One of the important orientations of Resolution No. 48-NQ/TW dated May 24, 2005 of the Politburo on building and completing the Vietnamese legal system by 2010, with orientations towards 2020, is: “Building and completing laws on judicial assistance (lawyers, notaries, appraisal, judicial police...) in a manner that increasingly meets the diverse and convenient legal support needs of the people and businesses; strongly socializing judicial assistance activities; combining state management with self-regulation of professional social organizations.”
Article table of contents
The Lawyer, along with other judicial and auxiliary judicial functions, is increasingly playing a particularly important role in implementing the contents of the judicial reform strategy and in building the Socialist Republic of Vietnam under the rule of law. To concretize the guidelines and directions of the Communist Party and the state, the legal services activities of lawyers need to be extended to various fields and further improved in quality.
Previously, the role of lawyers was primarily emphasized and clearly demonstrated during the stages of the litigation process. However, with the current increasing demand for legal services, lawyers now undertake many tasks, even in the post-judgment and court decision stages. In this article, we analyze several solutions to further enhance the role of lawyers during the civil judgment enforcement (CJEDS) phase.
Article 22 of the Law on Lawyers of 2006, as amended and supplemented in 2012 (referred to as the Law on Lawyers) regulates the scope of a lawyer's practice: “...Providing legal advice; representing clients outside litigation to conduct legal-related tasks; performing other legal services as stipulated by this Law.” Lawyers can represent clients outside litigation to conduct legal-related tasks and perform other legal services as stipulated by the Law on Lawyers. Lawyers can participate in defending the rights and interests of litigants during the enforcement process. In the CJEDS phase, the activities of lawyers are diverse and abundant, as demonstrated in tasks such as legal advice, representing litigants under authorization to handle enforcement matters... As legal advisors, legal aid providers, and representatives for litigants during the CJEDS process, lawyer participation is very necessary. Lawyers play a role in promoting and improving the efficiency of the enforcement process. However, in recent times, lawyer participation in the CJEDS phase has been rather vague, with few cases involving lawyers, and even in those cases, the participation has been limited, failing to fully leverage the role of lawyers in this activity.
According to us, this issue stems from various reasons, both subjective and objective. Subjectively: the CJEDS phase often takes a long time because asset handling processes are time-consuming, leading some lawyers to be “reluctant” to participate in this process. Furthermore, there are not many specialized enforcement lawyers, which limits client choices. Objectively: the law on CJEDS lacks specific regulations regarding lawyer participation in the enforcement phase, and public awareness of lawyers' roles in CJEDS is limited...
It can be seen that the role of lawyers during the enforcement phase has many positive effects, not only for the rights and interests of the litigants but also in contributing to the transparency of the enforcement process by the executors, thereby promoting and improving the quality of enforcement work and judicial work overall. Enhancing the role of lawyers in CJEDS is an important and necessary requirement in current judicial practice. To achieve this, the authors believe that several solutions should be implemented effectively as follows:
First: It is necessary to supplement the regulations on the participation of lawyers in the CJEDS process in the CJEDS laws and related legal documents. Providing defense and protection of parties' rights during the litigation process is fairly clear and comprehensive in the Criminal Procedure Code, the Civil Procedure Code, the Administrative Procedure Law, and other guiding documents. However, the CJEDS laws lack specific provisions and guidance on lawyer participation during the enforcement phase, creating difficulties for lawyers in citing legal foundations to protect litigants' rights during CJEDS. Additionally, the role of lawyers when authorized to perform specific tasks for litigants differs from their role in participating in the enforcement process to protect litigants' rights and interests. The issue is determining to what extent lawyers can participate during the enforcement phase and the extent of their access to records, as the law is unclear. Therefore, CJEDS laws and Lawyer Law need clear, specific regulations on the role, participation, the extent of participation, rights, and obligations of lawyers during the CJEDS phase to create a legal corridor for lawyers to fully participate in the enforcement process. Concurrently, regulations to limit and adjust violations by lawyers during this stage should also be included.
Second: There is a need to change the mindset of some CJEDS agencies regarding the role of lawyers during enforcement. There is still a view that lawyer participation in CJEDS complicates matters and may cause difficulty and obstacles to CJEDS activities due to lawyers defending the interests of the litigants they represent. This leads to uncoordinated and ineffective collaboration between legal practitioners and lawyers. It is crucial to recognize the positive impact of lawyer participation, which promotes the enforcement process and ensures the best protection of the litigants' lawful rights and interests, rather than obstructing the enforcement process. This is also an incentive to promote private investment in CJEDS and improve the quality of CJEDS.
Third: The mindset of some lawyers regarding the CJEDS field needs to be changed, recognizing it as a specialized legal service with significant potential for lawyer participation. With the spirit of upholding the law, lawyers must promptly identify errors by executors, make correct and accurate proposals, and provide proper guidance for litigants to comply with legal provisions, encouraging and promoting the enforcement process. Participation in the enforcement process is not just a legal service area but also helps strengthen socialist legality.
Fourth: It is worth considering the mandatory participation of lawyers in certain specific CJEDS cases, such as: for high-value civil enforcement cases; economic, corruption-related civil enforcement cases involving asset recovery for the State; or enforcement cases that, despite not being of high economic value, directly affect human rights and citizens' fundamental rights... to further promote the role of lawyers in this field.
Fifth: In the training programs for professional lawyers at the Judicial Academy, there is not much time dedicated to enforcement training, with few experienced CJEDS lecturers teaching and imparting professional skills to lawyers in the field. To improve knowledge and the quality of lawyer practice during the CJEDS phases and gradually build a team of specialized CJEDS lawyers, the Communist Party and the state need to continue focusing on enhancing lawyer training quality right from the vocational training phase. For example, there should be more intensive modules on CJEDS laws and professional knowledge in lawyer training programs or training sessions specializing in CJEDS laws for lawyers... This will provide a foundation for building a team of specialized enforcement lawyers and improve the quality of lawyer activities in this field.
Sixth: The Vietnam Bar Federation should cooperate with the General Department of CJEDS and the Ministry of Justice to have a "common voice" in this field. From there, many immediate and long-term solutions will be devised to reform and enhance the role of lawyers in the enforcement field.
In addition, specialized agencies should have more activities to propagate, educate, and raise public awareness of civil enforcement and lawyer laws to ensure that people understand and exercise their legal rights and obligations correctly, including the right to invite lawyers to provide legal aid or represent them in the enforcement process. This will further expand the scope of lawyer activities in this field.
With their social function, the professional activities of lawyers contribute to protecting justice, citizens' freedoms and democracy, the lawful rights and interests of individuals, agencies, and organizations, and socio-economic development, building a socialist rule-of-law Vietnam, a democratic, just, and civilized society. However, in practice, lawyer activities during the CJEDS phase are still limited and face many difficulties and obstacles, failing to fully realize the positive role of lawyers and meet the needs of our country's current judicial practice. Therefore, institutional perfection and coordinated solutions to enhance the legal status of lawyers in this field is extremely important and necessary.
Co-authors: Master Hoang Thi Thanh Hoa & Lawyer Ta Ngoc Son
Source: Ministry of Justice
