Bản dịch văn bản 28/2007/NĐ-CP
nghi-dinh-28-2007-nd-cp
Cơ quan ban hành: Chính phủ
Ngày ban hành: 2007-02-26

DECREE Detailing and guiding the implementation of a number of articles of the Law on lawyers THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to 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; At the proposal of the Minister of Justice, DECREES: Chapter I CRITERIA OF LAWYERS Article 1.- Law bachelor diplomas Person holding a law bachelor diploma defined in Article 10 of the Law on Lawyers means a person having a university diploma in law granted by a Vietnamese higher educational institution or a foreign higher educational institution recognized in Vietnam under regulations of the Ministry of Education and Training or a treaty to which the Socialist Republic of Vietnam is a contracting party. Article 2.- Lawyer-training establishments 1. Lawyer-training establishments under the Justice Ministry and those under the National Bar Association are tasked to train lawyers. 2. A vocational training establishment meeting all the following conditions may train lawyers: a/ Having an adequate and synchronously structured number of administrators and teachers with good moral qualities and training skills who can ensure the achievement of lawyer-training objectives and programs; b/ Having training programs and curricula conformable with the framework lawyer-training program; c/ Having adequate material and financial bases as well as teaching and learning aids. The Justice Minister shall specify criteria and procedures for the founding of lawyer-training establishments. 3. Only graduation certificates issued by lawyer-training establishments of the Justice Ministry, the National Bar Association or foreign lawyer-training establishments recognized by the Justice Minister are valid under the provisions of Article 12 of the Law on Lawyers. Chapter II LAW-PRACTICING ORGANIZATIONS Article 3.- Written requests for registration of operations of law-practicing organizations A written request for registration of operations of a law-practicing organization has the following principal contents: 1. The name of the lawyer's office or the law firm. 2. The address of its head office. 3. The full names and permanent residence addresses of the chief of the lawyer's office or the owner (of a one-member limited liability law firm) or members (of a limited liability law firm with two or more members or a law partnership). 4. The full name of the at-law representative (of a limited liability law firm with two or more members or a law partnership). 5. The domains of law practice. The Justice Ministry shall specify a model written request for registration of operations of law-practicing organizations. Article 4.- Charters of law firms The charter of a law firm has the following principal contents: 1. The name and address of the firm's head office. 2. The type of the law firm. 3. The domains of its law practice. 4. The full names and permanent residence addresses of the owner (of a one-member limited liability law firm) or members (of a limited liability law firm with two or more members or a law partnership). 5. The rights and obligations of the owner or members. 6. The capital portions contributed by the members (of a limited liability law firm with two or more members). 7. The conditions and procedures for inclusion in, or withdrawal from, the list of members (of a limited liability law firm with two or more members or a law partnership). 8. The organizational, managerial and executive apparatuses. 9. The procedures for approval of decisions and resolutions; principles for settlement of internal disputes. 10. The principles for profit sharing and responsibilities of members for the firm's obligations (for a limited liability law firm with two or more members or a law partnership). 11. Cases of suspension or termination of operation and procedures for asset liquidation. 12. The procedures for amendment and supplementation of the charter of the law firm. The charter of a law firm must bear the signature of the owner or those of all members of the firm. Article 5.- Registration of operations of law-practicing organizations 1. A lawyer's office or limited liability law firm with two or more members shall register operations with the Justice Service of the province or city where exists the bar association of which the chief of the office or the director of the firm is a member. A law partnership or a limited liability law firm with two or more members whose members all join a bar association shall register operations with the Justice Service of the province or city where that bar association exists. A law partnership or a limited liability law firm with two or more members whose members join different bar associations shall register operations with the Justice Service of the province or city where it is headquartered. 2. Procedures for registration of operations of law-practicing organizations shall comply with the provisions of Article 35 of the Law on Lawyers. 3. An operation registration paper of a lawyer's office or a law firm shall be made in two copies, one to be granted to the lawyer's office or the law firm and the other to be kept at the provincial/municipal Justice Service. 4. Within 7 days after granting an operation registration paper to a lawyer's office or a law firm, the provincial/municipal Justice Service shall send its copies to the local tax office and the Justice Ministry. 5. Lawyer's offices and law firms shall pay an operation registration fee at the business registration fee rate set for enterprises. 6. After being granted operation registration papers, lawyers' offices and law firms may engrave and use seals in accordance with the seal law. Article 6.- Operation registration papers of law-practicing organizations An operation registration paper of a law-practicing organization has the following principal contents: 1. The name and address of its head office; 2. The domains of its practice; 3. The full name of its at-law representative; 4. The full name and permanent residence address of its members. The Justice Ministry shall specify the form of operation registration papers of law-practicing organizations. Article 7.- Registration of operations of branches of law-practicing organizations 1. Procedures for registration of operations of branches of law-practicing organizations shall comply with the provisions of Article 41 of the Law on Lawyers. Within seven days after being granted a branch's operation registration paper, a law-practicing organization shall send notify such in writing to the Justice Service of the province or city where it is headquartered and to the bar association in the locality where its branch is based. 2. When registering operations of their branches, lawyers' offices and law firms shall pay a registration fee at the rate set for registration of the setting up of enterprise branches. 3. After being granted operation registration papers, branches of law-practicing organizations may use their seals in accordance with the seal law. Article 8.- Transformation of limited liability law firms 1. A one-member limited liability law firm may be transformed into a limited liability law firm with two or more members and vice versa. 2. When a one-member limited liability law firm is transformed into a limited liability law firm with two or more members or vice versa, the director of the law firm shall send the transformation dossier to the provincial/municipal Justice Service with which the firm has registered its operations. Such a dossier comprises: a/ A written request for transformation, clearly stating the transformation purpose and reason; b/ The draft charter of the new law firm; c/ The list of members or owners of the new law firm; d/ The granted operation registration paper. 3. Within 7 working days after receiving a complete dossier or transformation papers specified in Clause 2 of this Article, the provincial/municipal Justice Service shall grant an operation registration paper to the limited liability law firm in accordance with the Law on Lawyers. Article 9.- Employment of foreign lawyers by law-practicing organizations Law-practicing organizations may sign labor contracts to employ foreign lawyers who have been granted permits to practice law in Vietnam. Rights and obligations of foreign lawyers employed by law-practicing organizations are agreed in contracts in accordance with the Law on Lawyers, this Decree and relevant laws. Within 7 working days after signing a contract to employ a foreign lawyer, a law-practicing organization shall send a written notice thereof to the provincial/municipal Justice Service where it has registered operations, enclosed with the employment contract. Within 7 working days after terminating a foreign lawyer employment contract, the law-practicing organization shall notify such in writing to the provincial/municipal Justice Service where it has registered operations. Chapter III REMUNERATION FOR LAWYERS PARTICIPATING IN LEGAL PROCEEDINGS IN CRIMINAL CASES Article 10.- Ceiling rate of remuneration for lawyers participating in criminal legal proceedings 1. The level of remuneration for lawyers participating in criminal legal proceedings shall be agreed upon in legal service contracts between clients and lawyers' offices, law firms or individually practicing lawyers under the provisions of Clause 1, Article 55 of the Law on Lawyers, and shall be calculated on an hourly basis or in a lump sum per case, which, however must not exceed VND 100,000/working hour of lawyers. The working time of a lawyer shall be agreed upon between that lawyer and his/her client. 2. Lawyers' offices, law firms and individually practicing lawyers are encouraged to exempt or reduce lawyers' remuneration for the poor and policy beneficiaries. Article 11.- Remuneration and expenses for lawyers who participate in legal proceedings at the request of legal proceeding-conducting agencies 1. For cases in which lawyers are requested by legal proceeding-conducting agencies, the remuneration rate is VND 120,000/working day for each lawyer. 2. Working time of a lawyer includes: a/ The time for meeting with the person in custody, the accused and defendant; b/ The time for gathering documents, objects or details relating to his/her defense; c/ The time for studying dossiers and preparing documents at the legal proceeding-conducting agency; d/ The time for participation in court hearings; e/ Other rational time for participation in legal proceedings at the request of the legal proceeding-conducting agency. 3. Apart from remuneration, in the course of preparing and participating in defense at court hearings, lawyers are entitled to the payment of travel and accommodation expenses according to regulations on work trip allowances for cadres and civil servants on domestic work trips. 4. The legal proceeding-conducting agency which has requested lawyers to participate in legal proceedings is obliged to pay according to state regulations remuneration and expenses mentioned in Clauses 1 and 3 of this Article. The fund for payment is included in the annual budget estimate of the legal proceeding-conducting agency. Chapter IV SETTING UP AND DISSOLUTION OF BAR ASSOCIATIONS Article 12.- Setting up of bar associations 1. A bar association may be set up in a province or centrally run city where exist three or more holders of law practice certificates. 2. A dossier for setting up of a bar association comprises: a/ A written request for setting up of a bar association; b/ A list of founders; c/ Copies of law practice certificates of the founders; d/ The draft charter of the bar association. 3. Within 15 days after receiving a dossier, the provincial/municipal People's Committee shall send a report to the Justice Ministry on the setting up of a bar association in the locality. After getting written consent of the Justice Minister, the president of the provincial/municipal People's Committee shall decide to permit the setting up of a bar association; in case of refusal, he/she shall notify in writing the applicant of the reason therefor. The applicant may lodge a complaint in accordance with law. 4. Provincial/municipal Justice Services shall assist provincial/municipal People's Committees in guiding and carrying out procedures for setting up bar associations. Article 13.- Dissolution of bar associations A bar association is dissolved in one of the following cases: 1. It no longer has enough 3 lawyers; 2. It commits a serious violation of law. Provincial/municipal People's Committees shall decide on dissolution of bar associations after reaching agreement with the Justice Minister. Provincial/municipal Justice Services shall assist provincial/municipal People's Committees in guiding and carrying out procedures for dissolution of bar associations. Chapter V LAW PRACTICE BY FOREIGN LAW-PRACTICING ORGANIZATIONS AND FOREIGN LAWYERS IN VIETNAM Article 14.- Names of foreign law-practicing organizations in Vietnam 1. The name of a foreign law-practicing organization in Vietnam must include the words " chi nhanh " (branch), the name of the foreign law-practicing organization and the name of the province or centrally run city where the branch is located. 2. The name of a foreign-owned law firm in Vietnam must include the phrase " cong ty luat trach nhiem huu han " (limited liability law firm) and the name of the foreign law-practicing organization. 3. The name of a joint-venture law firm between a foreign law-practicing organization and a Vietnamese one shall be selected and agreed upon by concerned parties and must include the phase " cong ty luat trach nhiem huu han " (limited liability law firm." Article 15.- Applications for setting up of branches An application for setting up of a branch has the following principal contents: 1. The name, nationality and address of the head office of the foreign law-practicing organization. 2. The name of the branch. 3. The domains of its law practice. 4. The term of operation of the branch. 5. The location of the branch's office. 6. The full name of the lawyer appointed as the branch's head by the foreign law-practicing organization. Article 16.- Applications for establishment of foreign law firms An application for establishment of a foreign law firm has the following principal contents: 1. The name, nationality and address of the head office of the foreign law-practicing organization; the name, address of the head office of the Vietnamese law-practicing organization, for a joint venture. 2. The name of the foreign law firm. 3. The domains of its law practice. 4. The term of its operation. 5. The location of its head office. 6. The full name of the lawyer appointed as its director. Article 17.- Language and consular legalization 1. Applications for setting up of branches or foreign law firms in Vietnam and foreign lawyers' applications for certificates of law practice in Vietnam shall be made in Vietnamese. Enclosed papers, if in foreign languages, shall be translated into Vietnamese and the translations shall be authenticated under the provisions of Vietnamese law. 2. Papers granted by foreign agencies or organizations or notarized or authenticated in foreign countries shall be consularly legalized in accordance with Vietnamese law, unless they are exempted from consular legalization under a treaty to which the Socialist Republic of Vietnam is a contracting party. Article 18.- Publication on newspapers, notification of establishment of foreign law-practicing organizations in Vietnam Within 15 days after being granted an operation registration paper, a foreign law-practicing organization in Vietnam shall publish in a central or local newspaper for three consecutive issues, and notify in writing the bar association and tax office of the locality where it is headquartered, of the following principal contents: 1. The name and address of the head office of the foreign law-practicing organization in Vietnam. 2. The domain of its law practice; 3. The full name of the head of the branch or director of the foreign law firm. Article 19.- Consolidation of foreign law firms Two or more foreign law firms may reach agreement on consolidation into a new one. Consolidation procedures are as follows: 1. Foreign law firms shall prepare a consolidation contract and a contract on the establishment of a new foreign law firm. The consolidation contract must specify consolidation procedures and conditions; the labor use plan; the time limit, procedures and conditions for handover of assets; and the consolidation time limit. Within 10 days after receiving a valid consolidation application and dossier, the Justice Ministry shall approve the consolidation by granting a license for the establishment of a new foreign law firm; in case of refusal, it shall notify in writing the reason. 2. Procedures for operation registration, publication on newspapers and notification of the establishment of a new foreign law firm are as defined in Article 79 of the Law on Lawyers and Article 18 of this Decree. 3. After the new foreign law firm is granted an operation registration paper, the old ones no longer exist. The new foreign law firm is entitled to legitimate rights and interests, takes responsibility for unpaid debts and legal service contracts being carried out as well as labor contracts signed with lawyers and employees and other asset liabilities of the foreign law firms. Article 20.- Merger of foreign law firms One or some foreign law firms may be merged into another one. Procedures for merger of foreign law firms are as follows: 1. Relevant foreign law firms shall prepare a merger contract which must specify the labor use plan; the time limit, procedures and conditions for handover of assets; the merger procedures and time limit. 2. The merging foreign law firm needs not register operations but only fill in procedures for changes in the contents of its establishment license under the provisions of Article 80 of the Law on Lawyers. The merging foreign law firm is entitled to legitimate rights and interests, takes responsibility for unpaid debts and legal service contracts being carried out, labor contracts signed with lawyers and employees and other asset liabilities of the merged foreign law firm(s). Article 21.- Suspension of operations 1. A foreign law-practicing organization in Vietnam shall suspend operations in one of the following cases: a/ It decides on the suspension of operations by itself; b/ It is administratively sanctioned in the form of suspension of operations for a given period. 2. When a foreign law-practicing organization in Vietnam suspends operations under the provisions of Point a, Clause 1 of this Article, it shall notify such in writing to the Justice Ministry within 30 days before the expected date of suspension. A foreign law-practicing organization in Vietnam may suspend operations on the date the Justice Ministry issues a written approval thereon. 3. Within 15 days after getting a written approval from the Justice Ministry or a decision on suspension of its operations, the foreign law-practicing organization in Vietnam shall notify in writing the suspension of its operations to the provincial/municipal Justice Service, the bar association and the tax office of the locality where it is headquartered. 4. During the time of suspension of its operations, a foreign law-practicing organization in Vietnam shall fully pay outstanding tax debts and other debts; take responsibility for legal service contracts signed with clients as well as labor contracts signed with its lawyers and employees, unless it is otherwise agreed upon by concerned parties. 5. At least 30 days before resuming its operations, a foreign law-practicing organization in Vietnam shall send a report on the resumption to the Justice Ministry, the provincial/municipal Justice Service, the bar association and the tax office of the locality where it is headquartered. Article 22.- Termination of operation 1. A foreign law-practicing organization in Vietnam shall terminate its operations in one of the following cases: a/ It terminates its operations by itself; b/ Its license is revoked. 2. In case of self-termination of operations, at least 30 days before the expected time of termination, the foreign law-practicing organization in Vietnam shall notify such in writing to the Justice Ministry, the provincial/municipal Justice Service and the tax office of the locality where it is headquartered. Within 15 days after receiving a written notice of termination of operations of a foreign law-practicing organization in Vietnam, the Justice Ministry shall issue a decision thereon. Before terminating its operations, a foreign law-practicing organization in Vietnam shall fully pay outstanding tax debts and other debts; complete procedures for termination of labor contracts signed with its lawyers and employees; and liquidate legal service contracts signed with its clients, unless it is otherwise agreed upon. 3. When a foreign law-practicing organization in Vietnam has its establishment license revoked, within 60 days after getting the Justice Ministry's decision on termination of its operations or decision on license revocation, it shall fully pay the outstanding tax debts and other debts; complete procedures for termination of labor contracts signed with its lawyers and employees; and liquidate legal service contracts signed with its clients, unless otherwise agreed upon. The foreign law-practicing organization in Vietnam shall send to the Justice Ministry, the provincial/municipal Justice Service, the bar association and the tax office of the locality where it is headquartered a report on the completion of the above procedures; turn in its license to the Justice Ministry, its operation registration paper to the provincial/municipal Justice Service and its seal to the agency competent to grant and register the use of seals. Article 23.- Fees Foreign law-practicing organizations in Vietnam and foreign lawyers applying for establishment licenses, operation registration, changes in the contents of their licenses or practice licenses in Vietnam shall pay fees in accordance with the law on charges and fees. Chapter VI STATE MANAGEMENT OF LAWYERS AND LAW PRACTICE Article 24.- Tasks and powers of the Justice Ministry in the state management of lawyers and law practice 1. The Justice Ministry shall take responsibility before the Government for performing the state management of lawyers and law practice under the provisions of Clause 2, Article 83 of the Law on Lawyers. 2. Annually, the Justice Ministry shall make budget estimates to support the retraining of lawyers and training in law practice as well as activities of bar associations located in extreme difficulty-hit provinces in accordance with the law on the state budget. Article 25.- Tasks and powers of provincial/municipal People's Committees in the state management of lawyers and law practice 1. Provincial/municipal People's Committees shall perform the state management of lawyers and law practice in localities under the provisions of Clause 4, Article 83 of the Law on Lawyers. 2. Provincial/municipal Justice Services shall assist provincial/municipal People's Committees in performing the state management of lawyers and law practice in localities, having the following tasks and powers: a/ Evaluating and submitting dossiers to provincial/municipal People's Committees for decision on the establishment or dissolution of bar associations; b/ Evaluating and submitting dossiers to provincial/municipal People's Committees for approval of charters of bar associations. c/ Granting, revoking operation registration papers of Vietnamese law-practicing organizations and foreign law-practicing organizations in Vietnam; d/ Supplying information on the registration of operations of lawyers' offices and law firms at the request of state agencies, organizations and individuals in accordance with law; e/ Requesting law-practicing organizations to report on their operations when necessary; f/ Reporting periodically to the Justice Ministry and provincial/municipal People's Committees on the situation of lawyers' organizations and law practice; g/ Advising, suggesting measures to support the development of law practice in localities to provincial/municipal People's Committees; h/ Inspecting, supervising, settling complaints and denunciations related to the organization and operations of bar associations and law-practicing organizations according to their competence or under authorization by the Justice Minister or presidents of provincial/municipal People's Committees; administratively sanctioning lawyers and law-practicing organizations according to their competence. Chapter VII IMPLEMENTATION PROVISIONS Article 26.- Implementation effect This Decree takes effect 15 days after its publication in "CONG BAO." The Government's Decree No. 94/2001/ND-CP of December 12, 2001, detailing the implementation of the Ordinance on Lawyers; Decree No. 87/2003/ND-CP of July 22, 2003, on law practice by foreign lawyers' organizations and foreign lawyers in Vietnam; the Justice Ministry's Circular No. 02/2002/TT-BTP of January 22, 2002, guiding a number of provisions of the Government's Decree No. 94/2001/ND-CP of December 12, 2001, detailing the implementation of the Ordinance on Lawyers; and Circular No. 06/2003/TT-BTP of October 29, 2003, guiding a number of provisions of the Government's Decree No. 87/2003/ND-CP of July 22, 2003, on law practice by foreign lawyers' organizations and foreign lawyers in Vietnam, cease to be effective on the effective date of this Decree. Article 27.- Responsibilities for implementation of the Decree Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shall implement this Decree. The Justice Minister shall guide the implementation of this Decree.