in the form of scientific topics, master’s theses, doctoral theses, books, and magezines. Accordingly, some typical projects cen be sunmerized below.
Foreign publications InRoberte K. Flowers 2010), “The Role of the Defense Attorney: Not Just an Advocate the author presents the combination of all the responsibilities required of the attorney in “Powers, Robora Kenp (2010), ‘Role of th Defuse AHomuy: Not st mn Advocst.” No State Jewel af Criminal Zane, Vol 1,p. 647, Arable a SSRN: imp sm combstract=2039479 today’s American criminal procedural system. Following his perspective, a lawyer, as a member of the lege profession, is «representative of clients, anofficer ofthe Legal system end a public citizen having special responsibility for the quality of justice.
The language does not differentiate the soles based on the kind of law the levyer practices nor does it prioritize the different roles. This lack of differentiation leeds to the conclusion thet all lawyers, no matter whet ares of law, have a responsbility thet goes beyond merely advocating for the client.