This Decree amends some articles of Decree No. 123/2013/NĐ-CP detailing the implementation of the Lawyers Law, including adding cases where licenses or certificates of practice may be revoked, and members of the National Bar Council and Chairman of the Vietnam Bar Federation may be dismissed. This Decree takes effect from November 25, 2018.
Đối tượng áp dụng
Applies to organizations and individuals engaged in the practice of law in Vietnam.
Các điểm cốt lõi
- Amend Article 37 on revoking the license to establish a branch of a foreign law firm
- Supplement Article 25a on the removal of members of the National Bar Council and the Chairman of the Vietnam Bar Federation
- Amend Article 40 on revoking the practice permit in Vietnam for foreign lawyers
- Repeal Article 43 of Decree No. 123/2013/NĐ-CP
- Other amendments related to the management of the practice of law
🌐 Tác động xã hội từ văn bản này
- Enhance the effectiveness of state management over the practice of law
- Strictly handle violations in the field of practicing law, protect the rights of clients and the public
- Improve the quality of legal services for citizens and businesses
❓ Câu hỏi thường gặp
When does this Decree take effect?
This Decree takes effect from November 25, 2018.
Who is responsible for organizing the implementation of this Decree?
The Minister of Justice, ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairmen of provincial People's Committees, municipal People's Committees under central jurisdiction, and the Chairman of the Vietnam Bar Federation are responsible for organizing the implementation of this Decree.
Toàn văn
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THE GOVERNMENT |
SOCIALIST REPUBLIC OF VIET NAM |
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Number: 137/2018/NĐ-CP |
Hanoi, day08Article 1. This Circular stipulates regulations on receiving citizens, handling and resolving complaints, reports, petitions, and reflections of the Ministry of Information and Communication including: citizen reception work; receipt, handling, and resolution of complaints, reports, petitions, and reflections; ensuring conditions for citizen reception, complaint resolution, petition resolution, reflection resolution; management of complaint and report resolution work and reporting systems.10year 2018 |
DECREE
Amending and supplementing some articles of Decree No. 123/2013/NĐ-CP dated October 14, 2013 of the Government detailing some provisions and measures to implement the Lawyers Law
Pursuant to the Law on Government Organization dated June 19, 2015;
Pursuant to the Lawyers Law on June 29, 2006 amended and supplemented on November 20, 2012;
At the proposal of the Minister of Justice;
THE GOVERNMENT ISSUES THE DECREE AMENDING AND SUPPLEMENTING CERTAIN PROVISIONS OF DECREE NO. 1Decree No. 123/2013/NĐ-CP dated October 14, 2013 of the Government detailing some provisions and measures to implement the Lawyers Law.
Article 1. Amending and supplementing some articles of Decree No. 123/2013/NĐ-CP dated October 14, 2013 of the Government detailing some provisions and measures to implement the Lawyers Law
1. Economic organizations conducting foreign exchange trading agency activities; economic organizations conducting foreign currency receipt and payment service provision activities; economic organizations conducting border country currency exchange agency activities.
"Article 1. Scope of Regulation
This Decree details some provisions and measures to implement the Lawyers Law regarding the training institutions for lawyers; the standards for lawyers; legal aid provided by lawyers; the mandatory continuing education obligations of lawyers; state management over lawyers and the practice of law; organizations practicing law; remuneration for lawyers participating in criminal proceedings; social-professional organizations of lawyers; the practice of foreign organizations practicing law and foreign lawyers in Vietnam".
2. Supplementing Article 2a and 2b following Article 2 as follows:
"Article 2a. Persons who do not meet the criteria for compliance with the Constitution and laws; persons who do not meet the criteria for good moral character as stipulated in Article 10 of the Lawyers Law
1. A person falling under any of the following circumstances shall not meet the criteria for compliance with the Constitution and laws, and shall not meet the criteria for good moral character as stipulated in Article 10 of the Lawyers Law:
a) Has been disciplined according to the law on civil servants, public officials, and employees, and the disciplinary decision has not yet ceased to be effective, or has been dismissed from work by a disciplinary decision but has not yet completed three years since the date the dismissal decision took effect; or has been administratively sanctioned for one of the violations in the field of judicial assistance, legal aid, causing damage to others' property, protecting state secrets, obstructing, resisting inspection, supervision by law enforcement officers, or bribing law enforcement officers but has not yet completed one year since the completion of the administrative sanction decision;
b) Has been administratively sanctioned or disciplined or criminally prosecuted or there is a conclusion from a competent authority regarding one of the acts related to embezzlement, profiteering, fraud, deception, endangering national security; conduct or statements that affect the image and reputation of the profession of lawyer or cause damage to the legitimate rights and interests of agencies, organizations, individuals; participation, incitement, coercion, bribery of others to gather in large numbers to disrupt public order, commit acts violating the law or violate points b, d, e, g, i, or k of Clause 1 of Article 9 of the Lawyers Law; other violations of the law committed intentionally and have been disciplined two times or more.
2. A person falling under point a of Clause 1 of this Article whose disciplinary decision has ceased to be effective or has completed three years since the date the dismissal decision took effect or has completed one year since the completion of the administrative sanction decision, or a person convicted of a crime due to negligence or a less serious crime due to intent and has had their criminal record expunged and does not fall under point b of Clause 1 of this Article if they provide a written explanation and commitment about their efforts to comply with the Constitution and laws, have good moral character, and have confirmation from the agency or organization where they last worked before applying for a Lawyer Practice Certificate or from the police station, ward, town where they reside, shall be considered to have corrected and improved and met the criteria for compliance with the Constitution and laws and having good moral character as stipulated in Article 10 of the Lawyers Law.
3. The Department of Justice is responsible for checking the application file and information about the efforts to comply with the Constitution and laws and having good moral character of the person applying for a Lawyer Practice Certificate as stipulated in Clause 2 of this Article.
In cases where the application file does not clearly show the efforts to comply with the Constitution and laws and having good moral character, the competent state management agency for lawyers and the practice of law shall verify the information at the agency or organization that issued the disciplinary decision, the agencies or organizations where the person worked after being disciplined, the Bar Association, or other relevant agencies or organizations, or directly interview the person applying for a Lawyer Practice Certificate to clarify the situation.
4. The Vietnam Bar Federation is responsible for guiding the Bar Associations to supervise compliance with the Constitution and laws and adherence to the Code of Ethics and Professional Conduct of lawyers and trainees; requiring the Bar Associations or within its scope of duties and powers to strictly handle violations according to the law.
The Ministry of Justice, in coordination with relevant ministries and sectors, will strengthen the review of the criteria for compliance with the Constitution and laws and having good moral character of the person applying for a Lawyer Practice Certificate; promptly detect, handle, or propose competent authorities to handle violations strictly according to the law."
"Article 2b. Exemption from lawyer vocational training and reduction in the probationary period for practicing law
1. A person falling under Article 13 and Article 16 of the Lawyers Law shall be exempted from lawyer vocational training and the probationary period for practicing law may be reduced or waived.
2. A person who has been criminally prosecuted or disciplined up to the level of removal from the position of judge, prosecutor, investigator, inspector, auditor; revocation of the title of People's Police Officer, military rank of officer in the Vietnam People's Army; revocation of academic titles of professor or associate professor in the field of law, doctor of law; or revocation of the appointment decision to the senior specialist grade, senior researcher grade, senior lecturer grade, main specialist grade, main researcher grade, main lecturer grade in the field of law shall not be exempted from lawyer vocational training or reduction in the probationary period for practicing law as stipulated in Article 13 and Article 16 of the Lawyers Law."
3. Article 17 is amended and supplemented as follows:
"Article 17. Revocation of the Registration Certificate for Legal Practice Activities of Law Practice Organizations, Branches of Law Practice Organizations, and Individual Lawyer Practice Registration Certificate
1. The Registration Certificate for Legal Practice Activities of a Law Practice Organization shall be revoked if it falls under any of the following circumstances:
a) Ceasing operations as prescribed in Clause 1 of Article 47 of the Lawyers Law;
b) Being administratively punished with the revocation of the Registration Certificate for Legal Practice Activities as prescribed by laws on administrative violations;
c) Failing to register for tax code within one year from the date of issuance of the Registration Certificate for Legal Practice Activities;
d) Not continuously operating at the registered office for six months, except in cases of temporary cessation of operations as prescribed by law;
đ) Not resuming operations or failing to report on the continuation of temporary cessation of operations beyond six months from the end of the period prescribed for temporary cessation of operations by law.
2. The Registration Certificate for Legal Practice Activities of a Branch of a Law Practice Organization shall be revoked if it falls under any of the following circumstances:
a) The Law Practice Organization establishing the branch has its Registration Certificate for Legal Practice Activities revoked as prescribed in Clause 1 of this Article;
b) The Law Practice Organization establishing the branch decides to terminate the operations of the branch;
c) The Branch of a Law Practice Organization falls under any of the circumstances prescribed in points b, c, d, or đ of Clause 1 of this Article.
3. The Individual Lawyer Practice Registration Certificate shall be revoked if it falls under any of the following circumstances:
a) Voluntarily ceasing practice;
b) Having the Lawyer Practice Certificate revoked as prescribed in Clause 1 of Article 18 of the Lawyers Law.
4. The Department of Justice shall issue a decision to revoke the Registration Certificate for Legal Practice Activities; monitor and supervise Law Practice Organizations and Branches of Law Practice Organizations in implementing procedures prescribed in Clauses 2, 3, and 4 of Article 47 of the Lawyers Law. The Department of Justice is responsible for sending the decision to revoke the Registration Certificate for Legal Practice Activities to the Bar Association, the tax authority where the organization is registered, the provincial or district prosecution agency, and publishing the decision on the Department of Justice's electronic information website; requesting the competent authority to revoke the seal of the Law Practice Organization or Branch of a Law Practice Organization.
In cases where a Law Practice Organization or Branch of a Law Practice Organization has its Registration Certificate for Legal Practice Activities revoked due to administrative punishment, the Department of Justice is responsible for sending the decision to revoke the Registration Certificate for Legal Practice Activities to the agency issuing the administrative punishment decision.
The Department of Justice is responsible for revoking the Individual Lawyer Practice Registration Certificate when the lawyer falls under any of the circumstances prescribed in Clause 3 of this Article. The Department of Justice is responsible for sending the decision to revoke the Individual Lawyer Practice Registration Certificate to the Bar Association where the lawyer is a member, the entity or organization where the lawyer signed the labor contract, and publishing the decision on the Department of Justice's electronic information website."
4. Article 20 is amended and supplemented as follows:
"Article 20. Approval of the Project for Organizing the Term Assembly, Extraordinary Assembly, and Personnel Building Plan for the Board of Directors, Reward and Disciplinary Council of the Bar Association
1. At least thirty days before the planned date of organizing the Term Assembly or Extraordinary Assembly of the Bar Association, the Board of Directors of the Bar Association reports to the People's Committee of the province or centrally-administered city, and the Vietnam Bar Federation about the project for organizing the assembly; personnel building plan for the Board of Directors, Reward and Disciplinary Council (if applicable).
The Department of Justice, in collaboration with the Department of Home Affairs, reviews and submits to the People's Committee of the province or centrally-administered city for consideration and approval of the project for organizing the assembly within seven working days from the date of receipt of the proposal from the Bar Association. The Vietnam Bar Federation provides comments in writing on the project for organizing the assembly; personnel building plan for the Board of Directors, Reward and Disciplinary Council (if applicable), sent to the People's Committee of the province or centrally-administered city within ten days from the date of receipt of the proposal.
2. Within fifteen days from the date of receipt of comments from the Vietnam Bar Federation and the review results of the Department of Justice, the People's Committee of the province or centrally-administered city considers and approves or requests amendments and supplements to the project for organizing the assembly. Within thirty days from the date of receipt of the request for amendments and supplements to the project for organizing the assembly, the Board of Directors of the Bar Association sends the People's Committee of the province or centrally-administered city the project for organizing the assembly that has been amended and supplemented.
3. Within sixty days from the date of approval of the project for organizing the assembly, the Board of Directors of the Bar Association must convene the assembly in accordance with the provisions of the law and the Charter of the Vietnam Bar Federation. If the Board of Directors of the Bar Association fails to organize the assembly without a valid reason beyond the specified time limit, the People's Committee of the province or centrally-administered city will consider suspending the activities of the Board of Directors of the Bar Association and establish an Assembly Organizing Board. The Assembly Organizing Board is responsible for organizing the Bar Association Assembly according to the approved project for organizing the assembly."
5. Article 21 is amended and supplemented as follows:
"Article 21. Approval of the Results of the Lawyer Assembly
1. The content of approving the results of the Lawyer Assembly includes:
a) The results of electing the Board of Directors, Director, Reward and Disciplinary Council of the Bar Association;
b) Resolutions of the Term Assembly or Extraordinary Assembly to remove, relieve, or appoint new or substitute Directors, members of the Board of Directors, Reward and Disciplinary Council of the Bar Association;
c) Resolutions adopting the internal regulations of the Bar Association."
2. Within seven working days from the date of the Congress's conclusion, the Board of Directors of the Bar Association shall submit to the People's Committee of the province or centrally governed city a report on the Congress's results accompanied by the Congress's minutes, resolutions, and other related documents including the election minutes, a list of the Chairperson and members of the Board of Directors, the Disciplinary Council's list, and the Bar Association's internal regulations. Within seven working days from the date of receipt of the report on the Congress's results, the People's Committee of the province or centrally governed city shall examine and approve or reject the approval of the election results or the Congress's resolutions.
3. The election results shall be rejected for approval in the following cases:
a) The election process and procedures do not ensure legality, democracy, transparency, and openness as prescribed by law and the Charter of the Vietnam Bar Federation.
b) The leadership positions elected do not meet the standards stipulated in the Charter of the Vietnam Bar Federation.
4. The Congress's resolutions shall be rejected for approval in the following cases:
a) They contain provisions contrary to the Constitution, laws, the Charter of the Vietnam Bar Federation, or exceed the tasks and powers of the Congress as prescribed by the Lawyers Law and the practice of law, and the Charter of the Vietnam Bar Federation;
b) The process and procedures for adopting the resolutions do not ensure legality, democracy, transparency, and openness as prescribed by law and the Charter of the Vietnam Bar Federation.
5. Within sixty days from the date of receipt of the notification regarding the rejection of the approval of the Congress's results, the Board of Directors of the Bar Association must reconvene the Congress in accordance with the law and the Charter of the Vietnam Bar Federation.
6. Add Article 22a after Article 22 as follows:
"Article 22a. Removal of Board of Directors' Members and the Chairperson of the Bar Association
1. A member of the Board of Directors of the Bar Association shall be removed when they fall under one of the following circumstances:
a) Violating the Constitution and laws while performing their duties and powers; harming the interests of the Bar Association;
b) Not complying with the requirements, regulations, and decisions of state management agencies during the performance of their duties and powers after being reminded in writing;
c) Having their Lawyer Practice Certificate revoked;
d) Other circumstances as prescribed by the Charter of the Vietnam Bar Federation.
2. The Chairperson of the Bar Association shall be removed when they fall under one of the following circumstances:
a) Falling under one of the circumstances specified in Clause 1 of this Article;
b) Exceeding six months from the end of their term without organizing the Congress to convene the Board of Directors, except for valid reasons;
c) Failing to implement regular and annual reporting systems on the execution of the Bar Association's tasks as prescribed by the Lawyers Law for two consecutive years; failing to send relevant regulations, decisions, and resolutions concerning the organization of the Congress to the competent authority within six months from the end of the Congress.
3. In the case where all members of the Board of Directors fall under one of the circumstances specified in Clause 1 of this Article or the Chairperson of the Bar Association falls under one of the circumstances specified in Clause 2 of this Article, the Chairman of the People's Committee of the province or centrally governed city shall establish a Congress Organizing Board after receiving a unified opinion from the Minister of Justice. The Congress Organizing Board shall be responsible for organizing the Bar Association Congress to carry out removals, new elections, supplementary elections, replacements, and other tasks according to the approved Congress Organization Plan."
7. Add Article 23a after Article 23 in Section 2 of the Vietnam Bar Federation as follows:
"Article 23a. Coordination in Drafting the Congress Term Proposal, Extraordinary Congress Proposal, and Personnel Election Plan for National Lawyers Council Members, Standing Committee Members, and Vietnam Bar Federation Chairperson
1. At least sixty days before the planned date of the Congress Term, Extraordinary Congress, the Vietnam Bar Federation shall submit to the Ministry of Justice the Congress Organization Plan, the personnel election plan for new or replacement, supplementary election of National Lawyers Council Members, Standing Committee Members, and Vietnam Bar Federation Chairperson.
2. Within ten days from the date of receipt of the unified opinion of the Minister of Public Security and the Minister of Justice, the Ministry of Justice shall provide comments on the Congress Organization Plan, the personnel election plan for new or replacement, supplementary election of National Lawyers Council Members, Standing Committee Members, and Vietnam Bar Federation Chairperson.
3. The Congress Organization Plan, the personnel election plan for new or replacement, supplementary election of National Lawyers Council Members, Standing Committee Members, and Vietnam Bar Federation Chairperson shall be submitted to the competent authority after receiving a unified opinion from the Minister of Justice."
8. Add Article 25a after Article 25 as follows:
"Article 25a. Removal of National Lawyers Council Members and Vietnam Bar Federation Chairperson
1. A National Lawyers Council Member shall be removed when they fall under one of the following circumstances:
a) Violating the Constitution and laws while performing their duties, powers, and responsibilities; harming the interests of the Vietnam Bar Federation and the Bar Association;
b) Not complying with the requirements, regulations, and decisions of state management agencies during the performance of their duties and powers after being reminded in writing;
c) Having their Lawyer Practice Certificate revoked;
d) Other circumstances as prescribed by the Charter of the Vietnam Bar Federation.
2. The Vietnam Bar Federation Chairperson shall be removed when they fall under one of the following circumstances:
a) Falling under one of the circumstances specified in Clause 1 of this Article;
b) Exceeding six months from the end of their term without organizing the Congress to convene the National Lawyers Council, except for valid reasons;
c) Failing to implement regular and annual reporting systems on the execution of the Vietnam Bar Federation's tasks as prescribed by the Lawyers Law for two consecutive years; failing to send relevant regulations, decisions, and resolutions concerning the organization of the Congress to the competent authority within six months from the end of the Congress."
9. Clause 1 of Article 40 is amended and supplemented as follows:
"1. The branch's or foreign law firm's establishment permit shall be revoked in any of the following cases:
a) Voluntarily ceasing operations in Vietnam;
b) Being administratively punished with the revocation of the establishment permit according to the laws on handling administrative violations;
c) Failing to register for tax code within one year from the date of issuance of the establishment permit;
d) Not continuously operating at the registered office for six months, except in cases of temporary cessation of operations as prescribed by law;
d) Failing to commence operations within sixty days from the date of issuance of the establishment permit;
e) Failing to resume operations or failing to report on continued suspension of operations beyond six months from the end date of the suspension period as prescribed by law;
g) The foreign lawyer organization establishing a branch or foreign law firm in Vietnam ceases to operate abroad;
h) The Branch Manager or Foreign Law Firm Director no longer meets the practice conditions stipulated in Article 74 of the Lawyers Law; does not have their Lawyer Practice Permit renewed in Vietnam or has exceeded the practice period specified in the permit without renewing the permit;
i) No longer meeting the conditions stipulated in Article 68 of the Lawyers Law."
10. Clause 1 of Article 41 is amended and supplemented as follows:
"1. The foreign lawyer’s practice permit in Vietnam shall be revoked in any of the following cases:
a) Not meeting the practice conditions of foreign lawyers in Vietnam as stipulated in Article 74 of the Lawyers Law; not having the Lawyer Practice Permit renewed in Vietnam or having exceeded the practice period specified in the permit without renewing the permit;
b) Being administratively punished with the revocation of the practice permit in Vietnam according to the laws on handling administrative violations;
c) Being criminally prosecuted;
d) Ceasing to practice as a lawyer in Vietnam voluntarily;
đ) Not being recruited or signing labor contracts with branches, foreign law firms in Vietnam, or Vietnamese lawyer organizations for a continuous period of six months;
e) Losing the status of practicing lawyer abroad."
Article 2. Abolish Article 43 of Decree No. 123/2013/NĐ-CP dated October 14, 2013 of the Government detailing certain provisions and implementing measures of the Lawyers Law.
Article 3. Effectiveness
This Decree takes effect from November 25, 2018.
Article 4. Organization of Implementation
The Minister of Justice, Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial and centrally-administered city People's Committees, and Chairman of the Vietnam Bar Federation are responsible for organizing the implementation of this Decree./.
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Place of Receipt: |
PRIME MINISTER (Signed)
Nguyen Xuan Phuc |
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