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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No: 28/2007/ND-CP
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Hanoi,
February 26, 2007
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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
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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
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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
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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.
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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.
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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.
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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;
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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.
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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.
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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;
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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
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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.
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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.
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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.
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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.
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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.
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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
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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;
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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
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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.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung