Tiếng Việt- 1 Decree No. 92/2008/ND-CP of August 22,2008, detailing and guiding the implementation of a number of articles of the law on Legal Assistance.
- 2 Joint circular No. 15/2011/TTLT-BTP-BNG-TANDTC of September 15, 2011, guiding the application of a number of provisions of the law on Legal Assistance on legal assistance in the civil domain
| THE NATIONAL ASSEMBLY | SOCIALIST REPUBLIC OF VIET NAM
|
| No. 08/2007/QH12 | Hanoi, November 21, 2007 |
ON LEGAL ASSISTANCE
(Law No. 08/2007/QH12)
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented in a number of articles under Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law on Legal Assistance.
This Law prescribes the principles, competence, order and procedures for the provision of legal assistance in civil and criminal matters, extradition and transfer of persons who are serving imprisonment sentences between Vietnam and foreign countries; and responsibilities of Vietnamese state agencies in legal assistance.
Article 2. Subjects of application
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1. Legal assistance complies with the provisions of this Law; in case this Law does not prescribe it, the provisions of civil procedure law, criminal procedure law and other relevant provisions of Vietnamese law prevail.
2. The application of foreign laws shall be effected only under the provisions of treaties to which Vietnam is a contracting party.
Article 4. Legal assistance principles
1. Legal assistance is provided on the principles of respect for independence, sovereignty and territorial integrity, non-interference into internal affairs of each other, equality and mutual benefit, compliance with Vietnams Constitution and law and with treaties to which Vietnam is a contracting party.
2. Where there exist no treaties on legal assistance between Vietnam and foreign countries, legal assistance activities follow the principle of reciprocity which, however, do not contravene Vietnamese law and conform to international law and practice.
Article 5. Language in legal assistance
1. In case there has existed a treaty on legal assistance between Vietnam and a foreign country, the language in legal assistance is the language prescribed in that treaty.
2. In case there has been no treaty on legal assistance between Vietnam and a foreign country, dossiers must be enclosed with a translation in the language of the country requested to provide legal assistance or a translation in another language accepted by the requested country.
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Article 6. Legal mandate and form of provision of legal assistance
1. Legal mandate means a written request of a competent body of Vietnam or a foreign country for the performance of one or a number of legal assistance activities under the provisions of the law of the concerned country or the treaty to which Vietnam is a contracting party.
2. Legal assistance is provided on the basis of the request of a competent body of Vietnam or a foreign country through legal mandate.
Article 7. Consular legalization and recognition of legal mandate papers or documents
1. Consular legalization means the certification by the Vietnamese Ministry of Foreign Affairs, diplomatic missions, consulates or other overseas-based offices authorized to perform the consular function of the signatures and seals on papers or documents made, issued or certified by foreign competent bodies for use in Vietnam.
2. Legal mandate papers or documents made, issued or certified by foreign competent bodies under foreign law are recognized by competent bodies of Vietnam, if those papers or documents have been consularly legalized.
Article 8. Summon and protection of witnesses and experts
1. While conducting proceedings, competent proceedings-conducting bodies may summon witnesses and experts under the provisions of this Law and treaties to which Vietnam is a contracting party.
2. A summons must clearly state the conditions for the witness or expert and the commitment to guarantee the life and health safety, accommodation, meal and travel conditions for the witness or expert.
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4. Witnesses and experts summoned to Vietnam may not be arrested, detained, held in custody or investigated, prosecuted or tried for the following acts before their arrival in Vietnam:
a/ Supplying testimonies or written expert conclusions on the cases for which they are summoned;
b/ Committing crime in Vietnam;
c/ Having relations with persons being subject to criminal investigation, prosecution or trial in Vietnam,
d/ Involving in civil or administrative matter in Vietnam.
5. Witnesses and experts rights not to be arrested detained, held in custody or investigated, prosecuted and tried, which are defined in Clause 4 of this Article, will terminate if those persons do not leave Vietnam within fifteen days after receiving written notices of competent Vietnamese bodies on their unnecessary presence in Vietnam. This duration is not counted into the time during which the witnesses or experts cannot leave Vietnam for force majeure reasons.
Article 9. Hand-over and receipt of documents, articles and money
The hand-over and receipt of documents, articles and money related to legal assistance activities comply with Vietnamese law.
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Article 10. Scope of civil legal assistance
The scope of civil legal assistance between Vietnam and foreign countries covers:
1. Service of papers, dossiers and documents related to civil legal assistance;
2. Summon of witnesses and experts;
3. Collection and supply of evidence;
4. Other requests for civil legal assistance.
Article 11. Civil legal mandate dossiers
1. A civil legal mandate dossier comprises the following documents:
a/ A competent bodys written request for civil legal assistance;
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c/ Other papers as requested by a competent body of the mandating country.
2. A civil legal assistance dossier is made in three sets in accordance with this Law and the law of the mandating country. Language used in the dossiers complies with Article 5 of this Law.
Article 12. Civil legal assistance documents
A civil legal assistance document must contain the following details:
1. Date, month, year and place of making the document;
2. The name and address of the legal mandator;
3. The name and address of the legal mandatory;
4. Full names and places of resident or working of individuals; full names and addresses or head offices of agencies or organizations directly involved in legal mandate;
5. Jobs subject to civil legal mandate, indicating the mandate purpose, jobs and related circumstances, quotation of applicable legal provisions, measures to effect the mandate and the mandate performance duration.
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1. Vietnams competent bodies, while settling civil matters, may request foreign competent bodies to provide legal assistance in the following circumstances:
a/ Service of papers, dossiers, documents on persons who are staying in the requested countries;
b/ Summon of witnesses and experts who are staying in the requested countries;
c/ Collection and supply of evidence in the requested countries for settlement of civil matters in Vietnam;
d/ Other circumstances prescribed by Vietnamese law.
2. Requests for civil legal assistance by foreign countries must be made in the form of civil legal mandate under the provisions of this Law.
Article 14. Procedures for requesting foreign countries to provide civil legal assistance
1. Vietnams competent bodies requesting foreign competent bodies to provide civil legal assistance shall make mandate dossiers under the provisions of Article 11 of this Law and send them to the Ministry of Justice.
2. Within ten working days after the receipt of civil legal mandate dossiers, the Ministry of Justice shall record in the legal mandate book, examine the validity of the dossiers and send them to foreign competent bodies under the provisions of treaties to which Vietnam and those foreign countries are contracting parties or through the diplomatic channel. If the dossiers are invalid, the Ministry of Justice shall return them to the dossier-making agencies and clearly state the reasons therefor.
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Article 15. Procedures to receive and handle civil legal mandates of foreign countries
1. Within ten working days after the receipt of legal mandate dossiers of competent bodies of the requesting countries, the Ministry of Justice shall record in the legal mandate book, examine the validity of the dossiers and transfer them to competent Vietnamese bodies for implementation. If the dossiers are invalid, the Ministry of Justice shall return them to competent bodies of the requesting countries and clearly state the reasons therefor.
2. Within five working days after the receipt of competent Vietnamese bodies written notices on the performance of legal mandates, the Ministry of Justice shall transfer the notices to competent bodies of the requesting countries in accordance with the treaties to which Vietnam and the requesting countries are contracting parties or through the diplomatic channel.
3. If the legal mandate cannot be performed or the time limit has expired but the foreign countries request or need to supplement relevant information or documents, the competent Vietnamese bodies performing the legal mandates shall notify in writing the Ministry of Justice thereof and clearly state the reasons therefor so that the Ministry of Justice shall notify such to the competent bodies of the requesting countries.
Article 16. Expenses for provision of civil legal assistance
1. Expenses for the provision of civil legal assistance between Vietnam and foreign countries shall be paid by requesting countries, unless otherwise agreed upon.
2. Vietnamese individuals or organizations requesting competent state bodies of Vietnam to settle civil matters which give rise to requests for legal mandates overseas shall pay expenses according to regulations of Vietnam and the requested countries. Within ten working days prior to the date of deciding to make legal mandate dossiers, the dossier-making agencies shall notify those individuals or organizations of the expenses for performance of legal mandates. Legal mandate dossiers shall be made and sent overseas only after those individuals or organizations pay the expenses for performance of legal mandates according to regulations.
Vietnamese citizens entitled to legal assistance may be considered for support in expenses for performance of legal mandates according to the Governments regulations.
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Article 17. Scope of criminal legal assistance
The scope of criminal legal assistance between Vietnam and foreign countries covers:
1. Service of papers, dossiers and documents related to criminal legal assistance;
2. Summon of witnesses and experts;
3. Collection and supply of evidence;
4. Penal liability examination;
5. Information sharing;
6. Other requests for criminal legal assistance.
Article 18. Criminal legal mandate dossiers
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a/ A competent proceedings-conducting bodys written request for criminal legal assistance;
b/ The written criminal legal mandate prescribed in Article 19 of this Law.
2. A criminal legal mandate dossier is made in three sets in accordance with this Law and the law of the requested country. Language used in the dossiers complies with Article 5 of this Law.
Article 19. Criminal legal mandate documents.
1. A criminal legal mandate document must contain the following details:
a/ Date, month, year and place of making the document;
b/ Name and address of the legal mandator;
c/ Name and address or head office of the legal mandatory;
d/ Full names and places of permanent residence or working of individuals, full names, addresses or head offices of agencies or organizations directly involved in the criminal legal mandate;
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2. In addition to the contents defined in Clause 1 of this Article, depending on each specific case and at the request of competent bodies of Vietnam or foreign countries, a criminal legal mandate document may cover the following contents:
a/ Signs of identity, nationality and places of residence of subjects in the criminal case or persons having information relating to that case;
b/ Matters to be questioned, questions to be asked, documents, dossiers or material evidences shown and, if possible, a description of characters and appearance of persons requested to produce documents, dossiers and material evidences with regard to evidence collection mandates;
c/ Contents of jobs, questions and requests for summoned witnesses and experts;
d/ Description of assets and places where assets need to be searched for; grounds for determining that the assets acquired from commission of crimes are located in the requesting country and may fall under the jurisdiction of the requesting country; the execution of court judgments or rulings on mandate for search, seizure of, or look for, confiscation of assets acquired from commission of crimes;
dd/ Measures applicable to the criminal legal mandate, which may lead to detection or recovery of assets acquired from commission of crimes;
e/ Requests or procedures of the requesting country to ensure the effective performance of legal mandate, mode or form of supplying information, evidence, documents and articles;
g/ Request for confidentiality of legal mandate;
h/ The purpose, expected time and itinerary of the trip in case competent persons of the requesting country need to arrive in the territory of the requested country for the purpose related to the legal mandate;
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3. In case the information stated in the criminal legal mandate document defined in Clauses 1 and 2 of this Article is not sufficient for the performance of legal mandate, competent bodies of the requested country may also send documents to the requesting country, requesting the supply of additional information and fixing a specific deadline for reply on the additional results.
Article 20. Requesting foreign countries to provide criminal legal assistance
1. Vietnams competent proceedings-conducting bodies, in the course of handling criminal cases, may request competent foreign bodies to provide legal assistance in the following circumstances:
a/ Service of papers, dossiers and documents on persons who are residing in the requested countries;
b/ Summon of witness and experts who are living in the requested countries;
c/ Collection or supply of evidence in the requested countries for settlement of criminal cases in Vietnam;
d/ Examination of penal liability of persons who are staying in the countries of which they bear the nationality;
dd/ Other circumstances prescribed by Vietnamese law.
2. Requests for criminal legal assistance from foreign countries must be made in the form of criminal legal mandate under the provisions of this Law.
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1. Foreign criminal legal mandates are rejected for performance in one of the following cases:
a/ They do not conform to treaties to which Vietnam is a contracting party or to Vietnamese law;
b/ They cause harm to national sovereignty or security;
c/ They are related to the examination of penal liability of a person for his/her criminal act for which he/she was sentenced, declared unguilty or granted general or special amnesty in Vietnam;
d/ They are related to criminal acts for which the penal liability examination statute of limitations has expired under the provisions of Vietnams Penal Code.
dd/ They are related to law-breaking acts which, however, do not constitute a crime under the provisions of Vietnams Penal Code.
2. The performance of criminal legal mandates in Vietnam may be postponed if it obstructs the process of investigation, prosecution, trial or judgment enforcement in Vietnam.
3. When deciding to refuse or postpone the performance of criminal legal mandates as provided for in Clauses 1 and 2 of this Article, the Supreme Peoples Procuracy shall notify the requesting countries of the reasons therefor and measures to be applied.
Article 22. Procedures for criminal legal mandates to foreign countries
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2. Within ten working days after receiving the criminal legal mandate dossiers, the Supreme Peoples Procuracy shall record in the legal mandate book, examine the validity of the dossiers and transfer them to competent bodies of foreign countries under the provisions of treaties to which Vietnam and those foreign countries are contracting parties or through the diplomatic channel. If the dossiers are invalid, the Supreme Peoples Procuracy shall return them to the dossier-making agencies and clearly state the reasons therefor.
3. Within five working days after receiving the documents of competent bodies of foreign countries notifying the performance of criminal legal mandates, the Supreme Peoples Procuracy shall transfer those documents to Vietnams competent bodies which have sent the criminal legal mandate dossiers.
Article 23. Procedures for receiving and handling criminal legal mandates of foreign countries
1. Within fifteen days after receiving the criminal legal mandate dossiers of competent foreign bodies, the Supreme Peoples Procuracy shall record in the legal mandate book, examine the validity of the dossiers and transfer them to competent proceedings-conducting bodies of Vietnam for implementation. If the dossiers are invalid, the Supreme Peoples Procuracy shall return them to the competent bodies of the requesting countries and clearly state the reasons therefor.
2. Within five working days after receiving the written notices of Vietnams competent proceedings-conducting bodies on the performance of the legal mandates, the Supreme Peoples Procuracy shall transfer the notices to competent bodies of the requesting countries under the provisions of treaties to which Vietnam and the requesting countries are contracting parties or through the diplomatic channel.
3. In case the criminal legal mandates cannot be performed or expire while foreign countries request or need to supplement relevant information or documents, the competent proceedings-conducting bodies of Vietnam shall notify in writing the Supreme Peoples Procuracy thereof and clearly state the reasons therefor so that the latter notifies such to competent bodies of the requesting countries.
Article 24. Service of summons on witnesses, experts
1. The requesting countries wishing to summon witnesses or experts who are residing in Vietnam shall send the summons to the Supreme Peoples Procuracy at least ninety days before the expected date of those persons presence in the requesting countries. The procedures to receive summons of witnesses or experts comply with Article 23 of this Law.
2. Agencies serving the summons shall immediately send to the Supreme Peoples Procuracy written certifications of such service so that the latter transfers them to the requesting countries; in case of non-service, they shall notify such in writing and clearly state the reasons therefor.
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1. Persons who are serving their imprisonment sentence in Vietnam may be transferred to competent bodies of requesting countries for supply of evidence in criminal cases in the requesting countries.
2. Competent bodies of Vietnam may transfer persons who are serving their imprisonment sentence as provided for in Clause 1 of this Article only under the following conditions:
a/ Such persons agree with the transfer and to supply evidence in requesting countries;
b/ Competent bodies of the requesting countries commit in writing to ensure their life safety, health, accommodation and meal, travel conditions, duration and mode of receipt and return as well as other specific conditions related to the transfer as proposed by competent proceedings-conducting bodies of Vietnam. Such written commitment is made in accordance with the Vietnamese law and international law related to the transfer of persons who are serving their imprisonment sentence for supply of evidence. The return of transferred persons to competent proceedings-conducting bodies of Vietnam must be made on time as committed.
3. The duration for which the persons who are serving their imprisonment sentence are transferred to and stay in the requesting countries is counted into their sentence-serving duration.
Article 26. Supply of information
Upon request of competent bodies of Vietnam or foreign countries, the Supreme Peoples Procuracy shall request competent bodies of foreign countries or competent proceedings-conducting bodies of Vietnam to supply information relating to criminal legal assistance requests or copies of the criminal judgments or rulings of courts which have taken legal effect on citizens of the requesting countries.
Article 27. Use of information and evidence in criminal legal assistance
1. Information or evidence supplied by competent proceedings-conducting bodies of Vietnam may be used only for the purposes stated in the criminal legal mandates, must not be disclosed or transferred, unless prior written consent of competent bodies of Vietnam is obtained.
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3. When making criminal legal mandates to foreign countries, the Supreme Peoples Procuracy shall request competent bodies of such foreign countries to apply measures to:
a/ Keep secret the information and evidence supplied by Vietnam and use the information and evidence within a scope necessary for the purpose stated in the criminal legal assistance request;
b/ Ensure that information and evidence are not distorted, modified, illegally disclosed or otherwise abused.
1. For cases involving foreigners who committed crimes in the Vietnamese territory but have fled abroad and Vietnam has made an extradition request which was, however, rejected by foreign competent bodies, the agencies which are handling the cases shall transfer the case files to the Supreme Peoples Procuracy for requesting the countries where the offenders are present to continue with the penal liability examination. When deciding to transfer the case files, the Supreme Peoples Procuracy may also transfer material evidence of the cases.
2. The Supreme Peoples Procuracy shall prescribe specific conditions for receipt and transfer of case files and material evidence.
The Supreme Peoples Procuracy shall consider requests of competent bodies of foreign countries for further penal liability examination of Vietnamese citizens who committed crimes overseas and are present in Vietnam in the following order:
1. If the case is being under investigation and falls under the jurisdiction of the proceedings-conducting body of a province or centrally run city (below referred to as provincial-level proceedings-conducting body), such request will be transferred to the provincial-level Peoples Procuracy of the locality where those Vietnamese citizens resided last before fleeing abroad in order to request the investigating body of the same level to conduct the investigation; if the case falls under the jurisdiction of the investigating body of the Ministry of Public Security, it will be transferred to the investigating body of the Ministry of Public Security for investigation;
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3. The investigation, prosecution and trial applicable to the cases specified in this Article comply with Vietnams criminal procedure law.
Article 30. Performance of foreign legal mandates for investigation of foreign nationals in Vietnam
Within five working days after the receipt of legal mandate dossiers for investigation of foreign nationals, who have committed crimes in their countries and are residing in Vietnam, the Supreme Peoples Procuracy shall transfer the dossiers to competent investigating bodies of Vietnam for investigation. Investigation results will be sent to the Supreme Peoples Procuracy for transfer to the requesting countries.
Article 31. Expenses for provision of criminal legal assistance
Expenses for provision of criminal legal assistance between Vietnam and foreign countries will be paid by the requesting countries, unless otherwise agreed upon. In case Vietnam bears the cost of criminal legal mandate performance, such cost will be covered by the state budget.
Article 32. Extradition for penal liability examination or judgment enforcement
1. Extradition means the hand-over by one country to another country of a person who has committed a criminal act or been criminally sentenced and is being present in its territory so that the extradition-requesting country conducts the penal liability examination or judgment enforcement against such person.
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a/ Request competent bodies of foreign countries to extradite to Vietnam persons who have committed criminal acts or been criminally sentenced and their sentences have already taken legal effect for penal liability examination or judgment enforcement;
b/ Extradite foreigners staying in the Vietnamese territory who have committed criminal acts or been criminally sentenced and their sentences have already taken legal effect to requesting countries for penal liability examination or judgment enforcement.
Article 33. Cases of extradition
1. Persons who may be extradited under the provisions of this Law are those who commit criminal acts for which the Penal Code of Vietnam or the criminal law of the requesting country prescribes penalties of one or more years in prison, life imprisonment or death penalty or who have been sentenced to imprisonment by a court of the requesting country and the remaining imprisonment duration is at least six months.
2. Criminal acts of the persons defined in Clause 1 of this Article must not necessarily be in the same category of crimes or the same crime, and the factors that constitute their offenses must not necessarily be the same under the laws of Vietnam and the requesting countries.
3. If criminal acts of the persons defined in Clause 1 of this Article took place outside the territory of the requesting countries, the extradition of offenders may be effected if those acts are criminal acts prescribed in Vietnams Penal Code.
Article 34. Non-examination of penal liability, non-extradition to a third country
Persons extradited to Vietnam will not be examined for penal liability or extradited to a third country for the acts they have committed in foreign countries before their extradition to Vietnam which, however, do not constitute crimes under Vietnams Penal Code and are not stated in the extradition requests of Vietnam or a third country.
In case Vietnam is requested to make extradition, the extradition is effected only when the extradition-requesting countries commit not to examine the penal liability of the extradited persons for criminal acts other than those stated in the extradition requests and not to extradite such persons to a third country, unless it is so agreed in writing by Vietnam.
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1. Competent proceedings-conducting bodies of Vietnam may refuse extradition if the extradition requests fall into one of the following cases:
a/ The persons requested for extradition are Vietnamese citizens;
b/ Under Vietnamese law, the persons requested for extradition cannot be examined for penal liability or serve their penalties due to expired statute of limitations or other lawful reasons;
c/ The persons requested for extradition for penal liability examination have already been condemned by Vietnamese courts with legally effective judgments for the criminal acts stated in the extradition requests or the cases have been suspended under Vietnams criminal procedure law;
d/ The persons requested for extradition are those who are residing in Vietnam for reasons of possible coercion in the extradition-requesting country due to discrimination of race, religion, gender, nationality, ethnicity, social class or political viewpoint;
dd/ The extradition requests are related to different crimes and each crime can be examined for penal liability under the law of the extradition-requesting country, but fail to comply with Clause 1, Article 33 of this Law.
2. Apart from the cases of extradition refusal specified in Clause 1 of this Article, competent proceedings-conducting bodies of Vietnam may refuse extradition if the extradition requests fall into one of the following cases:
a/ Acts committed by persons requested for extradition are not crimes under Vietnams Penal Code;
b/ Persons requested for extradition are being examined for penal liability in Vietnam for the criminal acts stated in the extradition requests.
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Article 36. Extradition request dossiers
1. An extradition request dossier must comprise the following documents:
a/ The competent bodys written request for extradition;
b/ The enclosed documents defined in Article 37 of this Law.
2. An extradition request dossier shall be made in three sets under the provisions of this Law and the law of the requesting country. Language used in the dossier complies with Article 5 of this Law.
Article 37. Written extradition requests and enclosed documents
1. A written extradition request must contain the following details:
a/ Date, month, year and place of making the request;
b/ The reason for the extradition request;
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d/ Name and address of the body requested to effect the extradition;
dd/ Full name, gender, birth date, nationality, residence place of, and other necessary information on, the person requested for extradition.
2. A written extradition request must be enclosed with the following documents:
a/ The summarized content of the case;
b/ Legal provisions applicable for the determination of factors constituting the crime and name of the crime, the provisions on penalties, the statute of limitations for penal liability examination or the statute of limitations for enforcement of penalties against that crime;
c/ Papers on the nationality and place of residence of the person requested for extradition, if any;
d/ Other documents describing the identity and photos of the person requested for extradition as required by international law and practice.
3. In case of requesting extradition for penal liability examination, in addition to the documents specified in Clauses 1 and 2 of this Article, the following documents are also required:
a/ A copy of the arrest or detention warrant of a competent body of the extradition-requesting country;
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4. In case of requesting extradition for judgment enforcement, in addition to the documents specified in Clauses 1 and 2 of this Article, the following documents are also required:
a/ A copy of the criminal judgment or ruling of the court of the extradition-requesting country;
b/ The written certification that the person requested for extradition is the one already sentenced.
Article 38. Receipt of extradition requests
Within twenty days after the receipt of extradition requests and enclosed documents, the Ministry of Public Security shall record in the extradition dossier book and check the dossiers under the provisions of Article 36 of this Law. It may request competent bodies of the extradition-requesting countries to supply information supplementing the dossiers. If it does not receive any additional information within sixty days after the sending of its written requests for additional information, the Ministry of Public Security shall return the dossiers to the extradition-requesting countries and clearly state the reasons therefor. If the dossiers are valid, the Ministry of Public Security shall immediately forward two dossier sets to competent provincial-level Peoples Courts for consideration and decision.
Article 39. Consideration of many countries requests for extradition of one person
1. In case the Ministry of Public Security receives written requests of two or more countries for the extradition of one person for the same crime or many different crimes, it shall assume the prime responsibility for, and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice, the Supreme Peoples Procuracy and the Supreme Peoples Court in, considering them and deciding to meet the extradition request of one of the requesting countries and transfer the extradition request dossiers to the concerned provincial-level Peoples Court for extradition consideration and decision.
2. Upon consideration of extradition requests prescribed in Clause 1 of this Article, apart from legal provisions, the following relevant factors must also be taken into account:
a/ The effectual nationality and last place of residence of the person requested for extradition;
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c/ The time and place of crime commission;
d/ Specific interests of the requesting countries;
dd/ The severity of the crime;
e/ The nationality of the victim;
g/ The possibility of subsequent extradition between the extradition-requesting countries;
h/ The date of making the extradition request;
i/ Other relevant factors.
Article 40. Extradition decision
1. Within ten working days after the receipt of extradition request dossiers transferred by the Ministry of Public Security, the provincial-level Peoples Courts of the localities where the persons requested for extradition are residing, being detained or held in custody or serving their imprisonment sentences shall handle them and notify the Peoples Procuracies of the same level thereof in writing. While preparing to consider the extradition requests, the concerned provincial-level Peoples Courts may request competent bodies of foreign countries to clarify unclear points in the extradition request dossiers. Written extradition requests and written replies shall be sent via the Ministry of Public Security.
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a/ Decision to consider the extradition request when the conditions prescribed by this Law are fully met;
b/ Decision to suspend the consideration of the extradition request and return the dossier to the Ministry of Public Security in case the request does not fall under their jurisdiction, the foreign country withdraws the extradition request or the person requested for extradition has left Vietnam or for other reasons the consideration cannot proceed.
3. Provincial-level Peoples Courts shall consider an extradition request within thirty days after issuing the decision defined at Point a, Clause 2 of this Article and immediately transfer a dossier set to the Peoples Procuracies of the same level.
4. The extradition request shall be considered at sessions of a council consisting of three judges, including a presiding judge, with the participation of members of the Peoples Procuracy of the same level.
The extradition request-considering council works in the following order:
a/ A council member presents the contents of the dossier of the extradition-requesting country and states his/her opinions on the legal grounds of the extradition;
b/ The procurator states the Peoples Procuracys viewpoints on the extradition;
c/ The lawyer or lawful representative of the person requested for extradition presents his/her opinions, if any;
d/ The person requested for extradition states his/her opinions;
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5. Within five working days after the issue of decisions on extradition or extradition refusal, the provincial-level Peoples Courts shall send the decisions to the persons requested for extradition, the Peoples Procuracies of the same level and the Ministry of Public Security for the exercise of rights and performance of obligations according to law.
Persons requested for extradition may appeal and the Peoples Procuracies of the same level may protest within fifteen days, the Supreme Peoples Procuracy may protest within thirty days as from the date the provincial-level Peoples Courts issue decisions. The provincial-level Peoples Courts shall forward the dossiers, appeals and protests to the Supreme Peoples Court within seven days from the date the appeal or protest time limit expires.
Within twenty days after receiving the extradition dossiers and appeals or protests, the Supreme Peoples Court shall open court sessions to consider the appealed or protested decisions of the provincial-level Peoples Courts; the appellate council shall decide on the extradition or extradition refusal. The order for examination of appeals or protests against extradition decisions of provincial-level Peoples Courts complies with Clause 4 of this Article.
6. Legally effective extradition decisions include:
a/ Decisions of first-instance courts, which are not appealed or protested against;
b/ Decisions of the courts of appeal.
Article 41. Precautionary measures for extradition
Upon receipt of official extradition requests of foreign countries, competent bodies of Vietnam may apply precautionary measures under Vietnamese law and treaties to which Vietnam is a contracting party in order to ensure consideration of extradition requests.
Article 42. Enforcement of extradition decisions
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2. After the receipt of decisions on enforcement of extradition decisions, competent police offices shall proceed with the arrest of the extradited persons. The arrest of extradited persons complies with Vietnams criminal procedure law and treaties to which Vietnam is a contracting party.
The Ministry of Public Security shall organize the enforcement of extradition and notify in writing the extradition-requesting countries thereof.
Article 43. Escorting extradited persons
1. The police offices enforcing the extradition decisions shall organize the escort of extradited persons according to the receipt time and place agreed upon in advance in writing by Vietnam and the requesting country. The time for receipt of an extradited person must not exceed fifteen days from the date the decision on enforcement of the extradition decision takes effect.
2. If the time limit agreed upon in advance by the concerned countries expires while the extradition-requesting country declines to receive the extradited person, the Ministry of Public Security shall propose the provincial-level Peoples Court that has issued the extradition decision to cancel the decision on enforcement of that extradition decision and notify the extradition-requesting country thereof.
Article 44. Postponement of enforcement of extradition decisions and temporary extradition
1. When persons requested for extradition are being examined for penal liability or serving their imprisonment sentences in the Vietnamese territory for crimes other than the crimes requested for extradition, provincial-level Peoples Courts that have issued extradition decisions may themselves or at the proposal of the Peoples Procuracies or police offices of the same level postpone the enforcement of the decisions on extradition of those persons until the process of penal liability examination ends or the declared judgments are fully or partly served. The Ministry of Public Security shall notify the extradition-requesting countries in writing of the extradition postponement at least ten working days before the expiration of the time limit for postponement of enforcement of the extradition decisions. The presidents of provincial-level Peoples Courts that have postponed the enforcement of the extradition decisions shall issue decisions to enforce the extradition decisions and send them together with relevant documents and dossiers to the police offices enforcing the extradition decisions for notification to the requesting countries and continued extradition under the specific agreement with the requesting countries.
2. If the postponement of the enforcement of extradition decisions under Clause 1 of this Article obstructs the penal liability examination in foreign countries due to the expiration of the statute of limitation therefor or causes serious difficulties to the penal liability examination for the crimes under extradition requests, at the proposal of the Peoples Procuracies or police offices and the proposal of the requesting countries, competent Peoples Courts, based on Vietnamese law and specific agreements with the requesting countries, may issue decisions permitting the temporary extradition of the persons requested for extradition to the extradition-requesting countries under this Law.
3. Persons subject to temporary extradition must be immediately returned to Vietnam after the criminal proceedings of the requesting countries end or the temporary extradition duration agreed upon by Vietnam and the concerned foreign countries has expired. Upon new extradition requests of the requesting countries, Vietnamese courts shall consider under the provisions of this Law to agree on the new extradition if there are plausible reasons therefor.
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If extradited persons evade penal liability examination or penalty service in foreign countries and return to Vietnam, the extradition-requesting countries may send requests for re-extradition of such persons together with the documents defined in Articles 36 and 37 of this Law; in this case, provincial-level Peoples Courts do not renew the procedures for extradition decisions under Article 40 of this Law; the presidents of provincial-level Peoples Courts who have issued previous extradition decisions shall decide to re-extradite such persons. The escort of extradited persons must again comply with Article 43 of this Law.
Article 46. Transfer of articles and material evidence related to criminal cases
Articles and material evidence acquired from crime commission or serving as proofs at court sessions can be considered for transfer to extradition-requesting countries in accordance with treaties to which Vietnam and the extradition-requesting countries are contracting parties on the basis of respecting the rights of a third party.
1. On the basis of treaties to which Vietnam is a contracting party and the provisions of Vietnamese law, the escort of extradited persons in transit through Vietnamese territory to the extradition-requesting countries shall be carried out only after Vietnamese competent bodies approve in writing the requests of foreign countries.
2. In case of transfer by air and transit without landing on Vietnamese territory, the movement of extradited persons needs not apply for transit in Vietnam; in case of landing, the extraditing countries shall immediately send their requests for transit through Vietnam under Clause 1 of this Article.
Article 48. Extradition expenses
Extradition-requesting countries shall bear all extradition expenses, unless otherwise agreed upon. In case Vietnam bears extradition expenses, those expenses shall be covered by the state budget.
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Article 49. Grounds for transfer of current imprisonment servers
1. Current imprisonment servers may be transferred to the countries of which they bear the nationality or other countries, which agree with the transfer for continued service of their imprisonment sentences already declared against them by the transferring countries.
2. The transfer shall be based on treaties to which Vietnam is a contracting party upon request of current imprisonment servers or request of competent bodies of the transferring countries or receiving countries; in case of non-availability of treaties related to transfer, the transfer of current imprisonment servers is carried out under the direct agreement between competent bodies of Vietnam and the concerned countries in accordance with this Law, other relevant Vietnamese laws, and international law and practice.
Article 50. Conditions for receipt and transfer of current imprisonment servers
1. Persons who are serving their imprisonment penalties in foreign countries may be received back to Vietnam for enforcement of imprisonment penalties when the following conditions are fully met:
a/ They are Vietnamese citizens;
b/ They have their last place of residence in Vietnam;
c/ The criminal acts for which those persons are sentenced in foreign countries also constitute crimes under Vietnamese law;
d/ By the time of receiving the transfer requests, the remaining duration of serving the imprisonment penalties is at least one year; in special cases, this duration may be six months;
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e/ It is so consented by the transferring countries;
g/ It is so consented by the transferees.
2. Persons serving their imprisonment penalties in Vietnam may be transferred to foreign countries for enforcement of imprisonment sentences when the following conditions are fully met:
a/ They are citizens of the receiving countries or are persons permitted for indefinite residence or having their relatives in the receiving countries;
b/ They fully satisfy the conditions defined at Points c, d, e, f and g, Clause 1 of this Article and have fulfilled their civil liabilities, additional sanctions being fines, property confiscation and other legal responsibilities in the judgments;
c/ It is so consented by the receiving countries.
Article 51. Refusal to transfer persons serving their imprisonment penalties
Competent bodies of Vietnam shall refuse to transfer persons serving their imprisonment penalties in Vietnam to foreign countries in one of the following circumstances:
1. When they have grounds to believe that the transferees may be tortured, retaliated or oppressed in the receiving countries;
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Article 52. Dossiers of request for transfer of current imprisonment servers
1. A dossier of request for transfer of a current imprisonment server comprises the following documents:
a/ The written request of a competent body of the country where the subject person is serving his/her imprisonment penalty for the transfer of that person;
b/ The enclosed documents defined in Article 53 of this Law.
2. A dossier of request for transfer of a current imprisonment server shall be made in three sets in accordance with this Law and the law of the requested countries. Language used in the dossiers complies with Article 5 of this Law.
Article 53. Written requests for transfer of current imprisonment servers and enclosed documents
1. A dossier of request for transfer of a current imprisonment server covers the following contents:
a/ The date and place of making the dossier;
b/ The reasons for requesting the transfer of the current imprisonment server;
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d/ The name and address of the body requested to transfer the current imprisonment server;
dd/ Full names, gender, date of birth, nationality and last residence place and the legal grounds on the full legal capacity of the transferee for the transfer and other necessary information on the person requested for the transfer.
2. Enclosed with a written request for transfer of a current imprisonment server are the following information and documents:
a/ Documents to prove that the person requested for transfer has fully satisfied the conditions defined in Article 50 of this Law;
b/ The written summary of the contents of the case, copies of the court judgment or ruling against the current imprisonment server requested for transfer;
c/ The provisions of law applicable to the determination of factors constituting the crime and the name of the crime, the provisions on penalties, the statute of limitations for enforcement of the judgment against such offender;
d/ The written description of the identity characters and photos of the person requested for transfer as provided for by international law and practice;
dd/ Documents and materials certifying the duration for which the person requested for transfer has served his/her imprisonment penalty in the country requested to make the transfer and the remaining duration for which he/she shall serve his/her imprisonment penalty in the receiving country;
e/ Documents related to the health conditions, mental status, medical records of the person requested for transfer, if any;
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Article 54. Receipt of requests for transfer of current imprisonment servers
Within twenty days after the receipt of a written request for transfer of a current imprisonment server and enclosed documents, the Ministry of Public Security shall record in the transfer dossier book and check the dossier as provided for in Articles 52 and 53 of this Law. It may request competent bodies of the transfer-requesting country to supply information supplementing the dossier. If within sixty days after the sending of a written request for additional information the Ministry of Public Security does not receive any additional information, it shall return the dossier to the country requesting the transfer of the current imprisonment server and clearly state the reasons therefor. If the dossier is valid, the Ministry of Public Security shall transfer two dossier sets to the competent provincial-level Peoples Court for consideration and decision.
1. Within ten working days after the receipt of complete dossiers of request for transfer of persons currently serving their imprisonment penalties in Vietnam to foreign countries, which are forwarded by the Ministry of Public Security, provincial-level Peoples Courts of the localities where the condemned persons are serving their imprisonment penalties shall handle the cases and notify in writing the Peoples Procuracies of the same level thereof. While preparing to take into consideration the requests for transfer of current imprisonment servers, the Peoples Courts may request competent bodies of the foreign countries to clarify unclear points in the dossiers of request for transfer. Written requests and written replies are sent via the Ministry of Public Security.
2. Within thirty days from the date of handling the cases, provincial-level Peoples Courts shall, on a case-by-case basis, issue one of the following decisions:
a/ Decision to consider the transfer request when the conditions defined in Article 50 of this Law are fully met;
b/ Decision to suspend the consideration of the transfer requests and return the dossiers to the Ministry of Public Security if the cases do not fall under their jurisdiction or the competent bodies of the foreign countries or persons requesting the transfer withdraw their transfer requests or the persons requested for transfer have left Vietnam, or for other reasons which make the consideration impossible.
3. Provincial-level Peoples Courts shall consider a transfer request within thirty days from the date of issuing the decision defined at Point a, Clause 2 of this Article and immediately transfer a dossier set to the Peoples Procuracies of the same level.
4. Transfer requests shall be considered at sessions of a council comprising three judges, including a presiding judge, with the participation of procurators of the Peoples Procuracies of the same level.
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a/ A council member presents the contents of the dossiers of the transfer-requesting country and states the opinions on legal grounds of the transfer;
b/ The procurator states the viewpoints of the Peoples Procuracies on the transfer;
c/ The lawyer or lawful representative of the person requested for transfer presents his/her opinions, if any;
d/ The transfer-requesting person states his/ her opinions;
dd/ Based on the provisions of this Law, other relevant Vietnamese laws and treaties to which Vietnam is a contracting party, the council discusses and decides by majority on the transfer or refusal of the transfer.
5. Within ten working days after the issue of decisions on transfer or refusal of transfer, the provincial-level Peoples Courts shall send those decisions to the transferees, the Peoples Procuracies of the same level and the Ministry of Public Security for the performance of rights and obligations as prescribed by law.
The transfer requesters may appeal, the Peoples Procuracies of the same level may protest within fifteen days and the Supreme Peoples Procuracy may protest within thirty days after the provincial-level Peoples Courts issue decisions. Provincial-level Peoples Courts must send the dossiers and appeals as well as protests to the Supreme Peoples Court within seven days after the appeal or protest time limit expires.
Within twenty days after the receipt of transfer dossiers and appeals or protests, the Supreme Peoples Court shall meet to consider the appealed or protested decisions of provincial-level Peoples Courts; the appellate consideration council shall decide on the transfer or refusal of transfer. The order of considering appeals or protests against transfer decisions of provincial-level Peoples Courts complies with Clause 4 of this Article.
6. Legally effective transfer decisions include:
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b/ Decisions of the courts of appeal.
Provincial-level Peoples Courts of the localities where the transferees last reside in Vietnam shall decide on the receipt. The order and procedures for consideration of the receipt comply with Article 55 of this Law.
Article 57. Enforcement of decisions on transfer of current imprisonment servers
1. Within five working days after the date the Peoples Courts decisions on transfer of current imprisonment servers take effect, the presidents of the courts which have issued the first-instance decisions shall issue decisions on enforcement of the transfer decisions. The decisions on enforcement of transfer decisions must be addressed to the Peoples Procuracy of the same level, the Ministry of Public Security, the competent bodies of the transfer-requesting countries and the transferees.
2. The Ministry of Public Security shall organize the transfer provided in Clause 1 of this Article and notify the transfer-requesting countries thereof in writing.
Article 58. Continued service of penalties in Vietnam
1. The transferees continued service of imprisonment in Vietnam complies with the provisions of Vietnamese law.
2. Where the prison terms declared by the transferring countries conform to Vietnamese law, competent Peoples Courts shall issue decisions on transfer receipt. The transfer-receiving decisions must clearly state the duration for which the transferees must continue serving their imprisonment penalties in Vietnam.
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3. Upon receipt of notices on special amnesty, general amnesty, penalty exemption or reduction decisions of the transferring countries for current imprisonment servers, the Ministry of Public Security shall immediately send such notices to competent state bodies for consideration and decisions
Article 59. Escort of transferees
1. The Ministry of Public Security enforcing the decisions on transfer of current imprisonment servers shall organize the escort of transferees to the places and at the time agreed upon in writing by competent bodies of Vietnam and the transfer-requesting countries.
2. If the agreed time limit provided for in Clause 1 of this Article has expired while the transfer-requesting countries decline to receive the transferees, the Ministry of Public Security shall propose competent Peoples Courts which have issued transfer decisions to cancel the decisions on enforcement of such transfer decisions and notify the transfer-requesting countries thereof.
Article 60. Expenses for transfer of current imprisonment servers
Countries requesting the transfer of current imprisonment servers shall bear all expenses for the transfer, unless otherwise agreed upon. In case Vietnam bears the expenses for transfer of current imprisonment servers, those expenses shall be covered by the state budget.
STATE BODIES RESPONSIBILITIES IN LEGAL ASSISTANCE ACTIVITIES
Article 61. The Governments responsibilities in legal assistance activities
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2. To direct Government agencies in legal assistance activities; to coordinate with the Supreme Peoples Court and the Supreme Peoples Procuracy in legal assistance activities.
3. To annually report to the National Assembly on legal assistance activities.
Article 62. The Ministry of Justices responsibilities
1. To assist the Government in performing the unified state management of legal assistance activities.
2. To receive, transfer, monitor and urge the implementation of civil legal mandates.
3. To exchange information on legal assistance law and reality with competent bodies of foreign countries under the provisions of treaties to which Vietnam is a contracting party.
4. To propose the conclusion of, accession to, and enforcement of, international treaties on legal assistance; to propose amendments and supplements to, and improvement of, Vietnamese law on legal assistance.
5. To annually report to the Government on legal assistance activities.
Article 63. Responsibilities of the Supreme Peoples Court
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2. To consider and decide on cases of extradition and transfer of current imprisonment servers according to its competence.
3. To biannually and annually notify the Ministry of Justice of the provision of legal assistance under its jurisdiction.
Article 64. Responsibilities of the Supreme Peoples Procuracy
1. To receive, transfer, monitor and urge the performance of criminal legal mandates; to consider and decide on the performance of, and request the competent Peoples Procuracies or investigating bodies to perform criminal legal mandates; to refuse or postpone the performance of criminal legal mandates according to its competence.
2. To perform the prosecution and control legal assistance activities according to its competence.
3. To guide the Peoples Procuracies at all levels to provide criminal legal assistance.
4. To propose the conclusion of, accession to, and implementation of, treaties on legal assistance; to propose amendments and supplements to, and improvement of, Vietnamese law on legal assistance.
5. To biannually and annually notify the Ministry of Justice of the performance of criminal legal mandates.
Article 65. Responsibilities of the Ministry of Public Security
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2. To propose the conclusion of, accession to, and implementation of, treaties on extradition and transfer of current imprisonment servers; to propose amendments and supplements to, and improvement of, Vietnamese law on legal assistance.
3. To biannually and annually notify the Ministry of Justice of the implementation of requests for extradition and transfer of current imprisonment servers.
Article 66. Responsibilities of the Ministry of Foreign Affairs
1. To assume the prime responsibility for, and coordinate with concerned ministries and branches in, considering and deciding on the application of the reciprocity principle in legal assistance relations with concerned countries.
2. To propose the conclusion of, accession to, and implementation of, treaties on legal assistance; to propose amendments and supplements to, and improvement of, Vietnamese law on legal assistance.
3. To biannually and annually notify the Ministry of Justice of the application of reciprocity in legal assistance relations with concerned countries.
Article 67. Responsibilities of Vietnamese representative offices in foreign countries
1. To perform legal mandates related to Vietnamese nationals in host countries at the request of competent state bodies at home under the provisions of Vietnamese law, treaties to which Vietnam is a contracting party which, however, are not contrary to the laws of host countries.
2. To receive legal mandate requests of foreign countries and transfer them to competent bodies at home.
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Article 68. Responsibilities of provincial-level Peoples Courts
1. To perform legal mandates of foreign countries under this Law.
2. To consider and decide on the extradition and transfer of current imprisonment servers or to refuse the extradition and transfer of current imprisonment servers under this Law.
3. To conduct other legal assistance activities according to their competence.
4. To report on the provision of legal assistance to the Supreme Peoples Court.
Article 69. Responsibilities of provincial-level Peoples Procuracies
1. To perform legal mandates of foreign countries under this Law.
2. To conduct other legal assistance activities according to their competence.
3. To perform prosecution and control legal assistance activities according to their competence.
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Article 70. Responsibilities of investigating bodies
1. To receive dossiers on criminal legal assistance, extradition and transfer of current imprisonment servers from competent bodies.
2. To conduct criminal legal assistance activities, extradition and transfer of current imprisonment servers under this Law and other relevant provisions of law.
3. To report on results of the provision of criminal legal assistance, extradition and transfer of current imprisonment servers to competent bodies.
Article 71. Implementation effect
This Law takes effect on July 1, 2008.
Article 72. Implementation guidance
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This Law was passed on November 21, 2007, by the XIIth National Assembly of the Socialist Republic of Vietnam at its second session.
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Phu Trong
- 1 Joint circular No. 15/2011/TTLT-BTP-BNG-TANDTC of September 15, 2011, guiding the application of a number of provisions of the law on Legal Assistance on legal assistance in the civil domain
- 2 Resolution no. 51/2001/NQ-QH10 of December 25, 2001 on amendments and supplements to a number of articles of the 1992 constitution of the socialist republic of Vietnam
- 3 1992 Constitution of the Socialist Republic of Vietnam