Nghị định 51/2015/ND-CP

DECREE

ON ISSUANCE OF LEGAL OPINIONS

Pursuant to the Law on Government organization dated December 25, 2001;

At the request of the Minister of Justice;

The Government issues a Decree on issuance of legal opinions,

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This Decree promulgates rules, scope, procedures for issuance of legal opinions, basis contents of legal opinions issued by the Ministry of Justice and responsibility of relevant agencies and organizations.

2. This Decree is applicable to:

a) The Ministry of Justice;

b) Agencies or organizations applying for issuance of legal opinions (hereinafter referred to as applicants);

c) Agencies or organizations related to issuance of legal opinions.

Article 2. Interpretation of terms

1. For the purposes of this Decree, legal opinion means a document on the lawfulness of a document that needs legal opinions which is issued by the Ministry of Justice.

2. Vietnamese party means the State, the Government or a regulatory agency of Vietnam which is a contracting party in documents that need legal opinions.

3. Document that need legal opinions means a document eligible for issuance of legal opinions prescribed in Article 5 of this Decree.

Article 3. Rules for issuance of legal opinions

1. The legal opinions are issued in accordance with regulations of law of Vietnam at the issuing time.

2. The legal opinions shall be issued after the document that need legal opinions is signed, approved, ratified or issued as prescribed in regulations of law.

3. The legal opinions may not give more rights or less obligations or change rights and obligations of contracting parties as prescribed in the documents that need legal opinions or as prescribed in regulations of law at the issuing time.

Article 4. Value of legal opinions

Legal opinions mean independent expert opinions on legal issues of the document that need legal opinions.

Article 5. Documents eligible for issuance of legal opinions

The Ministry of Justice shall consider issuing legal opinions to following documents in which the State, the Government or a regulatory agency is a contracting party:

1. International agreements on official development assistance (ODA) loans and concessional loans; and other relevant documents in which the State, the Government or a regulatory agency is a contracting party (if any);

2. Loan agreements in the name of the State, the Government or the Ministry of Finance;

3. Government loan guarantees or documents on issuance of government-guaranteed international bonds;

4. Agreements on issuance of international bonds of the Government;

5. Investment projects in the form of public-private partnership (PPP) (including project contracts, Government guarantees (if any), land leases and other documents related to projects in which the State, the Government or a regulatory agency is a contracting party);

6. Other special cases as prescribed in regulations of the Government or the Prime Minister.

Article 6. Applicants for issuance of legal opinions

1. The regulatory agency in charge of negotiating and signing of international agreements on ODA loans and concessional loans; loans agreements of the State; project contracts in the form of PPP.

2. The principal of government loan guarantees or documents on issuance of government-guaranteed international bonds.

Article 7. Requirements for issuance of legal opinions

The Ministry of Justice shall issue legal opinions if all requirements below are satisfied:

1. The document that needs legal opinions is a document eligible for issuance of legal opinions as prescribed in Article 5 of this Decree;

2. There is an satisfactory application for issuance of legal opinions as prescribed in Article 12 of this Decree and it is clarified or amended at the request of the Ministry of Justice as prescribed in Article 14 of this Decree;

3. The negotiation, signing and approval for documents that need legal opinions are carried out within the powers and in accordance with procedures as prescribed in Vietnamese law.

Article 8. Rejection of issuance of legal opinions

The Ministry of Justice shall reject the issuance of legal opinions in following cases:

1. The application for issuance of legal opinions does not satisfy requirements for issuance and application for issuance as prescribed in Article 7 and Article 12 of this Decree.

2. The application for issuance of legal opinions is not amended or clarified as prescribed in Clause 2 Article 13 or Article 14 of this Decree.

Article 9. Form and language of legal opinions

The legal opinions shall be issued in the form of written documents in Vietnamese or English at the request of the applicant.

Article 10. Basis contents of legal opinions

1. Basis contents of legal opinions contain:

a) Condition, situation and necessary presumption for clarifying purposes and scope of the legal opinions;

b) Verification of legal status of the Vietnamese party in the signing or issuance of documents;

c) Verification of competence of the Vietnamese party in signing and issuance of documents;

d) Verification of adherence to regulations of law of Vietnam on procedures for negotiation, signing and issuance of documents;

dd) Purposes for use of legal opinions and provision of legal opinions for other organizations or individuals.

2. Apart from above contents, depending on each specific case, the legal opinions may contain other contents provided that they do not contrary to the rules for issuance of legal opinions as prescribed in Article 3 of this Decree.

3. The contents of the legal opinions shall not verify facts or event not directly related to law of Vietnam.

Chapter II

PROCEDURES FOR ISSUANCE OF LEGAL OPINIONS

Article 11. Application for issuance of legal opinions

After signing, approving or ratifying the document that need legal opinions, the applicant shall send 01 (one) application for issuance of legal opinions as prescribed in Article 12 of this Decree to the Ministry of Justice.

Article 12. Application for issuance of legal opinions

1. Article 12. An application for issuance of legal opinions for the international agreements on ODA loan and concessional loan includes:

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The signed international agreement (the original or the copy);

c) The written approval for policies on negotiation and signing of international agreements on ODA loans or concessional loans (the original or the copy);

d) The written authorization for negotiation and signing of international agreements (the original or the copy) (if any);

dd) The written approval for the international agreement of the Government issued by the Government or the written ratification for the international agreement of the State or the Government issued by the President or the National Assembly (the original or the copy) (if any);

e) Written verification for the lawfulness of the document that need legal opinions issued by the applicant (the original);

g) Other necessary documents on issuance of legal opinions;

h) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

2. An application for issuance of legal opinions for the loan agreement in the name of the State, the Government or the Ministry of Finance;

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The loan agreement in the name of the State, the Government or the Ministry of Finance (the original or the copy);

c) The written authorization for negotiation or signing of the international agreement (the original or the copy) (if any);

d) The written approval for signing of loan agreement issued by the President, the Government or the Prime Minister (the original or the copy);

dd) The written assessment for the lawfulness of the document that need legal opinions issued by the applicant (the original);

e) Other necessary documents on issuance of legal opinions;

g) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

3. An application for issuance of legal opinions for Government loan guarantees or documents on issuance of government-guaranteed international bonds includes:

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The written assessment for the lawfulness of the document that need legal opinions issued by the applicant (the original);

c) The Government guarantees (the original or the copy);

d) The written approval for policies on government guarantees issued by the Government or the Prime Minister (the original or the copy);

dd) The written authorization or competence proving issued by the signee of the government guarantee (the original or the copy);

e) Other necessary documents on issuance of legal opinions;

g) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

4. An application for issuance of legal opinions for the agreement on issuance of international bonds of the Government includes:

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The agreement on issuance of international bonds (the original or the copy);

c) The written approval for the project for issuance of internal bonds of the Government (the original or the copy);

d) The written authorization or competence proving of the signee of the agreement on issuance of international bonds (the original or the copy);

dd) The written assessment for the lawfulness of document that need legal opinions issued by the applicant (the original);

e) Other necessary documents on issuance of legal opinions;

g) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

5. An application for issuance of legal opinions for the investment project in the form of PPP includes:

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The project contract (the original or the copy);

c) The government guarantees and commitment (the original or the copy) (if any);

d) The written approval for the project contract (if any) and guarantee policies of the competent agency (the original or the copy);

dd) The written authorization for signing of the government guarantee and commitment (the original or the copy);

e) Other documents in which the State, the Government or the regulatory agency is a contracting party (the original or the copy);

g) The written assessment for the lawfulness of document that need legal opinions issued by the applicant (the original);

h) Other necessary documents on issuance of legal opinions;

i) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

6. An application for issuance of legal opinions for other documents under assignments of the Government or the Prime Minister includes:

a) An application for issuance of legal opinions sent to the Ministry of Justice (the original);

b) The document that need legal opinions (the original or the copy);

c) The written assignment of the Government or the Prime Minister (the original);

d) Documentary evidence for process of negotiation and signing of the document that need legal opinions in accordance with regulations of law (the original or the copy);

dd) The written authorization as prescribed in regulations of law (the original or the copy) (if any);

e) The written assessment for the lawfulness of the document that need legal opinions issued by the applicant (the original);

g) Other necessary documents on issuance of legal opinions;

h) The Vietnamese translations of aforesaid documents if they are made in foreign languages.

Article 13. Receipt and processing of application for issuance of legal opinions

1. The Ministry of Justice shall receive and verify the application for issuance of legal opinions as prescribed in Article 12 of this Decree.

If the application for issuance of legal opinions does not meet requirements for the application as prescribed in Article 12 of this Decree, the Ministry of Justice shall request the applicant to complete the application within 5 working days from the date on which the application is received.

2. The applicant shall complete the application within 5 working days from the date on which the written request for completion sent by the Ministry of Justice is received.

Article 14. Amending and clarifying the application for issuance of legal opinions

1. If the content of the application for issuance of legal opinions is not in accordance with regulations of law at the time in which the application is received, the Ministry of Justice shall send Official Dispatch on request for amending and clarifying the application within 5 working days, from the date on which the application for issuance of legal opinions to the applicant.

If the content of the application for issuance of legal opinions is complicated, the deadline for amending or clarifying may extend provided that it does not exceed 15 days from the date on which the application for issuance of legal opinions.

2. The applicant shall clarify and amend the application at the request of the Ministry of Justice within 15 days, from the date on which the written request sent by the Ministry of Justice is received. If the applicant wishes to extend the deadline, it must apply for extension and receive a written agreement sent by the Ministry of Justice.

Article 15. Deadlines for issuance of legal opinions

1. The Ministry of Justice shall issue the legal opinions within 15 days regarding international agreements on ODA loans and concessional loans (if any) and 30 days regarding other cases, from the day on which the satisfactory application is received as prescribed in this Decree.

2. The satisfactory application means an application including all documents as prescribed in Article 12 of this Decree that is clarified or amended at the request of the Ministry of Justice as prescribed in Article 14 of this Decree.

3. If the content of the application for issuance of legal opinions is complicated, the deadline for issuance of legal opinions may extend provided that it does not exceed 60 days from the day on which the satisfactory application is received.

Article 16. Clarifying contents of legal opinions

1. In case the contents of legal opinions need clarifying, the applicant shall send a written request for clarifying legal opinions to the Ministry of Justice.

2. Within 15 days from the date on which the written request if received, the Ministry of Justice shall send the feedback on clarifying the legal opinions to the applicant.

Article 17. Amending legal opinions

1. The applicant prescribed in Article 6 of this Decree may request for amendments to the issued legal opinions in case the document that is issued legal opinion was amended.

2. The applicant may send 01 (one) application for amendments to issued legal opinions as prescribed in Article 12 of this Decree to the Ministry of Justice in which the contents and purposes for amendments are clarified.

3. The Ministry of Justice shall receive the application, then decide to issue or reject issuance of amended legal opinions within 30 days, from the day on which the satisfactory application is received. If the application is rejected, the Ministry of Justice must provide explanation in writing.

Article 18. Use of legal opinions

1. The applicant may only use the legal opinions mentioned in the document that need legal opinions in any transaction.

2. The applicant may only provide legal opinions to the individuals or organization mentioned in the legal opinions, or provides legal opinions to other organizations or individuals with the consent of the Ministry of Justice in writing.

Chapter III

RESPONSIBILITY OF AGENCIES AND ORGANIZATIONS DURING THE PROCESS OF ISSUANCE OF LEGAL OPINIONS

Article 19. Responsibility of the applicant

1. Provide information and materials related to documents that need legal opinions sufficiently and promptly at the request of the Ministry of Justice as prescribed in this Decree.

2. Ensure the accuracy, lawfulness and authenticity of the application for issuance of legal opinions sent to the Ministry of Justice.

3. If the applicant cannot provide information and materials related to documents that need legal opinions sufficiently and promptly at the request of the Ministry of Justice, it must send an official notification to the Ministry of Justice.

4. In case the applicant fails to provide information and materials sufficiently and promptly or fails to ensure the authenticity, it shall take full responsibility for the consequent of such information provision.

Article 20. Responsibility of the Ministry of Justice for consideration for issuance of legal opinions

1. Ensure that the content of the legal opinions is in accordance with regulations of law at the time in which the legal opinions are issued.

2. Send notification of rejection with explanation to the applicant.

Article 21. Responsibility for cooperation with the Ministry of Justice in processing of application for issuance of legal opinions

If necessary, at the requests of the Ministry of Justice, Ministries, ministerial agencies, relevant organizations must cooperate with such authorities or agencies in consideration of issuance of legal opinions.

Chapter IV

IMPLEMENTATION

Article 22. Implementation

Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, and relevant organizations or individuals are responsible for implementation of this Decree.

Article 23. Effect

1. This Decree takes effect from July 15, 2015.

2. With regard to applications for issuance of legal opinions sent to the Ministry of Justice before the effective date of this Decree, they shall comply with Decree No. 38/2013/NĐ-CP dated April 23, 2014 of the Government on management and use of official development assistance and concessional loans from sponsors, Decree No. 01/2011/NĐ-CP dated January 5, 2011 of the Government on issuance of Government bonds, bonds under guarantees and municipal bonds, Decree No. 108/2009/NĐ-CP dated November 27, 2009 ò the Government on investment under form of BOT, BTO, or BT, Decree No. 15/2011/NĐ-CP dated February 16, 2011 of the Government on issuance and management of Government guarantees and Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on investment under form of PPP.

3. The following regulations shall be annulled from the effective date of this Decree:

a) Clause 6 Article 64 of Decree No. 38/2013/NĐ-CP dated April 23, 2013 of the Government on management and use of official development assistance and concessional loans from sponsors;

b) Clause 4 Article 9 Decree No. 01/2011/NĐ-CP dated January 5, 2011 of the Government on issuance of government bonds, bond under guarantees of the Government and municipal bonds;

c) Clause 6 Article 2, Point b Clause 1 Article 4, Point c Clause 6 Article 10 of Decree No. 15/2011/NĐ-CP dated February 16, 2011 of the Government on issuance and management of Government guarantees./.