Tổ chức hành nghề luật sư theo pháp luật việt nam từ thực tiễn thành phố hồ chí minh tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES L TRAN VAN CONG TO PRACTICE AS A LAWYER IN HO CHI MINH CITY UNDER THE VIETNAMESE LAW Major: Economic Law Major code: 9.38.01.07 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW HaNoi - 2019 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Duong Anh Son Reviewer 1: Prof Dr Nguyen Thi Mo Reviewer 2: Dr Nguyen Van Cuong Reviewer 3: Dr Pham Sy Chung The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2019 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION The necessity of the research topic In Vietnam, since the Ordinance on Lawyers 2001 was promulgated, organizations of law practice have also been established with many different forms and sizes and have been increasing (including foreign organizations of law practice in Vietnam) The peculiarity of the lawyer’s profession is to practice independently and self-responsibility for their profession However, to support and assist each other in the practice process, to enhance the ability to meet the needs of clients and improve the efficiency as well as reputation of the lawyer profession for the clients, lawyers have worked together to practice as a lawyer in the organizations of law practice (Attorney’s Offices or Law Firms) In recent years, the organization and operation of lawyers in the organizations of law practice nationwide have promptly met a part of the increasing demand for legal assistance of individuals, organizations, making an important contribution to protecting the legitimate rights and interests of the accused, defendants and other involved parties, to actively serve the judicial reform, and gradually create a favorable and trusted legal environment for investment, business, trade activities, etc in the context of international integration Ho Chi Minh City (HCMC) is the nation’s largest economic and cultural center, a dynamic international trade destination in the region, where the traditional profession of lawyer was born very early, HCMC has a very favorable environment for the development lawyer profession For many years, HCMC has always had the largest number of lawyers and the organizations of law practice nationwide, accounting for nearly half of all lawyers and more than 40% of the organizations of law practice across the country The demand for legal services here is also very diverse and is increasing complexity, from “traditional” legal services such as proceedings, legal advice an assistance for the people to legal consultancy activities for domestic and foreign enterprises and organizations related to investment transactions, banking, capital markets, real estate markets, intellectual property and participating in dealing with trade disputes with foreign elements With this characteristics, it can be said that the successful implementation of the target “Strategy for the development of the lawyer’s profession by 2020” (issued by the Prime Minister under the Decision No 1072/QD-TTg dated 05 July 2011) in HCMC has crucial significance to the success or not of the strategy for development of lawyer profession nationwide Therefore, practice as a lawyer in the organizations of law practice is highly expected in the current socio-economic development period, whether society’s expectation about lawyer practice has been realized or not, it depends very much on the operation of the organizations of law practice There are so far many organizations of law practice in HCMC, however, it must be noted that the majority of these organizations are lacking professional with small-size scale and low efficiency, leading to lack of competitiveness, especially in international competition The Law on Lawyers 2006 (amended and supplemented in 2012) was born together with the Law on Enterprises 2014 and other legal documents regulating the organizations of law practice These regulations have just created a legal basis for the organization and operation of the organizations of law practice but have not met the governance requirements in accordance with the operational nature of legal service providers Because the organizations of law practice have their own operating principles and specific requirements In such context, the law on the organizations of law practice is not also complete Therefore, the pending question that is how the organizations of law practice are organized and operated consistent with the context of the development of the country in general and of HCMC in particular With the above reasons, the author has chosen the research titled “To practice as a lawyer in HCMC under the Vietnamese law” as his doctoral dissertation in economic law, it can be said that this study is very necessary in the current period 2 Research purpose and tasks 2.1 Research purpose The author’s research purpose is to participate in legal science research in general and legal science of the organizations of law practice, to make a relatively complete legal scientific research work to meet the requirements of a doctoral dissertation in law on the organizations of law practice in the current context of Vietnam By analyzing the theoretical issues on the organizations of law practice, the law on organizations of law practice, the reality of Vietnamese law on the organizations of law practice and the application of the law on the organizations of law practice in HCMC 2.2 Research tasks To accomplish the above purpose, the dissertation seeks to address the following major research tasks: - Examining theoretical basis on the practice of lawyer, characteristics of the organizations of practicing lawyer compared to ordinary enterprises, the legal content of the organizations of law practice; clarifying the theoretical aspects and the law on this issues - Comparing and assessing the reality of the law on the organizations of practicing lawyer so as to have accurate assessments on the organizations of law practice in reality under the Vietnamese law, thenceforth, the study points out the advantages, limitations and inadequacies that need to be deal with - Based on the results of theoretical and practical research, the dissertation proposes orientations and solutions to improve the institutions of organizations of law practice under the Vietnamese law in the current period Research subject and scope 3.1 Research subject The research subject of the dissertation is as follows: - Opinions on the organizations of law practice and application of these opinion for the organizations of law practice; the role of a law3 practicing organization in promoting the development of legal services to meet the requirements of building a rule-of-law state in Vietnam; - The Vietnamese law on organizations of law practice stipulates the basic foundations of law-practicing organizations and the practice of implementing these provisions in the organizational structure and operation of law-practicing organizations; the reality of applying law on the organizations of law practice in HCMC - Solutions to improve the institution on the organizations of law practice in the current context of Vietnam, especially the requirements of human rights protection and justice reform 3.2 Research scope With the contents mentioned in subsection 3.1, the dissertation just examines the following major contents: - The dissertation examines the theoretical issues on the organizations of law practice, the law on this issue and the practice of applying the law on the organizations of practicing lawyer in HCMC; - The dissertation seeks to examine the organizations of practicing lawyer under the Vietnamese law to explore limitations and inadequacies compared to Vietnamese law on enterprises and practicing as a lawyer such as (i) Conditions of the subject entitled to establish an organization of law practice; (ii) Actual situation of organization and operation of a organization of law practice under the law in HCMC; (iii) Restructuring the organizations of law practice; (iv) Rights and obligations of lawpracticing organizations; (v) Withdrawing from the market of supplying legal service of the organizations of law practice; (vi) Managing law practice under the current Law on Lawyers - The dissertation will not examine other aspects of other subjects such as The Vietnamese Layers Association, foreign organizations of practicing lawyer in Vietnam, the state legal aid Center - Regarding time, the dissertation just examines the organizations of law practice and the law on the organizations of law practice since the promulgation of Ordinance on Lawyers 2001 and then the Law on Enterprises 2005 along with many additions and changes to date 4 Methodology and research methods - Methodology The dissertation based on the Marxism-Leninism viewpoints, the Party’s guidelines and policies and Ho Chi Minh’s thought on lawyers, profession of lawyers and the law on lawyers - Research methods The study utilizes methods of collecting data, statistics, analysis, synthesis, systematical method and comparative method New contributions of the dissertation The dissertation’s results have the following major contributions: First, with scientific arguments and on the basis of comparison of forms of organizations of law practice under the law on lawyers of some countries around the world, the author introduces the concepts of the organizations of law practice, attorney’s offices or law firm partnerships, two-members limited liability company, one-members limited liability company and the concepts of lawyer, profession of lawyer, the law on the organizations of law practice, thenceforth, the study clarifies the need adjusted by law and legal liability of the organizations of law practice in Vietnam today Second, the dissertation seeks to analyze comprehensively the reality of organization and operation of forms of practicing lawyers in Vietnam, the law enforcement on the organizations of law practice in the country in general and in HCMC in particular, it then points out limitations and inadequacies of the law on the organizations of law practice, and difficulties and obstacles in practice Third, by interpreting the theoretical and practical issues, the dissertation produces a view of renovating law on the organizations of law practice; institutions on the forms of organizations of law practice consistent with the current context in Vietnam At the same time, the dissertation proposes some specific views and solutions to improve the law on the organizations of law practice, to meet the needs of the development of organizations of law practice in Vietnam and in order for the organizations of law practice operated by the law on lawyers Scientific and practical significance of the dissertation Scientifically, the dissertation is a direct and comprehensive research work on the organizations of law practice under the Vietnamese law The research results of the dissertation are the theoretical and practical basis to researchers and legislators in drafting, building and perfecting the law on lawyers, practice as a lawyer and the organizations of law practice Practically: the dissertation may be considered a valuable scientific research work for researching, teaching and learning in legal training institutions on the organization and operation of the organizations of law practice in Vietnam Structure of the dissertation Besides the introduction and conclusion, references and appendix, the dissertation includes chapters: Chapter 1: Literature review Chapter 2: Theoretical issues and the law on the organizations of law practice Chapter 3: The reality of the law and applying the law on the organizations of law practice in Ho Chi Minh City Chapter 4: Directions and solutions to improve the organizations of law practice and the law on the organizations of law practice Chapter LITERATURE REVIEW 1.1 Reviewing literature General theoretical studies on lawyers and the role of lawyers In “Theoretical basis of improving the law on lawyers in Vietnam today” by Phan Trung Hoai (2003), the author can approach the basic theoretical issues and the theoretical basis of adjusting law to lawyers’ operation; the reality of the law and enforcing the law on lawyer in Vietnam Moreover, the study introduces the concept of lawyer, profession of lawyer According to Phan Trung Hoai, the profession of lawyer is a law profession, in which with their legal knowledge, lawyers can independently implement activities within the scope of their profession as prescribed by law and regulations on professional liabilities to serve justice and protect the lawful interests of customers, contributing to legal protection and building the socialist rule-of-law state of Vietnam In “Exercising the right to defense of the accused and defendants in criminal proceedings” by Hoang Thi Son (2003), the author clarifies some general theoretical issues on the right to defense of arrestees and defendants as well as the concept of the right to defense of these people; forms of defensing of lawyers and grounds for the right to defense and the meaning of defensing In addition, in the book “Practical Law Office Management” by Brent D Roper focused on theoretical issues on lawyers; law practice office; theory of law office management The author also showed that in the US, besides the owner lawyers in the law offices, there are also (i) associate lawyers; (ii) contract lawyers; (iii) employee lawyers; in the US, law firms are often classified as small, medium and large-size scale Small law firms usually have fewer than 20 lawyers; medium law firms have 20-75 lawyers; large law firms have 75 to hundred of lawyers; some super large firms have 500 to over 1,000 lawyers Research works on the organizations of law practice and the law on the organization and operation of the organizations of law practice - Regarding law firm governance: including “Law firm governance under the Vietnamese law” by Nguyen Van Bon (2019) In this study the author can approach firm governance and law firm governance in terms of theoretical and practical issues of the law firm governance, in which the study is associated with the issue of practicing lawyers and the organizations of practicing lawyers by the form of law firm partnerships and limited liability firms It can be said that this is an elaborate and comprehensive research work that is close to the dissertation The author refers to this study to analyze characteristic feature of profession of lawyers and forms of law-practicing organizations - Regarding law firm partnership: in “Law firm partnerships in HCMC under the Vietnamese law” by Vu Thanh Trung (2014), the author introduces the concept of law firm partnership as a form of associating amongst lawyers who are indefinitely responsible for the debts of law firm partnerships The law firm partnership is a company in which there are at least two lawyers will manage and share profits and risks together - In “The law on organization and operation of the organizations of law practice in HCMC” in 2014, the author has examined the theoretical issue on the organizations of practicing lawyers; the law on the organization and operation of the organizations of law practice and the reality of the law on the organization and operation of the organizations of law practice in HCMC In addition, the author has also reviewed the system of law on lawyers and the organizations of practicing lawyers between 1987 and 2014 Additionally, there are also studies on lawyers and law firms such as “Start-up guides” by Nguyen Huu Phuoc (2016), General Publishing House, HCMC; “Business Development for Law Firms” by Laurie Young (2013) With this research work, the author interested in law firm governance including management order, management of finance and accounting law firms in which it analyzes profits, self-management and planning for taxes Research works regarding to the law on lawyers - “The law on lawyers and professional ethics” by Dr Nguyen Van Tuan (2014), National Truth-Political Publishing House, Hanoi, in this study, the author presented a comprehensive picture of lawyer profession and the law on lawyers from the theoretical perspective, he has reviewed the entire system of law on lawyers and the organizations of practicing lawyers He has also intensively presented and analyzed many issues and aspects related to lawyers, lawyer profession, the law on lawyers and forms of the organizations of law practice in Vietnam The book titled “The basic content of legal project on lawyers – compare to the law of some countries” by the Department of Justice Supplement, Justice Publishing House (2006), this study mentioned concepts of lawyers, practicing as a lawyer and the law on lawyers of some countries in the region and the world such as the Law of the People's Republic of China regulations with the reality of law-practicing organizations in Vietnam The dissertation will try to solve this issue Second, although concepts of lawyers, the profession of lawyers and the organization of lawyers have been basically clarified, domestic and foreign research works have the same approach However, there are not many research works on the concepts, characteristics and roles/functions of the organizations of practicing lawyers as well as the organizational model and operation of lawyer offices, law firm partnerships, twomembers limited liability law firms and one-member limited liability law firms, the theoretical and practical issues have not been solved The dissertation will clarify this issue so as to find out the most appropriate approach Third, due to the lack of comprehensive and direct studies on the law on organizations of practicing lawyers, solutions to improve the legal framework to the organizations of law practice are not also examined concretely and persuasively The dissertation will clarify these problems and it tries to find out effective solutions to improve the legal framework and the law on the organizations of practicing lawyers Research questions: What is the organization of law practice? The legal nature and characteristics of the organization of law practice? Which are the forms of the organizations of law practice? How are they operating? What are contents of the organizations of law practice? How is the application of the law on the organizations of law practice in reality in HCMC? What are specific directions and solutions to improve the law on the organizations of law practice? 11 Chapter THEORETICAL ISSUES AND THE LAW ON THE ORGANIZATIONS OF LAW PRACTICE 2.1 Theoretical issues on the organizations of law practice 2.1.1 The concept of lawyer and profession of lawyer - The concept of lawyer Regarding the concept of lawyer, currently, there are still many different interpretations, on the one hand, due to the law in general and the law on lawyers in particular have not been completed, on the other hand, due to the terms in foreign languages are not translated accurately In citations, the author has basically presented the concept of lawyer: according to Article of the 2006 law on lawyer and amended in 2012, “Lawyer is a person who meets the qualifications and conditions for practicing to implement legal services by the requests of individuals, agencies and organizations as the clients” In the author’s opinion, the concept of lawyer can be understood as follows: “Lawyer is a law practitioner who holds a law practice certificate under the provisions of the law on lawyers and is allowed to register his/her practice in a certain attorney Association/Federation and provide legal services to the society” - The concept of profession of lawyer In Vietnam, the terms “legal profession”, “profession of lawyers” and “practice as a lawyer” are still used With the habit of using Vietnamese language in spoken and written, the phrase “legal profession” is acceptable According to Phan Trung Hoai “Profession of lawyer is a law profession in which with their legal knowledge, lawyers can independently conduct activities within the scope of their practice under the provisions of the law and regulations of professional liability to serve justice, protecting the legitimate interests of clients, actively contributing to legal protection and building the socialist rule-of-law-state of Vietnam” In the author’s opinion “Profession of lawyer is a law profession in which lawyers have the freedom in their way of practice, providing legal services to clients under the provisions of the law, ethical 12 rules and their behavior to protect the lawful rights and interests of clients, contributing to the protection of justice, economic development and building a fair, democratic and civilized society” Overview of law practice in some developed countries In this section, the author presents an overview of law practice in some countries to clarify the theoretical basis for the concept of the organizations of practicing lawyers Namely, overview of law practice in England, French, Germany, the US, China and Vietnam Thenceforth, the author introduces the concept of law practice as follows: “Law practice means lawyers conduct legal services include participate in proceedings, legal advice and non-procedural representation for clients and other legal services by the requests of individuals, agencies, organizations and performed by a team of professional lawyers” 2.1.2 The concept of forms of organization of law practice under the Vietnamese law - The concept of lawyer’s office: the latest concept and is applying for lawyer’s office is presented in the 2006 law on lawyers (amended in 2012): Lawyer’s office is established by lawyer, it is organized and operated by the form of private enterprise The lawyer who establishes the lawyer’s office is the Head of the office and must be responsible with all his/her properties for all obligations of the office The office’s head is the legal representative of the office The office has its seal and account as prescribed by law” In the author’s opinion Lawyer’s office is one of the forms of the organizations of law practice, it has function of providing professional legal services The owner of lawyer office must be a lawyer and be responsible for all debts of the office by his/her properties A lawyer’s office has its own name, transaction office, and it is established and registered by legal procedures” - The concept of law firm partnership: “A law firm partnership is basically a form of organization of law practice established by at least two lawyers and they are jointly responsible with all their assets for all obligations of the firm The law firm partnership has the function of doing business legal services The 13 firm has its own name, transaction office, seal and account The establishment, organization, management and operation comply with the law on lawyers; in cases the law on lawyers has not regulations, it shall comply with the provisions of the law on enterprises” - The concept of a limited liability law firm of two or more members “A limited liability law firm of two or more members is a form of organization of law practice established by at least lawyers, as an enterprise with legal status and function of doing legal services; it has its own name, transaction office, seal and account; the establishment, organization, management and operation comply with the law on lawyers; in cases the law on lawyers has not regulations, it shall comply with the provisions of the law on enterprises” - The concept of one-member limited liability law firm: “One-member limited liability law firm is a form of organization of law practice with only one member as lawyer, as an enterprise with legal status and function of doing legal services; it has its own name, transaction office, seal and account; the establishment, organization, management and operation comply with the law on lawyers; in cases the law on lawyers has not regulations, it shall comply with the provisions of the law on enterprises” 2.1.2 The concept, characteristics and role of the organization of law practice - The concept of the organization of law practice In this section, the author seeks to analyze and clarify theoretical basis to answer the question what is an organization of law practice, the professional activities of the organizations of law practice, their autonomous activities as representative to manage member lawyers and collaborative attorneys Thereby, the author introduces concept: “The form of organizations of law practice may register to operate in the form of lawyer’s office or law firm The organization of law practice is the lawyers’ operational place to provide professional legal services and established by qualified lawyers or lawyers cooperate each other to 14 establish and operated by the law on lawyers, the law on enterprises and other relevant regulations” - Some characteristics of the organizations of law practice: First, the starting point of the organizations of law practice is not capital but is a legal entity; Second, the owner of lawyer’s office and law firm must be lawyers; Third, the organizational structure of lawyer’s office and law firms is different from other professional organizations; Fourth, the organizations of law practice not have governing body; Fifth, the organizations of law practice have specific management principles - The role of the organization of law practice First, its role in legal proceedings; Second, its role in legal consultancy activities and legal aid tasks; Third, the organization of law practice are responsible for accepting trainees and guide skills of law practice; Fourth, the autonomous role Fifth, its role in the dissemination and propagation of the law Sixth, the organization of law practice involves in other social activities; Seventh, the organization of law practice conduct legal services 2.2 The concept, characteristics and content of the law on the organizations of law practice - The concept and characteristics of the law on the organizations of law practice “The law on the organizations of law practice is basically overall legal norms promulgated or recognized by the State to adjust the relationship between lawyers, the organizations of law practice and clients and the state agencies, between proceeding-conducting agencies and proceeding-conducting persons, between socioprofessional organizations of lawyers and other organizations arising from the process of organizing and professional operation of lawyers and state management of lawyers’ profession and self-governing of socioprofessional organizations of lawyers” 15 From the above-mentioned concept, the author draws on the characteristics of the law on the organizations of law practice as follows: First, the adjusted subject of the law on the organizations of law practice is the relationship of business trade Legal regulations on the organization of law practice is in economic law Second, regarding adjustment method: there are two traditional methods of economic law that is the combination of the administrativeeconomic method and equal agreement method Third, based on different criteria, the law on the organizations of law practice is classified into different types of sources When we base on the legal validity of the text, the law on the organizations of law practice is classified into legal documents and bylaws Fourth, when we base on the adjusted subject, the law on the organizations of law practice is classified into legal provisions governing different relationships For example, set up criteria and conditions for a person to become a lawyer Fifth, based on the field of practice, the law on the organizations of law practice is divided into legal provisions governing lawyers' participation in legal proceedings; legal provisions governing law consultancy activities of lawyers and other legal services - The basic content of the law on the organizations of law practice First, stipulating the right to establish/participate in establishing and registering operation of the organizations of law practice Second, stipulating conditions for an organization of law practice may be born; Third, the provisions on the internal organizational structure of the organization of law practice, as well as the legal framework of providing legal services; Fourth, stipulating conditions, order and procedures to reorganize and regulations on rights and obligations of the organizations of law practice Fifth, stipulating conditions, order and procedures for terminating operation of the organizations of law practice Sixth, stipulating principles of managing lawyers and law practice 16 Chapter THE REALITY OF LAW AND APPLYING THE LAW ON THE ORGANIZATIONS OF LAW PRACTICE IN HCMC 3.1 The reality of organization and operation of the organizations of law practice under the law in HCMC 3.1.1 Conditions to establish the organizations of law practice of subjects It can be said that, unlike the establishment of any regular enterprise, the establishment and registration of operations of lawyer's offices and law firms nationwide in general and in HCMC in particular must meet conditions not only regulated by specialized laws, but also comply with the law on enterprises 3.1.2 The reality of organization and operation of the organizations of law practice under the law in HCMC 3.1.2.1 Regarding the internal organizational structure of the forms of the organizations of law practice - For lawyer's offices - For law firm partnerships - For a limited liability law firms of two or more members - For one-member limited liability law firms 3.1.2.2 Activities of the organizations of law practice - The common activities of the organizations of law practice are usually expressed by the following areas: (1) Regarding human resource training; (2) Regarding the recruitment of personnel; (3) Regarding human resource development; (4) Identifying the operational areas of the organizations of law practice; (5) Caring and developing the number of clients; (6) Regarding finance and accounting of the organizations of law practice - The legal services of the organizations of law practice are conducted by the following ways: 17 First, conducting legal services by the contract of providing legal services with clients Second, conducting the task of defending the accused and defendants at the request of proceeding-conducting agencies in criminal cases Third, conducting legal services through legal aid activities 3.1.3 Reorganizing the organizations of law practice In the process of operation, the organizations of law practice have the right to reorganize in forms such as integrating, merging and transforming legal forms of these entities in order to create favorable conditions for effective organization and operation 1) Integrating law firms 2) Merging law firms 3) Transforming legal forms of the organizations of law practice 3.1.4 Rights and obligations of the organizations of law practice The law has conditions for establishment/registration of operation of the organizations of law practice, as well as regulations on the order and procedures in order for these organizations to be eligible to provide professional legal services, it is necessary to have specific regulations on the rights and obligations of this entities to determine what they are allowed to and what they have to do? In my opinion, regulations of lawyers on the rights and obligations of the organizations of law practice are very important and necessary for the organizations of law practice 3.1.5 Dissolving the organizations of law practice from the market of providing legal services Enterprise dissolution is an indispensable socio-economic phenomenon in a multi-component market economy, the legal adjustment of this entity is an objective need Therefore, the law on lawyers and the law on organizations of law practice as an important to tool for the state to regulate social relations and the arising relationships related to the termination of operations of law-practicing organizations 3.1.6 Managing law practice under the existing law on lawyers In chapter VII (Article 83 and 84) of the existing law on lawyers stipulated the state agencies manage lawyers and law practice; at the 18 same time, stipulating the content of self-management regime of the socio-professional organizations of lawyers 3.2 Practical application of the law on the organizations of law practice in HCMC 3.2.1 The establishment and development of Bar Association, and actual situation of law enforcement on lawyers in HCMC - Overview of the establishment and development of Bar Association in HCMC - Law enforcement on lawyers of the Bar Association in reality First, propaganda and dissemination of law Second, participating in the proceedings; Third, Legal aid; Fourth, building up policies and law on judicial reform, administrative reform and international economic integration 3.2.2 The law enforcement on the registration of establishing organizations of law practice in HCMC (i) The actual situation of establishing lawyer offices and law firms in HCMC (ii) The law enforcement on the registration of establishing branches of the organizations of law practice (iii) The law enforcement on the registration of establishing trading offices of the organizations of law practice in HCMC 3.2.3 The actual situation of providing legal services of the organizations of law practice in HCMC According to current law on lawyers, there is not distinction regarding practice of lawyer offices and law firms, thus they are both provided legal services by regulation of Article 4, the law on lawyer 2006 (amended and supplemented in 2012) 3.2.4 The actual situation of law enforcement on the restructuring of the organizations of law practice in HCMC - Restructuring the organization of law practice - The causes of the actual situation 19 3.2.5 The actual situation of terminating operation of the organizations of law practice in HCMC In this section, the author just presents the actual situation of selfwithdrawing from the market of providing legal services Accordingly, before registering for termination of operation at the Department of Justice of HCMC, laywer offices/law firms must complete procedures of terminating (dissolution) of branches and trading offices of this subject 3.2.6 Evaluating the law enforcement on the organizations of law practice in HCMC In this section, the author presents and analyzes the law enforcement on the organizations of law practice in HCMC including the following issues: 1) The examination, inspection and supervision of professional activities of lawyers and law practice in HCMC; 2) Uneven development and imbalance in professional qualifications, number of lawyers and law-practicing organizations; 3) Regarding the management and operation of the organizations of law practice in HCMC; 4) Removing member lawyer name of HCMC Bar Association and the implementation over the years; 5) One of the limitations in HCMC today that is the exist of “lawyer street” 3.2.7 General assessment of the reality of law and the law enforcement on the organizations of law practice By examining the reality of organizations of law practice in HCMC and the law enforcement on this issue, the dissertation has presented limitations and causes of these limitations 20 Chapter DIRECTIONS AND SOLUTIONS TO IMPROVE THE ORGANIZATIONS OF LAW PRACTICE AND THE LAW ON THE ORGANIZATIONS OF LAW PRACTICE 4.1 The need for improving With the situation of the law on lawyers in Vietnam today and in order to achieve the goal of developing a team of lawyers both in quality and quantity towards professionalization, one of the urgent issues is to urgently improve the form of organizations of law practice and provisions of the existing law on lawyers and law practice to make a standardized legal framework for the development of law-practicing organizations 4.2 Directions of improving the form of organizations of law practice under the law and improving the law on the law-practicing organizations (1) Improving the law-practicing organizations under the law and improving the law on organization and operation of law-practicing organizations must be based on the Party and state’s policies and guidelines on lawyers and practice as a lawyer (2) It is necessary to improve the law to strengthen the legal liability of the organizations of law practice and the professional responsibilities of lawyers (3) It is necessary to clearly define the state management of lawyers and the autonomy of lawyers’ socio-professional organizations (4) Ensuring consistency, synchronization and inheritance 4.3 Solutions to improve the organizations of law practice under the Vietnamese law 4.3.1 Improving the forms of the law-practicing organizations - First, improving regulations on lawyers’ office; - Second, improving regulations on law firm partnerships - Third, amending regulations on the limited liability law firms 4.3.2 Solutions to improve conditions and criteria for establishing the organizations of law practice 21 (1) The subjects who establish the organizations of law practice must practice continuously for two years; (2) Transferring Bar Association when establishing the organizations of law practice; (3) Supplementing the content of determining minimum capital (legal capital) of the organizations of law practice into the Charter of law firms and lawyer’s offices (4) Amending conditions on components of the registration for a lawpracticing organization at point d, Clause 2, Article 35 of the 2006 law on lawyers (amended in 2012) 4.3.3 Solutions to improve rights and obligations of law-practicing organizations (1) Improving issues related to the reorganization of law-practicing organizations; (2) Supplementing regulations on the matter of indemnifying clients for damage by the organizations of law practice (3) The organizations of law practice must buy professional liability insurance for lawyers (according to the provisions of Clause 6, Article 40 of the current Law on Lawyers) 4.3.4 Solutions to improve First, supplementing regulations on restricting a number of acts of the organization of law practice when terminating operation; Second, improving the matter of terminating operation of the organization of law practice as stipulated in Clause 1, Article 47 of the Law on Lawyers 2006 (amended in 2012) 4.3.5 Solutions to improve regulations on state management and autonomy of the lawyers’ socio-professional organizations to ensure that the organizations of law practice comply with the law and operate effectively First, improving regulations on the state management for law practice; Second, improving regulations related to the autonomy issue of the the lawyers’ socio-professional organization 22 Third, improving regulations on principles of managing lawyers and law practice 4.3.6 Solutions to improve the law on the organizations of law practice in HCMC First, propagating and disseminating the contents of the current Law on Lawyers; the law on the organizations of law practice; position, role and importance of lawyers Second, monitoring and supervising the comply with law, ethical rules and professional behavior of lawyers 23 CONCLUSION By examining research titled “To practice as a lawyer in HCMC under the Vietnamese law”, the author draws some following conclusions: Firstly, building the law on lawyers in general and the law on the organizations of law practice in particular, and perfecting models of the organizations of law practice under the Vietnamese law today are not only mission of the state’s competent agencies but also research subject of legal science Secondly, in the process of renovation in our country, especially since the promulgation of the Law on Lawyers 2006, it shows the reality and the objective demands of the legal adjustment to the organization of law practice and professional activities of lawyers Thirdly, the dissertation has pointed out the legal nature of each type of law-practicing organizations under the Vietnamese law Based on the theoretical basis, the author has analyzed intensively and pointed out that the organization of law practice is an enterprise with conditional trading profession Fourthly, assessing the current status of law enforcement and the law on the organizations of law practice in Vietnam in general, and in HCMC in particular over the years, the dissertation has pointed out limitations, inadequacies and the causes of these limitations in terms of perception and how to organize the judicial system and the law-practicing organizations themselves in the organization and practice as a lawyer Fifthly, the dissertation has analyzed and pointed out the need to complete/consolidate the forms of the organizations of law practice and improve the law on the organizations of law practice in Vietnam today, in which the most important issue that is building the socialist rule-oflaw state and developing a socialist-oriented market economy 24 THE AUTHOR’S PUBLISHED-RESEARCH WORKS LIST Tran Van Cong (July 2018) “Some issues on the legal services and legal service market in Vietnam today”, Review of Sciences, Hanoi Open University, No 45, pp 63-72 Tran Van Cong (2018) “Some theoretical issues on the organizations of law practice in Vietnam today”, Journal of Lawyer Profession, Vietnam’s Judicial Academy, Hanoi, Special Issue, pp 21-27 25 ... General theoretical studies on lawyers and the role of lawyers In “Theoretical basis of improving the law on lawyers in Vietnam today” by Phan Trung Hoai (2003), the author can approach the basic theoretical... the current context of Vietnam By analyzing the theoretical issues on the organizations of law practice, the law on organizations of law practice, the reality of Vietnamese law on the organizations... of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2019 The dissertation may be found at: - Vietnam National Library;