Decree No. 137/2018/ND-CP dated October 08, 2018 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 123/2013/ND-CP of October 14, 2013, detailing a number of articles of, and measures to implement, the Law on Lawyers

DECREE

Amending and supplementing a number of articles of the Government’s Decree No. 123/2013/ND-CP of October 14, 2013, detailing a number of articles of, and measures to implement, the Law on Lawyers^[1]

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

Pursuant to the June 29, 2006 Law on Lawyers, which was amended and supplemented on November 20, 2012;

At the proposal of the Minister of Justice,

The Government promulgates the Decree amending and supplementing a number of articles of the Government’s Decree No. 123/2013/ND-CP of October 14, 2013, detailing a number of articles of, and measures to implement, the Law on Lawyers.

Article 1.To amend and supplement a number of articles of the Government’s Decree No. 123/2013/ND-CP of October 14, 2013, detailing a number of articles of, and measures to implement, the Law on Lawyers

1. To amend and supplement Article 1 as follows:

“Article 1. Scope of regulation

This Decree details a number of articles of, and measures to implement, the Law on Lawyers regarding lawyer training institutions; criteria for lawyers; legal aid provided by lawyers; lawyers’ obligation to participate in compulsory professional refresher courses; state management of lawyers and law practice; law-practicing organizations; remuneration for lawyers participating in criminal proceedings; lawyers’ socio-professional organizations; and practice by foreign law-practicing organizations and foreign lawyers in Vietnam.”

2. To add the following Articles 2a and 2b below Article 2:

“Article 2a. Persons failing to satisfy the criteria specified in Article 10 of the Law on Lawyers concerning observance of the Constitution and law or concerning good moral qualities

1. A person falling into one of the following cases shall be considered not satisfying the criteria specified in Article 10 of the Law on Lawyers concerning observance of the Constitution and law or concerning good moral qualities:

a/ He/she has been disciplined under the law on cadres, civil servants and public employees and the disciplining decision remains effective, or he/she has been dismissed but the 3-year period from the effective date of the dismissal decision has not expired yet; he/she has been administratively handled for committing one of the violations of the regulations on judicial support or legal aid, or for causing damage to other persons’ property, or for violating the regulations on protection of state secrets, or for obstructing or opposing the inspection, examination or control by persons on duty or for bribing persons on duty but the 1-year period from the date he/she completely executes the administrative handling decision has not expired yet;

b/ He/she has been administratively handled, disciplined or criminally handled, or a competent agency has made a conclusion for one of his/her acts related to property appropriation, profit seeking, fraud, deception or infringement of national security; showing behaviors or giving statements that affect the image or prestige of the lawyer’s profession or harm lawful rights and interests of agencies, organizations or individuals; participating in, dragging, inciting, bribing or coercing other persons to gather in order to disturb public order, commit violations of law or violate Point b, d, e, g, i or k, Clause 1, Article 9 of the Law on Lawyers; or deliberately committing other violations for which he/she has been disciplined twice or more.

2. A person falling into the case specified at Point a, Clause 1 of this Article shall be considered having corrected his/her errors and completed training and satisfying the criteria concerning observance of the Constitution and law or concerning good moral qualities specified in Article 10 of the Law on Lawyers, if the decision disciplining him/her has expired or the 3-year period from the effective date of the dismissal decision has expired, or the 1-year period from the date he/she completely executes the administrative handling decision has expired, or he/she is convicted for an unintentionally committed crime or an intentionally committed less serious crime with his/her criminal records expunged, and does not fall into the case prescribed at Point b, Clause 1 of this Article, provided he/she makes a written explanation or commitment on the process of training to satisfy the criteria concerning observance of the Constitution and law or concerning good moral qualities as certified by the agency or organization where he/she worked last before applying for a law practice certificate or by the commune-level public security office of the locality where he/she resides.

3. Provincial-level Departments of Justice shall examine dossiers and information on the process of training to satisfy the criteria concerning observance of the Constitution and law or concerning good moral qualities which are provided by applicants for a law practice certificate as specified in Clause 2 of this Article.

In case a dossier fails to clearly show the process of training to satisfy the criteria concerning observance of the Constitution and law or concerning good moral qualities, the state management agency in charge of lawyers and law practice shall verify the information at the agency or organization that has issued the disciplining decision, the agencies or organizations where the applicant works after being disciplined, the related bar association, and other related agencies or organizations, or work directly with the applicant to clarify the information.

4. The Vietnam Bar Federation shall guide bar associations in supervising the observance of the Constitution and law and the compliance with the rules of professional ethics and conduct of lawyers and law probationers; and request bar associations to, or within the ambit of its tasks and powers, strictly handle violations in accordance with law.

The Ministry of Justice shall assume the prime responsibility for, and coordinate with related ministries and sectors in, verifying the satisfaction of criteria concerning observance of the Constitution and law and concerning good moral qualities by applicants for a law practice certificate; and promptly detect and handle, or propose competent agencies or organizations to strictly handle violations in accordance with law.”

“Article 2b. Lawyer training exemption and law practice probation exemption or reduction

1. The persons falling into the cases prescribed in Articles 13 and 16 of the Law on Lawyers are entitled to exemption from lawyer training and exemption from or reduction of the law practice probation duration.

2. The persons who have been criminally handled or dismissed from the title of judge, procurator, investigator, inspector or verifier; deprived of the title of officer of the People’s Public Security force or deprived of the rank of the People’s Army officer; deprived of the title of professor or associate professor of law or doctor of law, or has the decisions appointing them as a senior specialist, senior researcher or senior lecturer of law, principal specialist, principal researcher or principal lecturer of law revoked are not entitled to exemption from law training or exemption from or reduction of the law practice probation duration under Articles 13 and 16 of the Law on Lawyers.”

3. To amend and supplement Article 17 as follows:

“Article 17. Revocation of operation registration certificates of law-practicing organizations or branches of law-practicing organizations and law practice registration certificates of lawyers practicing law individually

1. The operation registration certificate of a law-practicing organization shall be revoked in one of the following cases:

a/ The organization terminates operation under Clause 1, Article 47 of the Law on Lawyers;

b/ The organization is administratively sanctioned through being deprived of the right to use the operation registration certificate in accordance with the law on handling of administrative violations;

c/ The organization fails to register its tax identification number within 1 year from the date of obtaining the operation registration certificate;

d/ The organization fails to operate at the registered head office for 6 consecutive months, except the case of suspension from operation in accordance with law;

dd/ The organization fails to resume operation or fails to make a report on suspension from operation for over 6 months after the expiration of the operation suspension duration in accordance with law.

2. The operation registration certificate of a branch of a law-practicing organization shall be revoked in one of the following cases:

a/ The law-practicing organization establishing such branch has its operation registration certificate revoked under Clause 1 of this Article;

b/ The law-practicing organization establishing such branch decides to terminate the branch’s operation;

c/ The branch of the law-practicing organization falls into the case specified at Point b, c, d or dd, Clause 1 of this Article.

3. The law practice registration certificate of a lawyer practicing law individually shall be revoked in one of the following cases:

a/ The lawyer terminates his/her practice by himself/herself;

b/ The lawyer has his/her law practice certificate revoked under Clause 1, Article 18 of the Law on Lawyers.

4. A provincial-level Department of Justice shall issue decisions revoking operation registration certificates; and monitor and supervise law-practicing organizations and branches of law-practicing organizations in carrying out the procedures specified in Clauses 2, 3 and 4, Article 47 of the Law on Lawyers. The provincial-level Department of Justice shall send a decision revoking the operation registration certificate to the bar association, the tax office of the locality where the law-practicing organization or branch of the law-practicing organization registers its operation, and the provincial- and district-level proceedings-conducting bodies, and post such decision on its website; and propose a competent agency to revoke the seal of the law-practicing organization or branch of the law-practicing organization.

In case a law-practicing organization or a branch of a law-practicing organization has its operation registration certificate revoked for being administratively sanctioned, the provincial-level Department of Justice shall send the decision revoking the operation registration certificate to the agency that has issued the administrative sanctioning decision.

The provincial-level Department of Justice shall revoke law practice registration certificates of lawyers practicing law individually in one of the cases prescribed in Clause 3 of this Article. The provincial-level Department of Justice shall send the decision revoking the law practice registration certificate of a lawyer practicing law individually to the bar association of which such lawyer is a member, and the agency or organization with which such lawyer signs a labor contract, and post such decision on its website.”

4. To amend and supplement Article 20 as follows:

“Article 20. Approval of plans on organization of term-based congresses or extraordinary congresses, and plans on personnel of managing boards and commendation and disciplining councils of bar associations

1. At least 30 days before the tentative date for organization of a term-based congress or an extraordinary congress of a bar association, the bar association’s managing board shall report a plan to organize the congress and a plan on personnel of the board and of the commendation and disciplining council (if any) to the provincial-level People’s Committee and the Vietnam Bar Federation.

Within 7 working days after receiving the bar association’s written request, the provincial-level Department of Justice shall assume the prime responsibility for, and coordinate with the provincial-level Department of Home Affairs in, appraising and submitting the plan to organize the congress to the provincial-level People’s Committee for consideration and approval. Within 10 days after receiving the written request, the Vietnam Bar Federation shall send written opinions on the plan to organize the congress and the plan on personnel of the managing board and of the commendation and disciplining council (if any) to the provincial-level People’s Committee.

2. Within 15 days after receiving the opinions of the Vietnam Bar Federation and the appraisal results from the provincial-level Department of Justice, the provincial-level People’s Committee shall approve, or request modification of, the plan to organize the congress. Within 30 days after receiving such request, the bar association’s managing board shall send the modified plan to the provincial-level People’s Committee.

3. Within 60 days after the plan to organize the congress is approved, the bar association’s managing board shall convene the congress in accordance with law and the Charter of the Vietnam Bar Federation. Past this time limit, if the bar association’s managing board fails to organize the congress without a plausible reason, the provincial-level People’s Committee shall consider and suspend the operation of the bar association’s managing board and form a congress-organizing committee. The congress-organizing committee shall organize the congress of the bar association according to the approved plan.”

5. To amend and supplement Article 21 as follows:

“Article 21. Approval of results of a lawyers’ congress

1. The approval of results of a lawyers’ congress covers:

a/ Results of election of the managing board, the manager and the commendation and disciplining council of the bar association;

b/ Resolution of the bar association’s term-based congress or extraordinary congress to relieve from office or dismiss the manager, members of the managing board and commendation and disciplining council, and elect or replace the manager, or elect additional members of the managing board or commendation and disciplining council of the bar association;

c/ Resolution approving the internal rules of the bar association.

2. Within 7 working days after a congress concludes, the bar association’s managing board shall send to the provincial-level People’s Committee a report on the congress’ results, enclosed with the congress’ minutes and resolution and other related documents, including the election minutes, a list and resumes of the manager and members of the managing board and of the commendation and disciplining council of the bar association, and the internal rules of the bar association. Within 7 working days after receiving the report on the congress’ results, the provincial-level People’s Committee shall approve or disapprove the election results or the congress’ resolution.

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

a/ The election process and procedures fail to ensure legality, democracy, publicity and transparency as prescribed by law and the charter of the Vietnam Bar Federation;

b/ The elected holders of leading titles fail to satisfy the criteria prescribed by the charter of the Vietnam Bar Federation.

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

a/ It has contents contrary to the Constitution, law or the charter of the Vietnam Bar Federation, or falling beyond the tasks and powers of the congress as prescribed by the law on lawyers and law practice and the charter of the Vietnam Bar Federation;

b/ The resolution-approving process and procedures fail to ensure legality, democracy, publicity and transparency as prescribed by law and the charter of the Vietnam Bar Federation.

5. Within 60 days after receiving a written notice of disapproval of the congress’ results, the managing board of the bar association shall reorganize a congress in accordance with law and the charter of the Vietnam Bar Federation.”

6. To add the following Article 22a below Article 22:

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

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

a/ Violating the Constitution or law when performing his/her tasks and exercising his/her powers; or infringing upon the interests of the bar association;

b/ Failing to abide by requirements, regulations and decisions of state management agencies in the course of performing his/her tasks and exercising his/her powers after receiving written reminders;

c/ Having his/her law practice certificate revoked;

d/ Other cases as prescribed in the charter of the Vietnam Bar Federation.

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

a/ Falling into one of the cases specified in Clause 1 of this Article;

b/ Failing to direct the managing board to organize a congress after 6 months from the date of expiration of the his/her term of office, unless he/she can give a plausible reason;

c/ Failing to abide by the regime of periodical and annual reporting, or reporting on the bar association’s task performance in accordance with the Law on Lawyers for 2 consecutive years; or failing to send rules, decisions or resolutions related to the organization of the congress of the bar association to competent agencies within 6 months after the congress concludes.

3. In case all members of the managing board fall into one of the cases specified in Clause 1 of this Article or the manager of a bar association falls into one of the cases specified in Clause 2 of this Article, the chairperson of the provincial-level People’s Committee shall form a congress-organizing committee after consulting in writing with the Minister of Justice. The congress-organizing committee shall organize a congress of the bar association to carry out the dismissal, election, additional election or replacement and perform other tasks according to the approved plan to organize the congress.”

7. To add the following Article 23a below Article 23 in Section 2 - The Vietnam Bar Federation:

“Article 23a. Coordination in the formulation of plans on organization of term-based congresses or extraordinary congresses, and plans on personnel for election of members of the National Lawyers’ Council, members of the Standing Committee and the President of the Vietnam Bar Federation

1. At least 60 days before the tentative date for organization of a term-based congress or an extraordinary congress, the Vietnam Bar Federation shall send to the Ministry of Justice a plan on organization of the congress, and a plan on personnel for election, replacement or additional election of members of the National Lawyers’ Council, members of the Standing Committee and the President of the Vietnam Bar Federation.

2. Within 10 days after receiving the written opinions from the Minister of Home Affairs, the Ministry of Justice shall give its opinions on the plan on organization of the congress and plan on personnel for election, replacement or additional election of members of the National Lawyers’ Council, members of the Standing Committee and the President of the Vietnam Bar Federation.

3. The plan on organization of the congress and plan on personnel for election, replacement or additional election of members of the National Lawyers’ Council, members of the Standing Committee and the President of the Vietnam Bar Federation shall be submitted to a competent agency after receiving the written opinions from the Minister of Justice.”

8. To add the following Article 25a below Article 25:

“Article 25a. Dismissal of members of the National Lawyers’ Council and the President of the Vietnam Bar Federation

1. A member of the National Lawyers’ Council shall be dismissed in one of the following cases:

a/ Violating the Constitution or law when performing his/her tasks and responsibilities and exercising his/her powers; or infringing upon the interests of the Vietnam Bar Federation or the related bar association;

b/ Failing to abide by requirements, regulations and decisions of state management agencies in the course of performing his/her tasks and exercising his/her powers after receiving written reminders;

c/ Having his/her law practice certificate revoked;

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

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

a/ Falling into one of the cases specified in Clause 1 of this Article;

b/ Failing to direct the National Lawyers’ Council to organize a congress after 6 months from the date of expiration of his/her term of office, unless he/she can give a plausible reason;

c/ Failing to abide by the regime of periodical and annual reporting, or reporting on the Vietnam Bar Federation’s task performance in accordance with the Law on Lawyers for 2 consecutive years; or failing to send rules, decisions or resolutions related to the organization of a congress of the Vietnam Bar Federation to competent agencies within 6 months after the congress concludes.”

9. To amend and supplement Clause 1, Article 40 as follows:

“1. A branch or foreign law firm will have its establishment license revoked in one of the following cases:

a/ The branch or firm terminates operation in Vietnam at its own will;

b/ The branch or firm is administratively sanctioned through being deprived of the right to use the establishment license in accordance with the law on handling of administrative violations;

c/ The branch or firm fails to register its tax identification number within 1 year after obtaining the establishment license;

d/ The branch or firm fails to operate at the registered head office for 6 consecutive months, except the case of suspension from operation prescribed by law;

dd/ The branch or firm fails to register operation after 60 days from the date of obtaining the establishment license;

e/ The branch or firm fails to resume operation or fails to make a report on suspension from operation for over 6 months after the expiration of the operation suspension duration prescribed by law;

g/ The foreign law-practicing organization establishing such branch or foreign law firm no longer operates overseas;

h/ The head of its branch or the director of the foreign law firm no longer satisfies the conditions for professional practice specified in Article 74 of the Law on Lawyers; or the license for law practice in Vietnam is not permitted to be extended or the license holder fails to carry out procedures for extending the license upon the expiration of the practice duration stated in the license;

i/ The branch or firm no longer satisfies the conditions prescribed in Article 68 of the Law on Lawyers.”

10. To amend and supplement Clause 1, Article 41 as follows:

1. A foreign lawyer’s license for practice in Vietnam shall be revoked in one of the following cases:

a/ The foreign lawyer fails to fully satisfy the conditions for professional practice in Vietnam prescribed in Article 74 of the Law on Lawyers; or his/her license for law practice in Vietnam is not permitted to be extended or he/she fails to carry out procedures for extending the license upon the expiration of the practice duration stated in the license;

b/ The foreign lawyer is administratively sanctioned through being deprived of the right to use the license for practice in Vietnam in accordance with the law on handling of administrative violations;

c/ The foreign lawyer is examined for penal liability;

d/ The foreign lawyer stops practicing law in Vietnam at his/her own will;

dd/ A branch, a foreign law firm in Vietnam or a Vietnam’s law-practicing organization does not recruit or sign a labor contract with the foreign lawyer for 6 consecutive months;

e/ The foreign lawyer no longer has the status of practicing law overseas.”

Article 2.To annul Article 43 of the Government’s Decree No. 123/2013/ND-CP of October 14, 2013, detailing a number of articles of, and measures to implement, the Law on Lawyers.

Article 3.Effect

This Decree takes effect on November 25, 2018.

Article 4.Organization of implementation

The Minister of Justice, other ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and the President of the Vietnam Bar Federation shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC