Law on practicing law in Vietnam

practicing law; for legal service contracts signed with clients but not yet completed, an agreement must be reached with the client on the performance of that legal service contract. After the six-month period specified in this clause, if the Department of Justice does not receive the dossier for dissolution of the law practice organization, the law practice organization shall be considered dissolved and the Department of Justice shall remove the name of the law practice organization from the register of activities. In this case, the head of the law office, the director of the one-member limited liability law firm or all members of the partnership law firm, members of the two-member limited liability law firm shall be jointly responsible for debts, other unpaid property obligations and obligations to be performed in the legal service contract signed with the client. And also to be consistent with the Law on Enterprises and in accordance with reality, the Law on Lawyers needs to have provisions on prohibited acts from the time of termination of activities. From the time of termination of operations under Clause 1, Article 47 of this Law, law practice organizations and managers of law practice organizations are strictly prohibited from performing the following acts: Concealing or dispersing assets; Giving up or reducing the right to claim debts; Converting unsecured debts into debts secured by the assets of the law practice organization; Signing new contracts that are not contracts for the purpose of dissolving the law practice organization; Pledge, mortgage, donate, or lease assets.

Sixth, to protect lawyers and ensure the practice of lawyers, the Penal Code should establish a new provision on the crime of violating citizens' rights to defense and having others defend them.

Seventh, regarding legal consultancy activities and the implementation of other legal services, the law on lawyers needs to focus on two areas: unifying legal consultancy activities into professional practitioners, which are lawyers, and institutionalizing the direction of enhancing international cooperation in legal activities, building a legal mechanism for the increasing participation of lawyers in international trade negotiations, resolving disputes with foreign elements, and creating a healthy competitive environment for legal services on the basis of ensuring the principles of equality and sovereignty.

3.2.2 Executive solutions

Executive power is exercised by State administrative agencies to ensure the fulfillment of their functions and tasks. The executive solutions mentioned here are some recommendations for solutions related to the promulgation of sub-law documents to specify the laws promulgated by legislative agencies on the practice of law and the use of state power to organize and manage aspects and social relations related to the practice of law.

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The issuance of sub-law documents to specify the law is extremely necessary. The practice of law uses the law as a tool, and the practice is related to the law, so the specification of the provisions of the law related to the practice of law becomes even more urgent. In order for the law on lawyers to fully promote its role in practice, the documents detailing and guiding the implementation of the law on lawyers need to be amended in the following contents:

Amending the Law Practice Apprenticeship Regulations in the direction of allowing law practice apprentices to perform some of the tasks of official lawyers such as participating in first-instance proceedings and some stages before the first-instance trial of criminal cases such as indictment, investigation, and prosecution. Amending in this direction is to help law practice apprentices to be exposed to and practice some of the necessary skills they need to have when becoming an official lawyer. To be more stringent, it can be stipulated that law practice apprentices perform these tasks together with or on behalf of the instructing lawyer.

Administrative procedures for the recognition of lawyers are necessary, however, these procedures need to be simplified. It is not necessary to issue two types of papers: “Certificate of examination of the results of the lawyer’s internship” and “lawyer’s practice certificate”. In addition, it is also necessary to consider whether lawyers can practice when they are granted a lawyer’s practice certificate or only when they are granted a lawyer’s card. Bar associations also need to consider the association’s membership fee and annual association fee so that there is an appropriate level of payment for member lawyers.

During the practice of law, it is also necessary to supplement clear regulations on the rights of lawyers to create favorable conditions for lawyers to perform well.

The job of protecting the legitimate rights and interests of their clients. Lawyers must have the right to collect information, documents, and evidence from agencies and organizations, and these agencies and organizations must have the obligation to provide information, documents, and evidence to lawyers when receiving legal requests from lawyers. Lawyers currently face many difficulties in collecting this information due to the lack of cooperation of agencies and organizations, especially state administrative agencies. For example, a lawyer protects the legitimate rights and interests of the defendant in a case of land use rights disputes. The lawyer requests the land use rights registration office to provide information about the land, but the office does not pay attention to it. This makes it impossible for lawyers to have truthful and complete information to perform their role. And if the Court does not collect that information but only relies on the evidence presented by both parties, it may lead to a resolution of the case that is completely contrary to the nature of the case. Therefore, there should be a document clearly stating that the lawyer has the right to collect such information and the office must have the obligation to provide it to the lawyer.

When collecting valuable information, documents, and evidence, the agencies handling the case must also use that as a basis for deciding on the direction of resolution. To do this, it is necessary to add legal regulations on the value of evidence provided by lawyers. Currently, the law has allowed the establishment of more bailiff offices in major cities and has documents regulating the use of evidence provided by bailiff offices. This is also a support channel for law practice organizations in the process of providing legal services to customers.

Documents detailing and guiding the implementation of the criminal procedure, civil procedure, and administrative procedure codes also need to supplement regulations on the rights of lawyers in collecting and using evidence, and the right to litigate in court. Especially in relation to criminal proceedings, it is necessary to have additional regulations to clarify the rights of lawyers when contacting suspects, defendants, detainees, and prisoners; the right to be present when taking statements and questioning suspects. Lawyers also need to have access to case files at all stages of the proceedings to fully grasp the details in the files and have the best direction to protect the legitimate rights and interests of their clients.

To ensure deterrence, it is also necessary to stipulate the legal responsibilities that individuals, agencies and organizations will have to bear when they do not create conditions for lawyers to exercise their rights or when they obstruct lawyers in the process of practicing.

Regarding legal responsibilities during the practice of law, it is necessary to amend the Regulations on Disciplinary Actions against Lawyers issued together with Decision No. 68/QD-BTVLĐLSVN dated October 5, 2012 to ensure uniform application among bar associations. Add provisions explaining phrases such as "major damage", "minor damage", "not major damage", "causing particularly bad effects". It is also necessary to amend the provisions in Article 17 on receiving and handling complaints and denunciations. It should be stipulated that the Executive Board of the Bar Association, after receiving complaints, denunciations or discovering violations by member lawyers, must immediately transfer them to the Commendation and Discipline Council for verification, clarification and resolution.

Regarding the administrative, civil and criminal responsibilities of lawyers in the practice of law, it is necessary to expand the dissemination of the law to the people, all levels and sectors so that they can help the authorities in detecting violations by lawyers. The dissemination of the law is also a deterrent, limiting the violation of the law by the practice of law.

Regarding the regulations on foreign law practice organizations operating in Vietnam, it is necessary to add provisions to expand the authority of Vietnamese lawyers practicing in foreign law practice organizations in the direction of allowing Vietnamese lawyers practicing in foreign law practice organizations to participate in litigation at Vietnamese courts. However, this should only be limited to foreign lawyers rather than Vietnamese lawyers or limited to criminal cases that are sensitive or closely related to public interests. For other criminal cases or purely civil and economic cases, it is necessary to allow Vietnamese lawyers to participate in litigation at Vietnamese courts.

In organizing and managing all aspects and social relations related to the practice of law, it is necessary to build a clean and effective administrative apparatus. The personnel in this apparatus must be people who are good at their profession, have ethics, and are able to solve problems.

Quickly and properly carry out administrative procedures related to the practice of law such as registration of activities, change of registration of activities, termination of activities, etc.

Regarding the issue of managing the practice of law, the Vietnam Bar Associations and Bar Federations also need to pay more attention to member lawyers. Listen to the exchanges and comments of lawyers to have measures to help and create conditions for lawyers in the practice process. Strengthen the study and training of professional ethics, professional skills and professional skills of lawyers; strengthen communication activities, promote the image of lawyers, the legal profession and the contributions of lawyers in the process of judicial reform and building a rule of law state. At the same time, have stricter management measures to prevent and handle lawyers who violate the law and the regulations of the Vietnam Bar Association and Bar Federation. The Vietnam Bar Association and Bar Federation must regularly work with the prosecution agencies and other agencies to have smooth coordination between those agencies and lawyers in the process of practicing law. Participate more actively in the task of building and amending the legal system of the state. In addition, it is necessary to expand foreign relations and international cooperation to improve the skills of lawyers and at the same time build the image of Vietnamese lawyers in the eyes of international friends.

3.2.3. Judicial solutions

The judicial solutions mentioned here are solutions proposed to protect the law on the practice of law in Vietnam, ensure that the law on the practice of law is implemented and fight against violations of the law on the practice of law.

Judicial power is exercised by the Court and the Procuracy. To ensure that judicial power in the field of law practice is fully exercised, the Court and the Procuracy must clearly understand the provisions of the law on the practice of law and create the best conditions for lawyers to exercise their rights and obligations in accordance with the provisions of the law.

The law on the practice of law is mainly regulated in the Law on Lawyers, the procedural codes, and documents detailing and guiding the implementation of the above laws and codes. As law enforcement agencies, the Court and the Procuracy must ensure that the people

The staff in their organization must grasp and understand these regulations correctly. In addition, lawyers participating in litigation are to help the agencies conducting litigation resolve cases in a reasonable and rational manner, so the agencies conducting litigation must cooperate with lawyers to the fullest extent, creating conditions for lawyers to practice. From the first procedure for lawyers to participate in a case is the procedure for granting a certificate of defense counsel, a person protecting the rights and legitimate interests of the parties in the case. The Court and the Procuracy must not harass or make it difficult for lawyers, such as requesting additional documents that are not prescribed by law or giving many reasons to refuse or prolong the time to grant a certificate of participation in litigation to lawyers... but must quickly carry out the procedure for granting a certificate of participation in litigation so that lawyers have an official legal basis to participate in resolving the case.

During the process of lawyers participating in the proceedings, the Court and the Procuracy must create conditions and coordinate with lawyers in collecting evidence in all cases, arranging reasonable conditions for lawyers to participate in questioning and taking statements from defendants, detainees and prisoners in criminal cases. The Court and the Procuracy must respond to the lawyer's request to access the case files they are handling so that the lawyer can fully grasp the details in the files and thereby have the best direction to resolve the case. The Court and the Procuracy must respect the evidence provided by the lawyer if such evidence is provided legally and consider it a basis for resolving the case. At the trial, the panel of judges must ensure the lawyer's right to litigate, respect the opinions given by the lawyer, carry out the trial procedures fully and in accordance with the law, ensuring public and effective litigation.

The Constitution and the Law on the Organization of the Procuracy stipulate that the Procuracy is the agency with the function of exercising the right to prosecute and supervise judicial activities. Both of these functions are closely related to the practice of lawyers. In the practice of the right to prosecute, the purpose of the Procuracy and lawyers is to ensure that criminal cases are resolved on a basis and legally, without wrongly convicting innocent people and letting criminals escape. However, in many cases, the Procuracy and lawyers are on two opposing sides, such as the Procuracy performs the function of prosecuting while the law

The prosecutor performs the function of exculpation. In this case, the prosecutor must still respect the rights of the lawyer and must fully and publicly debate the opinions given by the lawyer to ensure the achievement of the common goal. In addition, the prosecutor also has an important function of supervising judicial activities. This function includes checking the basis and legality of judicial proceedings and execution of judgments in order to promptly detect and strictly handle violations of the law, ensuring compliance with the law in judicial activities in general and the practice of law in particular. Or to be more specific, the prosecutor is also the agency that inspects and supervises the implementation of the law on the practice of law by the prosecuting agencies in judicial activities, ensuring that lawyers fully exercise their rights in accordance with the provisions of the law.

Expanding on the judicial solutions, the thesis would like to propose some recommendations for reforming the judicial sector in general to create conditions for the law on practicing law to be increasingly put into practice. The judicial sector needs to improve the organization, apparatus, and staff working in the field of practicing law, promote administrative procedure reform, control administrative procedures; increase the application of information technology, effectively contribute to administrative reform and improve the efficiency and effectiveness of state management in the field of practicing law. The judicial sector also needs to improve the quality of the work of drafting and appraising legal documents; improve the effectiveness and feasibility of legal documents on practicing law. Whether legal documents in general and laws on practicing law in particular are known and implemented by the people or not depends largely on the work of propaganda and dissemination of law, so it is necessary to promote and innovate the work of popularizing and educating the law; Effectively combine the dissemination and education of law and legal aid, bringing these activities into depth, closely following social needs, suitable for each subject. Create a strong change in the organization of law enforcement, from the dissemination of law to the inspection of legal documents, monitoring law enforcement and controlling administrative procedures; enhance the policy response capacity of judicial agencies.

All the solutions mentioned above come from the following main viewpoints: First, institutionalize the policy of building a socialist rule-of-law state in Vietnam, combining judicial administrative management with enhancing the autonomy of professional lawyers' organizations, ensuring democratic litigation in court, developing and perfecting the team of lawyers. Second, it is necessary to create a broad legal environment for lawyers' organizations and activities to develop, meeting the increasing demand for legal advice in the market economy, promoting democracy, protecting justice and social equity. Third, it is necessary to aim at building a monopoly regime for professional lawyers' activities, building a legal service industry in the market economy, focusing on the lawyer profession, creating an orientation for the development of the legal service market. Fourth, it is necessary to build a scope and roadmap for perfecting the law on lawyers over many years, designing a lawyer management model suitable to the characteristics of Vietnam. Fifth, promote the uniform development of legal activities in regions and localities nationwide, focusing on some localities that play a leading role in needing rapid development with high scale and quality of services, while paying attention to shortening the gap in demand for legal services and the level of development of the legal profession in some mountainous and ethnic minority areas. Sixth, it is necessary to thoroughly implement the foreign policy of independence, autonomy, multilateralization and diversification of international relations, proactively integrate into the international community and create an environment for international cooperation in legal activities.

Contributing to the improvement of the law on the practice of law is the responsibility of every citizen and every organization in society. Therefore, it is necessary to have the coordination of the people and relevant agencies to build a favorable legal environment for lawyers to practice, contributing to the overall development of society.

In summary, based on the analysis and assessment of the current state of law and the practical application of the legal system on the practice of law, there is a comparison with the provisions of foreign law and the contents on the same issue that Vietnam commits to in international treaties, the viewpoints to perfect the legal system on the practice of law in Vietnam are: Must be based on the viewpoint of perfecting the legal system in general, the law on the practice of law in particular; Focus on developing legal services; Originating from Vietnam's commitments in international treaties and in harmony with the law

Law on practicing law in Vietnam - 13

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