Decree No. 51/2015/NĐ-CP on Issuing Legal Opinions

 DECREE

On issuing legal opinions

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On the basis of Law on the Organization of the Government dated December 25, 2001;

At the proposal of the Minister of Justice;

The Government promulgates this Decree on issuing legal opinions,

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Decree stipulates principles, scope, procedures, and formalities for issuing legal opinions, the basic content of legal opinions issued by the Ministry of Justice, and the responsibilities of relevant agencies and organizations.

2. This Decree applies to:

a) The Ministry of Justice;

b) Agencies or organizations requesting issuance of legal opinions;

c) Agencies or organizations related to the issuance of legal opinions.

Article 2. Interpretation of Terms

Article 3. Legal opinion as defined in this Decree is a document issued by the Ministry of Justice regarding the legality of the document under review for a legal opinion.

2. Vietnam is the State, Government, or Vietnamese state agency that is a party to the documents under review for a legal opinion.

3. The document under review for a legal opinion is a document within the scope of issuance of legal opinions as prescribed in Article 5 of this Decree.

Article 3. Principles for issuing legal opinions

1. Legal opinions are issued based on and consistent with the provisions of Vietnamese law at the time of issuance.

2. Legal opinions are issued after the documents under review for a legal opinion have been signed, approved, ratified, or promulgated in accordance with the provisions of law.

3. Legal opinions do not add, subtract, or change the rights and obligations of the parties arising from the documents under review for a legal opinion or from the applicable law at the time of issuance.

Article 4. Value of legal opinions

A legal opinion is an independent professional evaluation of the legal issues of the document under review for a legal opinion.

Article 5. Scope of issuance of legal opinions

The Ministry of Justice reviews and issues legal opinions for documents where the State, Government, or state agency is a party in the following cases:

1. International agreements on official development assistance (ODA) loans and concessional loans; other related documents where the State, Government, or state agency is a party (if any);

2. Loan agreements made in the name of the State, Government, or Ministry of Finance;

3. Guarantee documents issued by the Government for guaranteed loans or international bond issuance documents guaranteed by the Government;

4. Agreements for the issuance of international bonds by the Government;

5. Public-private partnership (PPP) investment projects (including project contracts, government guarantee documents (if any), lease contracts, and other documents related to the project where the State, Government, or state agency is a party);

6. Other special cases assigned by the Government or the Prime Minister.

Article 6. Agencies and organizations entitled to request issuance of legal opinions

1. State agencies primarily negotiating and signing international agreements on ODA loans and concessional loans; loan agreements of the State; and PPP investment project contracts.

2. Organizations being guaranteed for documents guaranteeing government-guaranteed loans or government-guaranteed bond issuance documents.

Article 7. Conditions for issuance of legal opinions

The Ministry of Justice issues legal opinions when all of the following conditions are met:

1. The document under review for a legal opinion falls within the scope of issuance of legal opinions as prescribed in Article 5 of this Decree;

2. There is a complete application for issuance of a legal opinion in accordance with the provisions of Article 12 of this Decree and it has been clarified and corrected according to the requirements of the Ministry of Justice as prescribed in Article 14 of this Decree;

3. Negotiations, signing, approval, or ratification of the documents under review for a legal opinion have been carried out within the appropriate authority and in accordance with the prescribed procedures and formalities under Vietnamese law.

Article 8. Refusal to Issue Legal Opinions

The Ministry of Justice shall refuse to issue legal opinions in the following cases:

1. The application file for requesting a legal opinion does not meet the conditions for issuance and the application file as prescribed in Articles 7 and 12 of this Decree.

2. The application file for requesting a legal opinion has not been supplemented, corrected, or clarified as required under Clause 2 of Article 13 or Article 14 of this Decree.

Article 9. Form and Language of Legal Opinions

Legal opinions shall be issued in the form of a document in Vietnamese or English at the request of the agency or organization requesting the legal opinion.

Article 10. Basic Contents of Legal Opinions

1. The contents of legal opinions include the following basic items:

a) The conditions, circumstances, and assumptions necessary to clarify the purpose and scope of the legal opinion;

b) Evaluation of the legal status of the Vietnamese party in signing or issuing the document;

c) Evaluation of the authority of the Vietnamese party to participate in signing or issuing the document;

d) Evaluation of compliance with Vietnam's legal provisions on negotiation, signing, and issuing procedures for the document;

đ) The purpose of using the legal opinion and providing the legal opinion to other organizations or individuals.

2. In addition to the above contents, depending on specific cases, legal opinions may contain other contents but must not contravene the principles for issuing legal opinions as stipulated in Article 3 of this Decree.

3. The contents of legal opinions do not evaluate facts, events, or contents that are not directly related to Vietnamese law.

Chapter II
PROCEDURES AND FORMALITIES FOR ISSUING LEGAL OPINIONS

Article 11. Requesting Issuance of Legal Opinions

After completing the signing, approval, or endorsement of the document to be considered for a legal opinion, the agency or organization with the need shall submit one set of the application file for requesting a legal opinion as prescribed in Article 12 of this Decree to the Ministry of Justice.

Article 12. Application File for Requesting a Legal Opinion

1. The application file for requesting a legal opinion for international treaties on ODA loans and preferential loans includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) The signed international treaty (original or copy);

c) The document approving the policy for negotiating and signing international treaties on ODA loans and preferential loans (original or copy);

d) The document authorizing negotiations and signing of international treaties (original or copy) (if applicable);

đ) Approval by the Government for international treaties requiring Government approval or endorsement by the President or National Assembly for international treaties requiring State-level or Government approval (original or copy) (if applicable);

e) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

g) Other necessary documents for issuing a legal opinion;

h) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

2. The application file for requesting a legal opinion for loan agreements in the name of the State, Government, or Ministry of Finance includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) Loan agreement in the name of the State, Government, or Ministry of Finance (original or copy);

c) Document authorizing negotiations and signing of the loan agreement (original or copy) (if applicable);

d) Approval by the President or Government or Prime Minister regarding the signing of the loan agreement (original or copy);

đ) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

e) Other necessary documents for issuing a legal opinion;

g) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

3. The application file for requesting a legal opinion for government guarantee documents for loans guaranteed by the Government or international bond issuance documents guaranteed by the Government includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

c) Government guarantee document (original or copy);

d) Document approving the Government's guarantee policy by the Government or Prime Minister (original or copy);

đ) Documents authorizing or proving the authority of the signatory of the Government guarantee document (original or copy);

e) Other necessary documents for issuing a legal opinion;

g) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

4. The application file for requesting a legal opinion for agreements on the issuance of international bonds by the Government includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) Bond issuance agreement (original or copy);

c) Document of the Government approving the international bond issuance project (original or copy);

d) Documents authorizing or proving the authority of the signatory of the bond issuance agreement (original or copy);

đ) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

e) Other necessary documents for issuing a legal opinion;

g) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

5. The application file for requesting a legal opinion for investment projects under the PPP model includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) Project contract (original or copy);

c) Government guarantees and commitments (original or copy) (if applicable);

d) Approval by the competent authority of the project contract (if applicable) and the guarantee policy (original or copy);

đ) Document authorizing the signing of government guarantees and commitments (original or copy);

e) Other documents where the State, Government, or state agency is a party (original or copy);

g) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

h) Other necessary documents for issuing a legal opinion;

i) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

6. The application file for requesting a legal opinion for other documents assigned by the Government or Prime Minister includes:

a) A letter requesting the Ministry of Justice to issue a legal opinion (original);

b) The document assigned for consideration for a legal opinion (original or copy);

c) Assignment document of the Government or Prime Minister (original);

d) Document proving the negotiation and signing process of the document to be considered for a legal opinion in accordance with the law (original or copy);

đ) Authorization document as prescribed by law (original or copy) (if applicable);

e) The evaluation opinion of the agency or organization requesting the legal opinion on the legality of the documents to be considered for a legal opinion (original);

g) Other necessary documents for issuing a legal opinion;

h) Vietnamese translations of the aforementioned documents if these documents are in a foreign language.

Article 13. Receiving and Processing Applications for Legal Opinions

1. The Ministry of Justice shall be responsible for receiving and examining applications for legal opinions as prescribed in Article 12 of this Decree.

In cases where the application for a legal opinion does not meet the requirements set forth in Article 12 of this Decree, the Ministry of Justice shall request the agency or organization applying for the legal opinion to supplement the application within five working days from the date of receipt of the application.

2. The agency or organization requesting a legal opinion shall be responsible for supplementing the application for a legal opinion within five working days from the date of receipt of the request for supplementation from the Ministry of Justice.

Article 14. Clarifying and Rectifying Applications for Legal Opinions

1. In cases where the content of the application for a legal opinion is found to be inconsistent with the provisions of the law at the time of submission, the Ministry of Justice shall issue a letter requesting the agency or organization applying for the legal opinion to rectify or clarify the content of the application within five working days from the date of receipt of the complete application for a legal opinion.

In cases where the application for a legal opinion contains complex content, the deadline for the Ministry of Justice to issue a letter requesting rectification or clarification of the content of the application may be extended but shall not exceed fifteen days from the date of receipt of the complete application for a legal opinion.

2. The agency or organization applying for a legal opinion shall be responsible for researching, clarifying, and rectifying the application according to the requirements of the Ministry of Justice within fifteen days from the date of receipt of the request from the Ministry of Justice. If an extension of the deadline is required, a written request for an extension must be submitted to the Ministry of Justice and approved in writing by the Ministry of Justice.

Article 15. Deadline for Issuing Legal Opinions

1. The Ministry of Justice shall issue a legal opinion within fifteen days for international agreements on ODA loans and preferential loans (if any), and thirty days for other cases, from the date of receipt of a complete valid application as prescribed in this Decree.

2. A valid application is an application that includes all documents prescribed in Article 12 of this Decree and has been clarified and rectified according to the requirements of the Ministry of Justice as prescribed in Article 14 of this Decree.

3. In cases where the legal opinion contains complex content, the deadline for issuing a legal opinion may be extended but shall not exceed sixty days from the date of receipt of a complete valid application.

Article 16. Clarifying the Content of Legal Opinions

1. In cases requiring clarification of the content of a legal opinion, the agency or organization that has received the legal opinion shall submit a written request to the Ministry of Justice to clarify the content of the legal opinion.

2. Within fifteen days from the date of receipt of the request, the Ministry of Justice shall issue a letter clarifying the content of the legal opinion and send it to the requesting agency or organization.

Article 17. Amending and Supplementing Legal Opinions

1. The agencies and organizations prescribed in Clause 1 of Article 6 of this Decree have the right to request amendments and supplements to the content of issued legal opinions if the document for which the legal opinion was issued has been amended or supplemented.

2. In cases where there is a need to amend or supplement the content of an issued legal opinion, the agency or organization shall submit one set of application for a legal opinion as prescribed in Article 12 of this Decree to the Ministry of Justice, clearly stating the content of the request for amendment or supplementation and the reasons for the request.

3. The Ministry of Justice shall be responsible for receiving the request and issuing or refusing to issue an amended or supplemented legal opinion within thirty days from the date of receipt of a complete valid application. In cases where the issuance of an amended or supplemented legal opinion is refused, the Ministry of Justice shall provide a formal written response to the requesting agency or organization, clearly stating the reasons for refusal.

Article 18. Use of Legal Opinions

1. Agencies and organizations requesting issuance of legal opinions may only use such legal opinions for transactions specified in the document under consideration for issuance of the legal opinion.

2. Agencies and organizations requesting issuance of legal opinions may only provide legal opinions to individuals and organizations mentioned in the legal opinion and may only provide to other individuals and organizations with the written consent of the Ministry of Justice.

Chapter III
RESPONSIBILITIES OF AUTHORITIES AND ORGANIZATIONSDURING THE PROCESS OF ISSUING LEGAL OPINIONS

Article 19. Responsibilities of agencies and organizations requesting issuance of legal opinions

1. Provide the Ministry of Justice with full and timely information and documents related to the document under consideration for issuance of the legal opinion, as required by this Decree.

2. Ensure the accuracy, legality, and authenticity of the application documents submitted to the Ministry of Justice for issuance of the legal opinion.

3. In cases where it is not possible to provide all the required information and documents, the agency or organization requesting issuance of the legal opinion must officially notify the Ministry of Justice about the inability to provide such information and documents.

4. In cases where provided information and documents are inaccurate, incomplete, illegal, or fail to ensure authenticity, the agency or organization requesting issuance of the legal opinion shall bear full responsibility for the consequences resulting from the provision of such information.

Article 20. Responsibilities of the Ministry of Justice in considering requests for issuance of legal opinions

1. Ensure that the content of the legal opinion complies with legal provisions at the time of issuance of the legal opinion.

2. Notify in writing the agency or organization requesting issuance of the legal opinion when refusing to issue a legal opinion, stating clearly the reasons for refusal.

Article 21. Responsibilities for coordination with the Ministry of Justice in handling requests for issuance of legal opinions

When necessary, upon request of the Ministry of Justice, relevant ministries, agencies equivalent to ministries, and organizations shall cooperate in reviewing and issuing legal opinions.

Chapter IV
IMPLEMENTATION

Article 22. Implementation organization

The Ministers, Heads of agencies equivalent to ministries, Heads of government agencies, Chairpersons of provincial People's Committees, and organizations and individuals concerned are responsible for implementing this Decree.

Article 23. Effectiveness of Implementation

1. This Decree takes effect from July 15, 2015.

2. Cases that have submitted applications to the Ministry of Justice for issuance of legal opinions before the effective date of this Decree shall continue to be handled according to the provisions of Decree No. 38/2013/NĐ-CP dated April 23, 2013 of the Government on management and use of official development assistance and preferential loan funds from donors, Decree No. 01/2011/NĐ-CP dated January 5, 2011 of the Government on issuance of government bonds, government-guaranteed bonds, and local government bonds, Decree No. 108/2009/NĐ-CP dated November 27, 2009 of the Government on investment under build-operate-transfer contracts, build-transfer-operate contracts, and build-transfer contracts, Decree No. 15/2011/NĐ-CP dated February 16, 2011 of the Government on issuance and management of government guarantees, and Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment.

3. From the date this Decree takes effect, the following provisions are abolished:

a) Clause 6 of Article 64 of Decree No. 38/2013/NĐ-CP dated April 23, 2013 of the Government on management and use of official development assistance and preferential loan funds from donors;

b) Clause 4 of Article 49 of Decree No. 01/2011/NĐ-CP dated January 5, 2011 of the Government on issuance of government bonds, government-guaranteed bonds, and local government bonds;

c) Clause 6 of Article 2, point b of Clause 1 of Article 4, and point c of Clause 6 of Article 10 of Decree No. 15/2011/NĐ-CP dated February 16, 2011 of the Government on issuance and management of government guarantees./.