Decree No. 55/2019/ND-CP legal assistance for small and medium enterprises

DECREE

On legal assistance for small- and medium-sized enterprises^[1]

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

Pursuant to the June 12, 2017 Law on Support for Small- and Medium-Sized Enterprises;

At the proposal of the Minister of Justice;

The Government promulgates the Decree on legal assistance for small- and medium-sized enterprises.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree prescribes in detail the provision of legal assistance to small- and medium-sized enterprises (SMEs); and responsibilities of ministries, ministerial-level agencies, provincial-level administrations, and other agencies, organizations and individuals involved in the provision of legal assistance to SMEs.

Article 2.Subjects of application

1. Ministries, ministerial-level agencies; provincial-level administrations.

2. SMEs.

3. Enterprise-representing organizations.

4. Agencies, organizations and individuals providing legal assistance services to SMEs.

5. Other agencies, organizations and individuals involved in the provision of legal assistance to SMEs.

Article 3.Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Legal assistance for SMEs means the implementation by ministries, ministerial-level agencies and provincial-level administrations of activities of building, managing, maintaining and updating legal databases; and formulating, and organizing the implementation of, legal assistance programs in order to raise legal knowledge as well as law observance sense and habit of enterprises, restrict legal risks and problems arising in business activities of enterprises, and contribute to raising competitiveness of enterprises and effectiveness of law enforcement activities.

2. Program on legal assistance for SMEs means the collection of activities of specific contents which will be implemented in specific forms in a definite period of time under the main charge of an agency or organization according to this Decree in order to provide information, improve legal knowledge and provide legal counseling to SMEs.

3. Legal counselor network means a part of the network of counselors prescribed in the Law on Support for Small- and Medium-Sized Enterprises, including lawyers, law-practicing organizations, legal counselors and legal counseling centers that are eligible for legal counseling practice in accordance with law, voluntarily announce their participation in the network to provide legal assistance to SMEs and have their information publicized by ministries or ministerial-level agencies (below referred to as legal counselors).

4. Legal databases prescribed in this Decree include databases on legal documents and the database on legal cases, matters and issues which are built, managed, maintained and updated by ministries, ministerial-level agencies and provincial-level People’s Committees to provide legal assistance to SMEs.

Article 4.Principles of provision of legal assistance to SMEs

1. The provision of legal assistance to SMEs shall be conducted in a focused manner in a definite period of time in conformity with assistance provision objectives and resource balancing capacity; and must ensure publicity, transparency and effectiveness and avoid overlaps.

2. The provision of legal assistance to SMEs shall be conducted on the basis of coordination between state agencies and SME-representing organizations; and between organizations and individuals providing legal assistance services to SMEs and other related agencies, organizations and individuals.

3. To prioritize the provision of legal assistance to SMEs via organizations and individuals providing legal assistance services.

4. Based on available resources and assistance programs, agencies and organizations providing legal assistance to SMEs shall decide to provide assistance in the following order of priority:

a/ SMEs which are owned by women and enterprises in which female employees account for the majority whose dossiers are qualified will be provided with assistance first;

b/ SMEs of which at least 30% of employees are people with disabilities in accordance with the Law on People with Disabilities;

c/ SMEs that submit qualified dossiers first will be provided with assistance first.

5. The State shall encourage and adopt policies to support and create conditions for agencies, organizations, enterprises and individuals to provide legal assistance to SMEs; and mobilize social resources for provision of legal assistance to SMEs.

Chapter II

PROVISION OF LEGAL ASSISTANCE TO SMEs

Section 1

BUILDING, MANAGEMENT, MAINTENANCE, UPDATING, EXPLOITATION AND USE OF LEGAL DATABASES

Article 5.Building, management, maintenance, updating, exploitation and use of databases on legal documents

1. The building, management, maintenance, updating, exploitation and use of databases on legal documents must comply with the Government’s Decree No. 52/2015/ND-CP of May 28, 2015, on the national legal databases or legal documents amending, supplementing or replacing such Decree.

2. The building, management, maintenance, updating, exploitation and use of databases on trade-concerning treaties of which the Socialist Republic of Vietnam is a member must comply with the Law on Treaties and legal documents detailing such Law.

Article 6.Building, management, maintenance, updating, exploitation and use of the database on legal cases, matters and issues

1. The database on legal cases, matters and problems consists of:

a/ Court judgments and rulings; commercial arbitral awards and decisions; decisions on settlement of competition cases; and decisions on handling of administrative violations relating to enterprises, which are effective for implementation and allowed to be publicized, or which are linked to portals on which these documents are published;

b/ Written answers of ministries, ministerial-level agencies and provincial-level People’s Committees about legal issues facing SMEs in the process of law application;

c/ Legal counseling documents on legal cases, matters and issues which are made by the legal counselor network at the request of SMEs.

2. The Ministry of Justice shall assume the prime responsibility for the building, management and updating of the database on legal cases, matters and issues on the website on legal assistance for SMEs on the basis of related information received from ministries, ministerial-level agencies and provincial-level People’s Committees within 15 days after the latter update them to their portals under Clause 5, Article 7 and Clause 1, Article 8 of this Decree.

SMEs may exploit and use the database on legal cases, matters and issues free of charge.

Article 7.Building, management, maintenance and updating of data on court judgments and rulings; commercial arbitral awards and decisions; decisions on settlement of competition cases; and decisions on handling of administrative violations relating to enterprises

1. The publication of courts’ legally effective judgments and rulings on portals of courts must comply with Resolution No. 03/2017/NQ-HDTP of March 16, 2017, of the Judicial Council of the Supreme People’s Court, on the publication of court judgments and rulings on portals of courts or legal documents amending, supplementing or replacing such Resolution.

2. The publication of commercial arbitral awards and decisions must comply with the law on commercial arbitration and agreements of parties involved in these arbitral awards or decisions.

3. The publication of decisions on settlement of competition cases must comply with the Competition Law and legal documents detailing such Law.

4. The publication of decisions on handling of administrative violations must comply with the Law on Handling of Administrative Violations and legal documents detailing such Law.

5. Ministries, ministerial-level agencies and provincial-level People’s Committees shall update and publish on their portals court judgments and rulings; commercial arbitral awards and decisions; decisions on settlement of competition cases; and decisions on handling of administrative violations relating to enterprises which are allowed to be publicized and effective for implementation and to which they are involved parties or provide links to the portals in which these documents are published in accordance with Clauses 1, 2, 3 and 4 of this Article.

Article 8.Building, management, maintenance and updating of data on written answers of state agencies to legal issues of SMEs

1. Ministries, ministerial-level agencies and provincial-level People’s Committees shall give answers to legal issues facing SMEs regarding general application of law in the sectors, fields or localities under their management within 15 working days after receiving a query; for complicated issues, this time limit may be extended to 30 working days from the date of receiving a query.

The provision on state agencies’ giving of answers in this Article does not apply to SMEs’ queries about specific cases and matters concerning their production and business activities. In these cases, ministries, ministerial-level agencies and provincial-level People’s Committees shall recommend enterprises to use the legal counselor network under Article 9 of this Decree.

2. Ministries, ministerial-level agencies and provincial-level People’s Committees shall systemize and update to their portals data on their written answers to SMEs’ legal issues on general application of law within 15 days after signing such answers.

Article 9.Building, management, maintenance and updating of data on the legal counselor network’s legal counseling documents and procedures for provision of support for legal counseling expenses

1. SMEs shall access the legal counselor network operating in the fields of management of each ministry or ministerial-level agency based on the list of legal counselors published on the portal of such ministry or ministerial-level agency.

2. After reaching agreement on provision of legal counseling services with an appropriate legal counselor belonging to the legal counselor network under Clause 1 of this Article, an SME shall submit directly or send by post or electronic mode to the concerned ministry or ministerial-level agency a dossier of request for provision of support for legal counseling expenses. The dossier must comprise:

a/ A declaration identifying the enterprise as a micro-sized enterprise, small-sized enterprise or medium-sized enterprise, made according to the form provided in the Government’s Decree No. 39/2018/ND-CP of March 11, 2018, detailing a number of articles of the Law on Support for Small- and Medium-Sized Enterprises, or legal documents amending, supplementing or replacing such Decree;

b/ A copy of the enterprise registration certificate;

c/ The legal counseling service contract between the legal counselor and the enterprise, clearly stating the contents of counseling and counseling service charge.

Ministries and ministerial-level agencies shall publicize on their portals the addresses of focal units and electronic modes for receiving dossiers of request for provision of support for legal counseling expenses.

3. Within 10 working days after receiving a complete dossier as prescribed in Clause 2 of this Article, the ministry or ministerial-level agency shall consider and notify in writing whether it agrees or disagrees to provide support for legal counseling expenses to the enterprise according to the principles prescribed in Article 4 and other provisions of this Decree. In case of disagreeing to provide support, it shall clearly state the reason.

In case of agreeing to provide support, the specific support levels will be as follows:

a/ Micro-sized enterprises will be entitled to a support equaling 100% of legal counseling expenses as stated in legal counseling service contracts between them and legal counselors, which, however, must not exceed VND 3 million/year;

b/ Small-sized enterprises will be entitled to a support at most equaling 30% of legal counseling expenses as stated in legal counseling service contracts between them and legal counselors, which, however, must not exceed VND 5 million/year;

c/ Medium-sized enterprises will be entitled to a support at most equaling 10% of legal counseling expenses as stated in legal counseling service contracts between them and legal counselors, which, however, must not exceed VND 10 million/year;

d/ Business households transformed into small- or medium-sized enterprises, SMEs being innovative startups and SMEs participating in sectoral affiliations or value chains will be entitled to support for legal counseling expenses under Chapter IV of the Government’s Decree No. 39/2018/ND-CP of March 11, 2018, detailing a number of articles of the Law on Support for Small- and Medium-Sized Enterprises, or legal documents amending, supplementing or replacing such Decree.

4. In case the ministry or ministerial-level agency agrees to provide support for legal counseling expenses for its legal case, matter or issue, after obtaining a legal counseling document from the legal counselor, the enterprise shall send a dossier of request for payment of legal counseling expenses. The dossier must comprise:

a/ The legal counseling document, including 1 full text and 1 text in which information on the enterprise’s business secrets have been removed;

b/ A written request for payment of legal counseling expenses, certified by the legal counselor and the enterprise and clearly stating the serial number and date of issuance of the written agreement prescribed in Clause 3 of this Article, and the name and account number and bank of the beneficiary;

c/ A financial invoice as prescribed by law.

5. Within 10 working days after receiving a complete dossier as prescribed in Clause 4 of this Article, the ministry or ministerial-level agency shall pay legal counseling expenses to the enterprise as requested; in case the legal counseling document does not fall into the scope of counseling stated in the legal counseling service contract between the legal counselor and the enterprise prescribed at Point c, Clause 2 of this Article, the ministry or ministerial-level agency shall refuse to pay the expenses and notify such in writing to the enterprise and the legal counselor.

Within 15 working days after making payment for legal counseling expenses, the ministry or ministerial-level agency shall send the legal counseling document, the text without information on the enterprise’s business secrets prescribed at Point a, Clause 4 of this Article, to the Ministry of Justice and Ministry of Planning and Investment for the latter to publish it on the website on legal assistance for enterprises and the national portal on support for SMEs.

Section 2

FORMULATION AND IMPLEMENTATION OF PROGRAMS ON LEGAL ASSISTANCE FOR SMEs

Article 10.Grounds for formulation of and activities under programs on legal assistance for SMEs

1. Grounds for formulation of programs on legal assistance for SMEs:

a/ Demands for legal assistance for SMEs in each period, sector, field and locality;

b/ Law- and ordinance-making programs of the National Assembly and National Assembly Standing Committee and plans on promulgation of legal documents of the Government, Prime Minister, ministries, ministerial-level agencies and provincial-level administrations;

c/ Resources of ministries, ministerial-level agencies, provincial-level administrations and enterprise-representing organizations.

2. Activities under programs on legal assistance for SMEs include:

a/ Provision of information, including information on domestic laws, foreign laws and international laws, warnings about legal risks and sectoral and local policies concerning SMEs (if any);

b/ Improvement of legal knowledge for SMEs, staffs engaged in provision of legal assistance to SMEs, and legal counselors;

c/ Provision of legal counseling through organization of dialogues, settlement of legal issues for enterprises and other legal counseling activities in conformity with law on the basis of demands of SMEs and the resources prescribed at Point c, Clause 1 of this Article.

Article 11.Period of implementation of programs on legal assistance for SMEs

1. A program on legal assistance for SMEs shall be implemented for at most 5 years from the date of its approval.

2. Agencies and organizations in charge of implementing programs on legal assistance for SMEs shall organize final reviews in order to formulate or propose the formulation of programs on legal assistance for SMEs on the basis of demands of enterprises and resources of agencies and organizations.

Article 12.Formulation and approval of programs on legal assistance for SMEs

1. For inter-sectoral programs on legal assistance for SMEs:

a/ Ministries, ministerial-level agencies, and provincial-level People’s Committees; enterprise-representing organizations; and organizations and individuals providing legal assistance services shall formulate proposals on provision of legal assistance to SMEs on their own initiative or at the request of the Ministry of Justice, and send such proposals to the Ministry of Justice for summarization and formulation of programs on inter-sectoral programs on legal assistance for SMEs;

b/ The Ministry of Justice shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment, Ministry of Finance, enterprise-representing organizations, and other related organizations and individuals in, formulating inter-sectoral programs on legal assistance for SMEs for submission to the Prime Minister for approval.

2. For programs on legal assistance for SMEs within the scope of a ministry or ministerial-level agency, such ministry or ministerial-level agency shall incorporate the contents of these programs into its scheme on support for SMEs according to the Government’s Decree No. 39/2018/ND-CP of March 11, 2018, detailing a number of articles of the Law on Support for Small- and Medium-Sized Enterprises, or legal documents amending, supplementing or replacing such Decree.

3. For programs on legal assistance for SMEs within the scope of a locality:

a/ The provincial-level Department of Justice shall assume the prime responsibility for, and coordinate with other departments, enterprise-representing organizations, and other related organizations and individuals in, formulating and proposing programs on legal assistance for SMEs within the scope of the locality for submission to the provincial-level People’s Committee chairperson for approval;

b/ The provincial-level People’s Committee chairperson shall approve programs on legal assistance for SMEs within the scope of the locality at the request of the provincial-level Department of Justice;

c/ The provincial-level People’s Council shall allocate funds for implementation of programs on legal assistance for SMEs in the locality.

4. Decisions approving programs on legal assistance for SMEs prescribed in Clauses 1 and 3 of this Article and contents of programs on legal assistance for SMEs prescribed in Clause 2 of this Article shall be sent to the Ministry of Justice and related ministries and ministerial-level agencies and published on the portals of the agencies and organizations in charge of implementation of such programs.

5. The adjustment of programs on legal assistance for SMEs or contents of programs on legal assistance for SMEs included in schemes on support for SMEs after they are approved must comply with Clauses 1, 2, 3 and 4 of this Article.

Article 13.Implementation of programs on legal assistance for SMEs

1. After programs on legal assistance for SMEs are approved by competent state agencies, ministries, ministerial-level agencies and provincial-level People’s Committees shall implement the programs within the ambit of their functions and tasks or assign agencies, organizations and individuals having the functions and tasks of providing legal assistance for SMEs to implement such programs.

Agencies and organizations in charge of implementing programs on legal assistance for SMEs shall promulgate and publicize their plans on implementation of such programs on their portals and the Ministry of Justice’s website on legal assistance for SMEs.

2. The selection of, signing of contracts with, evaluation of results of performance of contracts by, and liquidation of contracts signed with, agencies, organizations, and individuals having the functions of providing legal assistance services to SMEs to implement activities under programs on legal assistance for SMEs must comply with the bidding law and other relevant laws.

3. Based on the contents and resources of programs on legal assistance for SMEs prescribed in Clause 1 of this Article and demands for legal assistance of SMEs being their members, enterprise-representing organizations may propose programs on legal assistance for SMEs which they will take charge of implementation, ensuring conformity with provisions on contents of programs on assistance for SMEs in Clause 1
of this Article:

a/ Based on the contents and resources of the program on legal assistance for SMEs prescribed in Clause 1 of this Article, the concerned ministry, ministerial-level agency or provincial-level People’s Committee shall provide from the source of funds for implementation of programs on legal assistance for SMEs prescribed in Clause 1 of this Article a support amount not exceeding 50% of the fund for implementation of the program proposed by the enterprise-representing organization. The remainder shall be covered by the enterprise-representing organization or mobilized from agencies, organizations and enterprises for implementation of the program.

b/ The selection of, signing of contracts with, evaluation of results of performance of contracts by, and liquidation of contracts signed with, enterprise-representing organizations to implement programs on legal assistance for SMEs under this Clause must comply with the bidding law and other relevant laws.

Chapter III

RESPONSIBILITY FOR PROVISION OF LEGAL ASSISTANCE
TO SMEs

Article 14.Responsibility for organization of implementation

1. The Ministry of Justice shall:

a/ Perform the unified state management of the provision of legal assistance to SMEs nationwide;

b/ Formulate and submit to competent agencies for promulgation, or promulgate according to its competence, legal documents and guidance on provision of legal assistance to SMEs;

c/ Give its opinions on the provision of legal assistance to SMEs by ministries, ministerial-level agencies and provincial-level People’s Committees when requested, including opinions on the formulation, approval and implementation of programs on legal assistance for SMEs or contents of programs on legal assistance for SMEs within the scope of ministries, ministerial-level agencies and provincial-level administrations;

d/ Formulate and implement inter-sectoral programs on legal assistance for SMEs;

dd/ Build, manage and update the website on legal assistance for SMEs;

e/ Organize independent assessment of the provision of legal assistance to SMEs;

g/ Once every 5 years or upon receiving request of the Government or Prime Minister, organize a final review of and report to the Government or Prime Minister on provision of legal assistance to SMEs.

2. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Justice in, guiding the estimation, management, use and finalization of state budget funds for the provision of legal assistance to SMEs.

3. Ministries and ministerial-level agencies shall:

a/ Update legal data concerning SMEs in the sectors and fields under their management and send them to the Ministry of Justice;

b/ Formulate, and organize the implementation of, programs on legal assistance for SMEs so as to improve their legal knowledge and provide them with legal information and counseling in the sectors and fields under their management under their schemes on support for SMEs as prescribed in the Government’s Decree No. 39/2018/ND-CP of March 11, 2018, detailing the implementation of a number of articles of the Law on Support for Small- and Medium-Sized Enterprises, or legal documents amending, supplementing or replacing such Decree;

c/ Build a section on legal assistance for SMEs on their portals and link them to the website on legal assistance for SMEs;

d/ Sum up and send report on results of provision of legal assistance to SMEs in the sectors and fields under their management to the Ministry of Justice at the latter’s request for summarization and reporting to the Government and Prime Minister.

4. For provincial-level administrations:

a/ Provincial-level People’s Councils shall adopt policies on legal assistance for SMEs in their localities; ensure funds from local budgets for provision of assistance to SMEs;

b/ Provincial-level People’s Committees shall organize the provision of legal assistance to SMEs in their localities; send reports on results of provision of legal assistance to SMEs in their localities to the Ministry of Justice at the latter’s request for summarization and reporting to the Government and Prime Minister.

5. Enterprise-representing organizations shall:

a/ Participate in the building of legal databases; and assume the prime responsibility for, or participate in, the formulation and implementation of programs on legal assistance for SMEs;

b/ Represent and protect lawful rights and interests of SMEs concerning the provision of legal assistance to SMEs; and mobilize resources for provision of legal assistance to SMEs being their members;

c/ Participate in formulation and implementation of, and offer opinions on, policies relating to provision of legal assistance to SMEs; and participate in evaluation of legal databases and programs on legal assistance for SMEs;

d/ Provide legal assistance services to SMEs in accordance with law and their charters.

6. When joining the legal counselor network, legal counselors must meet conditions for legal counseling practice and exercise their rights and perform their obligations in accordance with relevant laws.

7. SMEs shall:

a/ Coordinate with state agencies and SME-representing organizations in the provision of legal assistance to SMEs under this Decree;

b/ Properly and fully implement related regulations, and order and procedures to receive legal assistance under this Decree;

c/ Receive legal assistance, ensuring effectiveness and thrift and serving their business activities.

Article 15.Assurance of resources for provision of legal assistance to SMEs

1. Legal organizations under ministries and ministerial-level agencies shall act as focal points in the provision of legal assistance to SMEs according to this Decree and build the legal counselor networks of their ministries and ministerial-level agencies.

Provincial-level Departments of Justice shall act as focal points in the provision of legal assistance to SMEs according to this Decree and assist provincial-level People’s Committees in formulating and implementing programs on legal assistance for SMEs in their localities.

2. Funds for provision of legal assistance to SMEs shall be allocated from the state budget and arranged in annual state budget’s current expenditure estimates on the basis of plans on provision of legal assistance to SMEs of ministries, ministerial-level agencies and provincial-level People’s Committees in accordance with the law on the state budget.

3. Ministries, ministerial-level agencies and provincial-level People’s Committees may mobilize and use donations and financial assistance of organizations and individuals at home and abroad for provision of legal assistance to SMES in accordance with law.

Article 16.Inspection and supervision of provision of legal assistance to SMEs

1. Agencies and organizations in charge of organizing the provision of legal assistance to SMEs may inspect and supervise the provision of legal assistance to SMEs in accordance with law.

2. Contents of inspection and supervision include:

a/ Quality and beneficiaries of legal assistance to SMEs;

b/ Implementation of regulations on the order and procedures for provision and contents of legal assistance for SMEs; receipt and response to feedback of enterprises about the results of these activities;

c/ Observance of law in management and use of funds for provision of legal assistance to SMEs.

Article 17.Evaluation of the provision of legal assistance to SMEs

1. Agencies and organizations in charge of formulating, managing, maintaining and updating legal databases and programs on legal assistance for SMEs shall evaluate the results and impacts of these activities on beneficiaries and publicize evaluation results in the section on legal assistance for SMEs on their portals.

2. The summarization of feedback of SMEs benefiting from legal assistance serves as a basis for evaluation of effectiveness of the provision of legal assistance to SMEs.

3. Once every 5 years, the Ministry of Justice shall organize a final review of and evaluate provision of legal assistance to SMEs for reporting to the Government and Prime Minister.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 18.Transitional provisions

Activities of providing legal assistance to SMEs which commence before the effective date of this Decree shall be further implemented under the approved contents, programs, plans and projects until the expiration of the duration stated in approval decisions of competent agencies.

Article 19.Legal assistance for entities other than SMEs

Depending on available resources, ministries, ministerial-level agencies, provincial-level administrations and enterprise-representing organizations may decide to apply regulations on legal assistance for SMEs to provide legal assistance to business organizations and individuals other than SMEs.

Article 20.Effect

This Decree takes effect on August 16, 2019, and replaces the Government’s Decree No. 66/2008/ND-CP of May 28, 2008, on legal assistance for enterprises.

Article 21.Implementation responsibility

1. The Ministry of Justice shall coordinate with ministries, ministerial-level agencies and provincial-level administrations in implementing this Decree and report the implementation results to the Government and Prime Minister.

2. Ministers, heads of ministerial-level agencies and provincial-level administrations shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC