Chương II Nghị định 131/2008/NĐ-CP tổ chức xã hội nghề nghiệp của luật sư hướng dẫn Luật Luật sư: Đoàn luật sư

Chapter II

BAR ASSOCIATIONS

Article 6. Legal status of Bar Associations

1. A Bar Association is established in a province or centrally run city, having the legal person status and its own seal and accounts, and operating on the principle of self-financing its activities with revenues from membership fees, members' contributions and other lawful revenue sources.

2. Bar Associations are members of provincial-level Fatherland Front organizations as provided in the Charter of Vietnam Fatherland Front.

3. Bar Associations have their own Charters to regulate their internal relations. The charter of a bar association must not be contrary to the Charter of the Vietnam Union of Bar Associations.

Article 7. Conditions for establishment of a Bar Association

1. Its guiding principles and operation purposes are not contrary to the Constitution and law.

It has at least three founding members possessing law practice certificates in each province or centrally run city.

2. It has a scheme on organizational structure and a charter.

Article 8. Procedures to permit the establishment of a Bar Association

1. A dossier for establishment of a Bar Association comprises:

a/ A written application for establishment of a Bar Association;

b/ The draft Charter of the Bar Association;

c/ The draft report on orientations for activities of the Bar Association;

d/ The scheme on organization of a bar association-founding congress;

e/ A list of members of the Bar Association, enclosed with copies of their law practice certificates.

2. The dossier for establishment of a Bar Association will be compiled and sent to a provincial-level Justice Service by its founding members. Within fifteen days from the date of receipt of a complete dossier, the provincial-level Justice Service shall assume the prime responsibility for, and coordinate with the provincial-level Home Affairs Service in, examining the dossier and submitting it to the provincial-level People's Committee for permission for the establishment of the Bar Association.

Within five working days after receiving the written examination of the provincial-level Justice Service, the provincial-level People's Committee shall send a document to the Ministry of Justice on the establishment of a Bar Association in the locality. Within seven working days after the receipt of the document of the provincial-level People's Committee, the Ministry of Justice shall issue a document on the establishment of the Bar Association.

After obtaining the written agreement of the Justice Minister, the president of the provincial-level People's Committee shall decide to permit the establishment of the Bar Association; in case of refusal, he/she shall notify in writing the reason therefor. The refused applicant may lodge his/her complaint according to law.

Article 9. Bar association-founding congress

1. Within sixty days after a decision permitting the establishment of a Bar Association takes effect, the Bar Association founders shall organize a congress to found the Bar Association; past this time limit, if the congress is not organized, the decision permitting the establishment of the Bar Association ceases to be effective.

2. A Bar Association-founding congress covers the following principal activities:

a/ Announcement of the decision permitting the establishment of the Bar Association;

b/ Discussion on and voting to adopt the Charter of the Bar Association;

c/ Election of the Management Board, the Manager and the Commendation and Discipline Board;

d/ Adoption of the report on orientations for activities of the bar association;

e/ Adoption of the resolution of the congress.

3. The Bar Association-founding congress's results are subject to approval under Article 12 of this Decree.

Article 10. Approval of Bar Associations' Charters

1. Within seven working days after the Charter of a Bar Association is adopted, the Management Board of the Bar Association shall send to the provincial-level Justice Service a dossier requesting approval of the Charter. Such dossier comprises:

a/ A written request for approval of the Charter;

b/ The Charter and minutes for the adoption of the Charter;

c/ The congress's resolution;

d/ The written consent of the Vietnam Union of Bar Associations to the Charter's contents.

2. Within twenty days after the receipt of a complete dossier of request for approval of the Charter of a Bar Association, the provincial-level Justice Service shall assume the prime responsibility for, and coordinate with the provincial-level Home Affairs Service in, appraising the dossier and proposing the provincial-level People's Committee to approve the Charter.

Within ten working days after the receipt of written appraisals of the provincial-level Justice Service together with the dossier, the provincial-level People's Committee president shall decide to approve or disapprove the Charter of the Bar Association; in case of refusal, he/she shall notify in writing the reasons therefor.

3. The Charter of a Bar Associations will be disapproved in the following cases:

a/ Its contents are contrary to the Constitution and law;

b/ Its contents are not in line with the Charter of the Vietnam Union of Bar Associations;

c/ The charter-approving order and procedures fail to ensure regularity, democracy, publicity and transparency as provided for by law and the Charter of the Vietnam Union of Bar Associations.

4. If a Bar Association's Charter is disapproved, its Management Board shall amend the Charter or reorganize the congress to adopt the Charter according to law and the Charter of the Vietnam Union of Bar Associations.

5. When a Bar Association's Charter is revised, the Management Board of such Bar Association shall, within seven working days after the revised Charter is adopted, send to the concerned provincial-level Justice Service a written request enclosed with the revised Charter, the minutes on the adoption of the revised Charter and the resolution of the congress.

Approval of the revised Charter shall comply with the provisions of this Article.

6. The charter of a Bar Association takes effect on the date of its approval.

Article 11. Term congress of a Bar Association

1. The plenary congress or delegate congress of lawyers of a Bar Association (below referred to as the lawyers' congress) is the supreme leading body of the Bar Association. The term of a lawyers' congress shall be specified in the bar association's Charter, but must not exceed 5 years after the term of the previous congress ends.

2. A lawyers' congress is regarded as valid if it is participated by at least two-thirds of the bar association's members or two-thirds of the convened delegates.

The approval of decisions and resolutions of lawyers' congresses must be voted for by more than half of the official participants.

3. At least thirty days before the date projected for organization of a term congress, the Bar Association's Management Board shall report to the provincial-level People's Committee on the plan on organization of the term congress, the scheme on establishment of the Management Board and the Commendation and Discipline Council of the new term. The provincial-level Justice Service shall assume the prime responsibility for, and coordinate with the provincial-level Home Affairs Service in, appraising and submitting to the provincial-level People's Committee for consideration and comment the plan on organization of the term congress, the scheme on establishment of the Management Board and the Commendation and Discipline Council of the new term.

4. A Bar Association's term congress has the following tasks and powers:

a/ To review and assess the organization and operation of the Bar Association of the previous term;

b/ To adopt orientations, tasks, organization and activities of the Bar Association for the new term;

c/ To elect the Management Board, the Manager and the Commendation and Discipline Council of the Bar Association;

d/ To consider amendments or supplements to the Charter (if any);

e/ Other tasks and powers as provided for by the Bar Association's Charter.

Article 12. Approval of results of a lawyers' congress

1. The approval of results of a lawyers' congress covers the following contents:

a/ Results of election of the Management Board, the Manager and the Commendation and

Discipline Council of the Bar Association;

b/ The resolution of the Bar Association's term congress or congress to relieve from office and elect or replace the Manager, to additionally elect members of the Management Board or the Commendation and Discipline Council.

2. Within seven working days after a congress concludes, the Bar Association's Management Board shall send to the concerned provincial-level Justice Service a report on congress results, enclosed with the election minutes, a lists and resumes of the Manager and members of the Management Board and the Commendation and Discipline Council of the Bar Association; and the congress resolution.

Within ten working days after receiving the report on congress results, the provincial-level Justice Service shall assume the prime responsibility for, and coordinate with the provincial-level Home Affairs Service in, considering and proposing to the provincial-level People's Committee to approve the results of the Bar Association's congress.

Within five working days after receiving the written report of the provincial-level Justice Service, the provincial-level People's Committee shall decide to approve or disapprove the congress results; in case of refusal, it shall notify in writing the reasons therefor.

3. Election results will be disapproved in the following cases:

a/ The election order and procedures fail to ensure regularity, democracy, publicity and transparency as provided for by law, the Charter of the Vietnam Union of Bar Associations and the charter of the Bar Association;

b/ The elected leaders fail to satisfy the criteria prescribed by the Charter of the Vietnam

Union of Bar Associations and the Charter of The Bar Association.

4. The congress resolution will be disapproved in the following cases:

a/ Its contents are contrary to the Constitution, law. Charter of the Vietnam Union of Bar Associations and Charter of the Bar Association.

b/ The resolution-approving order and procedures fail to ensure the regularity, democracy, publicity and transparency as provided for by law, the Charter of Vietnam Union of Bar Association and Charter of the Bar Association.

5. Within sixty days after receiving the written notice of disapproval of the congress results, the Management Board of the Bar Association shall reorganize the congress for election, adoption or amendment of resolutions according to law, the Charter of the Vietnam Union of Bar Associations and the Charter of the Bar Association; past this time limit, if such congress is not reorganized, the provincial-level People's Committee shall consider and decide on the dissolution of such Bar Association.

6. In case of reorganizing a congress for relief from office and new election or election for replacement of the Manager, additional election of a member of the Management Board or the Commendation and Discipline Council of a Bar Association, its Management Board shall, within seven working days after the conclusion of the congress, send to the provincial-level Justice Service a report on congress results. The approval of congress results must comply with the provisions of this Article.

Article 13. Regime of reporting, sending of regulations, decisions, resolutions of Bar Associations

1. Before November 10 every year, a Bar Association shall send to the provincial-level People's Committee, provincial-level Justice Service and the Vietnam Union of Bar Associations reports on its organization and activities from October 1 of the preceding year to September 30 of the current year.

In addition to annual reports, a Bar Association shall make reports at the request of the Ministry of Justice, provincial-level People's Committee, provincial-level Justice Service or Vietnam Union of Bar Associations.

2. Within seven working days after a Bar Association issues regulations or decisions or adopts resolutions, its Management Board shall send to the Ministry of Justice, the concerned provincial-level People's Committee and the Vietnam Union of Bar Associations such regulations, decisions or resolutions.

Article 14. Request for amendment or cancellation of regulations, decisions or resolutions of Bar Associations

1. If detecting or having grounds to believe that regulations, decisions or resolutions of a Bar Association are contrary to the law on lawyers, the provincial-level People's Committee may stop the implementation thereof and request partial amendment or cancellation of such regulations, decisions or resolutions.

2. If detecting or having grounds to believe that regulations, decisions or resolutions of a Bar Associations are contrary to the Charter of the Vietnam Union of Bar Associations, the Standing Committee of the Vietnam Union of Bar Associations may stop the implementation thereof and request partial amendment or cancellation of such regulations, decisions or resolutions.

Article 15. Relief from office of Management Boards or Managers of Bar Associations

1. The Management Board or Manager of a Bar Association shall be relieved from office in one of the following cases:

a/ They have committed especially serious violations of the provisions of the Charter of their Bar Association, the Charter of the Vietnam Union of Bar Associations while performing their tasks, exercising their powers or performing their responsibilities; infringing upon the interests of their Bar Association;

b/ They have committed prohibited acts defined in Article 5 of this Decree or seriously breached other provisions of law;

c/ They have no longer gained the confidence of at least half of the members of their Bar Association;

d/ They have been disciplined in the form of temporary deprivation of their membership capacity or depletion of their names from the list of lawyers of their Bar Association;

e/ They have been deprived of the right to use law practice certificates;

f/ They have been convicted and their sentences have taken effect.

2. If the Management Board of a Bar Association falls under one of the cases specified at Points a, b and c. Clause 1 of the Article, the Standing Committee of the Vietnam Union of Bar Associations shall propose the concerned provincial-level People's Committee to issue a decision to stop the operation of such Management Board and request the Bar Association concerned to organize an extraordinary congress to elect its new Management Board and Manager.

The Commendation and Discipline Council of the Bar Association shall temporarily undertake the tasks and powers of the Management, and the president of the Commendation and Discipline Council shall temporarily undertake the tasks and powers of the Manager of the Bar Association until the its new Management Board and Manager are elected.

Within sixty days after the decision to stop the operation of the Bar Association's Management Board is issued, the president of the Commendation and Discipline Council shall convene an extraordinary congress of lawyers.

3. If the Manager of a Bar Association falls under one of the cases defined in Clause 1 of this Article, the Standing Committee of the Vietnam Union of Bar Associations shall propose the concerned provincial-level People's Committee to issue a decision to suspend him/ her from such position and request the Management Board of such Bar Association to appoint a deputy manager of the Bar Association to work as acting Manager of the Bar Association until a new Manager is elected; within thirty days after the appointment, the acting Manager of the Bar Association shall convene an extraordinary congress to elect a new Manager of the Bar Association.

4. Persons relieved from office may lodge their complaints or lawsuits with administrative courts according to law.

Article 16. Relief from office of leading officials of Bar Associations

1. Leading officials of a Bar Association shall be relieved from office in the following cases:

a/ They have lost their civil act capacity or have had their civil act capacity restricted;

b/ They have applied to retire from their positions;

c/ They are unable to fulfill their tasks due to poor health or other reasons.

2. The relief from office of leading officials of a Bar Association from must comply with its Charter.

Article 17. Dissolution of Bar Associations

1. A Bar Association shall be dissolved in the following cases;

a/ It has fewer than three member lawyers;

b/ Past the six-month time limit after the end of its term, it still fails to organize a congress;

c/ It fails to reorganize a congress as provided for in Clause 5, Article 12 of this Decree;

d/ Its activities have seriously violated the law, its Charter or the Charter of the Vietnam Union of Bar Associations, adversely affecting national security, social order and safety and infringing upon the interests of the State, public interests, the lawful rights and interests of agencies or organizations or individuals.

2.If a Bar Association is dissolved under Clause 1 of this Article, the president of the concerned provincial-level People's Committee shall issue a decision to dissolve it after reaching agreement with the Justice Minister.

The re-establishment of a Bar Association must comply with Articles 7, 8 and 9 of this Decree.