GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No: 123/2013/ND-CP
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Hanoi,14 October 2013
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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
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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:
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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.
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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.
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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
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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);
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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
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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
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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.
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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.
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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.
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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.
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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.
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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;
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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.
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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.
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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:
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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.
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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.
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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.
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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.
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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;
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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:
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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
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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;
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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.
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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:
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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;
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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:
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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;
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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.
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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:
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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
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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;
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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;
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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.
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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./
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