Chương XXV Bộ luật Tố tụng hình sự 2015: Thủ tục giám đốc thẩm

Chapter XXV

CASSATION PROCEDURE

Article 370. Nature of cassation procedure

The cassation procedure reviews a Court’s effective sentences and rulings under protest upon the exposure of a serious breach of law in the settlement of the case.

Article 371. Grounds for protest through the cassation procedure

A court’s sentences and rulings in effect shall be protested according to the cassation procedure in the presence of one of the following grounds:

1. The court’s sentences and rulings do not correspond with objective facts of the case;

2. A serious breach of legal proceedings for investigation, prosecution and adjudication resulted in a serious error in the settlement of the case;

3. An error in the application of the law occurred.

Article 372. Detection of effective sentences and rulings to be reviewed through the cassation procedure

1. The sentenced person, authorities, organizations and every person shall be entitled to expose violations of the laws in a Court’s sentences and rulings that have come into force, and inform individuals authorized to lodge protests.

2. The provincial People’s Court shall examine the effective sentences and rulings passed by a district People’s Court in order to detect violations of laws and propose the President of the Higher People’s Court or the Supreme People’s Court to lodge protests.

The military court of the military zone shall examine the effective sentences and rulings passed by a local military court to detect violations of laws and propose the President of the Central military court to lodge protests.

3. Individuals authorized to lodge protests shall be informed promptly in writing upon the Court’s or Procuracy's detection of violations of laws in a Court's judgments and rulings through the cassation review or administration of the process of adjudication or through other sources of information.

Article 373. Right to lodge protests through the cassation procedure

1. The president of the Supreme People’s Court and the head of the Supreme People’s Procuracy shall have the right to lodge protests through the cassation procedure, when deemed necessary, against the effective sentences and rulings passed by a Higher People’s Court or other Courts, except for the rulings pronounced by the Judicial panel of the Supreme People’s Court.

2. The president of the Central military court and the head of the Central military procuracy shall have the right to lodge protests through the cassation procedure against the effective sentences and rulings passed by a military Court of a military zone or a local military Court.

3. The president of the Higher People’s Court and the head of the Higher People’s Procuracy shall have the right to lodge protests through the cassation procedure against the effective sentences and rulings passed by a provincial People’s Court or a district People’s Court in conformity to the territorial jurisdiction.

Article 374. Procedures for notice of a Court’s effective rulings and sentences to be reviewed through the cassation procedure

1. The sentenced person, authorities and entities, when exposing violations of laws in the Court’s effective sentences and rulings, shall submit a written notice or give a direct presentation and evidences, documents and items, if available, to the individuals authorized to lodge protests or to the nearest Court or Procuracy.

2. A written notice shall contain these primary details:

a) Date;

b) Name and address of the authority or entity issuing the notice;

c) The court’s effective sentences or rulings in violation of the laws;

d) The details of violations exposed;

dd) The petition for the competent individuals' protests.

3. Such notice must bear the signature or fingerprint of the informing person or the corporate seal and signature of the legal representative of the authority or organization issuing the notice.

Article 375. Procedures for acquisition of notices of a Court’s effective rulings and sentences to be reviewed through the cassation procedure

1. The court or procuracy, when acquiring the written notice, shall input details into the notice receipt journal.

2. When the sentenced person, authorities or entities directly state the violations of laws in a Court’s effective sentences and rulings, the Court or Procuracy must record details stated in writing. If the informing person provides evidences, documents and items, the Court and Procuracy must execute a written record of custody. Such written record shall be made according to Article 133 of this Law.

3. The court or procuracy that receives the written notice and execute written records must send such notice and records with evidences, documents and items, if available, to the individuals authorized to lodge protests. Moreover, the sentenced person, authorities and entities making requests shall be informed in writing.

Article 376. Transfer of case files for contemplation of protests through the cassation procedure

1. The court or procuracy, if in need of examining the case file to contemplate protests through the cassation procedure, shall be entitled to request in writing the Court managing such file to have it transferred.

The court managing the case file, in 07 days upon receiving the written request, must have it transferred to the Court or Procuracy making such request.

2. If the Court and Procuracy simultaneously issue their written requests, the Court managing the case file shall have it transferred on first-come basis and inform the later one.

Article 377. Suspension of the enforcement of sentences and rulings protested through the cassation procedure

The individual issuing the decision to protest sentences and rulings in effect through the cassation procedure shall be entitled to suspend the enforcement of such rulings and sentences.

The decision to suspend the enforcement of sentences and rulings protested through the cassation procedure must be sent to the Court and Procuracy, which held the trials at first and second instance, and competent sentence enforcement authorities.

Article 378. Decision to lodge protests through the cassation procedure

A decision to lodge protests through the cassation procedure shall contain these primary details:

1. The number and date of the decision;

2. The individual authorized to make the decision;

3. The number and date of the sentence or ruling protested;

4. Remarks and analysis of violations and errors in the sentence or ruling protested;

5. Legal grounds that lead to the decision to protest;

6. The decision to protest the whole or parts of the sentence or ruling;

7. The name of the Court empowered to perform the cassation review of the case;

8. The requests by the individual initiating protests.

Article 379. Time limit for protests through the cassation procedure

1. The time limit for protests against the sentenced person shall be 01 year upon the effect of the sentence or ruling.

2. Protests in favor of the sentenced person shall be initiated any time, even for the exoneration of the sentenced person who passed away.

3. Protests on litigants’ civil matters in a criminal case shall abide by the Civil procedure code.

4. If there is no ground to lodge protests through the cassation procedure, the individual authorized to protest must inform the requesting authorities and entities in writing of his decision not to protest and reasons.

Article 380. Delivery of decisions to protest through the cassation procedure

1. The decision to protest through the cassation procedure must be promptly delivered to the Court that passed the effective sentence and ruling protested, the sentenced person, competent authorities enforcing criminal or civil sentences, and other people having interests and duties related to the protests.

2. If the President of the Supreme People’s Court initiates protests, the decision to protest and case file must be promptly delivered to the Court empowered to conduct cassation procedure.

If the President of the Higher People’s Court or Central military court initiates protests, the decision to protest and case file must be promptly delivered to the competent Procuracy.

The court empowered to conduct cassation procedure must deliver the decision to protest and case file to the equivalent Procuracy. The procuracy, in 30 days upon receiving the case file, must send back the file to the Court.

3. If the head of the Supreme People’s Procuracy or Higher People’s Procuracy or Central military procuracy initiates protests, the decision to protest and case file must be promptly delivered to the Court empowered to conduct the cassation procedure.

Article 381. Amendment or revocation of protests

1. Before trial or at the court of cassation, the protesting individual shall be entitled to supplement and amend protests if the time limit for protests is still effective. Amendments to the protests before trial must be executed through written decisions and delivered according to Section 1, Article 380 of this Law. Amendments to the protests in court shall be inputted into the court record.

2. Before trial or in the court of cassation, the protesting individual shall be entitled to withdraw parts or the whole of the protests. The withdrawal of protests before trial must be executed through written decisions. The withdrawal of protests in court shall be inputted into the court record.

3. If all protests are withdrawn before trial, the President of the Court empowered to conduct the cassation procedure shall decide to dismiss the trial of cassation. If all protests are withdrawn in court, the Trial panel shall decide to dismiss the trial of cassation.

The court, in 02 days upon issuing its decision to dismiss the trial of cassation, shall send such decision to the persons as stated in Section 1, Article 380 of this Law and to the equivalent Procuracy.

Article 382. Jurisdiction over cassation procedure

1. Committee of Judges of the Higher People’s Court conducts the cassation procedure through a Judicial panel of three judges to review effective sentences and rulings passed by provincial People’s Courts or district People's Courts in conformity to the territorial jurisdiction.

2. Plenary assembly of the Committee of Judges of the Higher People’s Court conducts the cassation review of effective rulings and sentences passed by a People’s Court as per Section 1 of this Article, which comprise complex elements, or sentences and rulings reviewed by the 3-judge Judicial panel established the Committee of Judges of the Supreme People’s Court through the cassation procedure without reaching an agreement on the settlement of the case through voting.

When the Plenary assembly of the Committee of Judges of the Higher People’s Court holds the trial of cassation, two thirds of its members must be attend the trial, which is chaired by the President of the Supreme People’s Court. Rulings of the Plenary assembly of the Committee of Judges must be approved by more than half of its members; otherwise, the trial shall be adjourned. Plenary assembly of the Committee of Judges, in 30 days upon adjournment of the trial, must resume the trial.

3. Committee of Judges of the Central military court conducts the cassation review of effective sentences and rulings passed by a military court of a military zone or local military court. More than two thirds of members of the Committee of Judges of the Central military court must attend the trial of cassation, which is chaired by the President of the Central military court. Rulings of the Committee of Judges must be approved by more than half of its members; otherwise, the trial shall be adjourned. Committee of Judges, in 30 days upon adjournment of the trial, must resume the trial.

4. Justices’ Council of the Supreme People’s Court assigns a Judicial panel of five Judges to conduct the cassation review of effective rulings and sentences passed the Higher People’s Court or Central military court.

5. Plenary assembly of Judges of the Supreme People’s Court conducts the cassation review of effective rulings and sentences as stated in Section 4 of this Article, which comprise complex elements, or effective rulings and sentences reviewed by the Judicial panel of five Judges of the Justices’ Council of the Supreme People’s Court through the cassation procedure without reaching an agreement on the settlement of the case by voting.

More than two thirds of members of the Plenary assembly of Judges of the Supreme People’s Court must be present at the trial of cassation, which is chaired by the President of the Supreme People’s Court. Rulings of the Plenary assembly of Judges of the Supreme People’s Court must be approved by more than half of its members; otherwise, the trial shall be adjourned. Plenary assembly of Judges, in 30 days upon adjournment of the trial, must resume the trial.

6. Justices’ Council of the Supreme People’s Court shall conduct the cassation review of the entire lawsuit, whose effective sentences and rulings protested fall into different levels of jurisdiction over cassation procedure.

Article 383. Participants in a trial of cassation

1. The procurator assigned by the equivalent Procuracy must attend the trial of cassation.

2. The court, when perceiving the necessity or grounds to amend parts of an effective sentence or ruling, must summon the sentenced person, defense counsel and individuals having interests and duties related to the protests to the court of cassation. The trial of cassation shall occur despite the absence of the said people.

Article 384. Preparation for a trial of cassation

The court president shall assign a Judge from the Judicial panel of cassation to prepare an verbal report on the case. Such report shall summarize the details of the case, the Courts’ sentences and ruling, and particulars of the protests.

The verbal report and relevant documents must be sent to the members of the Judicial panel of cassation not later than 07 days before trial.

Article 385. Time limit for the start of a trial of cassation

The court given authority to conduct the cassation procedure, in 04 months upon receiving the decision to protest and case file, must start the trial.

Article 386. Procedures for a trial of cassation

1. After the presiding judge commences the trial, a member of the Judicial panel of cassation shall present the verbal report on the case. Other members of the Judicial panel of cassation, before discussing and expressing their opinions on the settlement of the case, shall address questions about unclear details to the Judge delivering the verbal report. If the protests are lodged by the Procuracy, the Procurator shall present the details of such protests.

2. If the sentenced person, defense counsel or individuals having duties and interests related to the protests appear in court, they shall be permitted to state opinions at the requests for the Judicial panel of cassation.

The procurator shall present the Procuracy’s opinions on the decision to protest and the settlement of the case/

The procurator and participants in the trial of cassation shall present their oral arguments on relevant issues in connection with the settlement of the case. The presiding judge must allow the Procurator and participants in legal proceedings to express all opinions in just and equal manners before the court.

3. Members of the Judicial panel of cassation shall present their opinions and converse. The judicial panel of cassation shall take vote and announce its rulings on the settlement of the case.

Article 387. Scope of cassation procedure

The judicial panel of cassation must review the entire case beyond the boundary of the protests.

Article 388. Powers of the Judical panel of cassation

1. Reject the protests and sustain the effective sentences and rulings that have been protested.

2. Abrogate the sentences and rulings in effect and sustain lawful judgments and decisions of the Court of first instance or second instance, which were annulled or modified unlawfully.

3. Abrogate sentences and rulings in effect for re-investigation or retrial.

4. Abrogate sentences and rulings in effect and dismiss the case.

5. Redress sentences and rulings in effect.

6. Terminate the cassation procedure.

Article 389. Rejection of protests and sustainment of effective sentences and rulings under protest

The judicial panel of cassation shall reject the protests and sustain the effective sentences and rulings under protest if such rulings and sentences are deemed justified and statutory.

Article 390. Abrogation of sentences and rulings in effect and sustainment of lawful judgments and decisions of a Court of first instance or second instance, which were annulled or modified unlawfully

The judicial panel of cassation shall decide to abrogate the sentences and rulings in effect and sustain the lawful judgments and decisions of the Court of first instance or second instance, which were annulled or modified unlawfully.

Article 391. Abrogation of sentences and rulings in effect for re-investigation or retrial

The judicial panel of cassation shall abrogate the effective sentences and rulings, partly or wholly, for re-investigation or retrial in the presence of one of the grounds as defined in Article 371 of this Law. In the event of retrial, the Judicial panel of cassation shall, as the case may be, decide to have the case retried in the first or second instance.

If the continued detention of the defendant is deemed necessary, the Judicial panel of cassation shall order such detention until a Procuracy or Court handles the case again.

Article 392. Abrogation of sentences and rulings in effect and dismissal of the case

The judicial panel of cassation shall abrogate the sentences and rulings in effect and dismiss the case in the presence of one of the grounds as defined in Article 157 of this Law.

Article 393. Rectification of sentences and rulings in effect

The judicial panel of cassation shall redress the sentences and rulings in effect upon the fulfillment of all conditions below:

1. Documents and evidences in the case file are sufficient and explicit;

2. The rectification of the sentences and rulings does not alter the nature of the case or worsen the sentenced person's circumstances or put the crime victims and litigants at disadvantage.

Article 394. Decision to institute the cassation procedure

1. A judicial panel of cassation shall issue a decision to institute the cassation procedure in the name of the Socialist Republic of Vietnam.

2. The decision to institute the cassation procedure shall comprise:

a) The date and location of the trial;

b) The full name of members of the Judicial panel of cassation;

c) The full name of the Procurator exercising the prosecution rights and administering the trial;

d) The name of the case reviewed by the Judicial panel through the cassation procedure;

dd) The name, age and address of the sentenced person and individuals having interests and duties in connection with the decision to institute the cassation procedure;

e) Summarize the case and parts of the effective sentences and rulings under protest;

g) The decision to protest and justifications;

h) Remarks by the Judicial panel of cassation, including the analysis of the said justifications for the approval or rejection of the protests;

i) Points, sections and articles of the Criminal Procedure Law and Criminal Code, which are adduced by the Judicial panel of cassation in its decisions;

k) The decisions by the Judical panel of cassation.

Article 395. Effect of rulings from the cassation procedure and delivery of such rulings

1. The rulings by the Judical panel of cassation shall come into force as of the date of pronouncement.

2. The judicial panel of cassation, in 10 days upon pronouncing its rulings, must have them delivered to the sentenced person, individuals filing protests, equivalent Procuracy, Procuracy and Court that held the first-instance or appellate trial. Moreover, competent authorities enforcing criminal or civil sentences, individuals having interests and duties related to the protests or their representatives shall receive such rulings. Furthermore, a written notice shall be sent to the local authorities at the commune, ward and town where the sentenced person resides or his workplace of educational facility.

Article 396. Time limit for transfer of case file for re-investigation or retrial

If the Judicial panel of cassation decides to abrogate a sentence or ruling in effect for re-investigation, the case file, in 15 days upon the issuance of such decision, must be transferred to the equivalent Procuracy for re-investigation according to this Law.

If the Judicial panel of cassation decides to abrogate a sentence or ruling in effect for retrial in the first or second instance, the case file, in 15 days upon the issuance of such decision, must be transferred to a competent Court for retrial according to this Law.

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