Nghị định 92/2008/NĐ-CP Hướng dẫn Luật Tương trợ tư pháp

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON LEGAL ASSISTANCE

THE GOVERNMENT

Pursuant to the December 25. 2001 Law on Organization of the Government:

Pursuant to the November 21, 2007 Law on Legal Assistance;

Pursuant to the August 2S. 2001 Ordinance on Charges and Fees;

At the proposal of the Minister of Justice,

DECREES:

Article 1.- Scope of regulation

This Decree details and guides the implementation of a number of articles of the Law on Legal Assistance on expenses for performance of legal mandates specified in Articles. 16,31,48 and 60; reporting and notification of legal assistance activities specified in Articles 61 thru 70, and the Justice Ministry's tasks and powers in performing the unified state management of legal assistance activities specified in Article 62 of the Law on Legal Assistance.

Article 2.- Principles for payment of expenses for provision of legal assistance

1. Expenses for provision of legal assistance in civil or criminal cases and matters, extradition and transfer of imprisoned persons between Vietnam and foreign countries will be paid by requesting countries, unless otherwise agreed by involved parties.

The phrase "otherwise agreed" in Clause 1, Article 16, Article 31. Article 48 and Article 60 of the Law on Legal Assistance refers to treaties as defined in the Law on Conclusion. Accession and Implementation of Treaties or international agreements as defined in the Ordinance on Conclusion and Implementation of International

Agreements.

2. In case Vietnam and a foreign country have not concluded a relevant treaty or agreement mentioned in Clause 1 of this Article, expenses for the provision of legal assistance between them will be paid on the principle of reciprocity.

3. Vietnamese individuals and organizations that request competent state agencies of Vietnam to settle civil cases or matters which give rise to requests for legal mandates overseas (below referred id as requesters) shall pay expenses for the performance of civil legal mandates, except individuals eligible for expense supports under Article 4 of this Decree.

Article 3.- Management and use of expenses for provision of civil legal assistance

1. Individuals or organizations with requests for settlement of civil cases or matters which give rise to requests for civil legal mandates overseas shall pay expenses for the performance of civil legal mandates under Vietnamese regulations and expenses for the performance of civil legal mandates requested by foreign countries.

Expenses for the provision of legal assistance specified in this Decree include charges and actual costs prescribed by law.

2. Agencies receiving dossiers of request for civil legal assistance overseas shall collect expenses for the provision of legal assistance at home from requesting individuals or organizations specified in Clause 1 of this Article and notify them of expenses for the performance of legal mandates requested by foreign countries they must pay before sending the dossiers to these foreign countries. For actual costs arising at home.

agencies receiving the dossiers shall temporarily collect some amounts to be paid according to real invoices and documents under Vietnamese law and laws of concerned foreign countries.

3. Foreign individuals or organizations that request civil legal mandates to Vietnam shall pay expenses for the performance of legal mandates under Vietnamese law. Agencies receiving dossiers of request for civil legal mandates shall collect expenses for the performance of these legal mandates.

4. The Finance Ministry shall specify expense levels; the collection, remittance, management and use of expenses for the performance of civil legal mandates.

Article 4.- Support of expenses for performance of civil legal mandates

1. Eligible for exemption from expenses for the performance of civil legal mandates are Vietnamese citizens who are:

a/ Poor people living below the poverty line as prescribed by law and therefore exempt from expenses for civil legal assistance;

b/ Persons joining the revolution before the August 19. 1945 General Uprisings;

c/ Vietnamese heroic mothers;

d/ The Armed Forces" or Labor Heroes;

e/ War invalids and persons enjoying preferential policies like war invalids;

f/ Diseased soldiers;

g/ Resistance war activists affected by toxic chemicals;

h/ Revolutionary or resistance war activists previously captured and imprisoned by enemies:

i/ Resistance war activists for national liberation, participants in fatherland defense and international duties:

j/ Persons with meritorious services to the revolution:

k/ Parents and spouses of fallen soldiers; under-18 children of fallen soldiers; fosterers of fallen soldiers:

l/ Lonely or helpless people aged 60 or older:

m/ People with disabilities, who lack one or several anatomical parts or body functions resulting in various kinds of impairment, which render them disabled and make their working, living and learning activities particularly difficult, or who are affected by toxic chemicals, infected with HTV or other diseases which deprive them of their civil act capacity, and are helpless;

n/ Helpless children aged under 16; or,

o/ Ethnic minority people permanently inhabiting in areas with exceptionally difficult socio-economic conditions as specified by law.

2. Vietnamese citizens who request to be exempted from expenses for the provision of legal assistance shall submit notarized copies and produce originals of papers proving that they are eligible for the exemption from expenses for the performance of civil legal mandates specified in Clause 1 of this Article to agencies receiving dossiers of request for civil legal mandates.

Article 5.- Assurance of state funds for provision of legal assistance

1. Expenses borne by the State for the provision of legal assistance in civil or criminal cases and matters, extradition and transfer of imprisoned persons will be covered by the state budget.

2. Agencies competent to provide legal assistance in civil or criminal cases and matters, extradition and transfer of imprisoned persons shall make estimates of state budget funds for legal assistance activities in their respective management domains under the state budget law and relevant legal documents.

3. The Finance Ministry shall guide the estimation, management, use and settlement of funds allocated from the state budget for legal assistance activities.

Article 6.- Tasks and powers of the Justice Ministry in legal assistance activities

The Justice Ministry shall assist the Government in performing the unified state management of legal assistance activities, having the following tasks and powers:

1. To assume the prime responsibility for, and coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry, the Foreign Affairs Ministry and concerned agencies in, elaborating and submitting to competent state agencies for promulgation legal documents on legal assistance; to promulgate according to its competence legal documents and documents guiding the implementation of legal documents on legal assistance; to coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry and the Foreign Affairs Ministry in promulgating joint legal documents guiding legal assistance activities.

2. To coordinate with agencies that have proposed the conclusion of treaties on legal assistance in working out long-term and annual plans on conclusion of. accession to and implementation of treaties on legal assistance under Articles 63, 64. 65 and 66 of the Law on Legal Assistance: to assume the prime responsibility for negotiating with foreign countries on treaties on legal assistance in civil cases and matters; to coordinate with the Public Security Ministry, the Supreme People's Procuracy and concerned agencies in negotiating with foreign countries on treaties on legal assistance in criminal cases and matters, extradition or transfer of imprisoned persons under law; to monitor and urge the implementation of plans on conclusion of and accession to treaties on legal assistance already approved by competent agencies: to assume the prime responsibility for, or coordinate with the Public Security Ministry, the Supreme People's Procuracy and concerned agencies in, working out and submitting plans on organization of implementation of treaties on legal assistance to the Government for decision; to organize the implementation of plans on organization of implementation of treaties on legal assistance in civil cases and matters; and coordinate with concerned agencies in organizing the implementation of treaties on legal assistance in criminal cases and matters, extradition and transfer of imprisoned persons.

3. To assume the prime responsibility for, and coordinate with the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry and the Foreign Affairs Ministry in, organizing training courses on Vietnamese law and treaties on legal assistance, providing professional guidance on legal assistance to legal assistance officers.

4. To assume the prime responsibility for. and coordinate with concerned agencies in. developing a database on legal assistance law.

5. To assume the prime responsibility for. and coordinate with the Foreign Affairs Ministry and the Supreme People's Court in. organizing inter-branch teams to inspect the performance of legal mandates in civil cases and matters at people's courts and foreign-based representative offices of Vietnam: to coordinate with the Supreme People's Procuracy, the Public Security Ministry and the Supreme People's Court in inspecting the realization of requests for legal assistance in criminal cases and matters, extradition and transfer of imprisoned persons in order to promptly find out difficulties and problems in the implementation of relevant legal provisions.

6. To assume the prime responsibility for, and coordinate with the Supreme People's Court, the Supreme People's Court, the Public Security Ministry and the Foreign Affairs Ministry in, organizing regular meetings to exchange information, discus and decide on measures for resolving difficulties and problems in the provision of legal assistance.

7. To assume the prime responsibility for. and coordinate with the concerned agencies in, annually reviewing and reporting to the Government on legal assistance activities under the Law on Legal Assistance.

Article 7.- Notification of performance of legal assistance activities

1. No later than June 30 and December 31 every year, the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry and the Foreign Affairs Ministry shall send to the Justice Ministry notices on the performance of legal assistance activities in domains under their respective competence under Articles 63, 64, 65, 66 and 67 of the Law on Legal Assistance.

2. A notice sent by the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry and the Foreign Affairs Ministry to the Justice Ministry has the following principal contents:

a/ General evaluation of legal assistance activities in the assigned domain;

b/ Appraisal of the effectiveness of coordination among concerned agencies in the provision of legal assistance;

c/ Appraisal of the observance of the principle of reciprocity;

d/ Proposals on coordination among concerned agencies in conducting legal assistance activities;

e/ Proposals on amendments and supplements to current legal documents on legal assistance or promulgation of new ones, and needs for conclusion of or accession to treaties concerning legal assistance.

Notices must be enclosed with tables summarizing legal assistance activities of ministries and branches, made according to appendices to this Decree (not printed herein).

Article 8.- Reports to the Government and the National Assembly on legal assistance activities

1. After receiving notices of concerned ministries and branches specified in Article 7 of this Decree, the Justice Ministry shall summarize these notices and make Government reports on legal assistance activities under Clause 5. Article 62 of the Law on Legal Assistance.

2. The Justice Ministry shall send an annual report on legal assistance activities specified in Clause 1 of this Article to the Government before January 31 of the following year, which must be enclosed with notices of concerned ministries and branches under Article 7 of this Decree.

3. In case the National Assembly requests a report on law observance in the domain of legal assistance, the Justice Ministry shall assume the prime responsibility for, and coordinate with the Government Office, the Supreme People's Court, the Supreme People's Procuracy, the Public Security Ministry and the Foreign Affairs Ministry in, preparing a Government report to the National Assembly.

Article 9.- Periodical inter-branch meetings

The Justice Ministry shall organize biannual and annual meetings to notify the situation of legal assistance and exchange opinions on the coordination among concerned ministries and branches in legal assistance.

Article 10.- Implementation provisions

1. This Decree takes effect 15 days after its publication in "CONG BAO."

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shall implement this Decree.

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