Chương XXX Bộ luật Tố tụng Hình sự 2003: Thủ tục giám đốc thẩm

Chapter XXX: CASSATION PROCEDURES

Article 272.- Nature of cassation procedures

Cassation mean the review of a legally valid judgment or decision which is protested against because of serious law violations detected in the handling of the case.

Article 273.- Grounds to lodge protests according to cassation procedures

Legally valid court judgments or decisions shall be protested according to cassation procedures if one of the following grounds exists:

1. The inquiry at the court session is one-sided or insufficient;

2. The conclusion in the judgment or decision does not suit the objective circumstances of the case;

3. Serious violations of criminal procedures are committed in the investigation, prosecution or trial;

4. Serious mistakes are made in the application of the Penal Code.

Article 274.- Discovery of legally valid judgments or decisions which need to be reviewed according to cassation procedures

The convicts, agencies, organizations and all citizens shall have the right to discover law violations in legally valid court judgments and decisions and notify them to the persons with the right to protest as prescribed in Article 275 of this Code.

If discovering law violations in the legally valid court judgments or decisions, the procuracies or courts must notify such to the persons with the right to protest as prescribed in Article 275 of this Code.

Article 275.- Persons with the right to protest according to cassation procedures

1. The President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy shall have the right to protest according to cassation procedures against the legally valid judgments or decisions of the courts of different levels, except for decisions of the Judges’ Council of the Supreme People’s Court.

2. The President of the Central Military Court and the Chairman of the Central Military Procuracy shall have the right to protest according to cassation procedures against legally valid judgments or decisions of subordinate military courts.

3. The presidents of the provincial-level people’s courts and the chairmen of the provincial-level people’s procuracies, the presidents of the military zone-level military courts and the chairmen of the military zone-level military procuracies shall have the right to protest according to cassation procedures against legally valid judgments or decisions of their respective subordinate courts.

Article 276.- Suspension of execution of judgments or decisions which have been protested against according to cassation procedures

Those who have protested against legally valid judgments or decisions shall have the right to decide to suspend the execution of such judgments or decisions.

Decisions to suspend the execution of judgments must be sent to the courts and procuracies which have been in charge of the first-instance trial and the competent judgment-executing agencies.

Article 277.- Protests according to cassation procedures

1. Protests according to cassation procedures must clearly state the reasons and sent to:

a/ The courts which have issued the protested judgments or decisions;

b/ The courts which will conduct the cassation trial;

c/ The convicts, and the persons with rights and interests related to the protests.

2. If there is no ground to protest according to cassation procedures, before the expiry of the time limit for lodging protests as prescribed in Article 278 of this Code, the persons with the right to protest must reply the discovering persons, agencies or organizations, clearly stating the reasons for no protest.

3. Before the start of a court session of cassation, the protestors shall have the right to supplement their protests provided that the time limit for lodging protests prescribed in Article 278 of this Code has not yet expired, or withdraw their protests.

Article 278.- Time limit for lodging protests according to cassation procedures

1. Protests unfavorable to the convicts must be lodged only within one year counting from the date the judgments or decisions become legally valid.

2. Protests favorable to the convicts may be lodged at any time, even in the cases where the convicts are deceased and it is necessary to prove their innocence.

3. Civil protests in criminal cases against civil plaintiffs, civil defendants or persons with interests and obligations related to the cases shall be lodged in accordance with the provisions of civil procedure legislation.

Article 279.- Jurisdiction to review cases according to cassation procedures

1. The Judges’ Committees of the provincial-level people’s courts shall review according to cassation procedures legally valid judgements or decisions of the district-level people’s courts. The Judges’ Committees of the military zone-level military courts shall review according to cassation procedures legally valid judgements or decisions of the regional military courts.

2. The Criminal Tribunal of the Supreme People’s Court shall review according to cassation procedures legally valid judgments or decisions of the provincial-level people’s courts. The Central Military Court shall review according to cassation procedures legally valid judgements or decisions of the military zone-level military courts.

3. The Judges’ Council of the Supreme People’s Court shall review according to cassation procedures legally valid judgements or decisions of the Central Military Court, of the Criminal Tribunal or the courts of appeal of the Supreme People’s Court, which have been protested against.

4. For legally valid judgments or decisions on the same criminal case falling under the cassation jurisdiction of different levels prescribed in Clauses 1, 2 and 3 of this Article, the competent superior level shall review the whole case according to cassation procedures.

Article 280.- Participants in court sessions of cassation

A court session of cassation must be participated by the procuracy of the same level.

When deeming it necessary, the court must summon the convict, defense counsel and possibly persons with interests and obligations related to the protest to participate in the court session of cassation

Article 281.- Composition of cassation panels

1. The cassation panel of the Criminal Tribunal of the Supreme People’s Court or the Central Military Court shall consist of three judges. If the Judges’ Committees of the provincial-level people’s courts, the Judges’ Committees of the military zone-level military courts or the Judges’ Council of the Supreme People’s Court review the cases according to cassation procedures, at least two thirds of the total numbers of the Judges’ Committees or Judges’ Council shall participate in the trial.

Cassation decisions of the Judges’ Committees or Judges’ Council must be approved by more than half of the total number of members of the Judges’ Committees or Judges’ Council.

2. At the court sessions of cassation conducted by the Judges’ Committees of the provincial-level people’s courts, the Judges’ Committees of the military zone-level military courts, of the Judges’ Council of the Supreme People’s Court, the voting on the contents of the protests must be in the order that opinions for the protests are followed by opinions against the protests. If neither opinions for or against are approved by more than half of the total number of the Judges’ Committees or Judges’ Council, the court sessions must be postponed. Within thirty days after the issuance of the decisions to postpone the court sessions, the Judges’ Committees or Judges’ Council must open court sessions to re-try the cases with the participation of all of their members.

Article 282.- Preparation for and proceedings at court sessions of cassation

1. The president of the court shall assign one judge to make a presentation on the case at the court session. The presentation shall summarize the contents of the case, judgments and decisions of the courts at different levels, and the contents of the protest. The presentation must be sent to the members of the panel at least seven days before the date of opening the court session of cassation.

2. At the court session, one member of the cassation panel shall read the presentation on the case. Members of the cassation panel shall express their opinions and the representative of the procuracy shall express his/her viewpoint on the settlement of the case.

If the convict, defense counsel, persons with interests and obligations related to the protests are summoned, these persons shall present their opinions before the representative of the procuracy. If they are absent, the cassation panel may still conduct the trial.

Article 283.- Time limit for cassation

Court sessions of cassation must be conducted within four months counting from the date of receipt of the protests.

Article 284.- Scope of cassation

The cassation panels must examine the whole cases without restricting the review to the contents of the protests.

Article 285.- Competence of cassation panels

The cassation panels shall have the right to issue decisions:

1. To reject the protests and retain the legally valid judgments or decisions;

2. To dismiss the legally valid judgments or decisions and cease the cases;

3. To dismiss the legally valid judgments or decisions for re-investigation or re-trial.

Article 286.- Dismissal of judgments or decisions and cessation of cases

The cassation panels shall dismiss legally valid judgments or decisions if they have one of the grounds prescribed in Article 107 of this Code.

Article 287.- Dismissal of legally valid judgments or decisions for re-investigation or re-trial

The cassation panels shall dismiss legally valid judgments or decisions which are protested against for re-investigation or re-trial if they have one of the grounds prescribed in Article 273 of this Code. If they find re-trial necessary, the cassation panels may, on a case-by-case basis, decide on the re-trial from the first-instance level or at the appellate level.

In case of dismissing the protested judgments or decisions for re-investigation or re-trial, if deeming it necessary to continue the temporary detention of defendants, the cassation panels shall issue orders to keep such defendants in temporary detention until the procuracies or courts re-handle the cases.

Article 288.- Effect of cassation decisions and handing of cassation decisions

1. Decisions of the cassation panels shall become legally valid as from the date of their issuance.

2. Within ten days as from the date of issuing the cassation decisions, the cassation panels must send them to the convicts, protestors, courts and police agencies which have been involved in the first-instance trial, persons with interests and obligations related to the protests or their lawful representatives, and competent judgment-executing agencies; and send notices thereon to the administrations of the communes, wards or townships where the convicts reside or the agencies or organizations where they work.

Article 289.- Re-investigation, re-trial of cases after the cassation panels dismiss judgments or decisions

If the cassation panels decide to dismiss legally valid judgments or decisions for re-investigation, within fifteen days counting from the date of issuance of such decisions, the case files must be transferred to the procuracies of the same level for re-investigation according to general procedures.

If the cassation panels decide to dismiss legally valid judgments or decisions for re-trial of the cases at the first-instance level or appellate level, within fifteen days after the date of issuance of such decisions, the case files must be transferred to the competent courts for re-trial according to general procedures.