Bản dịch văn bản 02/2007/TT-BTP
thong-tu-02-2007-tt-btp
Cơ quan ban hành: Bộ Tư pháp
Ngày ban hành: 2007-04-25

CIRCULAR Guiding a number of provisions of the Law on Lawyers and the Decree detailing and guiding the implementation of a number of articles of the Law on Lawyers Pursuant to the June 29, 2006 Law No. 65/2006/QH11 on Lawyers; Pursuant to the National Assembly's Resolution No. 65/2006/QH11 of June 29, 2006, on the implementation of the Law on Lawyers; Pursuant to the Government's Decree No. 28/2007/ND-CP of February 26, 2007, detailing and guiding the implementation of a number of articles of the Law on Lawyers; Pursuant to the Government's Decree No. 62/2003/ND-CP of June 6, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Justice; The Ministry of Justice guides the implementation of a number of provisions of the Law on Lawyers and Decree No. 28/2007/ND-CP as follows: I. LAWYER TRAINING 1. Lawyer-training establishments include the Justice Academy under the Justice Ministry and lawyer-training establishments set up by the National Bar Association. A lawyer-training establishment must satisfy all the following criteria: a/ Having at least one trainer for every 20 trainees; A trainer training lawyers must be a lawyer who has practiced law as a lawyer, a judge, a procurator or a specialized legal expert for at least 5 years; has professional prestige, teaching skills, and good political and moral qualities; Lawyer trainers may be full-time or part-time; b/ Having a contingent of administrators, including the director and officers in charge of organization, training, administrative affairs and administration; c/ Having a lawyer-training program and textbooks conformable with the framework program promulgated by the Minister of Justice; d/ Having stable facilities, adequate financial capacity and other physical conditions for at least 200 trainees per training course. 2. A dossier of application for permission to set up a lawyer-training establishment comprises: a/ A written request for permission to set up a lawyer-training establishment; b/ A scheme on setting up a lawyer-training establishment, specifying sources of trainers and administrators, training scope, location of the establishment and financial sources; c/ The curriculum vitae of the director of the establishment; d/ A list of trainers, enclosed with their resumes; and written commitments on participation in training at the establishment, for part-time trainers; e/ The lawyer-training program and textbooks expected to be used; f/ A document certifying land use rights or house ownership rights or a competent agency's written approval on the right to use land for a long term in order to build the establishment, or a house or land rental contract (valid for at least 5 years); g/ A competent finance agency's written certification of the financial capacity of the applying organization. 3. Dossiers of application for permission to set up lawyer-training establishments are sent to the Ministry of Justice. Within 30 days after receiving a complete dossier, the Minister of Justice shall consider and issue a permit for setting up a lawyer-training establishment; in case of refusal, he/she shall give a written reply clearly stating the reason. The Judicial Assistance Department shall receive and evaluate dossiers of application for permission to set up lawyer-training establishments. 4. A lawyer-training establishment set up by the National Bar Association has the legal status and operates according to the law applicable to non-public education and training establishments. 5. The Judicial Assistance Department shall assume the prime responsibility for, and coordinate with the Personnel and Organization Department and the Justice Academy in formulating a lawyer-training framework program to be submitted to the Minister of Justice for promulgation. 6. If wishing to be recognized in Vietnam, persons holding lawyer-training certificates issued by competent foreign agencies or organizations shall send dossiers of request to the Ministry of Justice. A dossier of request for recognition of a lawyer-training certificate comprises: a/ A written request for recognition of a lawyer-training certificate; b/ A copy of the lawyer-training graduation certificate, enclosed with the relevant lawyer-training program. Within 15 days after receiving a complete dossier, the Minister of Justice shall issue a decision recognizing a lawyer-training certificate; in case of refusal, he/she shall give written reply clearly stating the reason; the refused requester may complain about the decision in accordance with law. II. PROCEDURES FOR WITHDRAWAL OF LAW PRACTICE CERTIFICATES 1. The Minister of Justice may decide to withdraw the law practice certificate of a lawyer who falls into one of the cases specified in Clause 1, Article 18 of the Law on Lawyers. 2. If a lawyer is disciplined in the form of having his/her name deleted from the roll of lawyers of a bar association, within 7 working days after issuing the disciplining decision, the managing board of the bar association where the disciplined lawyer works may make a written request to the Minister of Justice for withdrawal of that lawyer's law practice certificate. If detecting that a lawyer falls into one of the cases specified at Point a, b, c, e or f, Clause 1, Article 18 of the Law on Lawyers, the managing board of the bar association of which the lawyer is a member shall report the case to and request the Minister of Justice to withdraw that lawyer's law practice certificate. 3. Within 15 days after receiving a written request for withdrawal of a law practice certificate, the Minister of Justice shall issue a decision on the withdrawal of the law practice certificate; in case of refusal, he/she shall give a written reply stating the reason. A decision on the withdrawal of a law practice certificate is sent to the lawyer who has the withdrawn certificate, the bar association of which he/she was a member, the National Bar Association, the central legal proceeding-conducting agencies and the provincial/municipal Justice Service of the locality where exists the bar association of which the lawyer was a member. Within 7 working days after issuing a decision on the withdrawal of a law practice certificate, the Ministry of Justice shall publish that decision in three consecutive issues of the Vietnam Law (Phap Luat Viet Nam) newspaper. Within 7 working days after receiving a decision on the withdrawal of a law practice certificate, the National Bar Association shall withdraw the lawyer's card of the lawyer having the withdrawn certificate. The managing board of the bar association is responsible for collecting the law practice certificate and lawyer's card of that lawyer. 4. A person whose law practice certificate is withdrawn must stop practicing law from the date the decision on the withdrawal of the law practice certificate takes effect. III. TRANSITIONAL PROVISIONS APPLICABLE TO LAWYERS 1. Law practice certificates granted under the 2001 Ordinance on Lawyers continue to be valid according to the Law on Lawyers. 2. Probationary lawyers governed by the 2001 Ordinance on Lawyers may continue to practice law on a probationary basis; but must neither agree to provide nor provide legal services to customers. If a probationary lawyer governed by the 2001 Ordinance on Lawyers is providing legal services to a customer, he/she must hand over the case to the supervisory lawyer; if the customer disagrees, the law-practicing organization where the supervising lawyer practices law and the customer may reach agreement on the handling of the case. 3. The probation period of a lawyer under the 2001 Ordinance on Lawyers shall be accounted into the probation period of that lawyer under the Law on Lawyers. 4. Lawyer's cards granted under the 2001 Ordinance on Lawyers are no longer valid. The managing boards of bar associations are responsible for withdrawing probationary lawyer's cards. 5. A probationary lawyer under the 2001 Ordinance on Lawyers who practices law in a law-practicing organization in a locality other than the locality where exists the bar association which he/she has joined may continue practicing law on a probationary basis at that organization but must register the probation in accordance with the Law on Lawyers at the bar association in the locality where that organization registers its operation. When registering the probation, a probationary lawyer shall transfer the original dossier from the bar association which he/she has joined to the bar association where he/she registers the probation. 6. Pending the establishment of the National Bar Association, the Ministry of Justice shall examine lawyer's probation results in accordance with the Regulation on lawyers' probation completion tests issued together with the Justice Minister's Decision No. 667/2004/QD-BTP of December 8, 2004. 7. Pending the establishment of the National Bar Association, the managing boards of bar associations shall grant lawyer's cards according to the form set by the Ministry of Justice. IV. TRANSITIONAL PROVISIONS APPLICABLE TO LAW-PRACTICING ORGANIZATIONS 1. Operation registration papers of lawyer's offices set up by one lawyer each; operation registration papers of law partnerships, of branches of lawyer's offices set up by one lawyer each or branches of law partnerships, which were granted under the 2001 Ordinance on Lawyers, continue to be valid according to the Law on Lawyers. When a law partnership which has registered its operation under the 2001 Ordinance on Lawyers wishes to provide legal services related to legal proceedings, it shall submit an application for addition of this business line together with the granted operation registration paper to the provincial/municipal Justice Service where it has registered its operation. Within 10 working days after receiving the application, the provincial/municipal Justice Service shall re-grant the operation registration paper to the law partnership in accordance with the Law on Lawyers. 2. Within 6 months after the Law on Lawyers takes effect, a lawyers' office set up by some lawyers under the 2001 Ordinance on Lawyers must fill in the procedures for transformation into a law partnership in accordance with the Law on Lawyers at the provincial/municipal Justice Service where it has registered its operation; in case of no transformation, it must terminate its operation. A transformation dossier comprises: a/ A written request for transformation; b/ The draft charter of the law partnership; c/ The roll of members; d/ The operation registration paper of the lawyer's office. Within 7 working days after receiving a complete dossier, the provincial/municipal Justice Service shall grant an operation registration paper to the law partnership. The law partnership may use the name of the former lawyer's office or select a new name. The law partnership is entitled to the rights of the transformed lawyer's office and is obliged to perform the obligations which have not yet been fulfilled by the office. Within 15 days after being granted an operation registration paper, a law partnership shall send a written request for transformation of a branch of the lawyer's office into the partnership's branch to the provincial/municipal Justice Service where the branch has registered its operation. That written request must be enclosed with the operation registration paper of the branch and a copy of the operation registration paper of the law partnership. Within 7 working days after receiving the written request, the provincial/municipal Justice Service shall grant an operation registration paper to the branch of the law partnership in accordance with the Law on Lawyers. 3. Lawyer's offices and law partnerships which registered their operation under the 2001 Ordinance on Lawyers and which now wish to be transformed into limited liability law firms must stop their operations and fill in procedures for registration of operation of limited liability law firms in accordance with the Law on Lawyers. Limited liability law firms may use the names of the lawyer's offices or the law partnerships which have terminated operation. 4. Operation registration papers of law-practicing organizations and law practice registration papers of individually practicing lawyers are numbered as follows: The first two figures are the provincial code; the following two figures are the code of the form of law practice; and the last four figures are the ordinal numbers used commonly for various types of law-practicing organizations, their branches and individually practicing lawyers. The ordinal numbers of the operation registration papers or law practice registration papers granted under the Law on Lawyers follow the last registered ordinal number of the registration paper granted under the 2001 Ordinance on Lawyers. For cases of transformation under Clauses 2 and 3 of this Section, the registered ordinal numbers of a lawyer's office or a law firm shall be retained in the newly granted operation registration paper. V. TRANSITIONAL PROVISIONS APPLICABLE TO FOREIGN LAW-PRACTICING ORGANIZATIONS AND FOREIGN LAWYERS IN VIETNAM 1. Establishment permits and operation registration papers of branches of foreign law-practicing organizations or foreign law firms in Vietnam, branches of foreign law firms in Vietnam and permits for foreign lawyers to practice law in Vietnam, which were granted under the Government's Decree No. 87/2003/ND-CP of July 22, 2003, on law practice by foreign law-practicing organizations and foreign lawyers in Vietnam, continue to be valid according to the Law on Lawyers. 2. Registration numbers of the operation registration papers of foreign law-practicing organizations in Vietnam, which are granted under the Law on Lawyers, follow the last registration number of the registration paper granted under the Government's Decree No. 87/2003/ND-CP of July 22, 2003, on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam. VI. TRANSFORMATION PROVISIONS APPLICABLE TO ORGANIZATIONS AND INDIVIDUALS DEALING IN LEGAL SERVICES UNDER THE ENTERPRISE LAW 1. Within 6 months from the date the Law on Lawyers takes effect, organizations having registered to deal in legal services under the Enterprise Law shall fill in procedures for termination of the provision of legal services according to the Enterprise Law; if wishing to continue providing legal services, they shall register their operation at provincial/municipal Justice Services in one of the forms of law-practicing organizations provided for in the Law on Lawyers. 2. Individuals dealing in legal services under the Enterprise Law who wish to continue providing these services must possess law practice certificates, join a bar association and practice law in accordance with the Law on Lawyers. VII. TRANSITIONAL PROVISIONS APPLICABLE TO BAR ASSOCIATIONS 1. Bar associations set up under the 2001 Ordinance on Lawyers may continue to operate in accordance with the Law on Lawyers. 2. The managing boards and the commendation and discipline councils of bar associations elected under the 2001 Ordinance on Lawyers may continue performing their tasks and powers according to the Law on Lawyers till the new ones are elected in accordance with this Law. VIII. EXAMINATION, INSPECTION OF LAW-PRACTICING ORGANIZATIONS AND LAW PRACTICE 1. The Ministry of Justice and People's Committees of provinces and centrally run cities shall examine law-practicing organizations and law practice according to their competence. 2. Annually, provincial/municipal Justice Services shall examine law-practicing organizations and law practice in their localities. The time and contents of periodical examination must be notified to examinees at least 7 days in advance. Provincial/municipal Justice Services may conduct extraordinary examinations at the request of the Ministry of Justice or provincial/municipal People's Committees. 3. The examination covers: a/ Examining the organization and law practice of Vietnamese and foreign law-practicing organizations in Vietnam; b/ Examining the observance of law by individually practicing lawyers; c/ Examining the observance of law by lawyers' socio-professional organizations. 4. The Ministry of Justice, provincial/municipal People's Committees and provincial/municipal Justice Services shall inspect law-practicing organizations and law practice in accordance with the inspection law. IX. REPORTING 1. Biannually and annually, provincial/municipal Justice Services shall report to the Ministry of Justice on law-practicing organizations and law practice in their localities. Biannual reports are made for the period from January 1 to June 30 and must be sent before July 15 while annual reports for the period from January 1 to December 31 and sent before January 15 of the year following the reporting year. In addition to periodical reports, provincial/municipal Justice Services shall report on law-practicing organizations and law practice in their localities at the request of the Ministry of Justice. 2. Provincial/municipal Justice Services shall report to provincial/municipal People's Committees on law-practicing organizations and law practice in their localities. X. TO PROMULGATE TOGETHER WITH THIS CIRCULAR FORMS OF THE FOLLOWING PAPERS (all forms are not printed herein): 1. Written request for the grant of a law practice certificate. 2. Resume. 3. Written request for registration of operation of a lawyer's office or a one-member limited liability law firm. 4. Written request for registration of operation of a law partnership or a limited liability law firm with two or more members. 5. Written request for registration of operation of a law-practicing organization's branch. 6. Written request for registration of law practice by an individual lawyer. 7. Operation registration paper of a lawyer's office or a one member limited liability law firm. 8. Operation registration paper of a law partnership or a limited liability law firm with two or more members. 9. Operation registration paper of a law-practicing organization's branch. 10. Operation registration paper of individually practicing lawyer. 11. Report of the provincial/municipal Justice Service on law-practicing organizations and law practice in a locality. 12. Application for permission to set up a branch of a foreign law-practicing organization or a limited liability law firm with 100% foreign capital in Vietnam. 13. Application for permission to set up a limited liability law firm in the form of a joint venture in Vietnam. 14. Application for a law practice permit for a foreign lawyer in Vietnam. 15. Operation registration paper of a foreign law-practicing organization's branch in Vietnam. 16. Operation registration paper of a limited liability law firm with 100% foreign capital in Vietnam. 17. Operation registration paper of a limited liability law firm in the form of a joint venture in Vietnam. 18. Operation registration paper of a foreign law firm's branch in Vietnam. 19. Report on the organization and operation of a foreign law firm's branch in Vietnam. 20. Report of the provincial/municipal Justice Service on law practice by branches, foreign law firms and foreign lawyers in a locality. XI. IMPLEMENTATION EFFECT This Circular takes effect 15 days after its publication in "CONG BAO." Any problem arising in the course of implementation should be reported to the Ministry of Justice for timely settlement.