Nghị định 123/2013/ND-CP

Decree No. 123/2013/NĐ-CP of 14 October 2013, detailing and implementation measures of the Law on lawyers

Nội dung toàn văn Decree No. 123/2013/NĐ-CP detailing implementation measures of the Law on lawyers


GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence
- Freedom - Happiness
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No: 123/2013/NĐ-CP

Hanoi,14 October 2013

 

DECREE

DETAILING A NUMBER OF ARTICLES AND IMPLEMENTATION MEASURES OF THE LAW ON LAWYERS

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Lawyers No. 65/2006/QH11 dated June 29, 2006, which was amended and supplemented under the Law amending and supplementing a number of articles of the Law on Lawyers No.20/2012/QH13 dated November 20, 2012 ;

At the proposal of the Minister of Justice;

The Government promulgates the Decree detailing a number of articles and implementation measures of the Law on Lawyers.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details a number of articles and implementation measures of the Law on Lawyers regarding lawyer-training establishments, legal aid of lawyers, obligations to attend compulsory professional refresher courses of lawyers, the state management on lawyers and law practice, law-practicing organizations, remuneration for lawyers who participate in legal proceedings in criminal cases, socio-professional organizations of lawyers, law practice of foreign law-practicing organizations and foreign lawyers in Vietnam.

Article 2. Lawyer -training establishments

1. The lawyer-training establishment specified in Clause 3 of Article 12 of the Law on Lawyers includes the Judicial Academy under the Ministry of Justice and the lawyer-training establishment under the Vietnam Bar Federation.

2. The Vietnam Bar Federation may set up a lawyer-training establishment when it fully meet the following criteria:

a) Having lecturers who are lawyers having at least 05 years of experience in law practice, legal experts who have prestige and pedagogical faculties;

b) Having an organizational structure which is appropriate to scale, model and training programme;

c) Having training programme, textbooks which are appropriate to the lawyer-training framework programme promulgated by the Minister of Justice;

d) Ensuring material facilities serving teaching and studying, satisfying requirements on research, work and study of lecturers and students.

3. A dossier for setting up a lawyer-training establishment under the Vietnam Bar Federation comprises:

a) An application for setting up a lawyer-training establishment;

b) Project on setting up a lawyer-training establishment. Basic contents of the Project shall comprise the need of establishment, legal position, functions, tasks, training objectives, training scale and model, organizational structure, a team of lecturers accompanying with the list of anticipated lecturers and their backgrounds in terms of experiences and skills, material facilities which are appropriate to training scale and model, implementation plans and progress of the Project, socio-economic effects of the lawyer-training establishment;

c) The drafted Charter of the lawyer-training establishment.

4. Within 30 days from the date of receiving a valid dossier, the Minister of Justice may give a decision on setting up a lawyer-training establishment under the Vietnam Bar Federation; in case of refusal, he/ she shall issue a written notice and clearly state the reasons therefor.

Article 3. Legal aid of lawyers

1. Lawyers shall take responsibilities for providing legal aids as specified in Point d of Clause 2 of Article 21, Clause 10 of Article 65 and Point e of Clause 2 of Article 67 of the Law on Lawyers. Lawyers are not permitted to refuse performing his/ her legal aid obligations, except for cases with appropriate reasons.

2. The Vietnam Bar Federation shall provide guidance on time, method and form to provide legal aids; disciplines to lawyers who violate his/her legal aid obligation; annually periodic assessment on legal aid activities of lawyers and report to the Ministry of Justice.

Article 4. Obligation to attend compulsory professional skill refresher of lawyers

Lawyers shall be obliged to attend compulsory professional skill refresher as specified in Point e of Clause 2 Article 21 of the Law on Lawyers.

The Ministry of Justice shall provide guidance on objects, time, form, contents of compulsory professional skill refresher; disciplines towards lawyers who violate his/her obligations to attend compulsory professional skill refresher.

Article 5. Tasks, powers of Justice Services in the state management on lawyers and law practice.

The Justice Services assisting provincial-level People's Committees to perform the state management on lawyers and law practice in the localities as specified in Clause 4, Article 83 of the Law on Lawyers, shall have the following tasks and powers:

1. To assess and submit dossiers to provincial-level People's Committees for deciding to permit setting up bar associations, approving the Congress's results of bar associations and dissolving bar associations;

2. To chair and coordinate with Department of Home Affairs in assessment, submit to provincial-level People's Committees for considerations and approvals of Projects of organization of tenure Congresses, structural plans of the managing boards of bar associations and councils of commendation and discipline in new terms;

3. To grant and withdrawal the Certificate of operation registrations of Vietnamese law-practicing organizations, foreign law-practicing organizations in Vietnam;

4. To provide information on operation registrations of Vietnamese law-practicing organizations, foreign law-practicing organizations in the localities to state agencies, organizations and individuals having requirements as specified by law;

5. To request bar associations providing information on the organizations and activities of lawyers, request law-practicing organizations to provide reports on structural and operational situations when necessary;

6. To periodically report to the Ministry of Justice, provincial-level People's Committees on situations of Vietnamese lawyers and law practice, organizations and activities of foreign law-practicing organizations and foreign lawyers in the localities;

7. To act as counselor and propose supporting measures for development of the lawyer profession in the localities to provincial-level People’s Committees;

8. To carry out examination, inspection and settlement of complaints, denunciations on organizations and activities of bar associations and law-practicing organizations in accordance with their competence or authorization of Minister of Justice, Chairpersons of provincial-level People's Committees; handle administrative violations of lawyers, law-practicing organizations and bar associations in accordance with their competency and legal provisions.

Chapter II

LAW-PRACTICING ORGANIZATIONS

Article 6. Application for Certificate of operation registration of law-practicing organizations

A request for registering operation of a law-practicing organization comprises the following main contents:

1. Name of the lawyer's office or the law firm;

2. Address of the headquarters;

3. Surname, name and permanent address of the lawyer who is the chief of the lawyer's office or the lawyer who is the owner (for one-member limited liability law firms) or lawyers who are members (for limited liability law firms with two or more members or law partnerships);

4. Surname, name, number and issuing date of the lawyer card of the representative-at-law;

5. Scope of professional practice;

Article 7. Charters of law firms

The charter of a law firm shall comprise the following main contents:

1. Name and address of the headquarters;

2. Form of the law firm;

3. Scope of professional practice;

4. Surname, name and permanent address of the owner being a lawyer (for one-member limited liability law firms) or members being lawyers (for limited liability law firms with two or more members or law partnerships);

5. Obligations and rights of the owner or the members;

6. Conditions and procedures of participation or withdrawal of a name from the list of members (for limited liability law firms with two or more members, law partnerships);

7. Structure of organization, management and administration;

8. Formalities and procedures for approvals of decisions, resolutions; principals for settlement of internal disputes;

9. Principals of profit-sharing and obligations of lawyers toward the law firm's obligations (for limited liability law firms with two or more members or law partnerships);

10. Cases of suspension, termination of operation and procedures for liquidation of assets;

11. Formalities for amendment, supplement of the Charter of the law firm.

The Charter of the law firm must be duly signed by the owner being a lawyer or all members being lawyers.

Article 8. Operation registration of law-practicing organizations

1. Procedures for Certificate of operation registration of law-practicing organizations shall comply with Article 35 of the Law on Lawyers.

2. The Certificate of operation registration of a law-practicing organization is made in 02 originals; one original is granted to the law-practicing organization, the other is kept at the Justice Service.

3. Within 07 working days, from the issuing date of the Certificate of operation registration of a law-practicing organization, the Justice Service shall send a written notice to tax office, statistical office, other competent state agencies, People's Committee of the districts or town, the People's Committee of the commune, ward or township and the bar association in the locality where the concerned law-practicing organization is headquartered.

4. The law-practicing organization shall pay registration fee in accordance with the fee level set for registration of business of companies.

5. After being granted with the Certificate of operation registration, the law-practicing organization is entitled to have the seal engraved and to use the seal in accordance with provisions on management and use of seals.

Article 9. Certificate of operation registrations of law-practicing organizations

The Certificate of operation registration of a law-practicing organization comprises the following main contents:

1. Name and address of the headquarters;

2. Scope of professional practice;

3. Surname, name, number and issuing date of the lawyer card of the representative-at-law;

4. Surname, name and permanent address of members being lawyers;

Article 10. Operation registration of branches of law-practicing organizations

1. Procedures for Certificates of operation registration of branches of law-practicing organizations shall comply with Article 41 of the Law on Lawyers.

2. When registering operation of its branch, the law-practicing organization shall pay registration fee in accordance with the fee level of registration for establishing branches of enterprises.

3. After being granted with the Certificate of operation registration, the branch of the law-practicing organization is entitled to have its seal engraved and to use the seal in accordance with provisions on management and use of seals.

Article 11. Changes of the representatives-at-law of law-practicing organizations

1. The representatives-at-law of limited liability law firms with two or more members and law partnerships must be lawyers and members of law firms.

A limited liability law firm with two or more members and a law partnership changing the representative-at-law must send a written request for changing the representative-at-law, and the Certificate of operation registration of the law firm to the Justice Service in the localities where the law firms are based, within 10 days since the date of having decisions on changes.

Procedures on changing representative-at-law of limited liability law firms with two or more members, law partnerships are carried out in accordance with Article 36 of the Law on Lawyers.

2. The representative-at-law of a lawyer's office or a one-member limited liability law firm must be a lawyer being the owner of the lawyer's office or the law firm.

The lawyer's office or a one-member limited liability law firm changing the representative-at-law shall submit a dossier to the Justice Service where it is based, within 10 days since the date of having decision on changing. A dossier is comprised of:

a) A request for changing the representative-at-law;

b) The Certificate of operation registration of the lawyer's office or the one-member limited liability law firm;

c) A written agreement between the former representative-at-law and the lawyer expected to be the new representative-at-law regarding the implementation of obligations and rights of the lawyer's office or the law firm;

d) Surname, name, number and issuing date of the lawyer card of the lawyer expected to be the new representative-at-law.

Procedures for changing representative-at-law of lawyer's offices, one-member limited liability law firms shall comply with Article 36 of the Law on Lawyers.

3. Within 05 working days, since the date of receiving valid dossiers, the Justice Services shall re-grant the Certificate of operation registrations for law-practicing organizations, stating clearly contents of changing representative-at-law; in cases of refusals, there must be written notices stating clearly reasons.

Article 12. Consolidation of law firms

1. Two or more limited liability law firms may have agreements on consolidation into a new limited liability law firm. Two or more law partnerships may have an agreement on consolidation into a new law partnership.

2. A dossier for consolidation of law firms shall be submitted to the Justice Service where the consolidating law firm is located. A dossier is comprise of:

a) A request for consolidation of law firms;

b) A consolidation contract, in which procedures, time limit and conditions of consolidation, plan of using labors, inheritance of all obligations, rights and legitimate interests of consolidated law firms are clearly stated.

c) The Certificate of operation registrations of consolidated law firms;

d) The Charter of the consolidating law firm.

Within 10 days, since the date of receiving a valid dossier, the Justice Service may grant the Certificate of operation registration for the consolidated law firm; in case of refusal, there must be a written notice stating reasons clearly.

3. Procedures for notifying contents of Certificate of operation registration of the consolidating law firm shall comply with Article 38 of the Law on Lawyers.

4. After the consolidating law firm being granted with the Certificate of operation registration, the consolidated law firms shall stop operating. The consolidating law firm shall be entitled to receive all legitimate rights and interests; be responsible for all outstanding debts, prevailing legal service contracts, labor contracts signed with lawyers and other employees and other property-related obligations of consolidated law firms.

 Within 05 working days, since the date of granting the Certificate of operation registration to the consolidating law firm, the Justice Service shall notify the Justice Services where the consolidated law firms are located and enclose with a copy of the Certificate of operation registration of the consolidating law firm in order to remove names of the consolidated law firms from the list of operation registrations.

Article 13. Merger of law firms

1. One or more limited liability law firms may be merged into another limited liability law firm. One or more law partnerships may be merged into another law partnership.

2. A dossier for merging law firms shall be submitted to the Justice Service where the merging law firm shall be located. A dossier is comprised of:

a) A request for merger of law firms;

b) A merger contract of law firms, in which procedures, time limit and conditions of merger, plan of using labors, inheritance of all obligations, rights and legitimate interests of law firms being merged, are clearly stated;

e) The Certificate of operation registrations of merged law firms and the merging law firm.

Within 10 days, since the date of receiving a valid dossier, the Justice Service may grant the Certificate of operation registration for the merging law firm; in case of refusal, there must be a written notice stating reasons clearly.

3. Procedures for notifying contents of Certificate of operation registration of the merging law firm shall comply with Article 38 of the Law on Lawyers.

4. After the merging law firm receiving the Certificate of operation registration, the merged law firms shall stop operating, the merging law firm shall be entitled to receive all legitimate rights and interests, be responsible for all outstanding debts, prevailing legal service contracts, labor contracts signed with lawyers and other employees and other property-related obligations of the merged law firms.

 Within 05 working days, since the date of granting the Certificate of operation registration to the merging law firm, the Justice Service shall notify the Justice Services where merged law firms are located and enclose with a copy of the Certificate of operation registration of the merging law firm in order to remove names of merged law firms from the list of operation registration.

Article 14. Transformation of limited liability law firms and law partnerships

1. A one-member limited liability law firm may be transformed into a limited liability law firm with two or more members. A limited liability law firm with two or more members may be transformed into a one-member limited liability law firm. A limited liability law firm may be transformed into a law partnership. A law partnership may be transformed into a limited liability law firm.

2. A transformation dossier is submitted to the Justice Service where the transforming law firm shall be located. A dossier is comprised of:

a) A request for transformation shall clearly state purposes, reasons of the transformation and commitments on heritage of all obligations, legitimate rights and interests of transformed law firms.

b) A draft Charter of the transforming law firm;

c) Certificate of operation registrations of transformed law firm;

d) List of members or owners who are lawyers; copies of lawyer cards of lawyers who are members or owners of the transforming law firm.

e) Copies of documents proving the headquarters in case of change of the headquarters.

3. Within 07 working days, since the date of receiving a valid dossier, the Justice Service shall grant the Certificate of operation registration to the transforming law firm; in case of refusal, there must be a written notice stating reasons clearly.

4. Procedures for notifying contents of Certificate of operation registration of the transforming law firm shall comply with Article 38 of the Law on Lawyers.

Article 15. Transformation of a lawyer’s office into a law firm

1. A lawyer’s office may be transformed into a limited liability law firm or a law partnership on the basis of inheritance of all obligations and rights of the lawyer’s office in accordance with legal provisions. .

2. A dossier for transformation of a lawyer’s office shall be submitted to the Justice Service where the law firm shall be located. A dossier is comprised of:

a) A request for transformation shall clearly state purposes, reasons of the transformation and commitments on heritage of all obligations, legitimate rights and interests of the transformed lawyer’s office;

b) A draft Charter of the transforming law firm;

c) Certificate of operation registrations of the transformed lawyer’s office;

d) List of members or owners who are lawyers; copies of lawyer cards of lawyers who are members or owners of the transforming law firm;

e) Copies of documents proving the headquarters in case of change of the headquarters.

Within 07 working days, since the date of receiving a valid dossier, the Justice Service shall grant the Certificate of operation registration; in case of refusal, there must be a written notice stating reasons clearly.

3. Procedures for notifying contents of Certificate of operation registration of the transforming law firm shall comply with Article 38 of the Law on Lawyers.

Article 16. Hiring of foreign lawyers working in law-practicing organizations

A law-practicing organization may enter into labor contracts for hiring foreign lawyers, who have been granted with the law practice certificates, to work for its organization. Obligations and rights of a foreign lawyer working in a law-practicing organization are agreed upon in the labor contract in accordance with the Law on Lawyers, this Decree and relevant laws.

Within 07 working days, since the date of signing the labor contract for hiring a foreign lawyer, the law-practicing organization shall send a written notice enclosed with labor contract to the Justice Service where it is located.

Within 07 working days, since the date of terminating the labor contract for hiring a foreign lawyer, the law-practicing organization shall send a written notice Ministry of Justice and the Justice Service where it is located.

Article 17. Withdrawal of the Certificates of operation registration of law-practicing organizations

1. The Certificate of operation registration of a law-practicing organization shall be withdrawn when such law-practicing organization falls into one of the following cases:

a) Having its operation terminated in accordance with Clause 1 of Article 47 of the Law on Lawyers;

b) Having administrative violations handled by form of revoking the Certificate of operation registration according to the law on handing of administrative violations;

c) Not having tax code registered within 01 year, since the date of receiving the Certificate of operation registration;

d) Not being operated at the registered headquarters in 06 consecutive months, sine the date of receiving the Certificate of operation registration;

e) Having the suspension period expired according to Clause 1 of Article 46 of the Law on Lawyers but the law-practicing organization did not resume its operation nor report on the continuous suspension.

2. The Justice Service shall decide to withdraw the Certificate of operation registrations of law-practicing organizations and carry out supervision, inspection on law-practicing organizations in implementing procedures as specified in Clause 2 and Clause 3 of Article 47 of the Law on Lawyers.

Chapter III

REMUNERATIONS OF LAWYERS WHO PARTICIPATE IN LEGAL PROCEEDINGS IN CRIMINAL CASES

Article 18. Ceiling rate of remunerations for lawyers who participate in legal proceedings in criminal cases

1. Ceiling rates of remuneration for lawyers who participate in legal proceedings in a criminal case shall be agreed in the legal service contract signed between the client and the lawyer’s office or the law firm, based on grounds as specified in Clause 1 of Article 55 of the Law on Lawyers. The lawyer’s remuneration is counted based on hour or full package of the case, but the highest rate for 01 working hour of the lawyer may not exceed 0.3 times of the basic wage rate set by the Government.

Working hours of the lawyer shall be agreed between the lawyer and the client.

2. Lawyers’ offices and law firms are encouraged to exempt or reduce remunerations for the poor and the beneficiary of social welfare.

Article 19. Remunerations and expenses for lawyers in cases they participate in legal proceedings at the request of legal proceeding-conducting agencies

1. In cases that the legal proceeding-conducting agencies request lawyers to participate, the remuneration paying for 01 working day of a lawyer is 0.4 times of the basic wage level set by the Government.

2. The countable working hours of a lawyer shall comprise:

a) Time of meeting with detainee, the accused or defendant;

b) Time of collecting documents, objects or circumstances related to the defense;

c) Time of studying dossiers and preparing documents;

d) Time of participating the court hearings;

e) Other sensible time of participating in legal proceedings at the requests of the legal proceeding-conducting agencies.

Working time of the lawyer must be verified by the legal proceeding-conducting agencies, the legal proceeding-conducting persons who directly settle the case.

3. In addition to remuneration, in the process of preparing and participating in the defense at court hearings and at legal proceeding-conducting agencies, the lawyer shall be paid with expenses on transportation and accommodations in accordance with prevailing laws on working expenses for the state officials or public employees working domestically.

4. The legal proceeding-conducting agency that requested the lawyer to participate in legal proceedings shall be responsible for settlement of payment in accordance with provisions on remuneration and expenses as specified in Clause 1 and Clause 3 of this Article. Source of payment is being estimated in the annual budget of the legal proceeding-conducting agency.

5. In addition to remuneration and expenses paid by the legal proceeding-conducting agency, the lawyer is not entitled to require for any other amount or interest from the accused, defendant or their relatives.

Chapter IV

SOCIO-PROFESSIONAL ORGANIZATIONS OF LAWYERS

Section 1. BAR ASSOCIATIONS

Article 20. Approval of the Project on organization of plenary Congress, structural plan of the managing board and the council of discipline and reward of a bar association in new term

1. Within 30 days before the scheduled date for organizing the plenary Congress, the managing board of the bar association shall report to the provincial-level People’s Committee and the Vietnam Bar Federation on the Project on organization of the plenary Congress, structural plan of the managing board and the council of discipline and reward of the bar association in new term.

2. Within 07 working days, since the date of receiving a written paper from the managing board of the bar association, the Vietnam Bar Federation shall give its opinion on the Project on organization of the plenary Congress, structural plan of the managing board and the council of discipline and reward of the bar association in new term. Within 15 days, since the date of receiving unified opinions from the Vietnam Bar Federation, the provincial-level People’s Committee shall consider and approve the Project on organization of the plenary Congress, plan on formulating the managing board and the council of discipline and reward of the bar association in new term.

Article 21. Approval of results of the lawyers’ Congress

1. Approved contents of results of the lawyers’ Congress shall comprise:

a) Voting results of the managing board, the chairman, the council of discipline and reward of the bar association;

b) Resolution of the plenary Congress or the Congress on dismissal and election of new or replacing chairman, supplementing election of members of the managing board or the council of discipline and award of the bar association.

2. Within 07 working days, since the date of ending the Congress, the managing board shall submit to the provincial-level People’s Committee a report on results of the Congress, being enclosed with the voting note, the list of chairman, members of the managing board and the council of discipline and award of the bar association, the Congress’s resolution. Within 07 working days, since the date of receiving the report on the Congress’s results, the provincial-level People’s Committee shall approve the Congress’s results.

3. The voting results shall be rejected from approval in the following cases:

a) The voting procedures and progress do not guarantee validity, democracy, publicity and transparency in accordance with laws and the Charter of the Vietnam Bar Federation;

b) The voting of the leading designation does not guarantee standards set in the Charter of the Vietnam Bar Federation.

4. The Congress’ resolution is rejected from approval in the following cases:

a) Having contents which are contrary to provisions of the Constitution, laws and the Charter of the Vietnam Bar Federation;

b) Procedures and progress of approving the Resolution do not guarantee validity, democracy, publicity and transparency in accordance with laws and the Charter of the Vietnam Bar Federation.

5. Within 60 days, since the date of receiving the paper on refusal of approving the Congress’ s results, the managing board of the bar association shall re-organize the Congress to carry out the voting, the approval and amendment of the Resolution in accordance with laws and the Charter of the Vietnam Bar Federation.

6. In case of organizing the Congress for dismissal and election of new or replacing chairman, supplementing election of members of the managing board or the council of discipline and award of the bar association, the bar association shall carry out reporting on the Congress’ s results in accordance with Clause 2 of this Article.

Article 22. Regime of reporting, sending provisions, decisions and resolutions of bar associations

1. Every year, bar associations shall be responsible for submitting reports on operational and structural situations of the bar associations to the provincial-level People’s Committees, the Vietnam Bar Federation and the Justice Services. Term and time limit for submitting reports shall comply with provisions set by the Ministry of Justice.

In addition to annually periodic reports, bar associations shall report at the request of the Ministry of Justice, the provincial-level People’s Committees or the Vietnam Bar Federation.

2. Within 07 working days, since the date of issuing regulations, decisions or resolutions, the managing board of the bar association shall submit reports to the provincial-level People’s Committee, the Vietnam Bar Federation.

Article 23. Dissolution of bar associations

1. The bar association shall be dissolved in the following cases:

a) There are less than three lawyers being members of the bar association;

b) The Congress has not been re-organized in accordance with Clause 5 Article 21 of this Decree;

c) Activities of the bar association seriously violated laws and the Charter of the Vietnam Bar Federation, causing bad effects to national security, social order or safety, infringing upon the State’s interests, public interests or legitimate rights and interests of agencies, organizations or individuals.

2. In the case the bar association being dissolved in accordance with Clause 1 of this Article, Chairman of the provincial-level People’s Committee shall decide to dissolve the bar association after having the unified opinion with the Minister of Justice and the Chairperson of the Vietnam Bar Federation.

The re-establishment of the bar association shall comply with Article 60 of the Law on Lawyers.

Section 2. THE VIETNAM BAR FEDERATION

Article 24. Approval of the Charter of Vietnam Bar Federation

1. Within 07 working days, since the date the Charter of the Vietnam Bar Federation was approved, the National Bar Council shall send a proposal for the Charter’s approval to the Ministry of Justice. The proposal shall comprise:

a) A proposal for the Charter’s approval;

b) The Charter and the minutes of the Charter’s adoption;

 c) Report on the Congress’s results; results of the National Bar Council’s election, the Standing Committee, the Chairperson, the vice Chairpersons of the Vietnam Bar Federation;

d) Resolution of the Congress.

2. Within 30 days, since the date of receiving a valid dossier, the Minister of Justice shall decide to approve the Charter of the Vietnam Bar Federation, after having the united opinion of the Minister of Home Affairs; in case of refusal, there must be a written notice stating reasons clearly.

3. The Charter of the Vietnam Bar Federation shall be not approved in the following cases:

a) Having contents which are contrary to provisions of the Constitution, the Law on Lawyers, relevant laws, codes, ordinances and this Decree.

b) Procedures and progress of approving the Charter do not guarantee validity, democracy, publicity and transparency in accordance with laws.

4. In case the Charter of the Vietnam Bar Federation is not approved, the National Bar Council shall carry out the amendment of contents of the Charter or re-organize the Congress in order to pass the Charter in accordance with laws.

5. After having the contents of the Charter of the Vietnam Bar Federation amended and supplemented, within 07 working days, since the date of passing the amended and supplemented Charter, the National Bar Council shall send a proposal to the Ministry of Justice, enclosed with the amended and supplemented Charter, the minutes on the amended and supplemented Charter’s adoption and the Resolution of the Congress.

The approval of the amended and supplemented Charter shall comply with this Article.

Article 25. Regime on reporting, sending regulations, decisions and resolutions of the Vietnam Bar Federation

1. Every year, the Vietnam Bar Federation is responsible for submitting reports on operational and structural situations of lawyers, bar associations nationwide and the Vietnam bar Federation to the Ministry of Justice. Term and time limit for submitting reports shall comply with provisions set by the Ministry of Justice.

In addition to annually periodic reports, the Vietnam Bar Federation shall report on the tenure Congress’s results and other reports at the request of the Ministry of Justice.

3. Within 07 working days, since the date of issuance, the Vietnam Bar Federation is responsible for sending regulations, decisions and resolutions of the Vietnam Bar Federation to the Ministry of Justice.

Chapter V

LAW PRACTICE OF FOREIGN LAW-PRACTICING ORGANIZATIONS AND FOREIGN LAWYERS IN VIETNAM

Article 26. Names of foreign law-practicing organizations in Vietnam

1. Name of a branch of a foreign law-practicing organization in Vietnam shall include the phrase “Branch”, name of the foreign law-practicing organization and name of province or name of centrally-run city where the branch is located.

2. Name of a 100% foreign-owned law firm in Vietnam shall include the phrase “Limited liability law firm” and name of the foreign law-practicing organization.

3. Name of a joint venture law firm between foreign law-practicing organizations and Vietnamese law-practicing organizations shall be agreed through selection by parties, but it must include the phrase “Limited liability law firm”.

4. Name of a law partnership between foreign law-practicing organizations and Vietnamese law partnerships shall be agreed through section by parties, but it must include the phrase “law partnership”.

Article 27. Application for setting up a branch of a foreign law-practicing organization

An application for setting up a branch of a foreign law-practicing organization shall comprise the following main contents:

1. Name, nationality, address of the headquarters of the foreign law-practicing organization;

2. Name of the branch;

3. Scope of law practice of the branch;

4. Operation duration of the branch;

5. Location of the branch;

6. Surname and name of the lawyer being the Chief of the Branch as assigned by the foreign law-practicing organization, being enclosed with papers proving such lawyer having law- practice exercised in at least 02 consecutive years;

7. Commitment of the foreign law-practicing organization regarding there are at least 02 foreign lawyers, including the Chief of the Branch being presented and practicing laws in Vietnam. Each foreign lawyer has been practicing laws in Vietnam for 183 days or more than in 12 consecutive months.

In case a foreign law-practicing organization setting up many branches in Vietnam, the total foreign lawyers being presented and practicing laws in Vietnam shall be counted in accordance with this Article.

8. The proposed plan of activities of the branch in Vietnam.

Article 28. Application for setting up a foreign law firm

An application for setting up a foreign law firm shall comprise the following main contents:

1. Name, nationality, address of the headquarters of the foreign law-practicing organization; name, address of the headquarters of the Vietnamese law-practicing organization in a joint venture limited liability law firm and a law partnership between foreign law-practicing organizations and the Vietnamese law partnerships;

2. Name of the foreign law firm;

3. Scope of law practice of the foreign law firm;

4. Term of activities of the foreign law firm;

5. Location of the foreign law firm.

6. Surname and name of the lawyer being the Director of the foreign law firm as assigned by the foreign law-practicing organization, being enclosed with papers proving such lawyer having law- practice exercised in at least 02 consecutive years.

7. Commitment of the foreign law firm regarding there are at least 02 foreign lawyers, including the Director of the foreign law firm being presented and practicing laws in Vietnam. Each foreign lawyer has been practicing laws in Vietnam for 183 days or more than in 12 consecutive months.

In case a foreign law firm setting up many branches in Vietnam, the total foreign lawyers being presented and practicing laws in Vietnam shall be counted in accordance with this Article.

8. The proposed plan of activities of the foreign law firm in Vietnam.

Article 29. Languages being used and consular legalization

1. Application for setting up a branch, a foreign law firm; application for granting a law-practice certificate in Vietnam of a foreign lawyer must be made in Vietnamese. If enclosed papers of the application are in foreign languages, such papers must be translated into Vietnamese and their translated versions must be notarized or legalized in accordance with laws of Vietnam.

2. Papers granted, notarized or legalized by foreign organizations or agencies must be legalized by consular agencies in accordance with laws of Vietnam, except cases being exempt from consular legalization according to international treaties in which the Socialist republic of Vietnam is a contracting party.

Article 30. Placing notices on newspapers, notifying on the establishment of a foreign law-practicing organization in Vietnam

Within 15 days, since the date of receiving the Certificate of operation registration, the foreign law-practicing organization in Vietnam is obliged to place notices on the local or centrally-run press in three consecutive editions; to send a written notice to the local tax authority where the foreign law-practicing organization in Vietnam is located, regarding the following main contents:

1. Name, address of the head office of the foreign law-practicing organization in Vietnam;

2. Scope of law practice;

3. Surname and name of Chief of the branch, Director of the foreign law firm.

Article 31. Scope of law practice of foreign law-practicing organizations in Vietnam and Vietnamese lawyers working for foreign law-practicing organizations in Vietnam

1. Scope of law practice of foreign law-practicing organizations in Vietnam shall comply with Article 70 of the Law on Lawyers, in which, foreign law-practicing organizations in Vietnam are not permitted:

a) To legalize copies or translated papers which were issued by state agencies or organizations in Vietnam;

b) To carry out procedures on adoption, marriage, civil status or Vietnamese citizenship;

c) To provide notary public service, bailiff service and other legal services which are intended for Vietnamese law-practicing organizations, Vietnamese notary public-practicing organizations or Vietnamese bailiff -practicing organizations.

2. Vietnamese lawyers working for foreign law-practicing organizations are not permitted to provide services as specified in Clause 1 of this Article.

Article 32. Consolidation of foreign law firms

1. Two or more 100% foreign-owned limited liability law firms may enter into an agreement on consolidation into a new 100% foreign-owned limited liability law firm.

Two or more joint venture limited liability law firms may enter into an agreement on consolidation into a new joint venture limited liability law firm.

Two or more law partnerships between foreign law-practicing organizations and Vietnamese law partnerships may enter into an agreement on consolidation into a new law partnership between foreign-law practicing organizations and Vietnamese law partnerships.

2. Dossiers for consolidation of law firms shall be sent to the Ministry of Justice. A dossier is comprised of:

a) An application for consolidation of law firms;

b) A consolidation contract, in which procedures, time limit and conditions of consolidation, plan of using labors; inheritance of all obligations and rights law firms being consolidated, are clearly stated.

c) The establishment permits of consolidated law firms;

d) The Charter of the consolidating law firm.

Within 10 days, since the date of receiving a valid dossier, the Ministry of Justice may decide to accept the consolidation under the form of granting a License for setting up a consolidating law firm; in case of refusal, there must be a written notice stating reasons clearly.

3. Procedures for registering activities, placing notices on newspapers, notifying the setting up of the consolidating foreign law firm shall be implemented in accordance with Article 79 of the Law on Lawyers and Article 30 of this Decree.

5. After the consolidating law firm being granted with the Certificate of operation registration, consolidated law firms shall cease their operations. The consolidating law firm shall receive all legitimate rights and interests, bear responsibilities for all outstanding debts, prevailing legal service contracts, labor contracts signed with lawyers and other employees and other property-related obligations of consolidated law firms.

Article 33. Merger of foreign law firms

1. One or more 100% foreign-owned limited liability law firms may be merged into another 100% foreign-owned limited liability law firm.

One or more joint venture limited liability law firms may merge into another joint venture limited liability law firm under another form of joint venture.

One or more law partnerships between foreign law-practicing organizations and Vietnamese law partnerships may enter into an agreement on merging into another law partnership between foreign-law practicing organizations and Vietnamese law partnerships.

2. A dossier for merging of law firms is submitted to the Ministry of Justice. A dossier is comprised of:

a) A request for merging of law firms;

b) A merger contract of law firms, in which procedures, time limit and conditions of merger, plan of using labors, inheritance of all obligations and rights of merged law firms, are clearly stated.

c) The establishment permits of merged law firms and the merging law firm.

Within 10 days, since the date of receiving a valid dossier on merging foreign law firms, the Justice Service may decide to approve the merger; in case of refusal, there must be a written notice stating reasons clearly.

3. The merging law firm is not required to register its operation, but to carry out procedure on changing contents of the establishment permits in accordance with Article 80 of the Law on Lawyers.

4. The merging law firm is entitled to receive rights and legitimate interests, bear responsibilities on all outstanding debts, prevailing legal service contracts, labor contracts signed with lawyers and other property-related obligations of merged law firms.

Article 34. Transformation of a branch of a foreign law-practicing organization into a 100% foreign-owned limited liability law firm in Vietnam

1. The branch of a foreign law-practicing organization in Vietnam may be transformed into a 100% foreign-owned limited liability law firm in Vietnam, on the basis of inheritance of all rights and obligations of the branch.

A dossier of transforming a branch of a foreign law-practicing organization into a 100% foreign-owned limited liability law firm is sent to the Ministry of Justice. A dossier is comprised of:

 a) A request for transformation of a foreign law-practicing organization, in which commitments on heritage of all obligations, legitimate rights and interests of transformed branch, shall be clearly stated;

b) A draft Charter of the transforming 100% foreign-owned limited liability law firm;

c) Copies of the establishment permits and Certificates of operation registration of transformed branches;

d) List of lawyers being anticipated to work at the 100% foreign-owned limited liability law firm;

e) Copies of documents proving the headquarters in case of change of the headquarters.

Within 30 days, since the date of receiving a valid dossier, the Ministry of Justice shall decide to grant the permits for setting up a 100% foreign-owned limited liability law firm; in case of refusal, there must be a written notice stating reasons clearly.

2. Procedures for registering activities, placing notices on newspapers, notifying the setting up of the 100% foreign-owned limited liability foreign law firm shall be implemented in accordance with Article 79 of the Law on Lawyers and Article 30 of this Decree.

Article 35. Transformation of a foreign law firm into a Vietnamese law firm

1. 100% foreign-owned limited liability law firms, joint venture limited liability law firms and law partnerships between foreign law-practicing organizations and Vietnamese law partnerships (below collectively referred to as foreign law firms) may transform into Vietnamese law firms on the basis of inheritance of all rights and obligations of foreign law firms.

Names of transforming Vietnamese law firms shall comply with Clause 5 of Article 34 of the Law on Lawyers and must not match with names of transformed foreign law firms.

2. Dossiers on transformation of foreign law firms are sent to the Ministry of Justice. A dossier is comprised of:

a) A request for transforming of foreign law firms;

b) A transformation contract between foreign law firms and Vietnamese side, in which commitments of Vietnamese side on the inheritance of all rights and obligations of transformed foreign law firms are clearly stated;

c) The draft Charter of the Vietnamese law firm;

d) List of members or lawyers being owners of Vietnamese law firms; copies of lawyer cards of lawyers being owners or lawyers being members of Vietnamese law firms;

e) The establishment permit of the transformed law firm.

3. Within 30 days, since the date of receiving a valid dossier, the Ministry of Justice shall grant an acceptance on the transformation; in case of refusal, there must be a written notice stating reasons clearly.

4. Within 15 days, since the date of receiving the acceptance of the Ministry of Justice, the transforming Vietnamese law firm must carry out procedures for registration of the transformation at provincial-level Justice Service where the transformed foreign law firm is located.

A dossier for registering operation of the Vietnamese law firm shall comprise:

a) A request for transformation;

b) The acceptance of the Ministry of Justice;

c) The draft Charter of the Vietnamese law firm;

Within 07 working days, since the date of receiving a valid dossier, the Justice Service shall grant the Certificate of operation registration to the transforming Vietnamese law firm.

5. The foreign law firm ceases its operation since the date the transforming Vietnamese law firm being granted with the Certificate of operation registration.

6. Procedures on notifying contents of Certificate of operation registration of the transforming Vietnamese law firm shall comply with Article 38 of the Law on Lawyers.

Article 36. Procedures for registration of changes in contents of the establishment permits of foreign law firms or branches of foreign law firms

1. Within 30 days, since the date of receiving the acceptance on changing contents of the establishment permit of a branch or of foreign law firm, such branch or foreign law firm must register such changes at the Justice Service at the locality where it is located.

2. A dossier for registration of changes comprises:

a) A request for changing in Certificate of operation registration of the foreign branch or law firm;

b) Copy of the establishment permit of the foreign branch or law firm;

c) The acceptance of the Ministry of Justice regarding changes in contents of the investment License.

3. Within 05 working days, since the date of receiving a valid dossier, the Justice Service shall carry out the registration of changes in contents of Certificate of operation registration by re-granting the Certificate of operation registration to the foreign branch or law firm; in case of refusal, there must be a written notice stating reasons clearly.

Article 37. Procedures for operation registration of a branch of a foreign law firm in Vietnam

1. A dossier for operation registration of a branch of a foreign law firm shall comprise:

a) A request for operation registration of a branch of a foreign law firm in Vietnam;

b) Copy of the establishment permit of the branch of a foreign law firm in Vietnam;

c) Documents proving the head office of the branch of a foreign law firm in Vietnam.

2. Within 07 working days, since the date of receiving a valid dossier, the Justice Service shall grant the License on Certificate of operation registration to the branch of a foreign law firm in Vietnam; in case of refusal, there must be a written notice stating reasons clearly.

Article 38. Operation suspension of the foreign branches or law firms

1. A foreign branch or a foreign law firm may suspend its operation, but they must send a written notice on the suspension and restart to the Ministry of Justice, the Justice Service, and the tax authority at the locality where it is located, within 30 days before the suspension or restart. Duration of suspension shall not exceed 02 years.

2. Report on the suspension shall have the following contents:

a) Name of the branch or the law firm;

b) Number, date, month and year being granted with the establishment permit of the branch or the law firm;

c) Address of the headquarters;

d) Duration of suspension, starting date and ending date of the suspension period;

e) Reasons of suspension;

f) Reports on debt payments, settlement of legal service contracts signed with clients and labor contracts signed with lawyers and other employees of the branch or the law firm.

3. During the suspension, the foreign branch or law firm shall pay full outstanding tax, continue paying other debts and complete performing signed contracts with employees, unless otherwise agreed upon.

With regard to legal service contracts signed with clients that are still under performance, there must be agreements with clients regarding the performance of such contracts.

4. In case a foreign law-practicing firm suspends its operation then the operation of its branches also suspend.

Article 39. Termination of operation of a foreign branch or a foreign law firm

1. A foreign branch or a foreign law firm shall terminate its operation when its establishment permit is withdrawn accordance with Article 40 of this Decree.

2. In case its operation is terminated by itself as specified in Point a, Clause 1 of Article 40 of this Decree, within 30 days before the anticipated date of termination of its operation, the foreign branch or the foreign law firm must send a written notice on termination of its operation to the Ministry of Justice, the Justice Service and the tax authority in the locality where it is located.

Before the anticipated date of termination of its operation, the branch or the foreign law firm must settle outstanding taxes fully, finish paying other debts; carry out procedures on termination of labor contracts signed with lawyers and other employees; settle legal service contracts signed with clients, unless otherwise agreed upon.

The branch, the foreign law firm must send a written notice on the completion of above-mentioned procedures to the Ministry of Justice, the Justice Service and tax authority at the locality where it is located and hand over its seal to the competent state agency that provided and registered the use of its seal.

Within 15 days, since the date of receiving a written report from the foreign branch or the foreign law firm, the Ministry of Justice shall decide terminating operation of the foreign branch or the foreign law firm.

3. In case being terminated due to a withdrawal of the establishment permit as specified in Point b, c, d and e of Clause 1 of Article 40 of this Decree, within 60 days, since the date of receiving the decision on withdrawal of the establishment permit, the branch or the foreign law firm must pay outstanding debts fully, finish paying other debts; finish performing procedures of termination of labor contracts signed with lawyers, other employees; finish performing legal service contracts signed with clients, unless otherwise agreed upon.

The foreign branch or the foreign law firm must send a written notice on the completion of above-mentioned procedures to the Ministry of Justice, the Justice Service and tax authority at the locality where it is located and hand over its establishment permit to the Ministry of Justice, its certificate of operation registration to the Justice Service, and its seal to the competent state agency that provided and registered the use of its seal.

Article 40. Withdrawal of the establishment permit of foreign branches and law firms

1. The establishment permit of a foreign branch or a foreign law firm shall be withdrawn when such foreign branch or foreign law firm falls under one of the following cases:

a) Having its operation terminated by itself;

b) Having administrative violations handled under form of revoking the establishment permit in accordance with laws on handling administrative violations;

c) Not having tax code registered within 01 year from the date of receiving the establishment permit;

d) Not being operated at the registered headquarters in 06 consecutive months, since the date of receiving the Certificate of operation registration;

e) Having its suspension expired in accordance with Clause 1 of Article 38 of this Decree, but the foreign branch or the foreign law firm did not resume its operation nor report on its continuous suspension.

2. The Ministry of Justice decides to withdraw the establishment permit of foreign branches or foreign law firms.

3. The Justice Service decides to withdraw the Certificate of operation registration of foreign branches or foreign law firms.

Article 41. Withdrawal of Law Practice Certificates in Vietnam of foreign lawyers

1. Law Practice Certificate of a foreign lawyer shall be withdrawn when the foreign lawyer falls under one of the following cases:

a) Not meeting full conditions of law practice as specified in Article 74 of the Law on Lawyers;

b) Being handled by administrative violations under the form of revoking the Law Practice Certificate in Vietnam under laws on handling administrative violations;

c) Being held with penal liabilities;

d) No longer practicing law in Vietnam as per his/her aspirations;

2. The Ministry of Justice decides to withdrawal Law Practice Certificates of foreign lawyers.

Article 42. Notifications on violations of the Rules of professional ethics and conduct of Vietnamese lawyers of foreign lawyers

1. When a foreign lawyer being discovered to violate the Rules of professional ethics and conduct of Vietnamese lawyers, the Justice Service where the foreign lawyer is practicing laws shall propose the Ministry of Justice to send a notification to the foreign law-practicing organization in Vietnam where the foreign lawyer is working or the Vietnamese law-practicing organization that recruited such foreign lawyer.

2. The Justice Service shall propose the Ministry of Justice to withdraw or not to extend the Law Practice Certificate in case a foreign lawyer committed violations as specified in Clause 1 of this Article and repeated offence.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 43. Transition Provisions

1. Charters of bar associations which were approved in accordance with the Law on Lawyers No. 65/2006/QH11 shall continue being effective until the Charter of Vietnam Bar Federation as specified in Article 67 of the Law on Lawyers is approved by competent authorities, except contents which are contrary to laws and the Charter of Vietnam Bar Federation.

2. The lawyer-training framework programme which was promulgated together with Decision No. 90/2008/QD-BTP dated January 21, 2008, of the Minister of Justice shall continue being effective until a new lawyer-training framework programme as specified in Article 12 of the Law on Lawyers is promulgated by the Minister of Justice; probationers who participated in the lawyer-training course according to the lawyer-training framework programme of 06 months shall be on law-practicing probation for 18 months.

Article 44. Implementation effect

This Decree takes effect on November 28, 2013.

The Decree No. 28/2007/ND-CP dated February 26, 2007 of the Government, detailing and guiding the implementation of a number of articles of the Law on Lawyers, Decree No.131/2008/ND-CP dated December 31, 2008 guiding the implementation of provisions of the Law on Lawyers regarding socio-professional organizations of lawyers and Article 3, Article 5 of Decree No. 05/2012/ND-CP dated February 2, 2012 amending and supplementing a number of articles of Decrees on registration of secured transactions, legal aid, lawyers, law consultancy shall no longer valid from the date this Decree takes effect.

Article 45. Implementation obligation

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People's Committees, Chairperson of Vietnam Bar Federation shall be responsible for implementation of this Decree.

Minister of Justice takes responsibilities to guide the implementation of Article 4, Article 22 and Article 25 of this Decree./

 

 

 

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Nguyen Tan Dung

 

 


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