Nghị định 137/2018/NĐ-CP sửa đổi Nghị định 123/2013/NĐ-CP hướng dẫn thi hành Luật luật sư

DECREE

ON AMENDMENTS TO GOVERNMENT’S DECREE NO. 123/2013/ND-CP DATED OCTOBER 14, 2013 ON GUIDELINES FOR THE LAW ON LAWYERS

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Lawyers dated June 29, 2006, amended on November 20, 2012;

At the request of the Minister of Justice;

The Government promulgates a Decree on amendments to Government’s Decree No. 123/2013/ND-CP dated October 14, 2013 on guidelines for the Law on Lawyers.

Article 1. Amendments to Government’s Decree No. 123/2013/ND-CP dated October 14, 2013 on guidelines for the Law on Lawyers

1. Article 1 shall be amended as follows:

“Article 1. Scope

This Decree provides guidelines for the Law on Lawyers regarding lawyer-training establishments; lawyers’ qualifications; legal aid by lawyers, obligations to attend compulsory professional refresher courses of lawyers, the state management on lawyers and law practice, law-practicing organizations, remuneration for lawyers who participate in legal proceedings in criminal cases, socio-professional organizations of lawyers, law practice of foreign law-practicing organizations and foreign lawyers in Vietnam”.

2. Point 2a and 2b are added to Article 2 as follows:

“Article 2a. Persons unqualified for complying with Constitution and law; persons unqualified for good moral qualities as prescribed in Article 10 of the Law on Lawyers

1. A person falling under one of the following cases is deemed unqualified for complying with Constitution and law; persons unqualified for good moral qualities as prescribed in Article 10 of the Law on Lawyers:

a) He/she was disciplined as prescribed by law on officials and public employees but the discipline decision has not expired or he/she was faced with dismissal as a discipline but a 3-year period has not expired from the effective date of the dismissal decision; he/she faced an administrative penalty for a violation against regulation on judicial assistance, legal aid, property damage, state secret protection, impedance or opposition to inspection and control of law enforcers or giving bribes to law enforcers but a 1-year period has not expired from the date on which he/she finishes abiding by the decision on administrative penalty;

b) He/she faced an administrative penalty or was disciplined or faced a criminal penalty or received a conclusion of the competent authority concerning appropriation of property, self-seeking, fraud, infringement of national security; inappropriate manners or speech prejudicing
the image and credit of lawyer profession or prejudicing rights and legitimate interests of agencies, organizations, and individuals; participating, convincing, provoking, buying off, coercing other people to disturb the peace, committing legal violations or violations against Points b, d, e, g, i or k Clause 1 Article 9 of the Law on Lawyers; deliberately committing other legal violations that have been disciplined at least 2 times.

2. A person shall be deemed redeeming his/her faults and resuming qualified for complying with Constitution and law or qualified for good moral qualities as prescribed in Article 10 of the Law on Lawyers if: a) he/she fell under the case prescribed in Point a Clause 1 of this Article and his/her discipline decision has expired; or the 3-year period after effective date of his/her dismissal decision has expired; or the 1-year period after he/she finishes abiding the administrative penalty decision has expired; or b) he/she was convicted of an involuntary crime or a deliberate less serious crime but his/her conviction was expunged and he/she does not fall under the case prescribed in Point b Clause 1 of this Article and he/she submits a written commitment of his/her progress concerning compliance with the Constitution and law, good moral qualities bearing certification of his/her last working place before applying for a lawyer practice certificate or of the police officer of commune, ward, town where he/she has resided.

3. The Department of Justice shall verify the application and details about the applicant’s progress concerning the compliance with the Constitution and law, good moral qualities as prescribed in Clause 2 of this Article.

If the application fails to clearly present the applicant’s progress concerning the compliance with the Constitution and law and good moral qualities, the regulatory agency associated with lawyers and lawyer practice shall verify information by undertaking verification visits to the entity which made the discipline decision, the employer that the applicant has worked for after being disciplined, bar associations, relevant entities or meet the applicant in person.

4. The Vietnam Bar Federation shall guide bar associations to supervise the compliance with Constitution and law, compliance with code of ethics and professional conduct of lawyers, probationers who participated in the lawyer-training course, request bar associations or within their duties and entitlements to take strict actions against violations as per the law.

The Ministry of Justice shall take charge and cooperate with relevant Ministries and agencies in verifying applicants for lawyer practicing certificate concerning their compliance with Constitution and law and good moral qualities; promptly discover and take actions or request competent authorities to take actions against violations as per the law.”

“Article 2b. Exemption from lawyer training and exemption from or reduction in law-practicing probation duration

1. A person falling under the case prescribed in Article 13 and Article 16 of the Law on Lawyers is exempt from lawyer training and exemption from or reduction in law-practicing probation duration.

2. A person shall not be exempt from lawyer training and exemption from or reduction in law-practicing probation duration as prescribed in Article 13 and Article 16 of the Law on Lawyers if he/she, for a criminal penalty or disciplinary reasons, was dismissed from his/her post of judge, procurator, investigator, or inspector; or was stripped of people's public security title, commissioned officer army rank; academic titles of law professor or associate professor or academic degree of law doctorate; or had his/her decision on appointment to superior consultant, superior researcher, superior lecturer, principal consultant, principal researcher, principal lecturer in the law field.”

3. Article 17 shall be amended as follows:

“Article 17. Revocation of the certificates of operation registration of law-practicing organizations, branches of law-practicing organizations, certificates of lawyer registration as individuals

1. The Certificate of operation registration of a law-practicing organization shall be revoked when such law-practicing organization falls into one of the following cases:

a) Having its operation terminated in accordance with Clause 1 of Article 47 of the Law on Lawyers;

b) Facing an administrative penalty by form of having the Certificate of operation registration revoked according to the law on handing of administrative violations;

c) Not having Taxpayer Identification Number (TIN) registered within 01 year, since the date of issue of the Certificate of operation registration;

d) Not having operated at the registered headquarters for 06 consecutive months, except for the suspension as per the law;

dd) Failing to resume the operation or report on the continuity of suspension for more than 6 months, since the expiry date of suspension as per the law.

2. The Certificate of operation registration of a branch of the law-practicing organization shall be revoked when it falls into one of the following cases:

a) The law-practicing organization which establishes the branch has its certificate of registration revoked as prescribed in Clause 1 of this Article;

b) The law-practicing organization which establishes the branch terminates the operation of the branch;

c) The branch of the law-practicing organization falls under Point b, c, d or dd Clause 1 of this Article.

3. The certificate of lawyer registration as individuals shall be revoked when the lawyer falls into one of the following cases:

a) He/she stops practicing law;

b) He/she has the lawyer practicing certificate revoked as prescribed in Clause 1 Article 18 of the Law on Lawyers.

4. Department of Justice shall issue a decision on revocation of the certificate of registration; supervise the law-practicing organization, branches of law-practicing organization if they follow procedures prescribed in Clauses 2, 3 and 4 of Article 47 of the Law on Lawyers. Department of Justice shall the decision on revocation of certificate of registration to the bar association, tax authority, presiding agencies of province, district and announce it on the website of Department of Justice; request the competent authority to revoke the seal of law-practicing organization or branch of law-practicing organization.

If the law-practicing organization or branch of law-practicing organization has its certificate of registration revoked as a result of a penalty for administrative violation, Department of Justice shall send the revocation decision to the issuing authority of the decision on penalty for administrative violation.

Department of Justice shall revoke the certificate of lawyer registration as individuals when the lawyer falls under one of the cases prescribed in Clause 3 of this Clause. Department of Justice shall send the decision on revocation of certificate of lawyer registration as individuals to the bar association in which the lawyer has held membership or the employer which the lawyer enters into a labor agreement and announce in on the website of Department of Justice.”

4. Article 20 shall be amended as follows:

“Article 20. Approval of the Project on organization of plenary Congress, ad hoc Congress, structural plan of the managing board and the council of discipline and reward of a bar association

1. Within 30 days before the scheduled date for organizing the plenary Congress or ad hoc Congress, the managing board of the bar association shall report to the provincial-level People’s Committee and the Vietnam Bar Federation on the Project on organization of the Congress, structural plan of the managing board and the council of discipline and reward of the bar association (if any).

Department of Justice shall take charge and cooperate with Service of Home Affairs in assessing and seeking approval from the provincial-level People’s Committee for the Project on organization of the Congress within 7 working days after receiving a request of the bar association. The Vietnam Bar Federation shall give a reply to the request regarding the Project on organization of the Congress, structural plan of the managing board and the council of discipline and reward (if any) to the provincial-level People’s Committee within 10 days from the receiving date.

2. Within 15 days after receiving the reply from the Vietnam Bar Federation and assessment result from Department of Justice, the provincial-level People’s Committee shall consider whether to approve or request modifications. Within 30 days after receiving a request for modifications, the managing board of bar association shall send the modified Project to the provincial-level People’s Committee.

3. Within 60 days after the Project is approved, the managing board of bar association must convene the Congress as per the law and the Charter of the Vietnam Bar Federation. Where the managing board of bar association fails to hold the Congress within 60 days without justifiable reasons, the provincial-level People’s Committee shall consider suspending the operation of the managing board of bar association and establish a Congress organizing board. The Congress organizing board shall hold the Congress of bar associations in conformity with the approved Project of organization of Congress.”

5. Article 21 shall be amended as follows:

“Article 21. Approval of results of the lawyers’ Congress

1. Approved contents of results of the lawyers’ Congress shall comprise:

a) Voting results of the managing board, the chairperson, the council of discipline and reward of the bar association;

b) Resolution of the plenary Congress or ad hoc Congress on dismissal of the chairperson, managing board members, the council of discipline and award and election of new or replacing chairperson, supplementing election of members of the managing board or the council of discipline and award of the bar association;

c) Resolution of internal regulations of bar association.

2. Within 07 working days, since the date of ending the Congress, the managing board shall submit to the provincial-level People’s Committee a report on results of the Congress, being enclosed with the voting note, the list of chairperson, members of the managing board and the council of discipline and award of the bar association, the Congress’s resolution, and internal regulations of bar association. Within 07 working days, since the date of receiving the report on the Congress’s results, the provincial-level People’s Committee shall consider approving or rejecting the Congress’s results or resolution.

3. The voting results shall be rejected from approval in the following cases:

a) The voting procedures and progress do not guarantee validity, democracy, publicity and transparency in accordance with laws and the Charter of the Vietnam Bar Federation;

b) The voting of the leading designation does not guarantee standards set in the Charter of the Vietnam Bar Federation.

4. The Congress’ resolution is rejected from approval in the following cases:

a) Having contents which are contrary to provisions of the Constitution, laws and the Charter of the Vietnam Bar Federation or beyond the tasks and powers of the Congress as prescribed in law on lawyers and law practice, Charter of the Vietnam Bar Federation;

b) Procedures and progress of approving the Resolution do not guarantee validity, democracy, publicity and transparency in accordance with laws and the Charter of the Vietnam Bar Federation.

5. Within 60 days, since the date of receiving the paper on refusal of approving the Congress’ s results, the managing board of the bar association shall re-organize the Congress in accordance with laws and the Charter of the Vietnam Bar Federation.”

6. Article 22a shall be added to Article 22 as follows:

“Article 22a. Dismissal of managing board members and chairperson of bar association

1. A managing board member of bar association shall be dismissed in one of the following cases:

a) He/she violates Constitution or law when performing his/her duties and powers or infringes interests of bar association;

b) He/she fails to abide by request, regulation, decision of competent authority while performing duties and powers of managing board members of bar association after receiving a written warning;

c) He/she has the lawyer practicing certificate revoked;

d) Other cases prescribed in Charter of the Vietnam Bar Federation.

2. The chairperson of bar association shall be dismissed in one of the following cases:

a) He/she falls under one of the cases prescribed in Clause 1 of this Article;

b) He/she fails to administer the managing board to hold a Congress within 6 months from expiry of his term of office without justifiable reasons;

c) He/she fails to send proper periodical reports, annual reports, and reports on performance of duties of bar association as prescribed in the Law on Lawyers for 2 consecutive years; fails to send regulations, decisions, resolutions related to the organization of Congress of bar association to the competent authority within 6 months since the closing of the Congress.

3. In a case where all members of managing board fall under one of the cases prescribed in Clause 1 of this Article or the chairperson of bar association falls under one of the cases prescribed in Clause 2 of this Article, the President of provincial-level People’s Committee shall establish the organizing board of Congress following a written consent with the Minister of Justice. The organizing board of Congress shall hold the Congress of bar association to dismiss or elect members and perform other tasks according to the approved Project on organization of Congress."

7. Article 23a shall be added to Article 23 and Section 2 of the Vietnam Bar Federation as follows:

“Article 23a. Cooperation in formulating the Project on organization of plenary Congress, ad hoc Congress, structural plan for election of Member of the National Bar Association, Member of the Standing Committee, President of the Vietnam Bar Federation

1. At least 60 days before the intended date of plenary Congress, ad hoc Congress, and the Vietnam Bar Federation shall send the Ministry of Justice a Project on organization of Congress and structural plan for election of new, replacing or supplementing Member of the National Bar Association, Member of the Standing Committee, and President of the Vietnam Bar Federation.

2. Within 10 days following the written consent of the Minister of Home Affairs, the Ministry of Justice shall raise opinion about the Project on organization of Congress and structural plan for election of new, replacing or supplementing Member of the National Bar Association, Member of the Standing Committee, and President of the Vietnam Bar Federation

3. The Project on organization of Congress and structural plan for election of new, replacing or supplementing Member of the National Bar Association, Member of the Standing Committee, and President of the Vietnam Bar Federation shall be presented to competent authority following a written consent of the Minister of Justice.”

8. Article 25a shall be added to Article 25 as follows:

“Article 25a. Dismissal of Member of the National Bar Association, President of the Vietnam Bar Federation

1. The Member of the National Bar Association shall be dismissed in one of the following cases:

a) He/she violates Constitution or law when performing his/her duties and powers or infringes interests of the Vietnam Bar Federation, bar associations;

b) He/she fails to abide by request, regulation, and decision of competent authority while performing duties and powers of Member of the National Bar Association after receiving a written warning;

c) He/she has the lawyer practicing certificate revoked;

d) Other cases prescribed in Charter of the Vietnam Bar Federation.

2. The President of the Vietnam Bar Federation shall be dismissed in one of the following cases:

a) He/she falls under one of the cases prescribed in Clause 1 of this Article;

b) He/she fails to administer the National Bar Association to hold a Congress within 6 months from expiry of his term of office without justifiable reasons;

c) He/she fails to send proper periodical reports, annual reports, reports on performance of duties of the Vietnam Bar Federation as prescribed in the Law on Lawyers for 2 consecutive years; fails to send regulations, decisions, resolutions related to the organization of Congress of the Vietnam Bar Federation to the competent authority within 6 months since the closing of the Congress."

9. Article 1 Article 40 shall be amended as follows:

“1. The establishment permit of a foreign branch or a foreign law firm shall be revoked when such foreign branch or foreign law firm falls under one of the following cases:

a) Having its operation terminated by itself;

b) Facing an administrative penalty by form of having the establishment license revoked according to the law on handing of administrative violations;

c) Not having Taxpayer Identification Number (TIN) registered within 01 year, since the date of issue of the establishment license;

d) Not having operated at the registered headquarters for 06 consecutive months, except for the suspension as per the law;

dd) Not having registered operation within 60 days from the date of issue of establishment license;

e) Failing to resume the operation or report on the continuity of suspension for more than 6 months, since the expiry date of suspension as per the law;

g) The foreign law-practicing organization that establishes a branch or foreign law firm in Vietnam has no longer operated abroad;

h) The Chief of branch, Direct or foreign law firm has no longer met the practicing qualifications as prescribed in Article 74 of the Law on Lawyers; has not been allowed to renew their law practice certificate in Vietnam or has failed to renew their law practice certificate upon its expiry;

i) Having no longer met the conditions prescribed in Article 68 of the Law on Lawyers.”

10. Article 1 Article 41 shall be amended as follows:

“1. The law practice certificate of a foreign lawyer shall be revoked when the foreign lawyer falls under one of the following cases:

a) He/she has no longer met the practicing qualifications as prescribed in Article 74 of the Law on Lawyers; has not been allowed to renew their law practice certificate in Vietnam or has failed to renew their law practice certificate upon its expiry;

b) He/she faces an administrative penalty by form of having the practice certificates in Vietnam revoked according to the law on handing of administrative violations;

c) He/she faces a criminal prosecution;

d) He/she has no longer practiced law in Vietnam as per his/her aspirations;

dd) He/she has not been recruited by or entered into a labor contract with a branch or foreign law firm in Vietnam or law-practicing organization of Vietnam for 6 consecutive months;

e) He/she has no longer had the status of lawyer practicing in the foreign country.”

Article 2. Annulment of Article 43 to Government’s Decree No. 123/2013/ND-CP dated October 14, 2013 on guidelines for the Law on Lawyers.

Article 3. Entry in force

This Decree comes into force as of November 25, 2018.

Article 4. Implementation

The Minister of Justice, Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, Presidents of People’s Committees of central-affiliated cities and provinces, the President of the Vietnam Bar Federation shall implement this Decree./.