What is a loved one? Regulations on relatives under the Criminal Procedure Code? The concept and related regulations on relatives under the Criminal Procedure Code 2015?
In the Vietnamese legal system, especially in criminal proceedings, recently there have been additional provisions on relatives of participants in legal proceedings and persons competent to conduct proceedings. The concept of “relative relative” and confirmation of kinship have been mentioned in other areas of law, such as to
* Legal grounds:
– Penal Code 2015 (amended and supplemented in 2017);
– Criminal Procedure Code 2015.
Lawyer service legal advice over the phone:
1. What is a loved one?
In legal science, the term “relative” in each field has different definitions. Eg:
In the Law on Civil Judgment Execution 2014, that is the wife, husband, children, grandfather, grandmother, father, mother, uncle, uncle, aunt, uncle, aunt, brother, sister, or brother of the involved party litigant.
According to the Law on Marriage and Family 2014, that is a person who has a marriage relationship, foster care, someone who has the same direct bloodline, and someone who has a family name within three generations.
In the Law on Notary 2014, Decree 67/2015/ND-CP amending Decree 110/2013/ND-CP on sanctioning of administrative violations in the field of judicial assistance, judicial administration, marriage and family family, civil judgment enforcement, bankruptcy of enterprises or cooperatives, which are spouses; natural parents, adoptive parents; natural parents, adoptive parents of spouses; natural, adopted, daughter-in-law, son-in-law; grandparents; siblings, siblings of spouses; grandchildren are children of natural or adopted children;
Decree 10/2015/ND-CP regulating childbirth by in vitro fertilization and conditions
see more: Obligations and rights of parents and children and among relatives in the family
In Decree 76/2012/ND-CP guiding the Law on Denunciations, those are spouses, natural fathers, natural mothers, adoptive fathers, adoptive mothers, parents on the wife’s or husband’s sides, biological children, adopted children, and biological brothers. , younger sister, younger brother.
From the perspective of criminal legal science, at Point e, Clause 1, Article 4 of the 2015 Criminal Procedure Code, it is explained: “The next of kin of a procedure participant or a person competent to conduct proceedings is a person who is a person who is a person who is competent to conduct legal proceedings. having relationship with procedure participants and competent procedure-conducting persons including wife, husband, natural father, natural mother, father-in-law, mother-in-law, father-in-law, mother-in-law, adoptive father, adoptive mother, natural child, adopted child; grandfather, grandmother, grandfather, grandmother, brother, sister, younger brother; great-grandparents, great-grandparents, biological uncles, biological uncles, biological uncles, biological aunts, biological aunts, biological grandchildren.”
Therefore, depending on the case, consider different kinship relationships to apply in practice.
2. Regulations on relatives under the Criminal Procedure Code:
As described in the concept, relatives of procedure participants and persons competent to conduct proceedings are persons who have relations with procedure participants and persons competent to conduct proceedings, including: :
– Wife, husband, biological father, natural mother, father-in-law, mother-in-law, father-in-law, mother-in-law, adoptive father, adoptive mother, natural child, adopted child;
– Grandfather, paternal grandmother, maternal grandfather, grandmother, biological brother, biological sister, younger brother;
– Great-grandfather, great-grandfather, biological uncle, biological uncle, biological uncle, biological aunt, biological aunt, biological nephew.
Thus, it can be seen that there are a total of 27 categories of people who are considered to be relatives of persons competent to conduct proceedings, participants in proceedings and in specific cases, if they have a close relationship with one of them. For the above number of persons, the competent procedure-conducting persons and procedure participants must refuse or be proposed to be changed when conducting or participating in criminal procedure activities.
see more: Allowance for relatives when wounded soldiers have died
2.1. Regulations on proof of kinship:
There is a problem that arises when conducting the application of criminal procedure law, that is, proving the kinship relationship of the person competent to conduct the proceedings, the participants in the criminal proceedings under the responsibility. which agency’s responsibility; Time to prove since ever; Which agency has the authority to confirm the kinship relationship; If there is a violation of the legal activities, how will it be resolved?
On the other hand, Article 85 of the 2015 Criminal Procedure Code only stipulates that one of the issues that must be proved in a criminal case is “proving the identity characteristics of the accused and defendants; other circumstances related to the exclusion of penal liability, exemption from criminal liability, exemption from punishment”, it is not required to prove the personal characteristics of other types of procedure participants as well as those of other persons. has jurisdiction to conduct proceedings, it is necessary to have specific instructions.
“DArticle 85. Matters to be proved in criminal cases
When investigating, prosecuting and adjudicating a criminal case, the agency competent to conduct legal proceedings must prove:
1. Whether or not a crime occurred, the time, place and other circumstances of the offence;
2. Who is the person who commits the crime; at fault or not, intentionally or unintentionally; have criminal capacity or not; the purpose and motive of the crime;
3. Circumstances mitigating or aggravating the criminal liability of the accused and defendants and personal characteristics of the accused or defendants;
4. The nature and extent of damage caused by the crime;
see more: Regime for martyrs’ relatives
5. Causes and conditions of crime;
6. Other circumstances related to the exclusion of criminal liability, exemption from criminal liability, and exemption from punishment.”
Thus, in the writer’s opinion, the law should supplement regulations on proof of kinship in criminal cases so that the trial process as well as the Court’s decisions are more accurate and comprehensive. .
2.2. Regulations on cases in which a person competent to conduct legal proceedings or a procedure participant must refuse or be changed related to the concept of a relative:
The 2015 Criminal Procedure Code stipulates thatCases in which a person competent to conduct procedure must be refused or changed in Article 49 is as follows:
Persons competent to conduct procedures must refuse to conduct procedures or be changed in one of the following cases:
1. Concurrently being the victim or involved party; being the representative or relative of the victim, the litigant or the accused or defendant;
2. Having participated as a defense counsel, witness, expert, property appraiser, interpreter or translator in that case;
3. There are other clear grounds to suggest that they may not be impartial while on duty.”
see more: Contracts and transactions must be approved by the General Meeting of Shareholders or the Board of Directors
More specific,
– For persons competent to conduct procedures: Persons competent to conduct procedures must refuse to conduct procedures or be changed if they are relatives of the victims, litigants or the accused or defendants. In addition, judges and jurors must refuse to participate in the trial or be changed when they are in the same trial panel and are close relatives at Point b, Clause 1, Article 53 of the Criminal Procedure Code. the year 2015
– For witnesses, persons who are relatives of the accused, persons competent to conduct legal proceedings, they are not allowed to act as witnesses at Point a, Clause 2, Article 67 of the Criminal Procedure Code 2015.
– For experts, property appraisers, interpreters and translators, they must refuse to participate in the proceedings if they are relatives of the victims, litigants or of the accused or defendants specified at Point a, Clause 5. Article 68 of the Criminal Procedure Code 2015.
– For property appraisers, the property appraisers must refuse to participate in the proceedings or be changed when they are relatives of the victims, litigants or of the accused or defendants at Point a. Clause 5, Article 69 of the Criminal Procedure Code 2015.
– For interpreters, translators, learners have the right to request the requesting agency to protect the life, health, honor, dignity, property and other lawful rights and interests of themselves and their relatives. their preferences when threatened at Point b, Clause 2, Article 70 of the 2015 Criminal Procedure Code. At the same time, interpreters and translators must refuse to participate in the proceedings or be changed when they are relatives of the client. the victim, the litigant or the accused or defendant at Point a, Clause 4 of this Law.
– For defense counsels, the 2015 Criminal Procedure Code also stipulates that relatives of persons who have been conducting legal proceedings for that case are also not entitled to defend at Point a, Clause 4, Article 72 of the Criminal Procedure Code. criminal proceedings 2015. More details on selection and appointment of defense counselsor change or refuse the defense, proceedingsc defense is prescribed from Article 75 to Article 78 of this Law.
2.3. Regulation about vtaking care of relatives and preserving property of persons held in custody or temporary detention:
– In case a person held in custody or temporary detention has a relative who is disabled, elderly or mentally handicapped, but has no caregiver, the agency issuing the custody decision, order or decision on temporary detention shall assign the that person leaves other relatives to take care of; if there are no relatives, the agency issuing the temporary detention decision, detention order or decision shall hand them over to the administration of the commune, ward or township where they reside to take care of them. The care and rearing of children who are children of persons held in custody or temporary detention shall comply with the provisions of the Law on enforcement of custody and temporary detention.
see more: Incentives for wounded soldiers and their relatives
The agency that has issued the custody decision, order or decision on temporary detention shall notify the person being held in custody or temporary detention about the care and care of their loved ones and the preservation of their property. The notification is made in writing and included in the case file.
In general, studying the provisions of the 2015 Criminal Procedure Code, we can see that one of the basic principles of Criminal Procedure is to ensure the impartiality of the person competent to conduct the proceedings. to participate in the proceedings, accordingly, with the above provisions, it is clear that if the person competent to conduct the procedure, the procedure participant falls into the cases of having to refuse or change but still proceed or participate in the proceedings. proceedings for the case, the case is not in accordance with the provisions of the Criminal Procedure Code 2015; the proceedings in which they have conducted or participated can be judged as not impartial and objective, leading to the imprecision of the case settlement.
Therefore, in order to effectively implement the above provisions, the central judicial branches need to soon have instructions so that the competent procedural agencies can agree on the awareness and organization of compulsory implementation. must collect documents and evidences related to the personal characteristics of persons competent to conduct proceedings and participants in legal proceedings whenever they are assigned to conduct proceedings or participate in criminal proceedings. in a particular criminal case or case.
At the same time, competent procedure-conducting agencies must strictly explain the rights and obligations of procedure participants, especially those who have the right to request the change of competent procedure-conducting persons. such as persons in custody, accused, defendants, victims, plaintiffs, civil defendants and their representatives so that they can fully exercise their rights, in order to settle cases objectively and lawfully.
Chuyên mục: Bạn cần biết
Nhớ để nguồn bài viết: Người thân thích là gì? Quy định về “người thân thích” theo BLTTHS? của website thcstienhoa.edu.vn