Decree of Government No.122/2004/ND-CP of May 18, 2004, regulating the mandate and authorities of legal sections within ministries, ministerial-level agencies, institutions under Government, specialized agencies under People’s Committees of provinces and cities under the central control and state-run enterprises

DECREE

REGULATING THE MANDATE AND AUTHORITIES OF LEGAL SECTIONS WITHIN MINISTRIES, MINISTERIAL-LEVEL AGENCIES, INSTITUTIONS UNDER GOVERNMENT, SPECIALIZED AGENCIES UNDER PEOPLE’S COMMITTEES OF PROVINCES AND CITIES UNDER THE CENTRAL CONTROL AND STATE-RUN ENTERPRISES;

THE GOVERNMENT

Pursuant to Law on Government’s organization dated 25 December 2001;
Pursuant to Law on promulgation of legal normative documents dated 12 November 1996 and Law No. 2/2002/QH 11 dated 16 December 2002 regarding the supplement and revisions of Law on promulgation of legal normative documents.
Upon the request made by the Minister of Justice and Minister of Interior;

HAS DECREED:

Chapter I:

GENERAL PROVISIONS

Article 1. Subjects and application

This Decree shall regulate the mandate, authorities and organization of legal sections in Ministries, ministerial-level agencies, agencies under the Government, specialized agencies under the People’s Committees of cities and provinces under the central control (hereinafter referred to as “provincial People’s Committee” and State-run enterprises.

Article 2. Function of legal sections

1. The legal sections in the Ministries, ministerial-level agencies, agencies under the Government, specialized agencies under the provincial People’s Committees shall assist the Ministers, the heads of ministerial-level agencies, heads of agencies under the Government, heads of specialized agencies under the provincial People’s Committee in the exercising of State management by means of legislation within the sectors and fields as assigned; shall formulate legislation; they shall appraise, review and systemize the legal normative document systems; shall check legal normative documents, shall advocate and educate the law and examine the law compliance and shall carry out other tasks as assigned.

2. Legal sections in the State-run enterprises shall have the function to assist the Board of Directors, General-Director, directors of enterprises in the legal matters and other relevant ones relating to the operation of the enterprises.

Chapter II.

MANDATE AND AUTHORITIES OF LEGAL SECTIONS

Article 3. Mandate and authorities of legal sections in Ministries and ministerial-level agencies

The legal sections in Ministries and ministerial-level agencies shall have the following mandate and authorities:

1. In terms of formulation of legislation

a. Chair and coordinate with other relevant units to make proposals on the annual and long-term programmes on law formulation in order to present to the Ministers, heads of ministerial-level agencies for implementation of programmes on legal formulation.

b. Chair or take part in the formulation of legal normative documents  as appointed by the Ministers and heads of ministerial-level agencies.

c. Appraise or comment on draft legal normative documents which are prepared by other units under the Ministries and ministerial-level agencies with regard to  legal matters prior to submission to the Ministers and heads of ministerial-level agencies.

d. Chair and coordinate with relevant units in preparation of profiles regarding draft legal normative documents so that the Ministers, heads of ministerial-level agencies make proposals on the meetings to get comments and ask Ministry of Justice to appraise and submit them to the Government and the Prime Minister.

e. Chair and coordinate with relevant units in assisting the Ministers, heads of ministerial-level agencies  to comment on the draft legal normative documents sent by Ministries, ministerial-level agencies, agencies under the Government or localities’ authorities.

2. In terms of review and systemization of legal normative documents

a. Chair and coordinate with the relevant units in reviewing and systemizing the legal normative documents related to the management scope of the Ministries and ministerial-level agencies.

b. Present solutions to review results to the Ministers, heads of ministerial-level agencies.

3. In terms of examination of the legal normative documents:

a. Chair and coordinate with relevant units in assisting the Ministers, heads of ministerial-level agencies to process the legal normative documents as stated by law.

b. Report the review results of legal normative documents to the Ministers, ministerial-level agencies and send it to the  Minister of Justice; coordinate with units under the Ministry of Justice to examine the legal normative documents.

4. With regard to law advocacy and training, examination of law compliance:

a. Chair and coordinate with relevant units to advocate and disseminate the law.

b. Coordinate with the relevant units to inspect the law compliance done in the Ministries, ministerial-level agencies within the sector and areas as assigned; monitor and urge the law enforcement, sum up the law enforcement within sectors and areas assigned.

c. Give comments and take action to violations committed to the legislation within the sector.

5. Provide guidance on the expertise and skills for legal sections in the General Departments, Departments, Directorates and State-run enterprises that the Ministries and ministerial-level agencies are the holders of State capital in those enterprises.

6. Carry out other duties as assigned by the Ministers and heads of ministerial-level agencies.

Article 4. Mandate of legal sections of agencies under the Government

1. In the formulation of legal documents

a. Legal sections of the agencies under the Government exercising a part of the State management within the sectors and areas shall have the duties as follows:

- Propose the long-term and annual programme on the legal formulation of the agencies to submit to the heads of these agencies.

- Chair or take part in the drafting of legal normative documents as assigned by the heads of agencies.

- Appraise or give comment on the draft documents regarding legal matters prepared by other units before presenting to the heads of the agencies; coordinate with the relevant units to prepare profiles of draft documents before the heads of agencies asking comments from other agencies and institutions and to send to the Ministry of Justice for appraisal and to submit to the Government and the Prime Minister.

- Chair or join other relevant units to assist the heads of agencies in commenting on the draft legal normative documents sent by the Ministries, ministerial-level agencies or agencies under the Government or local authorities.

2. In the review and systemization of the legal normative documents:

a. Chair and coordinate with the relevant units to review and systemize the legal normative documents related to the management jurisdiction and operation of the agencies.

b. Submit the solutions to the review results to the heads of agencies.

3. In the law advocacy and education and monitoring of law enforcement

a. Chair and coordinate the relevant units to advocate and educate the law.

b. Coordinate with the inspection unit of the agencies to examine the law compliance in these agencies; monitor, check and urge the law implementation, sum up the legal enforcement practices within the sectors and areas.

c. Give comments on the treatment of violations committed to legislation within the sector.

4. Assist the heads of agencies to check the legal normative documents in accordance with the law.

5. Provide guidance on the expertise and skills for legal sections in the State-run enterprises that the agencies under the Government are representatives of State-capital holders at those enterprises.

6. Carry out other duties as assigned by the heads of agencies.

Article 5. Mandate of legal sections of specialized agencies under the provincial People’s Committees

Legal sections of specialized agencies under the provincial People’s Committees shall have mandate as follows:

a. Provide advice to the heads of specialized agencies regarding the proposals to the provincial People’s Committees to issue legal normative documents for specialized management in provinces.

b. Chair or compile legal normative documents to submit the heads of agencies.

c. Comment on draft legal normative documents relating to legal matters prepared by other units before submitting to the heads of agencies.

d. Assist the heads of specialized agencies to prepare comments on the draft legal normative documents sent by other agencies.

e. Assist the heads of specialized agencies to prepare proposals to the competent State agencies regarding the issuance, revision and supplement of legal normative documents related to the specialized management areas in provinces.

2. The legal sections shall review and systemize the legal normative documents related to specialized management areas and propose the solution to review results.

3. With respect to examination of legal normative documents:

a. Assist the heads of specialized agencies in coordination with Department of Justice to examine legal normative documents as stated by law.

b. Prepare examination results for the heads of specialized agencies to report to the Chairman of provincial People’s Committee and send to Director of Justice Department.

4. With regard to law education and dissemination, examination of law enforcement:

a. Chair or take part in law education and dissemination work with other relevant units.

b. Coordinate with agency’s inspection sections in examining, urging and checking the compliance with law and regulations of the agencies.

c. Give comment on the sanctions imposed on the violations committed to the rules or regulations of the agencies.

5. Perform other duties as assigned by the heads of specialized agencies.

Article 6. Mandates and authorities of the legal sections in the State-run enterprises

The mandates and authorities of the legal sections in the State-run enterprises shall include the following:

1. Assist the Board of Directors, Director-General and directors of the enterprises in legal matters related to the operation of the enterprises.

2. Assist the Board of Directors, Director-General and directors of the enterprises to protect legitimate rights and interests of the enterprises as well as those of the workers.

3. Advocate and inform the law, rules and regulations of the enterprises to the staff and workers; coordinate with other departments and divisions to examine the compliance of law, rules and regulations and make proposals to the sanctions imposed on the violations.

4. Assist the Board of Directors, Director-General and directors of the enterprises to comment on the draft legal normative documents sent by State-run agencies; make proposals to the competent State agencies regarding the supplement and amendment of legal normative documents.

5. Comment on the draft economic contracts in the fields of legal matters prepared by other units of the enterprises before presenting to the Board of Directors, Director General and the directors of enterprises.

6. Carry out other duties by the Board of Directors, Director General and Directors of enterprises as assigned.

Chapter III.

ORGANIZATION OF LEGAL SECTIONS

Article 7. Organization of legal sections of Ministries and ministerial-level agencies

1. The Ministries and ministerial-level agencies shall have Legal Department. The establishment or dissolution of the Legal Department of the Ministries and ministerial-level agencies shall be decided by the Prime Minister upon request made by the Ministers and heads of the ministerial-level agencies.

In case of necessity, the organization of legal sections shall be decided by the Prime Minister regarding the Ministries and ministerial-level agencies which are of typical characteristics.

3. Legal Departments of the Ministries, ministerial-level agencies shall be subject to the guidance of the Minister of Justice regarding the skills and expertise.

3. The General Departments, Directorates under the Ministries and ministerial-level agencies shall have their full-time specialized  legal sections. The mandate, authorities, organization and structure of those legal sections  within the General Departments and Directorates shall be decided by the Ministers and Heads of ministerial-level agencies.

Article 8. The organization of legal sections of the agencies under the Government

1. Agencies under the Government shall carry out duties and mandates regarding State management of the areas and sectors in which the Legal Department is included.

In case of necessity, the organization of legal sections shall be decided by the Prime Minister regarding the agencies under the Government which are of typical characteristics.

2. Administrative agencies under the Government shall establish Legal Department based on their legal work requirement, or shall apply other appropriate legal organizations.

3. The establishment and dissolution of the legal sections in the agencies under the Government as stated in paragraph 1 of this Article shall be decided by the Prime Minister upon request made by the heads of agencies under the Government.

Article 9. Legal sections in the specialized agencies under the provincial People’s Committee

1. The specialized agencies under the provincial People’s Committee shall establish the Legal divisions or full-time legal officials based on the mandate, authorities and legal work requirements of those agencies.

2. The establishment of the Legal divisions in the specialized agencies under the People’s Committee shall be decided by the provincial People’s Committee upon the request made by the heads of specialized agencies.

3. The legal divisions or full-time legal officials of the specialized agencies under the provincial People’s Committee shall be subject to the guidance on skills and expertise provided by the Director of Justice Department.

Article 10. Legal sections of the State-run enterprises

In the light of legal work requirements, the Board of Directors, Director General and director of State-run enterprises shall properly establish the legal sections and shall appoint full-time specialized legal officials or hire the legal advisors.

Article 11. Titles and qualifications of legal officials

1. The legal officials of the Ministries, ministerial-level agencies and agencies under the Government, specialized agencies under the provincial People’s Committee shall be officials or at higher positions, law graduates or specialized graduates possessing the legal knowledge  good enough to ensure the good performance of task as assigned.

2. The heads of legal sections of the Ministries, ministerial-level agencies, agencies under the Government shall be appointed after this Decree comes into effect shall possess law graduation and higher degrees and spend at least 5 years dealing with legal matters.

Chapter IV.

EXECUTION

Article 12. Duties of Ministry of Justice

1. The Ministry of Justice shall assist the Government in integrated State management of the legal work throughout the country.

2. The Ministry of Justice, within its jurisdiction, shall have the duties and authorities as follows:

a. Submit the draft legal normative documents regarding legal work to the Government and Prime Minister.

b. Promulgate the legal normative documents within its jurisdiction in order to guide the implementation of documents of the Government and Prime Minister regarding legal work.

c. Coordinate with Ministries and sectors to instruct and examine the legal work performance.

d. Coordinate with the Ministries and sectors to review and sum up the results of legal work and annually report legal work to the Prime Minister.

e. Coordinate with the Ministries and sectors to hold refresher courses for legal staff and officials.

Article 13. Duties of the Ministries, ministerial-level agencies, agencies under the Government,provincial People’s Committee, Board of Directors, Director General and Directors of State-runenterprises

1. The Ministries, ministerial-level agencies and agencies under the Government shall have the duties as follows:

a. Establish and strengthen the legal sections of the Ministries, ministerial-level agencies and agencies under the Government.

b. Instruct and examine the legal work performance of the Ministries, ministerial-level agencies and agencies under the Government.

c. Coordinate with the Ministry of Justice to hold refresher courses for legal staff and officials; appoint the legal staff based on titles and qualifications.

d. Ensure the employment and cost for operation of legal sections.

e. Conduct the preliminary review and summing up meetings on the legal work of the Ministries, ministerial-level agencies and agencies under the Government and annually report to the Minister of Justice or upon requests so that the Ministry of Justice shall produce integrated report submitted to the Prime Minister.

2. Provincial People’s Committees shall have the duties as follows:

a. Establish and strengthen the legal sections in the specialized agencies.

b. Instruct and examine the legal work performance of the specialized agencies.

c. Ensure the employment and cost for operation of the legal sections in the specialized agencies.

3. The Board of Directors, Director Generals, Directors of State-run enterprises shall the duties as follows:

a. Establish and strengthen the legal sections in the enterprises.

b. Instruct and examine the legal work performance in the enterprises.

c. Appoint the staff and ensure the cost for operation of the legal sections in the enterprises.

d. Conduct the preliminary review and summing up meetings on the legal work of the enterprises and report to the Ministers, heads of ministerial-level agencies, heads of agencies under the Government which are the preventative of State capital holders  in the enterprises as well as to the Minister of Justice on annual basis or upon requests so that the Ministry of Justice shall produce integrated report submitted to the Prime Minister.

Article 14. Executive effectiveness

This Decree shall come into force 15 days after being post on Official Gazette and shall replace the Decree 94/CP of 6 September 1997 of the Government regarding the legal sections of Ministries, ministerial-level agencies and agencies under the Government.

Article 15. Executive duties

1. The Minister of Justice shall chair and coordinate with the Minister of Interior to make guidance and examine the implementation of this Decree.

2. The Ministers, heads of ministerial-level agencies, heads of agencies under the Government, Chairman of People’s Committee of provinces and cities under the central control, Board of Directors, Director General and Directors of State-run enterprises shall be responsible for the implementation of this Decree.