Thông tư 02/2021/TT-BTP

Circular No. 02/2021/TT-BTP dated May 25, 2021 on guidelines for calculating working time based on actual working sessions and fixed working time for legal aid case

Nội dung toàn văn Circular 02/2021/TT-BTP calculating working time based on actual working sessions for legal aid case


MINISTRY OF JUSTICE
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 02/2021/TT-BTP

Hanoi, May 25, 2021

 

CIRCULAR

ON GUIDELINES FOR CALCULATING WORKING TIME BASED ON ACTUAL WORKING SESSIONS AND FIXED WORKING TIME FOR LEGAL AID CASE

Pursuant to the Law on Legal Aid dated June 20, 2017;

Pursuant to the Government's Decree No. 144/2017/ND-CP dated December 15, 2017 on elaboration of the Law on Legal Aid;

Pursuant to Decree No. 96/2017/ND-CP dated August 16, 2017 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

At the request of the Director of the Legal Aid Department;

The Minister of Justice promulgates a Circular on guidelines for calculating working time based on actual working sessions and fixed working time for legal aid case.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This Circular guides the calculation of working time based on actual working sessions and fixed working time for legal aid case as a basis for payment of remuneration and gratuity for the performance of legal aid services in the form of participation in proceedings, extrajudicial representation.

2. This Circular applies to the following entities:

a) Legal aid providers;

b) Lawyers providing legal aid;

c) Organizations signing contracts to provide legal aid;

d) The State Legal Aid Center (hereinafter referred to as the Center), the Center's Branch (hereinafter referred to as the Branch); Departments of Justice and other relevant agencies, organizations and individuals.

Article 2. Principles of implementation

1. Ensure compliance with the provisions of the law on remuneration, gratuity, and procedures for payment of remuneration, gratuity to legal aid providers and organizations signing contracts to provide legal aid.

2. Ensure the legitimacy and rationality in declaring the time and work as a basis for payment of remuneration, gratuity for the performance of legal aid cases.

3. When declaring the time and work of the legal aid case, the declarant is responsible for the truthfulness of the declaration.

4. When confirming the time and work of the legal aid provider, the certifying person is responsible for the authenticity of the certification.

Chapter II

CALCULATION OF WORKING TIME BASED ON ACTUAL WORKING SESSIONS

Article 3. Working time based on actual working sessions

1. Working time based on actual working sessions (a half of working day) applies to legal aid case in the form of participation in proceedings, extrajudicial representation by legal aid-providing persons as a basis for payment of remuneration and gratuity for the performance of legal aid services.

2. An actual working session is calculated on the basis of 04 working hours. In case the legal aid-providing person works less than 04 hours, the calculation shall be as follows:

a) Calculated as a half of working session if the number of working hours is less than 03 hours;

b) Calculated as a working session if the number of working hours is at least 03 hours.

3. When applying the method of calculating working time based on actual working sessions, the legal aid-providing person must list the tasks and equivalent time performed in the Schedule of actual working time (Form TP-TGPL-01) ) issued together with this Circular.

Article 4. Time for participation in criminal proceedings

1. Grounds for calculating the working time to provide legal aid for cases participating in criminal procedures include:

a) Participating in interrogation of the accused or taking testimonies of the accused, victims, witnesses and involved parties in criminal cases;

b) Participating in confrontation, recognition, voice recognition, crime scene examination, autopsies, examination of traces on the body, experimental investigation and performing other proceedings as upon request of the presiding agencies;

c) Working with presiding officers, presiding agencies;

d) Verifying, taking, and evaluating relevant documents, objects and evidence according to proceeding stages;

dd) Working with the accused at the custody room of the border guard station, the remand center, detention center or the prison;

e) Meeting with the accused on bail or relatives of the accused; the victim or kindred of the victim; witnesses, involved parties in criminal cases and other participants in legal proceedings;

g) Studying case files, copying, and preparing documents at the presiding agencies or at the Center, Branch, or organization signing contract to provide legal aid;

h) Preparing arguments for defense and contest;

i) Participating in court hearings. In case a legal aid-providing person appears in court but the court session is adjourned not due to the request of the legal aid-providing person and without prior notice, the working time of the legal aid-providing person begins from the time when he/she has worked with presiding agencies and presiding persons on related matters the time when the court session is adjourned;

k) Performing work related to procedures for appealing the first-instance judgments, appellate judgments, cassation procedures or reopening procedures;

l) Performing other reasonable tasks as prescribed by law in service of defense and contest.

2. Remuneration, gratuity paid for a legal aid-providing person when performing the tasks specified at Points e, g, h, l, Clause 1 of this Article must not exceed the maximum number of working sessions to carry out these tasks according to the respective fixed working time specified in Appendix 01 issued with this Circular.

3. The working time of the legal aid-providing person must be certified by agencies, organizations, or individuals as follows:

a) The time for performing the activities specified at Point a, Clause 1 of this Article shall be certified by the presiding person or the presiding agency;

b) The time for performing the activities specified at Points b and c, Clause 1 of this Article shall be certified by the presiding person or the presiding agency or by the person working directly with the legal aid-providing person;

c) The time for performing the activities specified at Point d, Clause 1 of this Article shall be certified by the agency or organization or individual with which the legal aid-providing person directly works;

d) The time for performing the activities specified at Point dd, Clause 1 of this Article shall be certified by the accused or by the presiding agency or by an officer of the border guard station; remand center; detention center; or prison;

dd) The time for performing the activities specified at Point e, Clause 1 of this Article shall be certified by the person working directly with the legal aid-providing person;

e) The time for performing the activities specified at Point g, Clause 1 of this Article shall be certified by the presiding person or the Center, Branch or organization signing the contract to provide the legal aid;

g) The time for performing the activities specified at Points h, k, l, Clause 1 of this Article shall be certified by the Center or Branch or the organization signing the contract to provide the legal aid;

h) The time for performing the activities specified at Point i, Clause 1 of this Article shall be certified by the judge or the court reporter.

Article 5. Time for participation in civil proceedings

1. Grounds for calculating the working time to provide legal aid for cases participating in civil procedures include:

a) Working with legally-aided persons and related people to determine the disputed legal relationship; assess the requirements for initiating lawsuits, counterclaims, and independent claims; advice and guidance on writing lawsuit petitions, petitions for application of provisional urgent measures, and counter-claims; independent petitions, providing evidence to the court; guiding the preparation of lawsuit dossiers or other tasks during the stage of lawsuit initiation and case handling;

b) Working with legally-aided persons, litigants and related agencies, organizations and individuals on root causes and matters of dispute, evidence or other work during the preparation stage for adjudication;

c) Participating in meetings to examine the handover, assessment and disclosure of evidence; verifying, collecting and evaluating relevant necessary documents, objects and evidence;

d) Taking part in taking testimonies of involved parties, witnesses and other related persons; participating in activities of appraisal and valuation of assets and performing other procedural work at the request of presiding agencies;

dd) Participating in mediation in accordance with law;

e) Working with presiding officers, presiding agencies according to procedural stages;

g) Meeting with litigants, witnesses and other proceeding participants on other relevant matters;

h) Studying case files, copying, and preparing documents at the presiding agencies or at the Center, Branch, or organization signing contract to provide legal aid;

i) Preparing defense arguments;

k) Participating in court hearings or meetings to resolve non-litigious civil cases. In case a legal aid-providing person appears in court but the court session is adjourned not due to the request of the legal aid-providing person and without prior notice, the working time of the legal aid-providing person begins from the time when he/she has worked with presiding agencies and presiding persons on related matters to the time when the court session is adjourned;

l) Performing work related to procedures for appealing the first-instance judgments, appellate judgments, cassation procedures or reopening procedures;

m) Performing other reasonable tasks as prescribed by law in service of defense.

2. Remuneration, gratuity paid for a legal aid-providing person when performing the tasks specified at Points g, h, i, m Clause 1 of this Article must not exceed the maximum number of working sessions to carry out these tasks according to the respective fixed working time specified in Appendix 02 issued with this Circular.

3. The working time of the legal aid-providing person must be certified by agencies, organizations, or individuals as follows:

a) The time for performing the activities specified at Points a and b, Clause 1 of this Article shall be certified by the person working directly with the legal aid-providing person or by the Center or Branch; the organization signing the contract to provide legal aid;

b) The time for participating in the meeting to examine the handover, assessment and disclosure of evidence specified at Point c, Clause 1 of this Article shall be certified by the person assigned to settle the case; the time for verification, collection and evaluation of relevant necessary documents, objects and evidence specified at Point c, Clause 1 of this Article shall be certified by the agency, organization or individual that the legal aid-providing person comes to verify and collect evidence;

c) The time for taking testimonies of involved parties, witnesses and other related persons specified at Point d, Clause 1 of this Article shall be certified by these persons or by the presiding persons or the presiding agencies; the time for participating in asset appraisal and valuation and performing other procedure tasks at the request of the presiding agency specified at Point d, Clause 1 of this Article shall be certified by the agency, organization, or individual where the property is appraised, valued or certified by the presiding agency or person;

d) The time for performing the activities specified at Points dd, k Clause 1 of this Article shall be certified by the court reporter or reporter of mediation hearing;

dd) The time for performing the activities specified at Point e, Clause 1 of this Article shall be certified by the presiding person or the presiding agency;

e) The time for performing the activities specified at Point g, Clause 1 of this Article shall be certified by the person working directly with the legal aid-providing person;

g) The time for performing the activities specified at Point h, Clause 1 of this Article shall be certified by the person assigned to settle the case or Center or Branch or the organization signing the contract to provide the legal aid;

h) The time for performing the activities specified at Points i, l, m Clause 1 of this Article shall be certified by the Center or Branch or the organization signing the contract to provide the legal aid.

Article 6. Time for participation in administrative proceedings

1. Grounds for calculating the working time to provide legal aid for cases participating in administrative procedures include:

a) Participating in activities specified at Points a, b, c, d, e, g, h, i, k, l, m Clause 1 Article 5 of this Circular;

b) Joining the dialogue.

2. Remuneration, gratuity paid for a legal aid-providing person when performing the tasks specified at Points g, h, i, m Clause 1 Article 5 hereof must not exceed the maximum number of working sessions to carry out these tasks according to the respective fixed working time specified in Appendix 03 issued with this Circular.

3. The working time of the legal aid-providing person must be certified by agencies, organizations, or individuals as follows:

a) The time for performing the activities specified at Point a, Clause 1 of this Article shall be certified by the agencies, organizations and individuals specified in Clause 3, Article 5 of this Circular;

b) The time for performing the activities specified at Point b, Clause 1 of this Article shall be certified by the judge or the court reporter.

Article 7. Time for extrajudicial representation

1. Grounds for calculating the working time to provide legal aid for cases participating in extrajudicial representation include:

a) Meeting and contacting legally-aided persons and their relatives; witnesses;

b) Studying case files, preparing documents to perform the representation;

c) Verifying and collecting documents, objects, evidence, and facts related to the representation;

d) Working with relevant agencies, organizations and individuals;

dd) Participate in representation before agencies, organizations, and individuals competent to handle the case.

2. The working time of the legal aid-providing person must be certified by agencies, organizations, or individuals as follows:

a) The time for performing the activities specified at Points a, d, dd, Clause 1 of this Article shall be certified by the person working with the legal aid-providing person or the relevant agency, organization or individual, or organizations and individuals competent to settle the case;

b) The time for performing the activities specified at Points b, c Clause 1 of this Article shall be certified by the Center or Branch or the organization signing the contract to provide the legal aid.

Article 8. Calculation of time in certain special circumstances

1. In case two or more legal aid-providing persons provide legal aid to one legally-aided person within the same case as prescribed by law, the time as a basis for payment of remuneration or gratuity for the performance of legal aid is the actual time each legal aid-providing person has provided, but the total time must not exceed 30 working sessions per case for participation in proceedings or no more than 20 working sessions per case for extrajudicial representation.

2. In case the presiding agency temporarily suspends the case

a) The period used as a basis for payment of remuneration or gratuity for the performance of legal aid is the actual time performed up to the time of suspension of the case;

b) When the case continues to be resolved, the time used as a basis for payment of remuneration, gratuity for the performance of legal aid is the actual time performing subsequent tasks from the time the case resumes until the end of the case.

3. In case of replacement or change of legal aid-providing person

a) The period used as a basis for payment of remuneration or gratuity to the predecessor is the actual time that he/she has provided legal aid up to the time of being replaced or changed;

b) The time used as a basis for payment of remuneration and gratuity to the successor is the actual time during which he/she performs the subsequent tasks since being appointed as a substitute.

If the substitute chooses the form of fixed working time, the remuneration, gratuity paid to both two persons (the predecessor and the successor) shall not exceed the corresponding amount for fixed working time in the Appendixes No. 01, 02 and 03 issued together with this Circular.

4. In case of providing legal aid for the person against which a whistleblowing report is filed, the person proposed for prosecution, the accused person at the time of arrest or temporary custody, or the victim in accordance with the procedural law, the time and time certification shall be done as follows:

a) The time for verification, collection and evaluation of relevant documents, objects and evidence shall be certified and collected by the agency, organization or individual where the legal aid-providing person comes to verify and collect evidence;

b) The time for taking testimonies of the person against which a whistleblowing report is filed, the person being proposed for prosecution, the victim or other related persons; participating in confrontation, identification and recognition of the voice of the person against which a whistleblowing report is filed, the person proposed for prosecution together with the investigator or the procurator shall be certified by the investigator or the procurator;

c) The time for working with the accused at the custody room of the border guard station, the remand center, the detention center shall be certified by the accused or officers of the border guard station, the remand center, the detention center or the presiding agency;

d) Time for meeting the person against which a whistleblowing report is filed, the person proposed for prosecution or their relatives; the victim or kindred of the victim; other related persons shall be certified by these persons, but not exceeding the maximum number of sessions to perform this task in the form of fixed working time specified in Appendix 01 issued with this Circular according to the level of misdemeanor crime.

Chapter III

FIXED WORKING TIME FOR LEGAL AID CASE

Article 9. Fixed working time for legal aid case

1. The form of fixed working time only applies to a legal aid case in the form of participation in proceedings, chosen in writing by the legal aid-providing person immediately after being assigned and without any change throughout the legal aid case.

2. Complicated nature, procedural requirements, and contents of each specific case to determine the level of fixed working time are as follows:

a) Apply the provisions on offense classification in Clause 2, Article 1 of the Law on amendments to the Criminal Code No. 100/2015/QH13 dated June 20, 2017 to determine the level of fixed working time for participation in criminal proceedings.

The classification of offenses must apply right at the time of selecting the form of fixed working time and based on one of the documents issued by the presiding agency: Decision to prosecute the accused, conclusion investigation, indictment, arraignment, judgment. In case there are many documents governing offenses in varied sentence brackets, the document with the higher sentence bracket shall prevail.

b) Apply the provisions of Clause 3, Article 337 of the Civil Procedure Code and the provisions of Article 5 of the Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice on criteria for determining typical, complex legal aid cases to determine the level of fixed working time to participate in the civil proceedings.

c) Apply the provisions of Clause 12, Article 3of the Law on Administrative Procedures and the provisions of Article 6 of the Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice on criteria for determining typical, complex legal aid cases to determine the level of fixed working time to participate in the administrative proceedings.

3. When performing a fixed working time case, the legal aid-providing person must perform the following tasks:

a) For case of participation in criminal proceedings: perform the tasks specified in Clause 1, Article 4 of this Circular.

Details of tasks to be performed and the corresponding maximum fixed working time (converted into working sessions) for each case are shown in Appendix 01 hereof. In case the number of sessions converted from fixed working time in Appendix 01 is lower than 03 times of statutory base salary, the fixed working time shall be equal to 03 times of statutory base salary.

b) For case of participation in civil or administrative proceedings: perform the tasks specified in Clause 1, Article 5; Clause 1 Article 6 of this Circular.

Details of tasks to be performed and the corresponding maximum fixed working time (converted into working sessions) for each case are shown in Appendixes 02 and 03 hereof. In case the number of sessions converted from fixed working time in Appendix 02 and 03 is lower than 03 times of statutory base salary, the fixed working time shall be equal to 03 times of statutory base salary.

4. When performing a case with fixed working time, the legal aid-providing person must list the tasks and have the tasks certified using the Schedule of tasks performed (Form TP-TGPL-02) issued together with the Circular.

5. In case the legal aid is a case has been performed through several stages of proceedings as shown in the Appendixes issued together with this Circular, the level of fixed working time shall apply by stages, but not more than 10 times of statutory base salary.

Article 10. Fixed working time for special legal aid cases

1. In case 02 or more legal aid-providing persons provide legal aid for 01 legally-aided person within the same case, based on the actual work of each performer, the fixed working time is up to 130% of the corresponding fixed working time shown in the Appendices issued together with this Circular, but not more than 10 times of statutory base salary.

Example 01: A is prosecuted for an offense with extremely serious sentence bracket, the Director of the Legal Aid Center appoints 02 people to provide legal aid for A from the investigation stage to the first instance trial stage. Based on the actual work done by 02 legal aid-providing persons, the maximum fixed working time is equal to: 130% x 23 sessions = 29.9 sessions. However, because this number of sessions exceeds 10 times of statutory base salary, only 10 times of statutory base salary shall be paid.

2. In case of providing legal aid for 01 legally-aided person who is prosecuted for 02 offenses or more in the same case, the level of fixed working time for the legal aid-providing person shall be as follows:

a) If 02 offenses have sentence brackets of 02 different types of offenses, based on the actual work performed, the maximum fixed working time is equal to 130% of the fixed working time applied to the case with the sentence bracket for more severe offense shown in Appendix 01 issued with this Circular but not exceeding 10 times of statutory base salary.

Example 02: A is prosecuted for 02 offenses: 01 offense with a sentence bracket of a serious offense, 01 offense with a sentence bracket of an extremely serious offense. A legal aid provider has given A legal aid from the investigation stage to the first-instance trial stage. Based on the actual work done, the maximum fixed working time is equal to: 130% x 23 sessions = 29.9 sessions. However, because this number of sessions exceeds 10 times of statutory base salary, only 10 times of statutory base salary shall be paid.

b) If 02 offenses have sentence brackets of 01 type of offense, based on the actual work performed, the maximum fixed working time is equal to 130% of the fixed working time applied to the case shown in Appendix 01 issued with this Circular but not exceeding 10 times of statutory base salary.

Example 03: B is prosecuted for two offenses falling under the same sentence bracket of extremely serious offense. A legal aid provider has given B legal aid from the investigation stage to the first-instance trial stage. Based on the actual work done, the maximum fixed working time is equal to: 130% x 23 sessions = 29.9 sessions. However, because this number of sessions exceeds 10 times of statutory base salary, only 10 times of statutory base salary shall be paid.

3. In case the presiding agency temporarily suspends the case

a) The fixed working time performed by the legal aid-providing person shall be determined based on the actual work done until the suspension time;

b) When the case continues to be resolved, the fixed working time shall continue from the resumption time until the end of the case.

4. In case of replacement or change of legal aid-providing person

a) The fixed working time done by the predecessor is the actual time that he/she has provided legal aid up to the time of being replaced or changed;

b) The fixed working time done by the successor is the actual time that he/she has provided subsequent legal aid tasks since the replacement time.

If the substitute chooses the form of actual working sessions, the remuneration, gratuity paid to both two persons (the predecessor and the successor) shall not exceed 30 working sessions/case as prescribed in Clause 1, Article 13 of Decree No. 144/2017/ND-CP of the Government dated December 15, 2017 on elaboration of the Law on Legal Aid.

Chapter IV

IMPLEMENTATION

Article 11. Grandfather clause

For legal aid performed before the effective date of this Circular, the provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on guidelines for calculation of time and procedures for payment of costs of legal aid and Circular No. 05/2017/TT-BTP dated April 20, 2017 of the Minister of Justice on amendments to the Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on guidelines for calculation of time and procedures for payment of costs of legal aid.

Article 12. Entry in force

1. This Circular comes into force as of July 15, 2021.

2. This Circular supersedes Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on guidelines for calculation of time and procedures for payment of costs of legal aid and Circular No. 05/2017/TT-BTP dated April 20, 2017 of the Minister of Justice on amendments to the Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on guidelines for calculation of time and procedures for payment of costs of legal aid.

 

 

MINISTER




Le Thanh Long

 


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