Thông tư 19/2011/TT-BTP

CIRCULAR

ON AMENDMENT AND SUPPLEMENT OF A NUMBER OF PROVISIONS ON ADMINISTRATIVE PROCEDURES OF CIRCULAR NO.05/2008/TT-BTP DATED 23/9/ 2008, CIRCULAR NO.03/2008/TT-BTP DATED 25/8/2008 AND CIRCULAR NO.01/2010/TT-BTP DATED 09/02/2010 OF THE MINISTRY OF JUSTICE

Pursuant to the Decree No.93/2008/ND-CP of August 22, 2008 of the Government regulating functions, tasks, powers and organizational structure of the Ministry of Justice;

In implementing the Government’s Resolution No.52/NQ-CP dated December 10, 2010 on the simplification of administrative procedures under the management function scope of the Ministry of Justice, Ministry of Justice amends and supplements a number of provisions on administrative procedures of the Circular No.05/2008/TT-BTP Circular No.03/2008/TT-BTP and Circular No.01/2010/TT-BTP dated 9/2/2010 as follows:

Article 1. To amend and supplement some provisions of Circular No.05/2008/TT-BTP dated 23/9/2008 of the Ministry of Justice guiding on the operation of legal aid and state management on legal aid

1. Clause 1, Clause 2, Section I, Part A is amended and supplemented as follows:

"1. Inspection of the requests of legal aid

Upon a request of legal aid, the legal aid beneficiary must submit 01 set of dossier to the legal aid providing organization. The dossier shall include: an application for legal aid, proof to demonstrate that the requester is subject to legal aid and other papers and documents relevant to the case (if any).

Upon receiving the dossier requesting for legal aid, the recipients must consider and respond immediately to the requester of legal aid if the dossiers are eligible to assume or needed to add related papers, documents.

The case requesting for legal aid shall be processed only when meeting all the following conditions:

a) The requesters of legal aid (hereinafter referred to as the requester) who are subject to legal aid provided in Article 10 of the Law on Legal Aid and detailed in Article 2 of Decree No.07/2007/ND-CP dated 12/01/2007 of the Government detailing and guiding the implementation of a number of Articles of the Law on Legal Aid (hereinafter referred to as Decree No.07/2007/ND-CP) or victims of sale in accordance with the provisions of law on the prevention, combat of human trafficking.

b) The content of legal aid cases is in accordance with the provisions of Article 5 of the Law on Legal Aid;

c) The legal aid case is under the scope of legal aid provided in Article 26 of the Law on Legal Aid;

d) The legal aid case is not subject to the refusal as prescribed in Clause 1 of Article 45 of the Law on Legal Aid.

Persons, who directly assume the case for settlement must record it into the tracking book, summarize legal aid cases and conduct legal aid works or submit to leader of legal aid providing organization for assigning the legal aid conductor (legal assistant, legal aid freelancer or lawyers, legal advisor). Tracking book for summarizing legal aid cases is made according to Form No.01-TP-TGPL issued together with Circular No.05/2008/TT-BTP.

In cases the requesters who are lack of documents to prove that they are subject to legal aid or papers, documents related to legal aid cases, the recipients shall guide them to provide additional related papers and documents to be assumed for settlement. After receiving all additional papers, documents or having eligible verification, the procedures of assuming case shall be made. In the case of emergency, force majeure by which the requesters could not provide sufficient documentation or the legal aid cases were about to be expired or having other reasons required to assume immediately for settlement to prevent damage to the rights and the legitimate interests of legal aids beneficiaries, the recipients shall assume the cases and guide the requesters to provide additionally necessary documentation.

The recipients of legal aid request are responsible for copying 01 set of documents from the original one or receiving the copied dossier as proof that requesters are subject to legal aid for keeping together with the legal aid case’s profile for inspection, comparison when needed. In the case of objective reasons that the recipient cannot copy from the originals, they shall record the number, date, the agency of issuance in the lower part of the application and request the requester to provide copied documents later.

In case of refusal, the recipients must reply in writing and state clearly the reasons of refusal to the requesters. If the case is of one of the cases of refusal or of discontinuation as prescribed in Article 45 of the Law on Legal Aid, the recipients shall clearly state the reason in writing to the requesters. Notification of refusal or discontinuation to make legal aid is made according to the Form No.20-TP-TGPL issued together with Circular No.05/2008/TT-BTP.

2. The application for legal aid

Legal aid providing organizations distribute free applications form to the requesters (the Form of legal aid application is provided in the Appendix attached to this Circular) or the requesters self-write the legal aid application with their signatures or fingerprints. In cases where the requesters could not be present and send their representatives or guardians instead, the representatives, guardians shall sign or fingerprint into the application, except the case that the requesters and the representatives, guardians have a conflict of rights and legitimate interests.

a) In cases the requesters have not written the application, the recipients shall guide them to complete and sign the form. If they cannot self-write the application, the recipients are responsible for filling the required information into the form, letting them read or re-reading for them to listen and requesting them to sign or fingerprint into the application.

b) In case the beneficiaries request their relatives (grandparents, parents, spouses, adult children, and adult natural siblings) or authorize others to apply the application, in addition to the eligible proof of requester of subject to legal aid, the institutes must present their identity cards or written authorizations signed by the requesters. The institutes inscribe their names, identity cards, residence addresses and sign to the tracking book for summarizing legal aid cases.

c) The application is applied directly at the office or work location of the legal aid providing organization, or applied directly to the person who conduct the legal aid cases (in case the legal aid is settled outside the office) or sent to the legal aid providing organization through the mail or by other means."

2. To supplement clause 6 in Section II, Part A on legal aid professional guidance as follows:

"6. Procedures for changing the legal aid conductor

In cases the legal aid requesters request to change the legal aid conductors because there are sufficient evidence to prove the legal aid conductors violate the regulations of law on legal aid, or of one of the cases mentioned in Clause 2 of Article 45 of the Law on Legal Aid, or it is required to change according to the Law on proceedings, the legal aid beneficiaries shall submit an application (clearly stating the reasons, evidence on proposing change of legal aid conductor) and other papers and documents which are related to the request for changes (if any) or come directly to the legal aid providing organization that their legal aid cases are assumed to present the claims. This legal aid providing organization must clearly state the request for changing legal aid conductors to have their signatures or fingerprints.

In case of change of legal aid conductor, within a period of not more than 03 days from the day of receiving complete valid dossiers of request for change of legal aid conductor, The Director of Center, Head of Branch issues a decision to change the legal aid conductor and appoint qualified person to continue the legal aid cases with quality. The decision to change the legal aid conductor must be sent to the legal aid beneficiaries and related agencies, organizations for their record and information."

3. To annul Clause 3, Section II, Part A on professional guidance of legal aid.

Article 2. To amend and supplement Clause 4 of Circular No.03/2008/TT-BTP dated 25/8/2008 of the Ministry of Justice guiding the implementation of a number of Articles of Decree No.79/2007/ND-CP dated 18/5/2007 of the Government on the issue of copies from master registers, certification of the copies from the originals, and authentication of signatures as follows:

"4. Certification of fingerprint

Under the provisions of Decree No.79/2007/ND-CP the individuals may request the competent authorities to authenticate their signatures in the papers or documents. When the authentication requesters cannot sign due to their disability or do not know to sign, the signature authentication is replaced by fingerprint authentication.

When pressing their fingerprints, the authentication requesters use their right forefingers; if they are unable to do so, they shall use their left forefinger; when it is impossible to press their fingerprint by such two fingers, they may use other fingers provided that it must clearly state the fingerprint is used a certain finger of a certain hand.

The authentication of fingerprint is not allowed to conduct for the papers and documents in foreign languages."

Article 3. To amend and supplement some provisions of Circular No.01/2010/TT-BTP dated 9/02/2010 of the Ministry of Justice detailing and guiding the implementation of a number of Articles of Decree No.77/2008/ND-CP

1. Clause 3 of Article 5 is amended and supplemented as follows:

"3. The dossier of the person who apply for granting legal consultant card includes the following papers:

a) An application for a legal consultant card;

b) Copy of Diploma of bachelor of Laws;

c/ Written certification of the applicant's period of working in the legal domain.”

2. To annul clause 5 of Article 5 of the registration for operation of legal consultancy centers.

3. Clause 2, Clause 3 Article 6 are amended and supplemented as follows:

"2. The dossier registering for operation of the branches of legal consultancy centers mentioned in Clause 5 of Article 14 of Decree No.77/2008/ND-CP includes 01 set of the following papers:

a) An application for operation registration (Form TP-TVPL-02 regulated in Circular No.01/2010/TT-BTP);

b) A certified copy of operation registration certificate of the legal consultancy center establishing branch in case of submitting dossier via the postal system, or a copy of the operation registration certificate of the legal consultancy center establishing branch and the original for comparison in case of direct submission;

c) The decision of the governing organization on the establishment of branch;

d) A certified copy of the lawyer's card or legal consultant card of the expected branch Head in case of submitting dossier via the postal system, or a copy of the lawyer's card or legal consultant card of the expected branch Head and the original for comparison in case of direct submission;

3. Within 05 working days after receiving complete and valid dossiers, the Department of Justice where the branch headquarter is located, shall be responsible for granting operation registration certificate to the branch; in case of refusal, the Department must issue written reply stating clearly the reasons in writing to the applicants.

The operation registration certificate of branch is made in 02 copies; one granted to the branch, one kept at the Department of Justice. "

Article 4. Effect

This Circular takes effect as from December 14, 2011.

Heads of units of the Ministry, Directors of the Departments of Justice and other related agencies, organizations and individuals shall be responsible for the implementation of this Circular.

During its execution, if any problems arise, agencies, organizations, and individuals should promptly report them to the Ministry of Justice for study and settlement. /.

APPENDIX

FORM OF LEGAL AID APPLICATION

(Issued together with Circular No.19/2011/TT-BTP dated 31/10/2011of the Ministry of Justice)

SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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………, date….month….20…..

APPLICATION FOR LEGAL AID

To: ………………..(1)……………….

Full name: ……………………………………(2 or 2a)............................................

Date of birth:…………………………………….Sex:...........................

Contact address: ...................................................................................................

Telephone: .........................................................................................................

Identification card No: ………………………. Date of issue ……………….. at..........

…………………………………………………. Nation: ............................................

Representative of legal aid beneficiary: ...................................................................

Contents requesting for legal aid case:

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Attached documents:

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Note:

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I declare the above statements are true. I request .... (1) .... consider of legal aid

Remark:

(1): Name of legal aid providing organization

(2): Name of legal aid beneficiary

(2a): Name of representative, guardian for the legal aid beneficiary.