Examination). The law does not specify where candidates must study or which organization provides vocational training, but the important thing is that they must pass the Bar Association entrance exam. The laws on lawyers in Japan, Thailand, and the United Kingdom have regulations on legal training courses but do not require a period of legal practice internship. Some countries stipulate that people who want to become lawyers must undergo both vocational training and legal practice internship, such as Singapore, France, and the Australian state of New South Wales. Some countries stipulate that they can choose between vocational training and practice internship, such as the Australian state of Victoria.
According to the legal regulations of many countries, the common forms of law practice are: Individual law offices/independent practice and Partnerships. In addition to the two common forms mentioned above, in the US, France, Canada, Belgium, Singapore, Thailand, Germany and many other countries, lawyers are also allowed to establish limited liability law firms. In addition, in some countries such as Greece, Argentina, Italy, Mexico, Taiwan, Brazil, Switzerland, Japan, the form of limited liability law firms is not accepted because it is not suitable for the unlimited liability regime for lawyers in their professional activities. For the legal profession in the UK and the US, the form of partnership law firms is very popular. Some countries also provide for the form of independent practice of lawyers without the need to establish a practice organization (USA, UK, Singapore, Canada) or allow two or more defense lawyers to share an office, share some office expenses but not enter into a partnership with each other (Italy, Taiwan, UK, France, Switzerland, Japan). In addition, in some countries (Argentina, USA, UK, Singapore), lawyers can work for individual clients, businesses, other organizations (lay clients) as private lawyers (in-house lawyers) or work for the Government through a contract as an employee. Another difference is that the employer who hires the lawyer is also the lawyer's sole client. In some countries such as Italy, Thailand, Taiwan, there exists a team of legal consultants in the Government and business organizations. These people are not required to have the same qualifications and standards as lawyers.
In countries with a common law system, the rights of lawyers in litigation are more extensive than in countries with a statutory law system. In England, Australia, and the United States, lawyers have the right to participate in any stage of the litigation process, from
when arresting a suspect. Lawyers play a very important role from the investigation process to the indictment and trial. The accused is not interrogated without a lawyer, unless the accused refuses to hire a lawyer. In some other countries, lawyers are often involved from the investigation stage (China, Taiwan, Thailand). Colombia allows lawyers to use legal measures to conduct independent investigations and find evidence in criminal cases. Italy also allows lawyers to investigate and collect evidence. Lawyers have the right to: contact any witness to obtain information; request written confirmation from that witness; collect information. During the proceedings, lawyers are allowed to participate in investigative activities such as house searches, appraisals and the conviction process. During their investigation, lawyers have the right to intervene in the approval or disapproval and are not allowed to make public without the consent of the judge. If approved, the lawyer may be asked, suggested or requested to record any unusual things. Article 30 of the Law on Lawyers of China stipulates that when participating in litigation, the lawyer has the right to collect and read the records related to the case, and to meet and exchange letters with the client who is being detained in accordance with the provisions of the procedural law. In addition, Article 31 further stipulates that while handling the case for the client, the lawyer has the right to meet with relevant individuals, agencies and organizations with their consent to conduct detailed investigations of the case. Article 32 of the Law on Lawyers also stipulates that while practicing, the personal rights of the lawyer cannot be violated. However, the lawyer must have the absolute responsibility to keep state secrets, the commercial secrets of the client and the private information that the lawyer knows during the practice.
In Thailand, the rights and responsibilities of lawyers are stipulated in the Law on Lawyers, the Criminal Procedure Code, and the Civil Procedure Code. During the investigation, lawyers have the right to meet with the accused and advise the accused on their rights and responsibilities. However, lawyers are not allowed to represent the accused during the investigation and are not allowed to answer the questions of the investigating officer on behalf of the accused. During the trial, lawyers have the right to represent their clients to defend and protect the rights and interests of their clients. They are allowed to present evidence and have the evidence presented by the prosecutor examined in court.
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CHAPTER 2
LEGAL STATUS ON LAW PRACTICE IN VIETNAM
Perhaps, in their thoughts and actions, legislators always want to orient the construction of a legal system that ensures consistency, logic, is not too abstract and is suitable for the needs, thoughts and aspirations of the people... However, experience shows that, like an artist painting a picture, a construction worker or a car manufacturer, only when the painting, construction and putting the car into use can people see the defects that the designer and manufacturer have not or have not foreseen before. In the legislative field, although the implementation process must comply with many strict conditions and procedures, it is difficult to avoid defects arising from many different causes. In the Vietnamese legal system, legal documents regulating the practice of law are being applied in life, and are receiving feedback from daily life about their advantages and disadvantages. The following studies clarify those points.
2.1. Regulations on conditions of practice
2.1.1 Conditions for entering the legal profession
To become a lawyer according to the provisions of Article 10 of the Law on Lawyers 2006, amended and supplemented in 2012 of Vietnamese law, the first criterion is to have Vietnamese nationality. This idea has existed since previous legal documents such as: The 1987 Lawyers Ordinance passed by the State Council on December 18, 1987; "Bar Association Regulations" attached to Decree No. 15/HDBT dated February 21, 1989 issued by the Council of Ministers, specifying and guiding the implementation of the Bar Association Ordinance; Circular No. 313/TT/LS dated April 15, 1989 of the Ministry of Justice guiding the implementation of the Bar Association Regulations; Lawyers Ordinance 2001. Other conditions to become a lawyer are "loyalty to the Fatherland, compliance with the Constitution and laws, good moral qualities", "health ensuring the practice of law". In addition to the general standards above, the legal profession also requires specific standards specific to the legal profession, which are "having a bachelor's degree in law, having been trained as a lawyer, and having completed a period of practicing law as a lawyer".
In terms of profession, lawyers must undergo a lawyer training course. Today, we have the Judicial Academy, which is a place to train lawyers systematically according to the training framework of the Ministry of Justice. However, not everyone who wants to become a lawyer must attend this training course. There are some cases that are exempted from lawyer training (Article 13 of the Law on Lawyers), such as those who are judges, prosecutors, investigators; Professors, associate professors specializing in law; doctors of law; senior court examiners, senior inspectors of the Procuracy; senior experts, senior researchers, senior lecturers in the field of law; senior court examiners, senior inspectors of the Procuracy; senior experts, senior researchers, senior lecturers in the field of law.
In terms of skills, to become a lawyer, one must undergo a period of legal practice internship as prescribed. The cases specified in Clauses 1, 2, 3, Article 13 are exempted from legal practice internship. The internship period helps supplement the necessary knowledge, experience and skills to apply what has been learned in university and in the lawyer training course to practice. Therefore, the internship period is really necessary. However, Article 13 leads to an error in the drafting process of legal documents in Article 10. Article 10 stipulates that all cases wishing to become lawyers must attend a lawyer training course and must undergo a period of legal practice internship without taking into account the cases exempted from training and internship in Article 13.
The above are the basic standards to become a lawyer, or in other words, these are the necessary conditions, and the sufficient conditions are supplemented by Article 11 of the Law on Lawyers: "A person who meets the standards specified in Article 10 of this Law and wishes to practice law must have a Certificate to practice law and join a Bar Association".
After completing the internship period, the intern must pass a final exam to practice law. Only those who pass this exam will be granted a lawyer's certificate. After that, the person with a lawyer's certificate must register to join a Bar Association, be granted a lawyer's card by the Bar Association, and then officially become a qualified lawyer. Conditions
The provisions of Article 11 are consistent with theory and practice. However, the way it is implemented in Vietnam has caused many negative aspects such as: negative aspects in the final examination of the probationary period, many procedures in joining the Bar Association, high fees for joining the Association, causing many people to be granted practice certificates but not join any Bar Association, many people join the Bar Association but do not practice law, do not implement the reporting regime to the Bar Association, so the Association cannot manage the activities of these people.
Compared to other countries in the world, the problem of lawyer training in our country is still weak, the training time is short, the training quality is not high, leading to the situation that lawyers graduate with a practice certificate in hand but lack of professional skills. This will be analyzed specifically in the following sections.
2.1.2 Lawyer training
Lawyer is a profession that requires extensive knowledge in all fields, especially the legal field. To have that amount of knowledge, practitioners must receive basic training at quality training institutions and must constantly learn from books and in practice to accumulate experience and skills for the practice process.
Legal training begins with teaching at a law university in Vietnam or abroad. Most law training institutions in Vietnam are theoretical, students are not trained in legal practice, have little opportunity to access reality, so the training quality is not high, most graduates take a long time to meet the needs of the job.
After obtaining a bachelor's degree in law, if you want to become a lawyer, you must attend a twelve-month lawyer training course at the Judicial Academy. This training course mainly trains students in the skills of practicing law such as: skills in meeting and negotiating with clients, legal consulting skills, litigation skills in court... Those who complete the lawyer training program will be granted a Certificate of Graduation from the lawyer training institution.
Compared to some developed countries in the world, the process of training the legal profession in general and the lawyer profession in particular in Vietnam still has many weaknesses. Weak from the input quality, weak in the training process and weak in the quality after graduation,
when practicing. The legal training process in Vietnam is still too heavy on theory and presentation methods, creating few conditions for students to actively research and practice the law profession. Law training institutions are also weak in training the soft skills needed by lawyers such as: problem analysis skills, communication skills, public speaking skills... and an important issue that is lacking in law schools is conveying to students the importance of the legal profession in society and the ethics of practicing law.
Clause 3, Article 12 of the Law on Lawyers and Article 1 of Circular 17/2011/TT-BTP dated October 14, 2010 of the Ministry of Justice Guiding a number of provisions of the Law on Lawyers, Decree detailing and guiding the implementation of a number of provisions of the Law on Lawyers, Decree guiding the implementation of provisions of the Law on Lawyers on social-professional organizations of Lawyers stipulate the recognition of certificates of graduation from overseas lawyer training. People with certificates of graduation from overseas lawyer training submit their application to the Ministry of Justice for consideration and the Minister of Justice is the competent authority to make the decision on recognition.
Some cases are exempted from training as lawyers (Article 13 of the Law on Lawyers), such as those who are judges, prosecutors, investigators; Professors, Associate Professors of Law; Doctors of Law; Senior Court Examiners, Senior Prosecutors; Senior Experts, Senior Researchers, Senior Lecturers in the Law Field; Senior Examiners in the Law Field, Senior Prosecutors; Senior Experts, Senior Researchers, Senior Lecturers in the Law Field. This provision is not appropriate because the people mentioned in Article 13 have in-depth knowledge of the law and have time to apply that knowledge in practice. However, they apply that knowledge in a different role than lawyers, sometimes even in opposition. There are subjects specified in this article who have never seen a lawyer practice. How will they practice law when they have no experience or skills related to the profession? Should we still force them to attend vocational skills training courses but reduce the training time?
2.1.3 Law practice internship
After graduating from the lawyer training course at the Judicial Academy and being granted a Certificate of Lawyer Training, those who wish to become lawyers must practice law at a law office or firm. Lawyer training is regulated in Article 14 of the Law on Lawyers and the Lawyer Training Regulations issued together with Circular No. 21/2010/TT-BTP dated December 1, 2010 of the Minister of Justice (hereinafter referred to as Circular 21). Lawyer trainees register for their internship at the Bar Association in the locality where the law practice organization where they practice law is located. The Bar Association is responsible for supervising compliance with the Lawyer Training Regulations. The internship period is twelve months from the date of registration for internship at the Bar Association.
Article 16 of the Law on Lawyers and Article 6 of Circular No. 21/2010/TT-BTP stipulate that the following cases are exempted from practicing law: judges, prosecutors, investigators; professors, associate professors specializing in law, doctors of law; senior court examiners, senior inspectors of the Procuracy, senior experts, senior researchers, senior lecturers in the field of law. However, this provision is unreasonable. Because these people have in-depth knowledge of the law, they have practical experience in the legal field, but they do not necessarily have the skills of a lawyer. The practice of a lawyer is different from the trial of a judge or the lecture of a professor... In reality, there are people who have retired as judges, have been granted a certificate to practice law, have joined the bar association, but when they appear in litigation, they still think they are judges, do not grasp the skills of a lawyer in court. For example: In the first stage of the trial, when the presiding judge asked the lawyer defending the plaintiff's legal rights and interests to present the grounds for the lawsuit, the lawyer read his original argument. When it came to the debate stage, the lawyer had nothing more to say because everything had been read in the previous stage.
Clause 3, Article 14 of the Law on Lawyers stipulates that “Interns practicing law are allowed to assist instructing lawyers in their professional activities but are not allowed to represent, defend, or protect the legal rights and interests of clients in court, and are not allowed to sign legal advice documents”. As many documents say, “interns practicing law
A lawyer is a person who is learning to swim on dry land”. Thus, a lawyer trainee is prohibited from doing all activities within the scope of the lawyer’s profession, and is not even allowed to do things that all ordinary citizens are allowed to do (such as representing by proxy, replacing litigants in court proceedings; helping to draft and submit petitions; translating documents; representing by proxy to participate in complaints and denunciations; helping to explain and instruct other people on the law)… These are things that all citizens aged 18 or older with full civil capacity can do, but a lawyer trainee is not allowed to do. In an article in the Ho Chi Minh City Law Newspaper, Lawyer, PhD Phan Dang Thanh also stated that “in terms of legal status, a lawyer trainee is also classified as a person who… has lost civil capacity”.
All a lawyer trainee is allowed to do is listen to the lawyer’s instructions, watch the lawyer’s instructions, and perform some tasks “besides” the lawyer’s professional activities, which is “to assist the lawyer’s instructions”. These tasks are stipulated in Clause 3, Article 14 of the Law on Lawyers and are specified in Article 10 of Circular 21.
Article 27 of the Law on Lawyers stipulates : In case a lawyer trainee accompanies a guiding lawyer in civil cases or administrative cases as prescribed in Clause 3, Article 14 of the Law on Lawyers, "when contacting individuals, agencies, or organizations, the guiding lawyer must present a Certificate of Lawyer Trainee and a document confirming the client's consent . " [35, Article 27]
If a lawyer trainee accompanies a supervising lawyer in a criminal case, “when requesting a Certificate of defense counsel, the supervising lawyer shall enclose the Certificate of lawyer trainee and a document confirming the client’s consent to the prosecution agency to request permission for the trainee to accompany the supervising lawyer” [35, Article 27] . These are some additional provisions of the 2012 Law on Lawyers. This provision creates a legal basis for lawyer trainees to learn how their supervising lawyers work when participating in litigation activities. However, the procedures prescribed therein, just reading them out, seem difficult to implement. Official lawyers when participating in litigation activities