Nghị định 78/2008/NĐ-CP của Chính phủ về quản lý hợp tác với nước ngoài về pháp luật

DECREE

ON MANAGEMENT OF LEGAL COOPERATION WITH FOREIGN PARTNERS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
At the proposal of the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation and subjects of application

1. This Decree applies to activities of legal cooperation between ministries, ministerial-level agencies, government-attached agencies and central agencies of socio-political organizations, social organizations and socio-professional organizations, and Peoples Committees of provinces or centrally run cities (below referred to as managing agencies) and foreign governmental agencies, international inte-governmental organizations and foreign non-governmental organizations (below referred to as foreign agencies and organizations).

2. Subordinate units of managing agencies mentioned in Clause 1 of this Article shall conduct legal cooperation activities with foreign partners through their managing agencies.

Article 2.- Principles on legal cooperation with foreign partners

1. Legal cooperation with foreign partners must be undertaken on the basis of assuring national independence, sovereignty and security and social order and safety, observing the constitution, laws, traditions and customs of the nation, and ensuring effectiveness, practicality and non-duplication.

2. Legal cooperation with foreign partners must be undertaken on the basis of documents of programs, plans and projects (below referred to as programs and projects) signed between managing agencies and foreign agencies or organizations after they are permitted by competent Vietnamese bodies specified in-Article 14 of this Decree.

3. Contents of cooperation programs and projects must be based on the line, policies and socio-economic development strategies of the Partv and State, lesal svstem formulation and perfection strategy; the judicial reform strategy and legislative programs of the National Assembly, the level of priority of issues under cooperation and the cooperation capabilities of managing agencies as well as foreign agencies and organizations.

4. The formulation, permission for signing, and implementation of cooperation programs and projects must comply with the provisions of this Decree, current regulations on management and use of official development assistance (ODA), management and use of foreign non-governmental aid and other relevant legal documents.

Article 3.- Contents of cooperation

Legal cooperation with foreign countries provided for in this Decree includes technical assistance activities in the following areas:

1. Drafting, evaluation and examination of legal documents.

2. Organization of the enforcement of legal documents and treaties to which Vietnam is a contracting party; supervision of the implementation of law.

3. Capacity building for legislative bodies, investigation, prosecution, adjudication, judgment enforcement, judicial administrative andjudicial assistance bodies.

4. Law training at tertiary and higher levels, professional training for raising the qualifications of cadres and public employees engaged in drafting legal documents, judges, court examiners, court clerks, prosecutors, investigators, judgment enforcers, j udgment enforcement examiners, legal assistants, criminal sentence enforcers, arbitrators, public notaries, registry officers, lawyers and holders of other judicial titles.

5. Law information, law dissemination and education and legal assistance.

6. Other cooperation activities in accordance with law.

Article 4.- Forms of cooperation

1. Conclusion and implementation of treaties, programs and projects on legal cooperation with foreign partners.

2. Organization of law conferences, workshops, seminars and intensive training courses with the participation or financial support of foreign agencies or organizations.

3. Organization of legal study and experience sharing tours.

4. Exchange of legal materials, including law textbooks, lectures, legal documents and law books.

5. Provision of consultants on contents specified in Article 3 of this Decree.

6. Other forms of cooperation in accordance with law.

Chapter II

MOBILIZATION AND COORDINATION OF COOPERATION PROGRAMS AND PROJECTS

Article 5.- Mobilization of cooperation programs and projects

1. Mobilization of cooperation programs or projects shall be carried out on the basis of the socio-economic development strategy; ODA attraction and use orientations, lawmaking strategy; judicial reform strategy; legislative programs of the National Assembly, and regulations on ODA management and use and management and use of foreign non-governmental aid.

2. Managing agencies that wish to enter into legal cooperation with foreign partners and have had cooperation partners shall closely collaborate with the Ministry of Justice and concerned agencies in forming contents of cooperation in the form of programs or projects on legal cooperaiion with foreign partners

3. Managing agencies that wish to enter into legal cooperaiion with foreign partners but have not yet found any cooperation partners may request the Ministry of Justice, the Ministry of Planning and Investment or the Vietnam Committee for Foreign Non-Governmental Organization Affairs to help finding partners.

Article 6.- Coordination of cooperation activities

1. The Ministry of Justice shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, preparing for and organizing conferences on coordination of international legal assistance.

2. On the basis of ODA programs and projects in the legal domain on the ODA calling list already approved by the Prime Minister and the list of programs and projects proposed for mobilization of foreign non-governmental aid and financing commitments of foreign partners, the Ministry of Justice shall coordinate international cooperation
activities according to the following criteria:

a. Level of priority of cooperation matter;

b. Aid management experience and receipt and use capability;

c. Non-duplication of cooperation content.

3. If an area of cooperation to which the foreign partner makes a financing commitment has enjoyed financial assistance from many other partners or is not suitable to the level of cooperation priority, the Ministry of Justice shall coordinate with the concerned managing agency in negotiating with the foreign partner on switching its financing commitment to a more appropriate area.

Chapter III

APPRAISAL OF COOPERATION PROGRAMS AND PROJECTS

Article 7.- Competence to conduct appraisal

1. Programs or projects on legal cooperation with foreign partners subject to approval of the Prime Minister must be appraised by the Ministry of Justice before being submitted to the Prime Minister for consideration and approval.

2. In the course of appraisal of a legal cooperation program or project, the Ministry of Justice has the power to:

a/ Request the managing agency to give explanations on the program or project, and supply relevant information and documents in case there are still unclear contents or controversial issues in the draft program or project document:

b/ Hold meetings, when necessary, with the managing agency and representatives of concerned agencies and organizations, consultancy organizations and independent consultants to discuss and exchange opinions on the appraised contents.

Article 8. Responsibilities of managing agencies in the appraisal

In the course of appraisal, the managing agency shall:

1. Closely coordinate with the Ministry of Justice in the process of negotiation on the legal cooperation program or project to ensure the quality of draft program or project document and the quality of the appraisal report.

2. Send a complete dossier as stipulated in Article 11 of this Decree to the Ministry of Justice for appraisal.

3. Supply necessary information and documents related to the draft cooperation program or project document at the request of the Ministry of Justice; and give explanations on the document at the request of the Ministry of Justice.

4. Study and revise the draft document of the legal cooperation program or project on the basis of the Ministry of Justices written appraisal before submitting the program or project to the Prime Minister for approval.

Article 9.- Principles of appraisal

The appraisal of programs or projects must abide by the following principles:

1. Assuring objectivity and scientificity.

2. Observing the order, procedures and time limit for appraisal stipulated in this Decree and other relevant legal documents.

Article 10. Contents to be appraised

A program or project on legal cooperation with a foreign partner shall be appraised in the following contents:

1. Necessity of the program or project.

2. Compliance of the objective, content and form of cooperation and the expected output of the program or project with the contents specified in Clause 2. Article 2 of this Decree and the cooperation priority, functions and tasks of the managing agency.

3. Constitutionality and legality of the program or project and its compatibility with Vietnamese laws; and conformity of the program or project with treaties to which Vietnam is a contracting party.

4. Non-duplication with other programs and projects.

5. Feasibility of the program or project; status, professional capability and cooperation experience of the foreign agency or organization.

6. Socio-economic impacts of the program or project implementation; possible adverse effects of the program or project.

7. Language and techniques used in document drafting.

Article 11.- Dossiers for appraisal

The managing agency shall send to the Ministry of Justice 5 sets of a dossier for appraisal, consisting the following papers:

1. A written request for appraisal.

2. A draft of the submission report to the body competent to approve the program or project.

3. The draft program or project document.

4. Written explanations, documents proving the foreign agencys or organizations commitment.

5. A report on the opinions of concerned ministries and branches on the legal cooperation program or project and copies of these opinions.

Article 12.- Receipt of dossiers for appraisal

1. The Ministry of Justice shall receive and check dossiers for appraisal.

2. Within 3 working days after receiving a dossier for appraisal, if finding that the dossier lacks documents specified in Article 11 of this Decree, the Ministry of Justice may request the managing agency to supplement such documents.

3. Within 5 working days after receiving the request of the Ministry of Justice for dossier supplementation, the agency in charge of drafting and negotiation shall supplement the dossier for appraisal.

4. The time limit for appraisal is 10 working days, counting from the date the Ministry of Justice receives a valid dossier.

Article 13.- Appraisal councils

1. An appraisal council for a program or project on legal cooperation with a foreign partner subject to approval of the Prime Minister shall be set up by the Ministry of Justice in the following cases:

a/ The project is related to many ministries and branches;

b/ Ministries and branches hold different opinions on the contents specified in Article 10 of this Decree;

c/ The program and project has the Ministry of Justice as its managing agency.

2. An appraisal council is composed of the chairman, the secretary and members that are representatives of the Ministry of Justice, the Ministry of Planning and Investment, the Ministry of Foreign Affairs, the Ministry of Finance, the Government Office, the Vietnam Committee for Foreign Non-Governmental Organization Affairs and concerned agencies and organizations. The chairman and secretary shall be appointed by the Minister of Justice.

3. The Ministry of Justice shall give guidance on the working regulation of appraisal councils for programs and projects on legal cooperation with foreign partners.

Chapter IV

PROCEDURES FOR SUBMISSION AND IMPLEMENTATION OF COOPERATION PROGRAMS AND PROJECTS

Article 14. Procedures for submission of programs or projects

1. The submission of programs or projects to competent bodies for approval must comply with the procedures and order prescribed by the law on management and use of official development assistance and foreign non-governmental aid.

2. For programs and projects subject to approval of the Prime Minister, managing agencies shall collect appraisal opinions of the Ministry of Justice before submitting them to the Prime Minister for consideration and approval.

3. For programs and projects subject to approval of managing agencies, managing agencies shall collect comments of the Ministry of Justice and concerned agencies before considering and approving these programs and projects.

Article 15. Implementation of programs or projects

1. Managing agencies may only implement, or permit implementation of, programs or projects after the signed program or project documents take legal effect.

2. The implementation of cooperation contents and specific activities of programs or projects must be carefully prepared to ensure attainment of expected outputs, practicability, compliance with set objectives and protection of state secrets.

3. Procedures for decision on inbound and outbound visits and supply of information under cooperation programs and projects must comply with current law.

4. In the course of implementation, managing agencies shall regularly and closely collaborate with the Ministry of Justice, the Ministry of Public Security, the Ministry of Foreign Affairs, the Ministry of Planning and Investment, Ministry of Finance and the Vietnam Committee for Foreign Non-Governmental Organization Affairs on issues falling under the specialized management of each agency.

Article 16. Revision, supplementation and adjustment of cooperation programs and projects

1. The revision, supplementation and adjustment of legal cooperation programs and projects must comply with the law on management and use of official development assistance and foreign non-governmental aid.

2. In the course of implementation, if there arises a need to revise and/or supplement the legal cooperation program or project which will result in a change of the objective of the program or project or the concluded treaty, the managing agency shall carry out appraisal procedures and submit such revision and/or supplement to a competent body for consideration and approval as stipulated in Article 14 of this Decree.

Article 17.- Termination and suspension of implementation and cancellation of cooperation programs and projects

The termination and suspension of implementation and cancellation of programs and projects on legal cooperation with foreign partners shall be decided by competent state bodies in accordance with the law on conclusion and implementation of treaties and the law on management and use of official development assistance and foreign non-governmental aid.

Chapter V

MONITORING AND EVALUATION OF COOPERATION PROGRAMS AND PROJECTS

Article 18.- Responsibilities for monitoring and evaluating cooperation programs and projects

1. The management boards of programs or projects shall regularly monitor and evaluate their programs or projects.

2. Directors of programs or projects shall direct, urge and support the management boards of programs or projects in monitoring and evaluating programs or projects.

3. Managing agencies are responsible for planning and working with concerned agencies in conducting or hiring consultants to conduct evaluation of impacts of programs or projects.

4. The Ministry of Justice shall assume the prime responsibility for, and coordinate with concerned ministries and branches in, supervising and evaluating the capability of managing the implementation of programs and projects on legal cooperation with foreign partners.

5. The Ministry of Justice are responsible for formulating indicators for making periodical statistics on the receipt and implementation of programs and projects on legal cooperation with foreign partners; coordinate with concerned agencies.in setting up and operating a system of information for program and project monitoring and evaluation, facilitating information sharing and exploitation of this system.

Article 19.- Reporting on the implementation of programs and projects

1. Managing agencies shall send biannual and annual reports to the Ministry of Justice on the implementation of activities of legal cooperation with foreign partners and tentative plans on the implementation of cooperation programs and projects for the subsequent period according to the forms set by the Ministry of Justice.

2. The Ministry of Justice shall sum up, analyze and evaluate activities of legal cooperation with foreign partners and make annual reports thereon to the Prime Minister.

Article 20.- Inspection and examination of the implementation of programs and projects

1. The Ministry of Justice shall take responsibility to the Prime Minister for examining the implementation of legal cooperation programs and projects by managing agencies; managing agencies shall create favorable conditions for the examination.

2. Managing agencies shall conduct specialized examination in accordance with law.

3. In case of necessity, the Ministry of Justice may set up inter-disciplinary examination teams to examine the implementation of programs or projects.

4. In conducting examination, the Ministry of Justice and inter-disciplinary examination teams may request managing agencies of the programs or projects to rectify cooperation activities; if detecting illegal acts in the implementation of the cooperation programs, plans or projects, they shall report them to the Prime Minister for consideration and handling in accordance with law.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 21.- State management of legal cooperation with foreign countries

1. The Government performs the unified management of activities of legal cooperation with foreign partners, covering:

a/ Promulgating legal documents on legal cooperation with foreign partners;

b/ Deciding on cooperation guidelines and orientations;

c/ Directing the negotiation, signing and implementation of cooperation programs and projects;

d/ Examining and inspecting the implementation of cooperation programs and projects:

e/ Submitting to the State President for consideration and decision legal cooperation programs and projects to be signed in the name of the State in accordance with the law on conclusion and implementation of treaties:

f/ Deciding on the negotiation, signing, revision, supplementation, extension, termination or cancellation of programs and projects on legal cooperation with foreign partners to be signed in the name of the State or Government in accordance with the law on conclusion and implementation of treaties.

2. The Prime Minister shall approve guidelines on the negotiation, signing, revision, supplementation, extension, termination or cancellation of programs and projects falling under his competence.

Article 22.- Responsibilities of the Ministry of Justice

The Ministry of Justice shall take responsibility to the Government for performing the unified management of activities of legal cooperation with foreign partners, having the following tasks and powers:

1. Drafting and submitting to competent state agencies for promulgation and promulgating according to its competence legal documents on legal cooperation with foreign partners.

2. Formulating and submitting to the Government guidelines and orientations for legal cooperation with foreign partners.

3. Summing up and coordinating contents of programs, plans and projects on legal cooperation with foreign partners.

4. Evaluating the contents of cooperation programs, plans and projects, including the revision, supplementation or extension of these programs, plans and projects.

5. Issuing forms of report on the implementation of activities of legal cooperation with foreign partners.

6. Coordinating with the Ministry of Planning and Investment, the Ministry of Foreign Affairs, the Ministry of Public Security, the Vietnam Committee for Foreign Non-Governmental Organization Affairs and concerned ministries and branches in monitoring, examining and evaluating the implementation of programs, plans and projects on legal cooperation with foreign partners.

7. Guiding, urging and supervising managing agencies specified in Article 1 of this Decree in implementing cooperation activities in accordance with this Decree; if detecting acts of violation, proposing appropriate solutions to the Prime Minister for handling.

8. Conducting preliminary and final reviews, making statistics and sending reports to the Prime Minister on the implementation of programs, plans and projects on legal cooperation with foreign partners.

Article 23.- Responsibilities of ministries, ministerial-level agencies and government-attached agencies

1. The Ministry of Planning and Investment shall manage programs, plans and projects of legal cooperation with foreign partners which are funded with ODA capital in accordance with the law on management and use of ODA; and coordinate with the Ministry of Justice in performing this task.

2. The Vietnam Committee for Foreign Non-Governmental Organization Affairs shall manage programs, plans and projects of legal cooperation with foreign partners which are financed by foreign non-governmental organizations in accordance with the law on management and use of foreign non-governmental aid: and coordinate with the Ministry of Justice in performing this task.

3. The Ministry of Foreign Affairs, the Ministry of Public Security, the Ministry of Finance, other ministries, and ministerial-level agencies and government-attached agencies shall perform the state management of cooperation programs, plans and projects in accordance with law; and shall coordinate with the Ministry of Justice in managing legal cooperation with foreign partners under the provisions of this Decree.

Article 24.- Responsibilities of managing agencies

- Managing agencies are responsible for the selection of foreign partners and contents of cooperation; approve programs and projects on legal cooperation with foreign partners according to their decentralized competence; effectively implement the signed programs, plans and projects on legal cooperation with foreign partners and ensure strict abidance by the cooperation principles set forth in Article 2 of this Decree.

Article 25.- Handling of violations

1. Programs and projects on legal cooperation between managing agencies and foreign partners which are not appraised and approved by competent bodies specified in this Decree shall be cancelled.

2. Organizations and individuals that violate the provisions of this Decree and relevant laws shall, depending on the nature of their violations, be handled in accordance with law; if their violations cause property damage, they shall pay compensations therefor in accordance with law.

Article 26.- Application to National Assembly agencies, the Supreme Peoples Courts and the Supreme Peoples Procuracys programs and projects on legal cooperation with foreign partners

The provisions of this Decree are also applicable to National Assembly agencies, the Supreme Peoples Court and the Supreme Peoples Procuracy that cany out legal cooperation with foreign partners.

Article 27.- Implementation effect

This Decree takes effect 15 days after its publication in "CONG BAO" and replaces the Governments Decree No. 103/1998/ND-CP of December 26, 1998, on management of legal cooperation with foreign partners.