THE
GOVERNMENT
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|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.
05/2012/ND-CP
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Hanoi,
February 02, 2012
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DECREE
AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE
DECREES ON SECURED TRANSACTION REGISTRATION, LEGAL AID, LAWYERS AND LEGAL
COUNSELING
THE GOVERNMENT
Pursuant to the December 25,
2011 Law on Organization of the Government;
Pursuant to the. June 3, 2008
Law on Promulgation of Legal Documents;
In furtherance of the Government's
Resolution No. 52/NQ-CP of December 10. 2010, on simplification of
administrative procedures under the Ministry of Justice's management;
At the proposal of the
Minister of Justice,
DECREES:
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1. To replace the phrase
"provincial-level maritime bureaus or seaport authorities under the
Vietnam National Maritime Bureau" in Clause 2, Article 24; Clause 2,
Article 25; Clause 2, Article 26; Clause 2, Article 27; and Clause 2. Article
47, with the phrase "Vietnamese seagoing ship registry offices".
2. To supplement Clause 2,
Article 52 as follows:
"2. To annul Point b.
Clause 2, Article 31 of the Government's Decree No. 84/2007/ND-CP of May 25.
2007, additionally stipulating the grant of land use right certificates, land
recovery, exercise of land use rights, order and procedures for compensation,
support and resettlement upon land recovery by the State, and settlement of
land-related complaints."
3. To amend sonic phrases as
follows:
a/ To add the phrase "(1
set)" to the phrases indicating types of registration dossiers in Clauses
1 of Articles 20,21,22, 23,24, 25,26, 27, 28, 29, 30, 31, 34, 35, 36 and 37.
b/ To replace the phrase
"application for deregistration of a seagoing ship mortgage" in
Clause 1, Article 27, with the phrase "request for deregistration of a
seagoing ship mortgage".
c/ To remove the phrase "a
certified copy of the paper evidencing the legal status of the registration
requester" from Point c, Clause 1, Article 20; Point c, Clause 1, Article
21; Point
c. Clause 1, Article 22; Point
d. Clause 1, Article 23; Point c, Clause 1, Article 24; Point d, Clause 1,
Article 25; Point c. Clause 1, Article 26; Point d, Clause 1, Article 27; Point
d, Clause 1, Article 28; Point d, Clause 1, Article 29; Point c, Clause 1,
Article 30; and Point d, Clause 1, Article 31."
4. To annul Clause 2, Article
53.
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"1. Those who meet the
criteria specified in Clause 1, Article 22 of the Law on Legal Aid, do not fall
into one of the cases specified in Clause 3, Article 20 of the Law on Legal Aid
and wish to act as collaborators shall send dossiers to legal aid centers in
the localities where they reside or work.
A dossier of application for
working as a collaborator comprises:
a/ An application for working as
a collaborator, made according to a set form;
b/ A copy of the applicant's
bachelor degree in law or another major or an intermediate degree in law;
c/ A curriculum vitac certified
by the People's Committee of the commune, ward or township where the applicant
resides or by the agency in which the applicant works, together with 2 portrait
color photos of 2cm x 3cm.
For an applicant who resides in
an exceptional socio-economic difficulty-hit, ethnic minority or mountainous
area and has been working for 3 years or more in the law sector or has legal
knowledge and prestige in the community, in addition to the papers specified at
Points a and c above, the dossier of application for working as a collaborator
must comprise a written certification of the period of working in the law
sector, made by the agency or organization in which the applicant has been or
is working, or a written certification of the applicant's legal knowledge and
prestige, made by the commune-level People's Committee.
2. Within 4 working days after
receiving a dossier, the center's director shall check the completeness and
validity of the dossier. If the dossier is valid, he/she shall submit it to the
director of the provincial-level Justice Department for consideration,
recognition and grant of a collaborator's card. If the dossier is invalid,
he/she shall return it to the applicant and notify in writing the reason.
3. Within 3 working days after
receiving the dossier submitted by the center's director, the director of the
provincial-level Justice Department shall consider and sign a recognition
decision and grant a collaborator's card. In case of refusal, he/she shall
notify in writing the reason to the applicant who may lodge a complaint about
this refusal. Such complaint shall be settled under the law on
complaints."
Article 3.
To amend and supplement a number of articles of the Government's Decree No.
28/2007/ND-CP of February 26, 2007, detailing and guiding a number of articles
of the Law on Lawyers
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"LA single-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 single-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 directly or by
post 1 transformation dossier set to the provincial-level Justice Department
with which the law firm has registered its operation. A transformation dossier
comprises:
a/ An application for
transformation, clearly stating the purpose of and reason for the
transformation;
b/ The draft charter of the new
law firm;
c/ The list of members or
lawyers being owners of the new law firm:
d/ The granted operation
registration certificate.
3. Within 5 working days after
receiving a complete transformation dossier or papers as specified in Clause 2
of this Article, the provincial-level Justice Department shall grant an
operation registration certificate to the limited liability law firm according
to the Law on Lawyers. In case of refusal, it shall issue a written reply
clearly stating the reason."
2. To amend and supplement
Clause 1, Article 19 as follows:
"1. Foreign law firms
concerned shall send directly or by post to the Ministry of Justice 1 dossier
set comprising the consolidation contract and a consolidation application. The
consolidation contract must specify the procedures and conditions for
consolidation; labor use plan; time limit, procedures and conditions for
handover of assets; and time limit for the consolidation.
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3. To amend and supplement
Clause 1, Article 20 as follows:
"1. Foreign law firms
concerned shall send directly or by post to the Ministry of Justice 1 dossier
set comprising the merger contract and a merger application. The merger
contract must specify the procedures and conditions for merger; labor use plan;
time limit, procedures and conditions for handover of assets; and time limit
for the merger."
4. To amend and supplement
Clauses 2 and 5, Article 21 as follows:
"2. When a foreign
law-practicing organization in Vietnam suspends its operation under Point a,
Clause 1 of this Article, it shall send directly or by post to the Ministry of
Justice a notice thereof at least 30 days before the expected date of operation
suspension.
Within 7 working days, the
Ministry of Justice shall issue a decision to permit the foreign law-practicing
organization in Vietnam to suspend its operation. In case of refusal, the
Ministry of Justice shall notify the reason in writing.
A foreign law-practicing
organization in Vietnam may suspend its operation after obtaining the Ministry
of Justice's written approval.
5. At least 30 days before the
expected date of resumption of operation, a foreign law-practicing organization
in Vietnam shall send directly or by post a report on resumption of operation
to the Ministry of Justice, provincial-level Justice Department, bar
association and tax agency of the locality where it is headquartered."
Article 4.
To amend and supplement a number of articles of the Government's Decree No.
77/2008/ND-CP of July 16,2008, on legal counseling
1. To amend and supplement
Article 13 as follows:
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An operation registration dossier
comprises:
a/ A written operation
registration;
b/ The managing agency's
decision to establish the legal counseling center and appoint its director;
c/ The draft organization and
operation regulation of the center to be issued by the managing agency;
d/ A list of applicants for
legal counselor's cards and lawyers working under labor contracts for the
center, enclosed with their dossiers.
Within 5 working days after
receiving a complete and valid dossier, the provincial-level Justice Department
shall grant an operation registration certificate to the legal counseling
center. In case of refusal, it shall notify the reason in writing.
2. When granting an operation
registration certificate to a legal counseling center, the provincial-level
Justice Department shall concurrently grant legal counselor's cards to those
who meet the criteria specified in Clause 1, Article 19 of this Decree.
The Ministry of Justice shall
provide forms of operation registration certificate and legal counselor's card.
3. A legal counseling center may
commence operation after obtaining an operation registration certificate."
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"1. An applicant for a
legal counselor's card shall send directly or by post 1 dossier set to the provincial-level
Justice Department.
A dossier of application for a
legal counselor's card comprises:
a/ An application for a legal
counselor's card;
b/ A copy of the applicant's
bachelor degree in law;
c/ Written certification of the
applicant's period of working in the law sector.
Within 5 working days after
receiving a complete and valid dossier, the provincial-level Justice Department
with which the legal counseling center has registered its operation shall grant
a legal counselor's card to the qualified applicant. In case of refusal, it
shall notify in writing the reason."
Article 5.
To amend and supplement a number of articles of the Government's Decree No.
131/2008/ND-CP of December 31, 2008, on lawyers' socio-professional
organizations
1. To amend and supplement
Clause 2, Article 8 as follows:
"2. Founding members of a
bar association shall make a dossier for establishment of the bar association
and sent 1 set of this dossier directly or by post to the provincial-level
Justice Department concerned. Within 15 clays after receiving a complete
dossier, the provincial-level Justice Department shall assume the prime
responsibility for, and coordinate with the provincial-level Home Affairs
Department in. appraising the dossier and proposing the People's Committee of
the province or centrally run city (below referred to as provincial-level
People's Committee) to permit the establishment of the bar association.
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After obtaining the Minister of
Justice's written consent, the chairperson of the provincial-level People's
Committee shall permit the establishment of the bar association; in case of
refusal, he/she shall notify the reason in writing. The refused applicant may
lodge a complaint according to law."
2. To amend and supplement
Clauses 1 and 2, Article 10 as follows:
"1. Within 7 working days
after the charter of a bar association is adopted, the management board of the
bar association shall send directly or by post to the provincial-level Justice
Department 1 set of dossier of request for approval of the charier. Such
dossier comprises:
a/ A request for approval of the
charter:
b/ The charter and its adoption
minutes;
c/ The Congress's resolution;
d/ The written consent of the
Vietnam Bar Federation to the charter's contents.
2. Within 20 days after
receiving a complete dossier, the provincial-level Justice Department shall
assume the prime responsibility for, and coordinate with the provincial-level
Home Affairs Department in, appraising the dossier and proposing the
provincial-level People's Committee to approve the charter.
Within 7 working days after receiving
the provincial-level Justice Department's appraisal document, enclosed with the
dossier, the chairperson of the provincial-level People's Committee shall
approve or disapprove the charter of the bar association; in case of refusal,
he/she shall notify the reason in writing."
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"3. At least 30 days before
the date scheduled for organization of a term congress, the bar association
management board shall send directly or by post to the provincial-level
People's Committee a report on its plan to organize the term congress and form
the management board and the commendation and discipline council of the new
term. Within 15 days after receiving such report, the provincial-level People's
Committee shall assign the provincial-level Justice Department to assume the
prime responsibility for, and coordinate with the provincial-level Home Affairs
Department in, appraising and commenting on such plan.
Within 7 working days after
receiving the provincial-level Justice Department's report, the
provincial-level People's Committee shall consider and give its opinions on the
bar association's plan to organize the term congress and form the management
board and the commendation and discipline council of the new term."
4. To amend and supplement
Clause 2, Article 12 as follows:
"2. Within 7 working days
after a congress concludes, the bar association management board shall send
directly or by post to the provincial-level Justice Department a report on
congress results, enclosed with the election minutes, a list of members of the
management board and the commendation and discipline council of the bar
association and their resumes; and the congress's resolution.
Within 10 working days after
receiving the report on congress results, the provincial-level Justice
Department shall assume the prime responsibility for, and coordinate with the
provincial-level Home Affairs Department in, considering and proposing the
provincial-level People's Committee to approve the results of the bar
association's congress.
Within 5 working days after
receiving the provincial-level Justice Department's report, the
provincial-level People's Committee shall approve or disapprove the congress
results; in case of refusal, it shall notify the reason in writing."
5. To amend and supplement
Clauses 2 and 3, Article 15 as follows;
"2. If the management board
of a bar association falls into one of the cases specified at Points a, b and
c, Clause 1 of this Article, the Standing Committee of the Vietnam Bar
Federation shall send directly or by post to the provincial-level People's
Committee concerned a written proposal for issuance of a decision to suspend
the operation of such management board and request the bar association
concerned to organize an extraordinary congress to elect a new management board
and chairman.
Within 7 working days after
receiving the proposal of the Standing Committee of the Vietnam Bar Federation,
the provincial-level People's Committee shall issue a decision to suspend the
operation of the bar association management board and request the bar association
to organize an extraordinary congress to elect a new management board and
chairman. In case of refusal, it shall notify the reason in writing.
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Within 60 days after the
issuance of a decision to suspend the operation of the bar association
management board, the head of the commendation and discipline council shall
convene an extraordinary lawyers' congress.
3. If the chairman of a bar
association falls into one of the cases specified in Clause 1 of this Article,
the Standing Committee of the Vietnam Bar Federation shall send directly or by
post to the provincial-level People's Committee concerned a written proposal
for issuance of a decision to suspend such person from his/her position and
request the management board of such bar association to appoint a deputy
chairman to work as the acting chairman of the bar association until a new
chairman is elected.
Within 7 working days after
receiving the proposal of the Standing Committee of the Vietnam Bar Federation,
the provincial-level People's Committee shall issue a decision to relieve the
chairman from office and request the bar association to appoint a deputy
chairman of the bar association to work as its the acting chairman until a new
chairman is elected. In case of refusal, it shall notify in writing the reason.
Within 30 days after being
appointed, the acting chairman of the bar association shall convene an
extraordinary congress to elect a new chairman of the bar association."
6. To amend and supplement
Clause 1, Article 20 as follows:
"1. Within 7 working days
after the charter of the Vietnam Bar Federation is adopted, the National
Council of Lawyers shall send directly or by post to the Ministry of Justice a
dossier of request for approval of the charter, comprising:
a/ A request for approval of the
charter;
b/ The charter and its adoption
minutes;
c/ The congress'
resolution."
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"3. At least 60 days before
the date scheduled for organization of a term congress, the Standing Committee
of the Vietnam Bar Federation shall send directly or by post to the Ministry of
Justice a report on its plan to organize the term congress and prepare
personnel for leading titles of the new term. The Ministry of Justice shall
assume the prime responsibility for, and coordinate with the Ministry of Home
Affairs in, considering and giving comments on such plan."
8. To amend and supplement
Clause 2, Article 22 as follows:
"2. Within 10 working days
after a congress concludes, the Standing Committee of the Vietnam Bar
Federation shall send directly or by post to the Ministry of Justice a report
on congress results, enclosed with the election minutes and a list and resumes
of holders of the leading titles of the Vietnam Bar Federation and the
congress' resolution.
Within 15 days after receiving
the report on congress results, the Ministry of Justice shall consider and
approve or disapprove the election results and resolution of the congress of
the Vietnam Bar Federation after obtaining opinions of the Ministry of Home
Affairs."
9. To amend and supplement
Clause 2, Article 25 as follows:
"2. In case the National
Council of Lawyers falls into one of the cases specified at Points a, b and c,
Clause 1 of this Article or the president of the Vietnam Bar Federation falls
into one of the cases specified in Clause 1 of this Article, the Minister of
Justice shall assume the prime responsibility for, and coordinate with the
Minister of Home Affairs in, proposing the Prime Minister to issue a decision
to suspend
the operation of the National
Council of Lawyers or to relieve from office the president of the Vietnam Bar
Federation and request the Vietnam Bar Federation to hold an extraordinary
congress to elect new persons to the leading titles of the Federation.
Within 60 days after receiving
the Minister of Justice's proposal, the Prime Minister shall issue a decision
to suspend the operation of the National Council of Lawyers or to relieve from
office the president of the Vietnam Bar Federation and request the Vietnam Bar
Federation to organize an extraordinary congress to elect new persons to the
leading titles of the Federation."
10. To amend and supplement
Clause 2, Article 27 as follows:
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Article 6.
Effect
This Decree takes effect on
April 1, 2012.
Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, chairpersons
of provincial-level People's Committees and related organizations and
individuals shall implement this Decree.-
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung