Laws of Vietnam

CIRCULAR No.1793/1997/TT-BTP OF DECEMBER 30, 1997 ON PROFESSIONAL GUIDANCES FOR LEGAL DEPARTMENTS OF THE MINISTRIES, THE MINISTERIAL-LEVEL AGENCIES AND THE AGENCIES ATTACHED TO THE GOVERNMENT

In furtherance of Decree No.94-CP of the Government of September 6, 1997 on organizing legal departments of the ministries, the ministerial-level agencies and the agencies attached to the Government (hereafter referred collectively to as the ministerial legal departments), the Ministry of Justice hereby provides the following guidances on a number of issues regarding the professional activities of the ministerial legal departments:

I. In the legislative work:

To implement Article 4 of Decree No.94-CP, a ministerial legal department shall perform the following tasks:

1. To work out draft legislative programs (Clause 1).

1.1. Basing itself on the annual plan or the term of the National Assembly, the ministerial legal department shall request in writing units (departments, institutes...) within its ministry or branch to make proposals on the promulgation of legal documents (codes, laws, ordinances, documents issued by the Government, and documents issued by its own ministry or branch), so as to regulate the relations within the scope of management of the ministry or branch.

1.2. A written proposal on the promulgation of a legal document shall have to clearly state the following:

- The necessity to promulgate the proposed legal document;

- The form of such document;

- The objects and scope of regulation and projected composition of the document to be promulgated;

- The unit to be in charge of the drafting and units expected to participate in the drafting; the coordination with concerned agencies in drafting the document;

- The time, tempo and other necessary conditions to ensure the drafting of the document.

1.3. The ministerial legal department is tasked to propose the promulgation of legal documents.

1.4. The time-limit for the ministerial legal department to request units to make proposals on the promulgation of legal documents and sum up proposals on the annual legislative program of its own ministry or branch shall be no later than the end of the preceding year; as for a program corresponding the National Assembly's term, the time-limit for making and summing up proposals must be no later than the end of June of the last year of the preceding National Assembly's term.

1.5. After receiving lists of legal documents proposed by units, the ministerial legal department shall sum up them into an annual draft legislative program of its own ministry or branch or a legislative program corresponding the National Assembly's term.

1.6. The ministerial legal department shall hold a meeting with units in its ministry or branch, inviting representatives from the Ministry of Justice to attend such meeting, which shall be chaired by the ministry or branch leaders, to consider the draft legislative program.

Basing itself on the conclusions of the ministry or branch leaders, the ministerial legal department shall draw up a draft legislative program of its own ministry or branch, submit it to the minister or the head of the branch for decision, signing and submission to the Ministry of Justice and the Government's Office within the time-limit prescribed in Clause 3, Article 9 of Decree No.101-CP of the Government issued on September 23, 1997. The draft legislative program of the ministry or branch must state clearly all issues as defined in Point 1.2, this Section regarding each project.

1.7. When the legislative program is adopted by the competent level (the National Assembly, the Government, the ministry or the branch), the ministerial legal department shall propose in writing to the ministry or branch leaders for consideration and decision a plan on the implementation of such legislative program, and at the same time have to monitor and urge the units assigned by the ministry or branch to assume the prime responsibility in drafting legal documents, thus ensuring the tempo and quality of the drafting. The ministerial legal department shall appoint its personnel to directly take part in drafting legal documents.

1.8. The ministerial legal department shall have to submit to the ministry or branch leaders monthly, quarterly, biannual, annual or extraordinary reports on the implementation of the legislative program, the difficulties and problems arising in the course of implementation, and promptly make written detailed proposals and suggestions to the ministry or branch leaders for consideration and solution.

2. To evaluate the legality of documents drafted by other units of the ministry or branch (Clause 2).

2.1. According to Clause 2, Article 4 of Decree No.94-CP, the ministerial legal department shall only evaluate the legality of documents drafted by other units before they are submitted to the ministry or branch leaders.

The evaluation of the legality of a draft document shall be conducted on the basis of considering and assessing the following matters:

- The necessity to promulgate the document;

- The conformity of the form of document with the issue that needs to be solved.

- The objects and scope of regulation by the document;

- The document's composition;

- The constitutionality, legality and uniformity of the document in the law system;

- The document's feasibility;

- The document drafting technique (terms, words, sentences, articles, style...).

Before conducting the evaluation, the ministerial legal department shall request in writing units that assume the prime drafting responsibility to provide the following:

- The draft report or explanation on the draft legal document;

- The final draft prepared by the unit that assumes the prime drafting responsibility;

- Proposals and suggestions on the annulment, amendment, supplement, promulgation or retainment of the related provisions or documents;

- The sum-up of comments from other units;

- Reference materials (if any).

2.2. While conducting the evaluation, if there appears any ambiguity, the ministerial legal department shall exchange opinions with the drafting unit or consult the relevant units of the Ministry of Justice, such as the Civil and Economic Legislation Department, the Penal and Administrative Legislation Department, the International Cooperation Department... for clarification. In cases where still remains divergence of opinion on the related matters, the ministerial legal department shall have the right to reserve its opinion and report it to the ministry or branch leaders for consideration and decision.

2.3. Within the time-limit set by the ministry or branch leaders, the ministerial legal department shall have to send the evaluation report to the ministry or branch leaders for consideration and decision and at the same time send the evaluated document to the drafting unit.

3. To draft or take part in drafting legal documents (Clause 3).

3.1. When assigned to directly draft legal documents, the ministerial legal department shall have to take initiative in working out the plan and tempo therefor, proposing the establishment of a drafting board and an editing team, which shall be submitted to the ministry or branch leaders for consideration and decision, and at the same time prepare necessary conditions for the performance of the assigned task.

The ministerial legal department shall take initiative in coordinating with the relevant units of the ministry or branch; the relevant units of the Ministry of Justice and the concerned agencies in organizing the study, survey, review and assessment of the implementation of related legal documents and prepare to draft the legal documents.

When a draft legal document is ready, the ministerial legal department shall submit it to the ministry or branch leaders for consideration and decision. The ministerial legal department shall take responsibility before the ministry or branch leaders for the contents as well as the legality of the draft legal document.

3.2. If other units in the ministry or branch are assigned to assume the prime responsibility in drafting legal documents, the ministerial legal department shall have to appoint its personnel to participate therein right from the beginning. In the drafting process, the ministerial legal department shall not only assist the involved units in the drafting technique but also, within its own capability, contribute comments on the documents' contents; if opinions on the documents' contents are diverse, the ministerial legal department may propose the ministry or branch leaders to organize discussions with participation of officials from the Ministry of Justice and the concerned agencies in order to clarify the matters.

4. To act as the main body to assist the minister or the branch head in contributing comments to legal documents drafted and sent to it by other ministries, branches or localities for opinions (Clause 4).

4.1. Under the assignment by the ministry or branch leaders, the unit(s) which shall have to study and comment legal documents sent by other ministries, branches or localities for opinions, shall be the one(s) to which the contents of such legal documents are related.

4.2. The ministerial legal department's role as a main body in contributing comments to the draft legal documents sent to it from other ministries, branches or localities for opinions, shall be seen through the following:

- The professional unit assigned by the ministry or branch leaders to assume the prime responsibility in studying and contributing comments to a legal document shall have to send the ministerial legal department a copy of the draft document so that the latter may study it, monitor the commenting tempo, thus ensuring the time-limit set by the ministry and branch;

- If the written comment contains matters related to different units in the ministry or branch or to other agencies, the ministerial legal department shall take initiative in requesting the unit in charge to give its opinions or propose the ministry or branch leaders to organize meetings with participation of officials of the Ministry of Justice and the concerned agencies to exchange opinions on the related matters;

- After preparing the draft of comments, the unit in charge shall have to send it to the ministerial legal department so that the latter may give the final touch to the draft and submit it to the ministry or branch leaders for ratification. In cases where opinions of the ministerial legal department and the drafting unit are diverse, the ministerial legal department shall have to discuss with such unit before submitting the draft to the ministry or branch leaders; if their opinions remain different, the ministerial legal department shall send a report (attached with the draft written comment) to the ministry or branch leaders for consideration and decision.

II. In the revision and systemization of legal documents.

To implement Article 5 of Decree No.94-CP, the ministerial legal department shall perform the following tasks:

1. To organize the revision and systemization of legal documents, including the documents issued by the National Assembly, the National Assembly Standing Committee, the State President, the Government, the Prime Minister, the ministries, the ministerial-level agencies and the agencies attached to the Government, and joint documents which, the ministries or branches have to implement or organize the implementation thereof in accordance with Decrees on their respective functions, tasks and powers. More concretely:

1.1. To provide professional guidances, urge and inspect the revision of documents conducted by units attached to the ministry or branch;

1.2. To regularly update legal documents related to the ministry's or branch's activities;

1.3. To propose the ministry or branch leaders to determine which legal documents should be revised by each unit in the ministry or branch, based on the tasks and powers of such unit;

1.4. To directly revise legal documents related to the ministry's or branch's activities, as assigned by the ministry or branch leaders;

1.5. To organize meetings and workshops with participation of representatives from the relevant units under the ministry or branch; in case of necessity, it may invite representatives from the Ministry of Justice (the Legislation Departments and the relevant units) and from the concerned agencies to such meetings so that they may propose plans to the results of the revision of legal documents. The handling of revision results should be based on the provisions of the current Constitution, codes, laws and ordinances so as to ensure the constitutionality, legality and uniformity of the system of legal documents;

1.6. To sum up and submit to the minister or the branch head plans for handling the revision results as prescribed in Clause 2, Article 5 of Decree No.94-CP.

2. To prepare and submit to the minister or the branch head the comments to be contributed to perfecting files of the related systemized legal documents drafted by the other ministries, branches and People's Committees of the provinces and cities directly under the Central Government.

3. To regularly consult and submit to professional direction and guidance of the Ministry of Justice regarding the revision and systemization of legal documents; coordinate with the Ministry of Justice in compiling collections and selections of legal documents.

III. Regarding the work of the law dissemination, education and inspection of law observance.

To implement Article 6, Decree No.94-CP, the ministerial legal department shall perform the following tasks:

1. To conduct the law dissemination and education (Clause 1)

1.1. To propose annual and long-term plans on law dissemination and education to be submitted to the ministry or branch leaders for consideration and decision, based on the requirements of raising the sense of law of officials and employees in the entire branch.

As for the dissemination of legal documents elaborated by the ministry or branch and to be observed by the majority of the population as well as for the legal documents elaborated by other agencies and already guided for dissemination by the Ministry of Justice, the ministerial legal department shall coordinate with the Ministry of Justice (the Law Dissemination and Education Department) in working out programs on the dissemination and education of such documents for officials and employees within the branch and for people from all walks of life.

1.2. To organize directly or jointly with units under the ministry or branch and with the Ministry of Justice (the Law Dissemination and Education Department) activities related to the law information, dissemination and education for officials and employees in such units. More concretely:

- To compile documents for law dissemination;

- To organize training courses on legal documents for officials and employees in the entire branch;

- To disseminate legislation governing the fields under the ministry's or branch's management on mass media, first of all on the media directly managed by the ministry or branch;

- To include law training and fostering programs into professional training and fostering programs for managerial cadres of the branch;

- To include law-related contents to collective activities of socio-political organizations, clubs and other mass organizations.

2. To inspect the observance of law (Clauses 2, 3 and 4).

The ministerial legal department shall coordinate with the ministry or branch inspectorate and the concerned units within the ministry or branch in assisting the ministry or branch leaders to perform the following:

2.1. Working out plans for periodical or extraordinary inspection of the law observance by officials and employees in the ministry or branch;

2.2. Monitoring and urging the law observance in the ministry or branch; regularly surveying, reviewing and assessing the situation on law awareness and observance by officials and employees in the branch so as to propose the ministry or branch leaders to take necessary measures;

2.3. Regularly contacting the relevant units under the Ministry of Justice for the exchange of opinions on the application of laws, contributing opinions on the handling of law breaches within the branch;

2.4. Proposing to the ministry or branch leaders measures to prevent or overcome violations of law in the branch and perfect the law system and law enforcement mechanism, including the provisions and law enforcement mechanism subject to State management by the ministry or branch.

IV. On the work of reporting and commendation.

1. In order to enhance the working relationship with and assist the Ministry of Justice to well perform the task of providing professional guidances for the operation of the ministerial legal departments as prescribed in Article 2, Decree No.94-CP, the ministerial legal departments shall submit biannual, annual or extraordinary reports on their organization and operation to the leaders of their respective ministries or branches and at the same time to the Ministry of Justice and the Government's Office.

2. The Ministry of Justice shall reward the ministerial legal departments, their officials and employees at the proposals of their parent ministries or branches, after consulting the Emulation Council under the Ministry of Justice.

Any problem arising in the legal professional activities should be promptly reported to the Ministry of Justice for guidance and solution.

The Minister of Justice

NGUYEN DINH LOC