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MINISTRY OF
JUSTICE
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 02/2021/TT-BTP
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Hanoi, May 25,
2021
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CIRCULAR
ON
GUIDELINES FOR CALCULATING WORKING TIME BASED ON ACTUAL WORKING SESSIONS AND
FIXED WORKING TIME FOR LEGAL AID CASE
Pursuant to the Law on Legal Aid dated June 20,
2017;
Pursuant to the Government's Decree No.
144/2017/ND-CP dated December 15, 2017 on elaboration of the Law on Legal Aid;
Pursuant to Decree No. 96/2017/ND-CP dated
August 16, 2017 of the Government defining the functions, tasks, powers and
organizational structure of the Ministry of Justice;
At the request of the Director of the Legal Aid
Department;
The Minister of Justice promulgates a Circular
on guidelines for calculating working time based on actual working sessions and
fixed working time for legal aid case.
Chapter I
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Article 1. Scope and regulated
entities
1. This Circular guides the calculation of working
time based on actual working sessions and fixed working time for legal aid case
as a basis for payment of remuneration and gratuity for the performance of
legal aid services in the form of participation in proceedings, extrajudicial representation.
2. This Circular applies to the following entities:
a) Legal aid providers;
b) Lawyers providing legal aid;
c) Organizations signing contracts to provide legal
aid;
d) The State Legal Aid Center (hereinafter referred
to as the Center), the Center's Branch (hereinafter referred to as the Branch);
Departments of Justice and other relevant agencies, organizations and
individuals.
Article 2. Principles of
implementation
1. Ensure compliance with the provisions of the law
on remuneration, gratuity, and procedures for payment of remuneration, gratuity
to legal aid providers and organizations signing contracts to provide legal
aid.
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3. When declaring the time and work of the legal
aid case, the declarant is responsible for the truthfulness of the declaration.
4. When confirming the time and work of the legal
aid provider, the certifying person is responsible for the authenticity of the
certification.
Chapter II
CALCULATION OF WORKING
TIME BASED ON ACTUAL WORKING SESSIONS
Article 3. Working time based
on actual working sessions
1. Working time based on actual working sessions (a
half of working day) applies to legal aid case in the form of participation in
proceedings, extrajudicial representation by legal aid-providing persons as a
basis for payment of remuneration and gratuity for the performance of legal aid
services.
2. An actual working session is calculated on the
basis of 04 working hours. In case the legal aid-providing person works less
than 04 hours, the calculation shall be as follows:
a) Calculated as a half of working session if the
number of working hours is less than 03 hours;
b) Calculated as a working session if the number of
working hours is at least 03 hours.
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Article 4. Time for
participation in criminal proceedings
1. Grounds for calculating the working time to
provide legal aid for cases participating in criminal procedures include:
a) Participating in interrogation of the accused or
taking testimonies of the accused, victims, witnesses and involved parties in
criminal cases;
b) Participating in confrontation, recognition,
voice recognition, crime scene examination, autopsies, examination of traces on
the body, experimental investigation and performing other proceedings as upon
request of the presiding agencies;
c) Working with presiding officers, presiding
agencies;
d) Verifying, taking, and evaluating relevant
documents, objects and evidence according to proceeding stages;
dd) Working with the accused at the custody room of
the border guard station, the remand center, detention center or the prison;
e) Meeting with the accused on bail or relatives of
the accused; the victim or kindred of the victim; witnesses, involved parties
in criminal cases and other participants in legal proceedings;
g) Studying case files, copying, and preparing
documents at the presiding agencies or at the Center, Branch, or organization
signing contract to provide legal aid;
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i) Participating in court hearings. In case a legal
aid-providing person appears in court but the court session is adjourned not due
to the request of the legal aid-providing person and without prior notice, the
working time of the legal aid-providing person begins from the time when he/she
has worked with presiding agencies and presiding persons on related matters the
time when the court session is adjourned;
k) Performing work related to procedures for
appealing the first-instance judgments, appellate judgments, cassation
procedures or reopening procedures;
l) Performing other reasonable tasks as prescribed
by law in service of defense and contest.
2. Remuneration, gratuity paid for a legal
aid-providing person when performing the tasks specified at Points e, g, h, l,
Clause 1 of this Article must not exceed the maximum number of working sessions
to carry out these tasks according to the respective fixed working time
specified in Appendix 01 issued with this Circular.
3. The working time of the legal aid-providing
person must be certified by agencies, organizations, or individuals as follows:
a) The time for performing the activities specified
at Point a, Clause 1 of this Article shall be certified by the presiding person
or the presiding agency;
b) The time for performing the activities specified
at Points b and c, Clause 1 of this Article shall be certified by the presiding
person or the presiding agency or by the person working directly with the legal
aid-providing person;
c) The time for performing the activities specified
at Point d, Clause 1 of this Article shall be certified by the agency or
organization or individual with which the legal aid-providing person directly
works;
d) The time for performing the activities specified
at Point dd, Clause 1 of this Article shall be certified by the accused or by
the presiding agency or by an officer of the border guard station; remand center;
detention center; or prison;
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e) The time for performing the activities specified
at Point g, Clause 1 of this Article shall be certified by the presiding person
or the Center, Branch or organization signing the contract to provide the legal
aid;
g) The time for performing the activities specified
at Points h, k, l, Clause 1 of this Article shall be certified by the Center or
Branch or the organization signing the contract to provide the legal aid;
h) The time for performing the activities specified
at Point i, Clause 1 of this Article shall be certified by the judge or the
court reporter.
Article 5. Time for
participation in civil proceedings
1. Grounds for calculating the working time to
provide legal aid for cases participating in civil procedures include:
a) Working with legally-aided persons and related
people to determine the disputed legal relationship; assess the requirements
for initiating lawsuits, counterclaims, and independent claims; advice and
guidance on writing lawsuit petitions, petitions for application of provisional
urgent measures, and counter-claims; independent petitions, providing evidence
to the court; guiding the preparation of lawsuit dossiers or other tasks during
the stage of lawsuit initiation and case handling;
b) Working with legally-aided persons, litigants
and related agencies, organizations and individuals on root causes and matters
of dispute, evidence or other work during the preparation stage for
adjudication;
c) Participating in meetings to examine the
handover, assessment and disclosure of evidence; verifying, collecting and
evaluating relevant necessary documents, objects and evidence;
d) Taking part in taking testimonies of involved
parties, witnesses and other related persons; participating in activities of
appraisal and valuation of assets and performing other procedural work at the
request of presiding agencies;
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e) Working with presiding officers, presiding
agencies according to procedural stages;
g) Meeting with litigants, witnesses and other
proceeding participants on other relevant matters;
h) Studying case files, copying, and preparing
documents at the presiding agencies or at the Center, Branch, or organization
signing contract to provide legal aid;
i) Preparing defense arguments;
k) Participating in court hearings or meetings to
resolve non-litigious civil cases. In case a legal aid-providing person appears
in court but the court session is adjourned not due to the request of the legal
aid-providing person and without prior notice, the working time of the legal
aid-providing person begins from the time when he/she has worked with presiding
agencies and presiding persons on related matters to the time when the court
session is adjourned;
l) Performing work related to procedures for
appealing the first-instance judgments, appellate judgments, cassation
procedures or reopening procedures;
m) Performing other reasonable tasks as prescribed
by law in service of defense.
2. Remuneration, gratuity paid for a legal
aid-providing person when performing the tasks specified at Points g, h, i, m
Clause 1 of this Article must not exceed the maximum number of working sessions
to carry out these tasks according to the respective fixed working time
specified in Appendix 02 issued with this Circular.
3. The working time of the legal aid-providing
person must be certified by agencies, organizations, or individuals as follows:
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b) The time for participating in the meeting to
examine the handover, assessment and disclosure of evidence specified at Point
c, Clause 1 of this Article shall be certified by the person assigned to settle
the case; the time for verification, collection and evaluation of relevant
necessary documents, objects and evidence specified at Point c, Clause 1 of
this Article shall be certified by the agency, organization or individual that
the legal aid-providing person comes to verify and collect evidence;
c) The time for taking testimonies of involved
parties, witnesses and other related persons specified at Point d, Clause 1 of
this Article shall be certified by these persons or by the presiding persons or
the presiding agencies; the time for participating in asset appraisal and
valuation and performing other procedure tasks at the request of the presiding
agency specified at Point d, Clause 1 of this Article shall be certified by the
agency, organization, or individual where the property is appraised, valued or
certified by the presiding agency or person;
d) The time for performing the activities specified
at Points dd, k Clause 1 of this Article shall be certified by the court
reporter or reporter of mediation hearing;
dd) The time for performing the activities
specified at Point e, Clause 1 of this Article shall be certified by the
presiding person or the presiding agency;
e) The time for performing the activities specified
at Point g, Clause 1 of this Article shall be certified by the person working
directly with the legal aid-providing person;
g) The time for performing the activities specified
at Point h, Clause 1 of this Article shall be certified by the person assigned
to settle the case or Center or Branch or the organization signing the contract
to provide the legal aid;
h) The time for performing the activities specified
at Points i, l, m Clause 1 of this Article shall be certified by the Center or
Branch or the organization signing the contract to provide the legal aid.
Article 6. Time for
participation in administrative proceedings
1. Grounds for calculating the working time to
provide legal aid for cases participating in administrative procedures include:
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b) Joining the dialogue.
2. Remuneration, gratuity paid for a legal
aid-providing person when performing the tasks specified at Points g, h, i, m
Clause 1 Article 5 hereof must not exceed the maximum number of working
sessions to carry out these tasks according to the respective fixed working
time specified in Appendix 03 issued with this Circular.
3. The working time of the legal aid-providing
person must be certified by agencies, organizations, or individuals as follows:
a) The time for performing the activities specified
at Point a, Clause 1 of this Article shall be certified by the agencies, organizations
and individuals specified in Clause 3, Article 5 of this Circular;
b) The time for performing the activities specified
at Point b, Clause 1 of this Article shall be certified by the judge or the
court reporter.
Article 7. Time for
extrajudicial representation
1. Grounds for calculating the working time to
provide legal aid for cases participating in extrajudicial representation
include:
a) Meeting and contacting legally-aided persons and
their relatives; witnesses;
b) Studying case files, preparing documents to
perform the representation;
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d) Working with relevant agencies, organizations
and individuals;
dd) Participate in representation before agencies,
organizations, and individuals competent to handle the case.
2. The working time of the legal aid-providing
person must be certified by agencies, organizations, or individuals as follows:
a) The time for performing the activities specified
at Points a, d, dd, Clause 1 of this Article shall be certified by the person
working with the legal aid-providing person or the relevant agency,
organization or individual, or organizations and individuals competent to
settle the case;
b) The time for performing the activities specified
at Points b, c Clause 1 of this Article shall be certified by the Center or
Branch or the organization signing the contract to provide the legal aid.
Article 8. Calculation of time
in certain special circumstances
1. In case two or more legal aid-providing persons
provide legal aid to one legally-aided person within the same case as
prescribed by law, the time as a basis for payment of remuneration or gratuity
for the performance of legal aid is the actual time each legal aid-providing person
has provided, but the total time must not exceed 30 working sessions per case
for participation in proceedings or no more than 20 working sessions per case
for extrajudicial representation.
2. In case the presiding agency temporarily
suspends the case
a) The period used as a basis for payment of
remuneration or gratuity for the performance of legal aid is the actual time
performed up to the time of suspension of the case;
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3. In case of replacement or change of legal
aid-providing person
a) The period used as a basis for payment of
remuneration or gratuity to the predecessor is the actual time that he/she has
provided legal aid up to the time of being replaced or changed;
b) The time used as a basis for payment of
remuneration and gratuity to the successor is the actual time during which
he/she performs the subsequent tasks since being appointed as a substitute.
If the substitute chooses the form of fixed working
time, the remuneration, gratuity paid to both two persons (the predecessor and
the successor) shall not exceed the corresponding amount for fixed working time
in the Appendixes No. 01, 02 and 03 issued together with this Circular.
4. In case of providing legal aid for the person
against which a whistleblowing report is filed, the person proposed for
prosecution, the accused person at the time of arrest or temporary custody, or
the victim in accordance with the procedural law, the time and time
certification shall be done as follows:
a) The time for verification, collection and evaluation
of relevant documents, objects and evidence shall be certified and collected by
the agency, organization or individual where the legal aid-providing person
comes to verify and collect evidence;
b) The time for taking testimonies of the person
against which a whistleblowing report is filed, the person being proposed for
prosecution, the victim or other related persons; participating in
confrontation, identification and recognition of the voice of the person
against which a whistleblowing report is filed, the person proposed for
prosecution together with the investigator or the procurator shall be certified
by the investigator or the procurator;
c) The time for working with the accused at the
custody room of the border guard station, the remand center, the detention
center shall be certified by the accused or officers of the border guard
station, the remand center, the detention center or the presiding agency;
d) Time for meeting the person against which a
whistleblowing report is filed, the person proposed for prosecution or their
relatives; the victim or kindred of the victim; other related persons shall be
certified by these persons, but not exceeding the maximum number of sessions to
perform this task in the form of fixed working time specified in Appendix 01
issued with this Circular according to the level of misdemeanor crime.
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FIXED WORKING TIME FOR
LEGAL AID CASE
Article 9. Fixed working time
for legal aid case
1. The form of fixed working time only applies to a
legal aid case in the form of participation in proceedings, chosen in writing
by the legal aid-providing person immediately after being assigned and without
any change throughout the legal aid case.
2. Complicated nature, procedural requirements, and
contents of each specific case to determine the level of fixed working time are
as follows:
a) Apply the provisions on offense classification
in Clause 2, Article 1 of the Law on amendments to the Criminal Code No.
100/2015/QH13 dated June 20, 2017 to determine the level of fixed working time
for participation in criminal proceedings.
The classification of offenses must apply right at
the time of selecting the form of fixed working time and based on one of the
documents issued by the presiding agency: Decision to prosecute the accused, conclusion
investigation, indictment, arraignment, judgment. In case there are many
documents governing offenses in varied sentence brackets, the document with the
higher sentence bracket shall prevail.
b) Apply the provisions of Clause 3, Article 337 of
the Civil Procedure Code and the provisions of Article 5 of the Circular No.
09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice on criteria for
determining typical, complex legal aid cases to determine the level of fixed
working time to participate in the civil proceedings.
c) Apply the provisions of Clause 12, Article 3of
the Law on Administrative Procedures and the provisions of Article 6 of the
Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice on
criteria for determining typical, complex legal aid cases to determine the
level of fixed working time to participate in the administrative proceedings.
3. When performing a fixed working time case, the
legal aid-providing person must perform the following tasks:
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Details of tasks to be performed and the
corresponding maximum fixed working time (converted into working sessions) for
each case are shown in Appendix 01 hereof. In case the number of sessions
converted from fixed working time in Appendix 01 is lower than 03 times of
statutory base salary, the fixed working time shall be equal to 03 times of
statutory base salary.
b) For case of participation in civil or
administrative proceedings: perform the tasks specified in Clause 1, Article 5;
Clause 1 Article 6 of this Circular.
Details of tasks to be performed and the
corresponding maximum fixed working time (converted into working sessions) for
each case are shown in Appendixes 02 and 03 hereof. In case the number of
sessions converted from fixed working time in Appendix 02 and 03 is lower than
03 times of statutory base salary, the fixed working time shall be equal to 03
times of statutory base salary.
4. When performing a case with fixed working time,
the legal aid-providing person must list the tasks and have the tasks certified
using the Schedule of tasks performed (Form TP-TGPL-02) issued together with
the Circular.
5. In case the legal aid is a case has been
performed through several stages of proceedings as shown in the Appendixes
issued together with this Circular, the level of fixed working time shall apply
by stages, but not more than 10 times of statutory base salary.
Article 10. Fixed working time
for special legal aid cases
1. In case 02 or more legal aid-providing persons
provide legal aid for 01 legally-aided person within the same case, based on
the actual work of each performer, the fixed working time is up to 130% of the corresponding
fixed working time shown in the Appendices issued together with this Circular,
but not more than 10 times of statutory base salary.
Example 01: A is prosecuted for an offense
with extremely serious sentence bracket, the Director of the Legal Aid Center
appoints 02 people to provide legal aid for A from the investigation stage to
the first instance trial stage. Based on the actual work done by 02 legal
aid-providing persons, the maximum fixed working time is equal to: 130% x 23
sessions = 29.9 sessions. However, because this number of sessions exceeds
10 times of statutory base salary, only 10 times of statutory base salary shall
be paid.
2. In case of providing legal aid for 01
legally-aided person who is prosecuted for 02 offenses or more in the same
case, the level of fixed working time for the legal aid-providing person shall
be as follows:
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Example 02: A is prosecuted for 02 offenses:
01 offense with a sentence bracket of a serious offense, 01 offense with a
sentence bracket of an extremely serious offense. A legal aid provider has
given A legal aid from the investigation stage to the first-instance trial
stage. Based on the actual work done, the maximum fixed working time is equal
to: 130% x 23 sessions = 29.9 sessions. However, because this number of
sessions exceeds 10 times of statutory base salary, only 10 times of statutory
base salary shall be paid.
b) If 02 offenses have sentence brackets of 01 type
of offense, based on the actual work performed, the maximum fixed working time
is equal to 130% of the fixed working time applied to the case shown in
Appendix 01 issued with this Circular but not exceeding 10 times of statutory
base salary.
Example 03: B is prosecuted for two offenses
falling under the same sentence bracket of extremely serious offense. A legal
aid provider has given B legal aid from the investigation stage to the
first-instance trial stage. Based on the actual work done, the maximum fixed
working time is equal to: 130% x 23 sessions = 29.9 sessions. However,
because this number of sessions exceeds 10 times of statutory base salary, only
10 times of statutory base salary shall be paid.
3. In case the presiding agency temporarily
suspends the case
a) The fixed working time performed by the legal
aid-providing person shall be determined based on the actual work done until
the suspension time;
b) When the case continues to be resolved, the
fixed working time shall continue from the resumption time until the end of the
case.
4. In case of replacement or change of legal
aid-providing person
a) The fixed working time done by the predecessor
is the actual time that he/she has provided legal aid up to the time of being
replaced or changed;
b) The fixed working time done by the successor is
the actual time that he/she has provided subsequent legal aid tasks since the
replacement time.
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Chapter IV
IMPLEMENTATION
Article 11. Grandfather clause
For legal aid performed before the effective date
of this Circular, the provisions of Circular No. 18/2013/TT-BTP dated November
20, 2013 of the Minister of Justice on guidelines for calculation of time and
procedures for payment of costs of legal aid and Circular No. 05/2017/TT-BTP
dated April 20, 2017 of the Minister of Justice on amendments to the Circular
No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on
guidelines for calculation of time and procedures for payment of costs of legal
aid.
Article 12. Entry in force
1. This Circular comes into force as of July 15,
2021.
2. This Circular supersedes Circular No.
18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice on guidelines
for calculation of time and procedures for payment of costs of legal aid and
Circular No. 05/2017/TT-BTP dated April 20, 2017 of the Minister of Justice on
amendments to the Circular No. 18/2013/TT-BTP dated November 20, 2013 of the
Minister of Justice on guidelines for calculation of time and procedures for
payment of costs of legal aid.
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