LEGAL SERVICE IN ACCORDANCE WITH VIET NAM LAW AND FRENCH LAW

Legal services provided for by international organizations to which Vietnam is a contracting party Under Article 6, the Law on Signing, Accession and Implementation of InternationalTreat

VIETNAM NATIONAL UNIVERSITY

OF HO CHI MINH CITY UNIVERSITY OF ECONOMICS AND LAW

FACULTY OF LAW

TOPIC: LEGAL SERVICE IN ACCORDANCE WITH VIET NAM LAW AND

FRENCH LAW – LEGAL SERVICE CONTRACT AND GUIDELINES FOR DRAFTNG LEGAL

INDUCTION 5

CHAPTER 1 OVERVIEW OF LEGAL SERVICES 6

1 Legal services provided for by international organizations to which Vietnam is a contracting party 6

1.1 Regulations of the United Nations 6

1.2 Regulations of the World Trade Organization (WTO) 7

2 Definition of legal services in accordance with Vietnamese law 9

2.1 The concept 9

2.2 Entity providing legal services 11

3 The concept of legal services in France 12

3.1 The concept 12

3.2 Lawyer Monopoly on Assistance and Representation 12

3.3 Activities Shared with Other Professionals 13

3.4 New Fields of Activity for Lawyers 13

4 Comparison of legal services in Vietnam and France 15

CHAPTER II GENERAL PROVISIONS ON LEGAL SERVICE CONTRACTS AND GUILDELINES FOR DRAFTING LEGAL CONTRACTS 16

1 General provisions on legal service contracts 16

1.1 Concept, characteristics and classification of legal service contracts 16

1.1.1 Concept 16

1.1.2 Characteristics of the contract for legal services 18

1.1.3 Classification of legal services 19

1.1.3.1 Based on the type of organization providing legal services 19

1.1.3.2 Based on the content of the Legal service contract 19

1.2 Legal provisions on legal service contracts in Viet Nam 20

1.2.2 The subject of the legal service contract 20

1.2.2.1 Provider of legal services 20

1.2.2.2 Legal service user 23

1.2.3 Contents and time limit for performance of the contract 24

1.2.4 Rights and obligations of the parties 26

1.2.4.1 Obligations of the provider of legal service 27

1.2.4.2 Obligations of the legal service user 28

1.2.4.3 Remuneration for legal services 28

1.3 General provisions on legal service contracts in France 29

1.4 Comparison of legal service contracts under Vietnamese law – France law 32

2 Guiding the drafting of legal service contracts 34

2.1 The drafting of legal service contracts in France 34

2.2 The drafting of legal service contracts in Viet Nam 35

3 Cases of unilateral termination of performance of legal service contracts 36

3.1 In France 36

3.2 In Viet Nam 37

EPILOGUE 39

APPENDIX 39

In the context of market economy and international economic integration,organizations and individuals are increasingly demanding legal services Organizationsand individuals need legal help on a regular basis to ensure the legal safety of theirtransactions

The process of economic globalization has strongly promoted the development oflegal services for organizations and individuals at the international level Entitiesinvolved in many transactions involve a variety of areas governed by domestic law andinternational law The legal form of such transactions is the contract In order fortransactions to be carried out safely and efficiently, legal aid is required from legalservice providers Legal aid provided by the service provider to the legal service user isexpressed in the form of a legal service contract In order to protect the legitimate rightsand interests of the legal service contracting parties, especially those of legal serviceusers and the prevention of disputes, the law on legal service contracts must constantlyimprove At the same time, the national legal system on legal contracts must be in linewith the international treaties which Vietnam has signed

Laws regulating legal services in Vietnam are not yet complete and are regulated inmany different legal documents, such as the Civil Code 2005; Commercial Law 2005;The specialized laws and some legal documents, initially set the legal basis for the legalservices of legal service providers to enter into legal service contracts with organizationsand individuals, who have a need to use legal services

The purpose is to provide knowledge to the students, while recognizing the potential

in the field of legal services as well as points that the law has not clearly defined Inaddition to comparing the provisions of Vietnamese law and French law to see thesimilarities and differences in the legal system of the two countries, thereby improvingthe legal system of nation Starting from the above target, the group selected "Legalservice - Legal services contract in Vietnam and French" as our research topic

CHAPTER 1 OVERVIEW OF LEGAL SERVICES

1 Legal services provided for by international organizations to which Vietnam is a contracting party

Under Article 6, the Law on Signing, Accession and Implementation of InternationalTreaties 2005, the law of Vietnam also provides:

- In cases where legal documents and international treaties to which the SocialistRepublic of Vietnam is a contracting party contain different provisions on the samematter, the provisions of such international treaties shall apply

- The promulgation of legal documents must not impede the implementation ofinternational treaties to which the Socialist Republic of Vietnam is a contracting party onthe same matter

From the above provisions, it can be seen that international treaties have a veryimportant position outside the legal documents of Vietnam Therefore, beforeunderstanding the provisions of Vietnamese law on legal services, it is necessary tounderstand how the international treaties to which Vietnam is a member regulate

1.1 Regulations of the United Nations

In order to avoid disagreement among member countries and to facilitate subsequentregulations, the United Nations does not provide a definition of service, that provides alist of the listed methods from which identified which behavior is the service

In 1991, the United Nations announced the temporary classification of major services(PCPC) and, by 1997, published the classification of main services (CPC)

According to the CPC List, legal services belong to the category of business services,belong to professional services (CPC 861) and are classified as follows:

- Counseling and representation services related to criminal law (86111);

- Legal advice and representation services in judicial proceedings relating to otherlegal fields (86119);

- Legal advice and representation services in legal proceedings before associationsJudicial Council (86120);

- Services on legal documents and certifications (86130);and

- Other legal counseling information (86190)

According to the United Nations, legal services are divided into three basic groups:+ Legal consultancy services, it means providing legal opinions and advice on the legalbasis to the individuals who request

+ Legal representation services, it means representative on behalf of clients in front of acompetent authority or participating in a social relationship to help clients complete legalwork on the basis of authorization Basically, this service is similar to the authorizedrepresentative in civil relations The only difference is that the person providing the legalservice is a person who has the legal qualifications, has sufficient conditions to providelegal services and "pay charges" in the service

+ Other services such as notarization, document certification, contract drafting, etc

1.2 Regulations of the World Trade Organization (WTO)

Like the United Nations, the WTO does not provide a definition of services,definition services defined in the General Agreement on Trade in Services (GATS) andappendices attached hereto GATS has taken the United Nations CPC list to concretizeactivities under GATS, the trade in services domain is divided into 12 sectors:

8) Health services

9) Tourism services;

10) Recreational, cultural and sporting services);

11) Transport services; and

(b) The service includes any service in all areas except those provided for the exercise ofgovernmental authority

(c) legal services provided for exercising the authority of the Government are any serviceprovided neither on a commercial basis nor on the basis of competition with one or moreservice providers

Functioning as a regulator of world trade, the GATS removed the services provided forthe exercise of governmental authority by two elements: non-profit and not on basic ofcompetition Thus, in the area of legal services, this scope excludes the activities ofjudges, court clerks, prosecutors and some other judicial activities

In summary, legal services provided by the WTO and the United Nations are legal

services that include legal advice, legal representation and other legal services that do notinclude services provided to exercise the authority of the Government

1 This is from: chuc-hanh-nghe-luat-su-nuoc-ngoai-tai-viet-nam-38696/ , accessed 6/10/2017

http://doc.edu.vn/tai-lieu/luan-van-nhung-quy-dinh-cua-phap-luat-ve-hoat-dong-cua-to-2 Definition of legal services in accordance with Vietnamese law

2.1 The concept

Legal services are a fairly broad field of law and are protected by law Because ofthis, only legal documents related to the field of legal practice are new regulations onlegal services The 1987 Ordinance on Lawyers and the 2001 Ordinance on Lawyers allregulate this issue However, the concept of "legal services" is different at different times.According to the 1987 Ordinance on Lawyers, legal services are legal aid, including:participation in proceedings as a signer for a defendant, being notified or representing thevictim and the involved parties Other matters in criminal cases or civil cases, representingparties involved in domestic marriage and labor lawsuits, legal consultancy for Stateeconomic organizations, foreign economic organizations , providing other legal services

to citizens and organizations (Article 13 of the 1987 Lawyers Ordinance)

According to the Lawyer Ordinance 2001, legal services include three areas: legalproceedings, legal advice and other legal services It is participation in the proceedings as

a defense counsel for the accused or the rights and interests of the victim, civil plaintiff,civil defendant, person with rights and obligations related to the case criminal case.Participation in legal proceedings in the capacity of representing or protecting the parties'legitimate rights and interests in civil, economic, labor or administrative cases;Participation in arbitral proceedings to settle disputes; Providing legal consultancy,drafting contracts or applications at the request of individuals or organizations;Representatives authorized by individuals or organizations to perform work related to thelaw; Providing other legal services in accordance with the provisions of law (Article 14

of the Standing Committee of the National Assembly No 37/2001 / PL-UBTVQH10dated July 25, 2001)

According to the Law on Lawyers 2012, the lawyer's legal services includeparticipation in legal proceedings, legal consultancy, representation beyond legalproceedings for clients and other legal services

In general, the legal services of the three legal documents stipulate that lawyers can

do such things as litigation, legal advice and other legal services However, the Law onLawyers also stipulates that lawyers or legal assistants may represent outside legalproceedings for clients In addition, the above 3 documents refer to "other legal services".But what is the other legal service, all three documents are not clear In addition, theOrdinance of Lawyers 1987 or the Ordinance of the National Assembly Standing

Committee 2001 also has no legal document on "other legal services" Therefore, "otherlegal services" "temporary" must still be used in accordance with previous guidelines.Article 30 of the Law on Bar Associations promulgated together with Decree No 15 /HDBT of February 21, 1989 of the Council of Ministers guiding the implementation ofthe 1987 Lawyers Ordinance promulgated by the State Council, legal services Other:Guiding, explaining issues related to the law; Guide to making applications, contracts,contracts; Instructions for writing testaments, donation papers and legal documents.Guidance may be in writing or orally Until the present time when the Law on Lawyers

2012 takes effect, legal services are specified in Article 30 of the Law

In addition, the activities of lawyers in the 1987 Ordinance are called "legalassistance" forms, including legal services However, in essence, the forms of legal helphere are legal in its own right because the activity of a lawyer is paid work, which iscommercial According to Article 20 of the Ordinance, "Citizens and organizations whoseek help from lawyers must pay remuneration The regime of payment of remunerationsand cases of exemption or reduction prescribed by the Regulation on Bar Associations Itcan be seen that this ordinance regulates the legal services of the toll-free legal aidactivities of lawyers without separation, thus introducing the concept of " "of the lawyer.According to the 2001 Ordinance, there is also a separation between legal services

provided by lawyers and free legal assistance, in Article 6: "The state and society encourage lawyers and organizations Law-practicing organizations participate in free legal aid activities for the poor and for beneficiaries of preferential policies as prescribed by law "

Legal aid activities are very similar to the lawyer's legal services, except that there is

no remuneration at all Can we see legal aid activities as legal service activities?Vietnamese law has the view that there are preferential policies for the poor and peoplewith meritorious services to the revolution Free legal aid activities are an activity of thelawyer profession, demonstrating the responsibility of lawyers with the State and society.However, Vietnamese law has separated the legal aid issue into a separate area and hasbeen amended by the Law on Legal Aid 2004 Therefore, in the view of the group, legalservices do not include Legal aid activities

Understandable legal services are the general services of legal advice, legalrepresentation services and other legal services In particular, the consultancy service is toprovide the legal opinions and solutions of legal service providers to the organizationsthat request Legal representation includes participation in civil and criminal proceedings,

including the participation in criminal proceedings at the request of the conducting agency and the representative of the offender The legal service provider will

procedure-be the representative of the client, on procedure-behalf of the client procedure-before other agencies ororganizations, in front of their partner to exercise the rights and obligations of the client

in accordance with the regulations under the law Other legal services may includecontract drafting, translation,

In summary, legal services in accordance with Vietnamese law include legal advice,legal representation and other legal services, including services provided to exercise theauthority of goverment Thus, the concept of legal services under Vietnamese law has abroader meaning and is different from the understanding of the United Nations and theWorld Trade Organization

2.2 Entity providing legal services.

The Law on Lawyers 2006, amended in 2012, provides only legal services forlawyers or more specifically the scope of law practice, but does not provide it is thelawyer's exclusive domain These domain can also be implemented by other actors

According to the provisions of the current procedural law, including criminal procedurelaw and civil procedure law, the subject of a legal proceeding in the capacity of a defensecounsel or guardian of the legitimate rights and interests of other persons including:lawyers; the legal representative of the accused (the detainee, the accused, the defendant)

as a guardian; people's advocates; legal assistants; others participate in capacity ofguardians of the rights and legitimate interests of the involved parties.2 This other personmust satisfy the condition that "Vietnamese citizens have full civil act capacity, noprevious criminal convictions or have their criminal records remitted, other than casessubject to administrative handling measures; they are not cadres or civil servants of thejudicial agencies, procuracies and civil servants, officers and non-commissioned officers

of the police service " However, the nature of service implementation in general, legalservices in particular, is chargeable by the customer, who needs to provide the service

2 Articles 72, 83 and 84 of the Criminal Procedure Code 2015, Article 75 of the Civil Procedure Code 2015.

Consequently, people's advocates; legal assistants excluded from the object of legalservices.

In addition, in the current legal profession in Vietnam, lawyers are seen as important

in the process of litigation, legal advice, client representation and other legal services .They are professional legal practitioners They were trained professionally, passed theapprenticeship period, passed the national exams newly granted the practice certificate Insociety, they have a mission to protect the Constitution, the law, ensure proper lawenforcement, justice and justice Therefore, only lawyers are entitled to provide legalservices, is correct and necessary

3 The concept of legal services in France

3.2 Lawyer Monopoly on Assistance and Representation

Article 4 of Act 71-1130 of December 31, 1971 on reforming certain judicial andjuridical professions, set forth the principle that lawyers have a monopoly on assistingand representing parties, as well as postulation and pleading before courts of first instance

and appeals courts, judicial and administrative jurisdictions, and all jurisdictional ordisciplinary bodies.

All lawyers may represent, assist, and plead before all French jurisdictions oradministrative commissions

Lawyers do not have the benefit of an absolute monopoly on assistance andrepresentation in every area and before all courts :

* Representation by a lawyeris not mandatorybefore magistrate courts, local courts,employmenttribunals, social securitytribunals, business tribunals, agricultural landtribunals, and criminal courts

* Court officerscalled "Council lawyers" or "lawyers to the Conseil d’Etat and theCour de Cassation", are part of an organizational structure thatisseparatefromthat ofotherlawyers At this time, there are about one hundred of them

3.3 Activities Shared with Other Professionals

Article 54 of Title II of Act 71-1130 of December 31, 1971, as amended by Act

90-1259 of December 31, 1990 defines the conditions underwhichanyone, eitherdirectly orthrough an intermediary, may, on a regular or paid basis, givelegaladvice or draftprivatelegal documents on behalf of others

Thus, lawyers share their tasks with other professions when they counsel theirclients; issue notices or calls for tenders; draft contracts, certificates, or privatetransactions; or draft any documents relevant to corporatelaw, such as annual reports,general meetings, merger agreements, etc

Still, lawyers are the onlyprofessionalswith the power to draft and formalize legaldocuments with the highest probative value

3.4 New Fields of Activity for Lawyers

Lawyers, who are legalprofess ionals, are the natural agents for supportingtheirclients in all proceduresinvolving civil matters.

Among the new branches of the profession that serve citizens are agent lawyerswhoassist in property transactions and artistrepresentation

Lawyers can alsoactas:

* Mediators, helping litigants to settletheir disputes

* Arbitrators, acting as completelyindependentjudges

* Trustees, acting pursuant to the lawsgoverningtrusts;however, theyshoulddecidefor themselvesifthis trust has a legitimatepurpose

* Lobbyists, acting as their clients' representativeswith national or internationalauthorities

For instance, legal services offered by lawyers in France about business law are :

- Incorporation of companies in France : Lawyers in France offerlegal assistance

to companyownerswhowant to start a company in France Frenchattorneys willrepresentthey in front of authoritiesfrom France It permitsthatentrepreneurs don’t have to come in person in this country in order to start a company,Franchlawyerswillact on behalf of them, helpingthem to set up any type ofcompanytheywant

- Openingsubsidiaries and/or branches inFrance : If clients decide to open a

branch or a subsidiary of theircompanyfromabroad in France, they can contact a lawyer

In fact, French lawyers willhandle the entireprocedure, untilthey can start theiractivity inthis country

- Obtainingspecialpermits or licenses : When people run some types of

economicactivities in France, theywillneed specialpermits and licenses from the French

authorities They are not required to come in person in order to obtainthese documents,lawyerswhowillhandle the procedure in order for them to obtain theauthorizationstheyneed, according to the French law.

- Mergers and acquisitions : French lawyers will assist clients with the mergers

and acquisitions theywant to make

- Liquidation of France companies : After a companydirectordecides to finish his

business activity in France and heneeds to liquidatehiscompany, lawyers inFrance willofferhim assistance throughout the wholeprocedure

- Corporate and commercial litigation :

The attorneys from France willrepresent client in front of any court of justice inFrance, throughout all the stages of a litigation

4 Comparison of legal services in Vietnam and France

Legal services in France and legal services in Vietnam have, as you have seen, manycommon points such as representation or contract drafting :

+ In general, legal services include legal representation services, legal consultancyand other legal services such as drafting contracts, translation, etc

+ The provision of legal services by lawyers

However, there is a difference between Vietnamese and French legal services.Specific:

 Among the new branches of the profession that serve citizens are agent lawyerswho

 Asist in property transactions and artist representation

 Mediators, helping litigants to settle their disputes3

3 Mediators, helping litigants to settle their disputes by a process which, if successful, will lead

to an amicable settlement In this regard, a participatory procedure assisted by a lawyer is a new, alternative method for settling litigation; it was initiated by the French civil code for the purpose

 Arbitrators, acting as completely independent judges.4

 Trustees, acting pursuant to the laws governing trusts; however, they shoulddecide for themselves if this trust has a legitimate purpose

 Lobbyists, acting as their clients' representatives with national orinternational authorities.5

CHAPTER II GENERAL PROVISIONS ON LEGAL SERVICE CONTRACTS AND GUILDELINES FOR DRAFTING LEGAL CONTRACTS

1 General provisions on legal service contracts

1.1 Concept, characteristics and classification of legal service contracts

1.1.1 Concept

A legal service contract has the general nature of a normal contract, which is anagreement to establish, change, or terminate the rights and obligations in a servicerelationship

Civil Code 2015 Article 513 states that a service contract is an agreement betweenthe parties whereby the service provider carries out the work for the service user and theservice user has to pay for the service to the service provider

Commercial Law 2005, Article 3 point 9 states that "the provision of services is acommercial activity whereby one party (hereinafter referred to as the service provider) isobliged to provide services to another party and receive pay; The service user (hereinafter

of encouraging parties to resolve their disputes by negotiation

4 Their final step is to issue an enforceable award based on French law, or, in some cases, an applicable international agreement

5 In this situation, they must make clear to such authorities the identity of the interests and persons they are representing

referred to as the customer) is obliged to pay the service provider and use the service asagreed "The Commercial Law does not stipulate what the service contract is theprovisions in the service contract are applied in accordance with the principles andregulations of the Civil Code 2015.

The Law on Lawyer 2012 provides that "lawyers provide legal services under legalservice contracts, except for cases where lawyers participate in legal proceedings at therequest of the procedure-conducting agency and the lawyer practicing law Individualsworking under labor contracts for agencies or organizations

Legal service contracts must be made in writing "

As such, for lawyer service provision, the law provides for the formal relationshipbetween the lawyer and the client through a legal service contract and must be in the form

of a written copy

From the provisions of the Civil Code, the Commercial Law, the Law on Lawyercan confirm that a legal service contract is a form of commercial service contract Thelegal service contract is full of signs of the commercial service contract:

- There is agreement between the parties (the service provider and the service user)

- The content of the legal service contract contains the rights and obligations of theparties The majority of legal service contracts are bilateral contracts, the party's rightsare the obligations of the other party and vice versa

- The purpose of the service provider is to receive remuneration, while the user ofthe service is to satisfy the demand for legal services

From the above analyzes, the concept of legal service contracts can be formulated:The legal service contract is an agreement between the parties, whereby the service

provider provides one or more legal services The service user is obliged to pay and usethe service according to the agreement.6

The legal service contract must, therefore, ensure the commercial nature of theservice contract - in that the provision of legal services is an activity for profit-makingpurposes, the supplying party providing the service The service is to make a profit Inaddition, service users must pay for service provision Paying for the service is essentiallypaying for the service provided, in the lessee has purchased the service.7

1.1.2 Characteristics of the contract for legal services 8

In order to be able to participate in a legal service contract as a service provider, theservice provider must be a legal practice organization competent to provide services andprovide registered legal services Specifically, the service provider must meet thefollowing conditions:

- The legal service provider must be a practicing organization that fully meets theconditions prescribed by law These are basic conditions, such as: to be organized in theform of legal service-providing organizations or providers of legal services practicing asindividuals (collectively referred to as professional organizations) They have registeredfor the provision of services and are licensed or licensed by competent state agencies;Provide the type of legal service in the field and types of legal service of theorganization

- In principle, the principle of the legal service contract is to comply with theprinciples of civil law on the contract: the principle of freedom of voluntary commitment,the principle good principles, principles of goodwill, honesty, the principle of civil

6 Legal Terms of Service Contract from

http://lrc.tnu.edu.vn/upload/collection/brief/42074_66201485811hoangthivinh.pdf, accessed 14/10/2017

7 http://tcdcpl.moj.gov.vn/qt/tintuc/Pages/xay-dung-phap-luat.aspx?ItemID=348, accessed 15/10/2017

8 Refer to http://lrc.tnu.edu.vn/upload/collection/brief/42074_66201485811hoangthivinh.pdf, accessed on

13/10/2017.

responsibility, principles of respect for the interests of the state, public interests,principles of law observance.

- The format of the legal service contract must be in writing

1.1.3 Classification of legal services

1.1.3.1 Based on the type of organization providing legal services

Legal service contracts can be divided into five categories:

- Legal service contract of the lawyer's profession organization

- Legal service contract of notary practice organization

- Legal service contract of the legalization organization

- Legal service contract of the legal consultancy center

- Legal service contract of other organizations

1.1.3.2 Based on the content of the Legal service contract

Legal service contract:

- Contract for legal consultancy service

- Notary service contract

- Service contract is made by micro

- Service contract for service of papers by the court and the enforcement agency

- Contract for verification of conditions for judgment execution

- Contract execution

1.2 Legal provisions on legal service contracts in Viet Nam

1.2.1 The content of the legal contract

The legal service contract is divided into three parts: the legal basis and the actualbasis, the subject of the contract, the rights and obligations of the parties.

According to Article 26 of the Law on Lawyers 2012, lawyers shall perform legalcontracts under legal contracts, except for cases where lawyers participate in legalproceedings at the request of legal proceeding-conducting bodies and lawyers practicinglaw Employees working under labor contracts for agencies or organizations And thelegal service contract must be made in writing with the following principal contents:

- The name and address of the client or representative of the client, therepresentative of the law-practicing organization or the lawyer practicing as anindividual;

- Content of the service; duration of contract performance;

- Rights and obligations of the parties;

Method of calculation and specific remuneration; expenses (if any);

- Liability for breach of contract;

- Argument setllement

Thus, the contents of the legal service contract are all terms agreed upon by the twoparties, expressing the rights and obligations of the parties

1.2.2 The subject of the legal service contract

1.2.2.1 Provider of legal services

The conditions for the practice of providing legal services, as provided for in thespecialized law on legal services, the investor wants to establish service providers inVietnam, in addition to meeting the requirements the legal status of the founders and