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 sk
Trang 1MINISTRY OF EDUCATION
AND TRAINING
MINISTRY OF JUSTICE
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
Trang 2The Project has been completed at:
HANOI LAW UNIVERSITY
Scientific instructors:
1 Dr Nguyen Am Hieu
2 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 Hanoi Law University at:…./… /….dated…./……/…
The thesis can be found out at:
1) National Library of Vietnam
2) Library of Hanoi Law University
Trang 3INTRODUCTION
1 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
2 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;
Trang 4- 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)
3 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
4 Methodology and study methods of the thesis
* Methodology of the thesis
Trang 5The 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
5 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
6 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:
Trang 6Chapter 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
Trang 7Introduction chapter OVERVIEW OF THE STUDY SITUATION RELATED
TO THE THESIS TOPIC
1 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
Trang 82 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;
Trang 9Fourthly, 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
3 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
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?
Trang 103) 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
Trang 11Chapter 1 THEORETICAL ISSUES ABOUT THE PARTNERSHIP OPERATING IN THE SUPPLY OF LEGAL SERVICES AND LAWS ON THE PARTNERSHIP OPERATING IN THE
SUPPLY OF LEGAL SERVICES 1.1 Theoretical issues about the partnership operating in the supply of legal services
1.1.1 Overview of legal services
1.1.1.1 Concept of legal service
Instead of defining legal services, The WTO only lists the types
of legal services including: Representation services and legal advice
in various legal fields (8611); representation services and legal advice on criminal law (86111); representation services and advice
in legal procedures related to other legal fields (86119); representation services and legal advice in legal proceedings before semi-judicial and administrative judicial agencies (CPC 8612/86120); services of legal and notary papers (CPC 8613/86130); other legal advice and information services (CPC 8619/86190)
In Vietnam, the researchers still have different and inconsistent understandings of the concept of legal service However, the thesis
writer has the opinion that: Legal service is a form of conditional business conditions, in which the service suppliers supplies legal information, advice, answers to law issues and performs other jobs related to the law for customers with the aim of seeking profits 1.1.1.2 Characteristics of legal service
Legal service has the following basic characteristics: Firstly, legal services are closely connected with the law; Secondly, the
Trang 12suppliers of legal service must have legal expertise; Thirdly, the
quality of legal service is difficult to be identified and easily copied
1.1.2 Concepts and characteristics of partnerships operating
in the supply of legal service
1.1.2.1 Concept of the partnership operating in the supply of legal services
The partnership operating in the supply of legal service is established based on the association of at least two lawyers and jointly conduct business activities as co-owners aimed at seeking profit The members must bear personal, unlimited, and joint responsibilities for all debts of the partnership
1.1.2.2 Characteristics of the partnership operating in the supply of legal services
The partnership operating in the supply of legal services have some points on: (i) Members; (ii) Asset liability of members; (iii) Legal status; (iv) Power division mechanism in the partnership
1.1.3 Roles and advantages of the partnership operating in the supply of legal services
1.1.3.1 Role of the partnership operating in the supply of legal services
The partnership operating in the supply of legal service keeps the role of: (1) A tool for lawyers to practise their profession to achieve their goals; (2) A form of business that can limit the risks to customers by attaching the risk of the customers to the risks of the service suppliers (the regime of unlimited liability of the company members)
Trang 131.1.3.2 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