Công ty hợp danh hoạt động trong lĩnh vực cung cấp dịch vụ pháp lý theo pháp luật việt nam tt tiếng anh

MINISTRY OF EDUCATION MINISTRY OF JUSTICE AND TRAINING HANOI LAW UNIVERSITY DONG THAI QUANG THE PARTNERSHIP OPERATING IN THE SUPPLY OF LEGAL SERVICES UNDER VIETNAM LAW Specialty: Economic law Code: 938 01 07 SUMMARY OF DOCTORAL THESIS IN LAW Hanoi - 2019 The Project has been completed at: HANOI LAW UNIVERSITY Scientific instructors: Dr Nguyen Am Hieu Assoc Prof Dr Tran Ngoc Dung Reviewer 1: Assoc Prof Dr Tran Dinh Hao Reviewer 2: TS Bui Ngoc Cương Reviewer 3: TS Dong Ngoc Ba The thesis will be defended in front of the University-level thesis evaluation council at at:…./… /….dated…./……/… The thesis can be found out at: 1) National Library of Vietnam 2) Library of Hanoi Law University Hanoi Law University INTRODUCTION Rationale of the topic Currently, the provisions of the law on the partnership in general and the partnership operating in the supply of legal services in particular, are still quite sketchy and unclear in some points, which fails to meet the diversification of business forms for attraction of investment capital into the market, specifically: The concept on the partnership is inadequate; the regulations on “the partnership operating in the supply of legal services” are unspecific; the reorganization and termination of operation of the partnership operating in the supply of legal services are incomplete, etc Facing these shortcomings, a deep and basic study on “the partnership operating in the supply of legal services” and law on this issue should be made to solve the theoretical and practical issues for improvement of regulations on market in general and the law on business entities in particular, For the above reason, the writers chooses the issue “the partnership operating in the supply of legal services” as the topic of his doctoral thesis Object and scope of the thesis study *Object of the study The main study object of the thesis: (1) The legal provisions on organization and operation of the partnership operating in the supply of legal services under Vietnam law; (2) Legal provisions of some countries in the world *Scope of the study - In terms of the content, the writer focuses on clarifying theoretical issues as well as the real situation of Vietnam laws on the partnership operating in the supply of legal services; - In terms of space, the writer mainly focuses on studying the domestic legal regulations; however, there is analysis, comment and comparison with some provisions of foreign law; - In terms of time, the writer studies the process of movement and development of legal regulations on the partnership operating in the supply of legal services from the birth of the Ordinance on Lawyer (2001) and enterprise law (1999) Purposes and tasks of the thesis * Purpose of the thesis To provide orientations and solutions for improvement of legal regulations on the partnership operating in the supply of legal services * Tasks of the thesis In order to achieve the above purpose, the writer establishes and performs the following tasks: - Studying theoretical issues about “the partnership operating in the supply of legal services” on the basis of comparison and reference of experiences of some countries in the world to find out the model of law adjustment in accordance with the conditions and situation in Vietnam; - Analyzing and assessing the legal status and enforcement of the partnership operating in the supply of legal services, expressing the reasonable and unreasonable points, difficulties and obstacles as well as their causes; - Providing orientation and specific solutions for completion of the law on the partnership operating in the supply of legal services Methodology and study methods of the thesis * Methodology of the thesis The writer uses the methodology of dialectical materialism of Marxism-Leninism, the Party and State's views on economic development and national construction in the renovation period * Study method of the thesis The research student use specific research methods: (1) Method of comparative law; (2) Methods of analysis and synthesis In addition, other methods such as historical method and statistical method are also used New contributions of the thesis Theoretical contributions: - Clarifying characteristics of the partnership operating in the supply of legal services; - Affirming the role and advantages of the partnership operating in the supply of legal services against other forms of supply of other legal services - Analyzing the variants of the partnership operating in the supply of legal services; - Approaching and studying laws on the partnership operating in the supply of legal services of some countries in the world Practical contributions: - Analyzing and showing the shortcomings of Vietnam law on the partnership operating in the supply of legal services; - Proposing orientations and solutions to improve the law on the partnership operating in the supply of legal services in Vietnam Structure of the thesis In addition to Introduction, Conclusion, List of references, the thesis includes the overview of the situation of topic study and three chapters as follows: Chapter 1: Theoretical issues of the partnership operating in the supply of legal services and law on the partnership operating in the supply of legal services Chapter 2: Real situation of law and practical situation of implementation of law on the partnership operating in the supply of legal services in Vietnam Chapter 3: Orientation and solutions for improvement of the law on the partnership in the supply of legal services in Vietnam Introduction chapter OVERVIEW OF THE STUDY SITUATION RELATED TO THE THESIS TOPIC STUDY SITUATION RELATED TO THE THESIS TOPIC The study results of domestic and foreign scientific works related to the issues of the thesis will be analyzed and commented by the author according to the following aspects: 1.1 The theoretical studies on the partnership and law on the partnership operating in the supply of legal services The theoretical studies on the partnership operating in the supply of legal services and laws on activities in the supply of legal services are grouped into the following issues: 1.1.1 Studies on concepts and characteristics of the partnership; 1.1.2 Studies on legal forms of the partnership; 1.1.3 Studies on legal status of the partnership; 1.1.4 Studies on organizational structure, governance and representation mechanism of the partnership; 1.1.5 Studies on the partnership operating in the supply of legal services 1.2 Studies on the real situation of the law and the practice of law enforcement on the partnership operating in the supply of legal services Such studies are grouped into the following issues: 1.2.1 General studies on the real situation of the partnership and laws on the partnership; 1.2.2 Studies on the advantages and disadvantages of the partnership from the organization and operation practices of this type of company AN OVERVIEW OF STUDY SITUATION RELATED TO THE THESIS TOPIC 2.1 Some issues related to thesis topic that have been studied in published scientific works The writer gives assessments on the following issues: Firstly, the concept and characteristics of the partnership and the partnership operating in the supply of legal services; Secondly, the legal status of the partnership and the partnership operating in the supply of legal services; Thirdly, the legal form of the partnership and the partnership operating in the supply of legal services; Fourthly, the legal status of the partnership and the partnership operating in the supply of legal services; Fifthly, some solutions for completion of the law on the partnership and the partnership operating in the supply of legal services in Vietnam 2.2 Issues related to the thesis topic that have not been studied and need to be further studied and solved in the thesis The followings are the issues on “the partnership operating in the supply of legal services” that have not been clarified and need to be studied and solved: Firstly, the concept and characteristics of “the partnership operating in the supply of legal services”; Secondly, the role and advantages of the partnership operating in the supply of legal services; Thirdly, variations of the partnership operating in the supply of legal services; Fourthly, legal status and legal form of the partnership operating in the supply of legal services; Fifthly, the organizational structure, governance and representation mechanism of the partnership operating in the supply of legal services; Sixthly, the members of the partnership operating in the supply of legal services and their legal responsibilities members for the consequences of the supply of legal services of the partnership; Seventhly, the real situation of Vietnam law on the partnership operating in the supply of legal services Eighthly, orientations and solutions for improvement of laws on the partnership operating in the supply of legal services THEORY OF THE STUDY, STUDY QUESTIONS AND HYPPOTHESIS OF THE THESIS 3.1 Study theory In order to solve the issues of the thesis topic, the writer uses the following main theories: Theory of the partnership; Theory of legal services; Theory of legal entity 3.2 Study questions The thesis is responsible for solving the following study questions: 1) What is the concept and characteristics of the partnership operating in the supply of legal services? Why are legal services implemented by the partnership? 2) What is the partnership’s role in the supply of legal services? What are the advantages of the partnership against other types of entities in the supply of services? 3) What are the variations of the partnership operating in the supply of legal service? What is the experience of countries in the adjustment of law for the partnership that provides legal services and what can Vietnam learn from the experience of countries around the world? 4) What is the legal status of the partnership operating in the supply of legal service? How is the practice of enforcement of such regulations? 5) What are the shortcomings of the law on the partnership operating in the supply of legal service in Vietnam? 6) Orientation and some solutions for improvement of the law on the partnership operating in the supply of legal service in Vietnam? 3.2 Study hypothesis The thesis is based on the following hypothesis: Legal science has not clarified the theoretical and practical issues on the partnership operating in the supply of legal services and law on the partnership operating in the supply of legal services in Vietnam Conclusion The results of the study, analysis and assessment of the real situation of published scientific works show that: The study projects in the world as well as in Vietnam mainly focus on the partnership in general while the partnership operating in the supply of legal services is rarely mentioned The issue “The partnership operating in the supply of legal services” seems to have not been properly concerned and studied 11 1.1.3.2 Advantages of the partnership operating in the supply of legal service against other entities involving in supply of legal services The partnership operating in the supply of legal services has relatively large advantages compared to other organizations that supply legal services such as: (1) Being trusted more by customers because the members' liability regime is unlimited; (2) The organizational structure is compact, flexible with the law’s little interference in internal management; (3) Promoting collective intelligence and factors such as prestige and experience, etc 1.1.4 Specific variants of the partnership operating in the supply of legal services Currently, Vietnam law only recognizes the common partnership to be a unique form of the partnership operating in the supply of legal service; However, the laws of many countries around the world have regulated many different variants of the partnership operating in the supply of legal service in which two of the most important variants are limited law partnership and limited liability law partnership 1.2 Law on the partnership operating in the supply of legal services 1.2.1 Concepts, characteristics and main contents of the law on the partnership operating in the supply of legal services The law on the partnership operating in the supply of legal service is a system of legal regulations, promulgated or recognized by the State in order to adjust social relations arising in the process of establishment, operation and termination of the partnership 12 The law on the partnership operating in the supply of legal service has the following two characteristics: Firstly, the law on the partnership operating in the supply of legal service stipulated in enterprise law, law on lawyers and documents guiding implementation; Secondly, legal regulations on the partnership operating in the supply of legal services mainly related to the nature of professional activities of lawyers The law on the partnership operating in the supply of legal service, including the following main contents: (1) Regulations on the legal nature of the partnership (2) Regulations on establishment and operation registration; (3) Regulations on membership of the company; (4) Legal regulations on organizational structure, governance and representation mechanism of the company; (5) Regulations on partnership capital; (6) Regulations on rights and obligations of the partnership; (7) Regulations on reorganization and termination of the partnership 1.2.2 The role of law on the partnership operating in the supply of legal services The laws on the partnership operating in the supply of legal service have the following roles: Firstly, creating a legal framework for investors to exercise their freedom in the business of legal service; Secondly, guaranteeing the ownership of capital and assets in business of investors; Thirdly, being a basis to ensure that business activities of legal services are legally implemented; Fourthly, recognizing the diversity of investment forms in a market economy, increasing the ability of selecting the forms of business organization for investors 13 1.2.3 Laws governing the partnership operating in the supply of legal services The partnerships operating in the supply of legal service are mainly governed by the following sources of laws: international law, national law, habits, international practices and case law 1.2.4 Overview of the law on the partnership operating in the supply of legal services in some countries around the world and the experience for Vietnam 1.2.4.1 An overview of the law on the partnership operating in the supply of legal services in some countries in the world * Law on the partnership operating in the supply of legal services of the US * Law on the partnership operating in the supply of legal services of the UK * Law on the partnership operating in the supply of legal services of China * Law on the partnership operating in the supply of legal services of Singapore 1.2.4.2 Some experience for Vietnam when studying law on the partnership operating in the supply of legal services of other countries Conclusion of Chapter The nature of the partnerships operating in the supply of legal service is a contractual relationship The variants of the partnerships operating in the supply of legal service in countries around the world are relatively prevalent However, no variant is recognized by Vietnam law 14 Chapter 2: LEGAL STATUS AND PRACTICE OF IMPLEMENTATION OF THE LAW ON THE PARTNERSHIPOPERATIING IN THE SUPPLY OF LEGAL SERVICES IN VIETNAM 2.1 Legal status of the partnership operating in the supply of legal services in Vietnam 2.1.1 Real situation of regulations on establishment of the partnership operating in the supply of legal services 2.1.1.1 Conditions for establishing the partnership operating in the supply of legal services Current law stipulates that, if the partnership operating in the supply of legal services is established, it is required to comply with the general conditions stipulated in the Enterprise Law (2014) and the specific conditions stipulated in Law on lawyers (2012) 2.1.1.2 Form of the partnership operating in the supply of legal services The form of partnership operating in the supply of legal services in countries around the world is very diverse but the Law of Vietnam only acknowledges a form that is the common law partnership 2.1.1.3 Capital of the partnership operating in the supply of legal services The capital of the partnership operating in the supply of legal services according to the laws of the countries is very diverse, it can be prestige, skills and services but the Law of Vietnam has not acknowledged these forms of capital contribution 15 2.1.1.4 Procedures for establishing the partnership operating in the supply of legal services Procedures for establishing the partnership operating in the supply of legal service in the countries are very simple and it is nearly required the business registration, but Law of Vietnam emphasizes too much on the procedures of business registration 2.1.2 Real situation of regulations on the partners of the partnership operating in the supply of legal services 2.1.2.1 Membership of the partnership operating in the supply of legal services According to the provisions of the Enterprise Law (2014), the partners of the partnership operating in the supply of legal services may only be individuals, but according to Law on Lawyers (2012), they may be organizations There is inconsistency in the provisions of the law on the membership of the partnership in two different legal documents 2.1.2.2 Restrictions on the rights of the partners of the partnership operating in the supply of legal services (i) A lawyer may only establish or participate in the establishment of a law practice organization; (ii) Must not act on behalf of an individual or another person to conduct business with the same business line of that company for self-interest or for the benefit of an organization or individual; (iii) is not allowed to transfer part or all of their contributed capital in the company to others without the consent of the other general partners 2.1.2.3 Responsibilities of the partners joining in the partnership operating in the supply of legal services 16 Under Law of Vietnam, new general partners must jointly be responsible for all liabilities and other property obligations of the partnership, including obligations arising before becoming the general partners, unless otherwise agreed by the new general partners and other partners 2.1.3 Real situation of regulations on legal status of the partnership operating in the supply of legal services The regulation of the partnership in general and the partnership operating in the supply of legal services having legal status is in conflict with the provisions of the Civil Code (2015) This has led to many conflicting arguments and is one of the reasons for investors' apprehension when establishing this type of enterprise 2.1.4 Real situation of regulations on organizational structure, governance and representation mechanism of the partnership operating in the supply of legal services 2.1.4.1 The organizational structure of the partnership operating in the supply of legal services The Law of Vietnam has shown a relatively deep intervention of the State in organization, management of the partnership in general and the partnership operating in the supply of legal services in particular That not only lost the inherent basic characteristics of this business model but also reduced the activeness of the general partners in the governance 2.1.4.2 Management and operation of the partnership operating in the supply of legal services In the partnership operating in the supply of legal service, the general partners assign each other to assume managerial and control 17 positions If there is no assignment, in principle, all general partners have equal rights without depending on the capital contribution 2.1.4.3 Representation mechanism of the partnership operating in the supply of legal services The partnership in general and the partnership operating in the supply of legal services in particular, the representation issue is made through the management apparatus of the partnerships and general partners All general partners, including the Chairman of the Board of Members and the Director, can become representatives of the partnerships 2.1.5 Real situation of regulations on rights and obligations of the partnership operating in the supply of legal services The partnership operating in the supply of legal services is a particular type of partnership, so it has the rights and obligations of an enterprise prescribed in the Enterprise Law (2014) and the rights and obligations prescribed in specialized law (Law on Lawyers 2012) 2.1.6 Real situation of regulations on reorganization and termination of operation of the partnership operating in the supply of legal services 2.1.51 Reorganization of the partnership operating in the supply of legal services Reorganization of the partnership operating in the supply of legal services has not been consistently regulated between the Enterprise Law (2014) and the Law on Lawyers (2012) According to the provisions of the Enterprise Law (2014), the partnership operating in the supply of legal services can only merge and merge, while according to the provisions of the Law of Lawyers (2012), the 18 partnership is also converted into the form of a limited liability law partnership 2.1.5.2 Termination of operation of the partnership operating in the supply of legal services It is possible to divide the termination of operation of the partnership operating in the supply of legal services into two cases of dissolution and bankruptcy 2.2 Practice of implementation of the law on the partnership operating in the supply of legal services in Vietnam 2.2.1 Some results achieved when implementing the law on the partnership operating in the supply of legal services The team of legal experts working in the partnerships operating in the supply of legal services has relatively rapid development in terms of quantity, quality as well as professionalism when practicing The number of the partnership operating in the supply of legal services is increasing 2.2.2 Some specific difficulties and problems when implementing the law on the partnership operating in the supply of legal services 2.2.2.1 Difficulties and problems when implementing regulations on registration and establishment of the partnership operating in the supply of legal services The law is required to resolve issues such as: Identifying identities to know which entities have the rights to establish the partnership operating in the supply of legal services; Clarifying how to understand phrases such as the historical tradition, culture, morality, fine traditions of the nation to create favorable conditions for the operation of business registration agencies; Controlling the 19 registration and determination of charter capital; Detecting and handling violations on establishment and registration of the enterprises 2.2.2.2 Difficulties and problems when implementing regulations on organization and operation of the partnership operating in the supply of legal services The shortcomings in the legal regulations on issues such as: "equal rights" mechanism among members; Inheritance in the partnership; and when a member is declared missing 2.2.2.3 Difficulties and problems when implementing regulations on legal service providers and the quality of legal services provided The legal service providers are still insufficient in quantity and are unprofessional The quality of legal services is not high Conclusion of chapter In addition to the recognized positive aspects, the law on the partnership operating in the supply of legal services in Vietnam still has shortcomings and limitations that need to be overcome 20 Chapter ORIENTATION AND SOLUTIONS TO COMPLETE THE LAW ON THE PARTNERSHIP OPERATING IN THE SUPPLY OF LEGAL SERVICES IN VIETNAM 3.1 Orientation to complete the law on partnership operating in the supply of legal services in Vietnam The completion of the law on the partnership operating in the supply of legal services is required to comply with the following orientations: Firstly, the completion of the law on the partnership operating in the supply of legal services must be associated with the improvement of professional qualifications and professional ethical qualities of the lawyers' team Secondly, the completion of the law on the partnership operating in the supply of legal services must aim at the improvement of competitiveness and effectiveness of operations of the law partnerships Thirdly, the completion of the law on the partnership operating in the supply of legal services must be in line with international law and meet the requirements of international economic integration Fourthly, the completion of the law on the partnership operating in the supply of legal services must ensure consistency and transparency 3.2 Some solutions to complete the law on the partnership operating in the supply of legal services in Vietnam 3.2.1 Ensure consistency in the regulations on the general partners under the Enterprise Law (2014) and the general partners under the Law on Lawyers (2012) 21 The Enterprise Law (2014) and the Law on Lawyers (2012) need to unify in determining the partner status of the partnership operating in the supply of legal services in the direction of allowing the general partners of the partnership under the provisions of the Enterprise Law (2014) as an organization 3.2.2 Allow the lawyers to establish a limited law partnership Recognizing the partnership operating in the supply of legal service that may add capital contributors to contribute to the diversification of business forms of investors 3.2.3 Clearly identify two types of partnerships: common partnerships and limited partnerships When recognizing the law partnership, the Enterprise Law (2014) must clearly separate between the common partnerships and limited partnerships to bring the partnership to its proper nature and guarantee consistency with the Law on lawyers (2012) 3.2.4 Add the form of limited liability law partnership The law should recognize this form of business because it is suitable to the conditions of Vietnam and international practice 3.2.5 About the legal status of the partnership operating in the supply of legal services According to the author of the thesis, it is possible to remove the legal status of the partnership, but if the Enterprise Law still recognizes the partnership as a legal entity, it is necessary to add some provisions such as: (i) If there are many laws regulating an issue, priority should be applied according to specialized laws; (ii) Reducing corporate income tax for the partnership or personal income tax rates for general partners 22 3.2.6 It is necessary to have consistency on dissolution issues for the partnership operating in the supply of legal services The provisions of the law on this issue are contradictory The author of the thesis said that the Enterprise Law (2014) and Law on Lawyers (2012) should stipulate in the direction that the partnerships in general and the partnership operating in the supply of legal service will be solved when there are at least three-quarters (3/4) of the consensus of the general partners 3.2.7 Regulate specifically and fully on the reorganization of the partnership operating in the supply of legal services The law should specify the consolidation and merger procedures as well as the consequences of implementation of these two procedures and the legal form of the consolidated or merged partnership, etc 3.2.8 Renew the registration and licensing of the partnership operating in the supply of legal services The law should stipulate that the partnership operating in the supply of legal services must register its business in the Department of Planning and Investment like other businesses Conclusion of chapter Based on the analytical orientations, the research student offers a number of solutions to perfect the specific contents of the law on the partnership operating in the supply of legal services in Vietnam 23 CONCLUSION The partnership operating in the supply of legal services plays an quite important role for the development of the socio-economy in Vietnam, as a means for investors to implement their goals and demand life; as a business entity that exists and grows in a market economy, the its issues must inevitably be adjusted by law The study of law on the partnership operating in the supply of legal services is essential, in order to find out a model to adjust the suitable law for them, ensuring stable development and getting better and better in the economy This is a component of the law on business entities in the legal structure of the market economy, a new type of business in Vietnam, so there are also defects in this legal department, these points are not really suitable for the nature of this type of business, making investors somewhat afraid to choose to business while other models have much advantages The provisions also show the copying of foreign law; Therefore, when applying to specific conditions of Vietnam, it is not really possible to guarantee the feasibility Through the study of the topic, the thesis has been clarified the theoretical issues such as: Concept, characteristics and roles of the partnership operating in the supply of legal services; The concept, role, content and source of the law on the partnership operating in the supply of legal services through which it can be seen that this business model is relatively suitable to the conditions of Vietnam However, the fact that this type of business is still subject to adjustment with many shortcomings from the aspect of the actual law, so it cannot attract investors like in developed market economies As a type of enterprise, although there are many things 24 in common with other forms of business, it also has many unique characteristics that make the provisions regulating them also have their own characteristics However, Vietnamese laws regulating the partnership operating in the supply of legal services have not yet described the nature of this business entity, some regulation in different documents are contradictory, not uniform, making it difficult to apply them to life This means that the legal status of the partnership operating in the supply of legal services in Vietnam has revealed many shortcomings and weaknesses, causing obstacles to the implementation of economic freedom in general and the right to choose the form of business organization of investors in particular The process of international economic integration in all aspects inevitably leads to complete the legal environment in general, including completing the law on partnerships operating in the supply of legal services Because the demand for using services of organizations and individuals inside and outside the country has increased rapidly, the competition among the lawyers in the domestic and international legal services market is also increasingly fierce Therefore, the improvement of the law on partnerships operating in the supply of legal services must create a safe, synchronous, unified legal framework to ensure both professional qualifications and moral qualities of the lawyer team In order to this, the dissertation has set the orientation and some solutions to improve the law on partnerships operating in the supply of legal services in accordance with the requirements of the judicial reform process, serving the construction of the Vietnamese law-governed state in the current period LIST OF PUBLISHED RESEARCH WORKS RELATED TO THE THESIS 1) Dong Thai Quang (2014), "The partnership under Law of French Republic and some comparisons with Law of Vietnam", Democracy and Law Magazine, issue of September (270)/2014 2) Dong Thai Quang (2018), "Discuss on the form of capital contribution to the partnership", Democracy and Law Magazine, issue of May (314)/2018 3) Dong Thai Quang (2018), "Limited liability law partnership A new form of business organization of lawyers", Law and Development Magazine, issue of July/August, 2018 ... development and getting better and better in the economy This is a component of the law on business entities in the legal structure of the market economy, a new type of business in Vietnam, so there... services THEORY OF THE STUDY, STUDY QUESTIONS AND HYPPOTHESIS OF THE THESIS 3.1 Study theory In order to solve the issues of the thesis topic, the writer uses the following main theories: Theory... University-level thesis evaluation council at at:…./… /….dated…./……/… The thesis can be found out at: 1) National Library of Vietnam 2) Library of Hanoi Law University Hanoi Law University INTRODUCTION