Circular No. 05/2017/TT-BTP amending and supplementing certain provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice guiding the calculation of time for implementation and procedures for payment of costs for legal aid cases

CIRCULAR

Amending and supplementing certain Articles of Circular No. 18/2013/TT-BTP dated November 20, 2013 issued by the Minister of Justice guiding the calculation of time for implementation and procedures for payment of costs for legal aid casesPursuant to Decree No. 22/2013/NĐ-CP dated March 13, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;Pursuant to Decree No. 14/2013/NĐ-CP dated February 5, 2013 of the Government amending and supplementing certain Articles of Decree No. 07/2007/NĐ-CP dated January 12, 2007 of the Government detailing and guiding the implementation of certain provisions of the Legal Aid Law;

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Pursuant to the Legal Aid Law on June 29, 2006;

Decree No. 80/2015/NĐ-CP dated September 17, 2015 of the Government amending and supplementing certain Articles of Decree No. 14/2013/NĐ-CP dated

Pursuant to Decree No. 07/2007/NĐ-CP dated January 12, 2007, issued by the Government, detailing and guiding the implementation of certain provisions of the Legal Aid Law;

February 5, 2013

On the basis of of the Government amending and supplementing certain Articles of Decree No. 07/2007/NĐ-CP dated January 12, 2007 of the Government detailing and guiding the implementation of certain provisions of the Legal Aid Law; amending and supplementing certain Articles of Circular No. 18/2013/TT-BTP dated November 20, 2013 issued by the Minister of Justice guiding the calculation of time for implementation and procedures for payment of costs for legal aid cases. Article 1. Amending and supplementing certain Articles of Circular No. 18/2013/TT-BTP dated November 20, 2013 issued by the Minister of Justice guiding the calculation of time for implementation and procedures for payment of costs for legal aid cases

At the proposal of the Director of the Legal Aid Department,

The Minister of Justice issues this Circular Article 4. Time participating in litigation proceedings

a) Time meeting with the accused at the Detention Center or Temporary Detention House confirmed by staff of the Detention Center or Temporary Detention House; in cases where the defendant is outside detention, the time of meeting shall be confirmed by the defendant or their legal representative;

a) Amending and supplementing Point c Clause 2 as follows:
b) Time participating in interrogating the suspect or taking statements from the victim, witness, or person with related rights and obligations together with the Investigator or Prosecutor confirmed by the Investigator or Prosecutor conducting the interrogation or taking statements;
1. The time for participation in criminal litigation proceedings includes:
c) Time meeting and working with relatives of the accused; time meeting and working with the victim or relatives of the victim, civil plaintiff, civil defendant, person with related rights and obligations, witness, and other participants in the proceedings confirmed by these individuals;
d) Time participating in other litigation activities (confrontation, identification, voice recognition, reenactment of the scene, etc.) together with the Investigator or Prosecutor confirmed by the Investigator or Prosecutor;
g) Time verifying, collecting, and evaluating necessary documents, objects, and evidence related to defense and protection confirmed by the organization, entity, or individual where the legal aid implementer conducts verification and collection of evidence; time preparing defense arguments confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;
d) Meeting and working time with the litigation process personnel and agencies according to the stages of the litigation confirmed by the person directly performing the work;
i) Time performing necessary tasks related to appeal or protest against the first-instance judgment, second-instance judgment, cassation review, or retrial procedures confirmed by the person receiving legal aid or by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;
e) Research time on the case file, copying, and preparing materials at the litigation agency according to the stages of the litigation confirmed by the litigation personnel assigned to resolve the case;
k) Time performing other necessary tasks during the implementation of the case to serve defense and protection confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case.
h) Time participating in court sessions confirmed by the Presiding Judge or Court Clerk;
d) Time verifying, collecting, and evaluating necessary documents, objects, and evidence related to protection confirmed by the organization, entity, or individual where the legal aid implementer conducts verification and collection of evidence; time preparing protection arguments confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;
k) Time performing other necessary tasks during the implementation of the case to serve protection confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case.
2. The time for participation in civil litigation proceedings includes:
a) Meeting and working time with the parties, witnesses, and other litigation participants confirmed by these individuals;
b) Meeting and working time with the litigation process personnel and agencies according to the stages of the litigation confirmed by the person directly performing the work;
c) Research time on the case file, copying, and preparing materials at the litigation agency confirmed by the person assigned to resolve the case;
4. In cases where the Director of the Center or the Head of the Branch decides to assign two or more legal aid implementers to provide legal aid to one recipient in the same case according to the law, the time serving as the basis for payment of the legal aid performance allowance for each implementer must ensure that only one implementer is credited for each task performed.
đ) Time participating in other litigation activities (expert appraisal, valuation, etc.) confirmed by the agency or organization conducting such activities;
e) Time participating in the hearing to check the submission, access, and public disclosure of evidence confirmed by the person assigned to resolve the case;
g) Time participating in mediation for mandatory pre-trial mediation in civil cases as required by law confirmed by the Presiding Judge or Mediation Hearing Clerk;
h) Time participating in court sessions confirmed by the Presiding Judge or Court Clerk;
d) Time verifying, collecting, and evaluating necessary documents, objects, and evidence related to protection confirmed by the organization, entity, or individual where the legal aid implementer conducts verification and collection of evidence; time preparing protection arguments confirmed by the Center or Branch based on the proposal of the legal aid implementer and consistent with the nature and content of the case;
5. In cases where the prosecution authority suspends or temporarily suspends the case, the time serving as the basis for payment of the legal aid performance allowance for the legal aid implementer is the actual time spent providing legal aid until the suspension or temporary suspension of the case.
3. The time for participation in administrative litigation proceedings includes:
a) Meeting and working time with individuals and organizations related to the case as provided in points a, b, c, d, đ, e, h, i, and k of Clause 2 of this Article;
b) Time participating in dialogue confirmed by the Judge or Dialogue Hearing Clerk;
6. In cases where there is a change in the legal aid implementer, the time serving as the basis for payment of the legal aid performance allowance for the legal aid implementer is the actual time spent providing legal aid until the replacement. The time serving as the basis for payment of the legal aid performance allowance for the implementer assigned to replace is the actual time spent continuing to perform subsequent tasks. 7. In cases where the legal aid implementer continues to be assigned by the Center or Branch to handle legal aid matters in subsequent litigation stages or if the case continues to be resolved after a temporary suspension, the time serving as the basis for payment of the legal aid performance allowance for the legal aid implementer is the actual time spent providing legal aid in the subsequent stage.
2. Supplementing Articles 4a, 4b, and 4c after Article 4 as follows:
Article 4a. Allowance system per working day

2. ADD Articles 4a, 4b, 4c following Article 4 as follows:

"Article 4a. Remuneration system per working session
1. The system of remuneration per working session (half a working day) shall be applied to cases of legal aid representation outside litigation and cases of participation in litigation selected by the person providing legal aid as the basis for payment of remuneration for handling the case.
2. The working hours serving as the basis for paying the support system compensation for implementing the case to the person providing legal aid shall be determined as follows:
a) The working hours of the person providing legal aid shall be calculated based on four working hours;
b) In cases where the person providing legal aid works in multiple sessions but each session does not exceed four hours, the number of working sessions shall be calculated based on the total actual working hours (cumulative) of the person providing legal aid. Any remaining hours (if any) shall be calculated as follows:

If the remaining hours are less than three hours, they shall be counted as half a working session.

If the remaining hours are three hours or more, they shall be counted as one working session.

Article 4b. Allocation of expenses per case

1. Allocation of expenses per case shall be applied to cases of participation in litigation selected by the person providing legal aid through a written form after being assigned as the basis for payment of remuneration for handling the case.
2. When implementing case-based allocation expenses, the Director of the Center shall base the decision on the nature and content of the litigation participation case to determine the allocation expense amount, specifically as follows:
a) For criminal litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined based on the provisions regarding the classification of crimes in the Criminal Procedure Code;
b) For civil litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined according to the provisions of Clause 3, Article 337 of the Civil Procedure Code;
c) For administrative litigation participation cases, the nature of the case serving as the basis for implementing case-based allocation expenses shall be determined according to the provisions of Clause 12, Article 3 of the Administrative Procedure Law.
3. When choosing the case-based allocation expense method, depending on the nature and content of the case, the person providing legal aid must perform the following tasks:
a) Criminal litigation cases: meeting and working with the accused, the victim, persons with related rights and obligations, other participants in the proceedings; participating in judicial activities; working with judicial organs, judicial officers, and performing other necessary tasks related to defense and protection.

Details of the tasks that need to be performed, corresponding time for each task, and the maximum allocated time for each case are shown in Appendix No. 01 attached to this Circular.
b) Civil litigation cases; administrative litigation cases: meeting and working with parties, participants in the proceedings, judicial officers; participating in judicial activities; working with judicial organs, judicial officers, relevant organizations, individuals, and performing other necessary tasks related to protection.

Details of the tasks that must be performed, corresponding time for each task, and the maximum allocation of expenses for each case are set out in Appendix No. 02 and No. 03 attached hereto.
4. Payment of remuneration to the person providing legal aid under the case-based expense allocation method must be based on the work actually performed by the person providing legal aid. In cases where the person providing legal aid does not perform one or several tasks as prescribed in this Circular, those tasks will not be considered as the basis for payment of remuneration.

For example, Lawyer A was assigned by the Legal Aid Center to provide legal aid for a serious crime. Under the allocation method, Lawyer A must perform the tasks listed in Part A of Appendix No. 01 (participation from the investigation stage to the first-instance trial for serious crimes). During the provision of legal aid, if Lawyer A meets with the beneficiary to agree on the amount of remuneration... one or more times, then the time for calculating remuneration for one session equivalent to 500,000 VND will be based on the agreed meeting(s) without depending on the number of meetings or the working time of each meeting. If Lawyer A does not perform this task, one session will be deducted.
5. The person providing legal aid shall list the tasks performed and confirm the tasks performed in Form No. 02 issued together with Circular No. 18/2013/TT-BTP dated November 20, 2013, of the Minister of Justice guiding the calculation of time spent and procedures for settlement of expenses for handling legal aid cases.

Article 4c. Allocation of expenses per case in certain special cases

1. In cases where the Director of the Center or the Branch Head decides to assign two legal aid providers to provide legal aid for one beneficiary in the same case, the basis for payment of remuneration shall be the actual work of each person providing legal aid, but not exceeding the number of sessions corresponding to the case-based expense allocation method prescribed in the Appendix attached hereto, depending on the nature and content of the case.

Example 1: A is prosecuted for a crime with a penalty range classified as a serious crime, the Legal Aid Center Director assigns two people to provide legal aid for A from the investigation stage. After completion, the Center Director will base the remuneration settlement on the actual work done by the two people, but the number of sessions for settlement will not exceed: 14 sessions.
2. In cases where one person providing legal aid is assigned to provide legal aid for two beneficiaries or more in the same case, the basis for payment of remuneration for handling the case shall be as follows:
a) If the content of the case has the same nature, the basis for payment of remuneration shall be the actual work of the person providing legal aid, but not exceeding 130% of the number of sessions corresponding to the case-based expense allocation method prescribed in the Appendix attached hereto.

Example 2: Lawyer-collaborator A provides legal aid for B and C from the investigation stage. Both B and C are prosecuted for a crime with a penalty range classified as a minor serious crime. After completion, the Center will base the remuneration settlement on the actual work done by Collaborator A, but the number of sessions for settlement will not exceed: 130% x 8.5 sessions = 11.5 sessions.
b) If the nature of the case is different, the expense allocation level shall not exceed one hundred thirty percent (130%) of the number of sessions corresponding to the more complex case.

Example 3: Lawyer-collaborator B provides legal aid for A and C from the investigation stage. A is prosecuted for a crime with a penalty range classified as a minor serious crime, C is prosecuted for a crime with a penalty range classified as a serious crime. The basis for payment of remuneration shall be the actual work of the person providing legal aid, but not exceeding: 130% x 14 sessions = 18.2 sessions.
3. In cases where legal aid is provided for one beneficiary who is charged with two offenses or more in the same case, the basis for payment of remuneration for handling the case shall be as follows:

a) If the two offenses have different penalty ranges according to the nature of the case, the allocation method shall not exceed 130% of the number of sessions corresponding to the case with the higher penalty range.

Example 4: A is prosecuted for 02 (two) charges: 01 charge with a penalty range belonging to serious crimes, 01 (one) charge with a penalty range belonging to very serious crimes, and the person providing legal aid participates from the investigation stage. The basis for paying the allowance is the actual work performed by the person providing aid but does not exceed: 130% x 19 sessions = 24.7 sessions.
b) If 02 (two) charges have the same penalty range belonging to the same nature, the basis for paying the allowance is the actual work performed by the person providing aid but does not exceed 130% of the corresponding number of sessions applied under the case-based cost reimbursement form prescribed in the Appendix issued together with this Circular;

Example 5: B is prosecuted for 02 (two) charges, both having the same penalty range belonging to very serious crimes, and the person providing legal aid participates from the investigation stage. The basis for paying the allowance is the actual work performed by the person providing aid but does not exceed: 130% x 19 sessions = 24.7 sessions."

Article 2. Transitional Provisions

Cases that have been completed and the person providing aid has submitted payment request files before the effective date of this Circular shall continue to be implemented uniformly according to the provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013, of the Ministry of Justice on guiding the calculation of time spent and procedures for settling costs for legal aid cases to pay allowances for implementing legal aid cases. For cases with activities arising before the effective date of this Circular, the payment file for such activities shall be governed by the provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013, of the Ministry of Justice on guiding the calculation of time spent and procedures for settling costs for legal aid cases to pay allowances for implementing legal aid cases; for activities arising from the effective date of this Circular onwards, the payment file for such activities shall be governed by the provisions of this Circular.

Article 3. Implementation Provisions

This Circular takes effect from July 1, 2017./.