Abstracts:
Lawyer's legal service is a type of conditional business recognized by the law, competition in lawyer's legal services is as inevitable as any other business field. Legal services business activities in law practice also have provisions on unfair competition practices. The law on unfair competition practices has many inadequacies, asynchronous between competition law and specialized laws, sometimes there are contradictions. Unfair competition practices in legal services of lawyers in Vietnam has not been considered and handled in accordance with the spirit of competition law. In this article, the author focuses on researching and analyzing the inadequacies in the provisions of the law on unfair competition practices in the legal services of lawyers in Vietnam. The author proposes recommendations to improve the law on unfair competition practices in the legal services of lawyers in Vietnam.
Key words: Legal services; unfair competition; law practice; competition law; law on lawyer
1. Introduction
Legal research on unfair competition practices in legal services of lawyers in Vietnam is a legal study on unfair competition practices in the law practice. For law practice activities, the provision of legal services in the practice activities of law-practicing organizations and lawyers is specified in the Law on lawyer and guiding documents. The Law on Lawyer prescribe the scope of regulation in terms of principles, conditions, scope and form of practice, standards, rights and obligations of lawyers, law-practicing organizations and socio-professional organizations of lawyers, lawyer management and law practice, practice of foreign law-practicing organizations and foreign lawyers practicing in Vietnam. The Law on Lawyer stipulate the principles of law practice that must adhere to the following five principles: compliance with the constitution and the law; compliance with the code of ethics and professional conduct for Vietnamese lawyers; independence, honesty, respect for objective truth; use lawful measures to best protect the legitimate rights and interests of clients; take responsibility before law for the lawyer's professional activities[1][11]. The principles of lawyer management and law practice are clearly defined that: combining state management with the self-management regime of lawyers' socio-professional organizations and law-practicing organizations; Socio-professional organizations of lawyers and law-practicing organizations manage their own lawyers and law practice in accordance with the provisions of the lawyer's law, the Charter of the Vietnam Bar Federation and the Rules of Law ethics and professional conduct for Vietnamese lawyers; The State uniformly manages lawyers and practices law in accordance with the Law on Lawyers. The law on unfair competition practices in legal services of lawyers in Vietnam has not been specified in the Law on Lawyer, which is the document with the highest legal value in law practice, but regulated by prohibited practices in the Law on Lawyer and guiding documents on the implementation of the Law on Lawyer. In addition, it is scattered throughout the Code of Ethics and Professional Conduct for Vietnamese Lawyers. Accordingly, lawyers and law-practicing organizations in the process of practicing legal services provide both cooperation and competition with each other.
Ethical codes towards the goal of building professional behavior of lawyers, a healthy and socially responsible law practice organization, in fact, a system of higher standards than the behavior operating according to the law. The Code of Ethics and Professional Conduct for Vietnamese Lawyers is the basis for building standard values of the legal profession; supervise, consider and reward, settle complaints and denunciations, and take disciplinary actions against lawyers within the socio-professional organization of lawyers. United Nations Development Program (UNDP) representative in Vietnam, Ms. Sitara Syed said: “In any country, lawyers have always played an important role in enforcing the rule of law and ensuring citizens' access to justice. Compliance with the Code of Ethics and Professional Conduct for Lawyers in Vietnam will support Lawyers in carrying out their mission of protecting human rights and legitimate interests of clients, ensuring judicial independence, contributing to justice protection for the people.”[2][17]
2. The legal status of unfair competition practices in legal services of lawyers in Vietnam
The Law on lawyer stipulate that the Bar Association is a socio-professional organization of lawyers in a province or centrally run city, organized and operated in accordance with the Law on Lawyer and the Charter of the Vietnam Bar Federation.[3] The Law on Lawyer also stipulate that the socio-professional organization of lawyers nationwide, namely the Vietnam Bar Federation[4], is entitled to promulgate the Charter of the Vietnam Bar Federation and the Vietnam Bar Federation supervise the observance of the code of ethics and professional conduct of Vietnamese lawyers[5], which regulates acts of unfair competition in the professional activities of lawyer. Identify the risks of harm caused by unfair competition in law practice to the implementation of national legal policies, the safety of judicial activities, and the interests of the state, legal rights and interests of clients and consumers using legal services.
Vietnam has signed many trade agreements with countries around the world, including the European Union. The EVFTA is a new type of free trade agreement that regulates cross-border trade in services with legal services. The Parties recognize that transnational legal services, including the laws of various jurisdictions, play an essential role in facilitating trade and investment and promoting economic growth and economic confidence business. When a Party regulates or examines the regulation of foreign lawyers and the practice of transnational law, that Party shall encourage relevant authorities to consider, subject to domestic laws and regulations, whether or either way: local codes of conduct, conduct, and ethics are applied to foreign attorneys in a way that is no more burdensome than that of host country attorneys. In addition, the Agreement also stipulates that competition policies need to be applied and enforced by the parties in a transparent and effective manner. Vietnam allows Foreign Lawyers Organization (which is an organization of practicing lawyers established in a foreign country by one or more lawyers or law firms in any form of commercial company (including Law firms, limited liability law firms, joint stock law firms, etc.) are allowed to establish a commercial presence in Vietnam in the following forms: Branches of foreign law organizations; Subsidiaries of such organizations foreign law firm; Foreign law firm (an organization established in Vietnam by one or more foreign law organizations for the purpose of practicing law in Vietnam); Partnership between law organizations foreign and Vietnamese law partnerships. The commercial presence of a foreign lawyer organization is not allowed to participate in the proceedings as a defense counsel or to represent its clients before the Vietnamese courts, not to practice legal and public affairs services evidence related to Vietnamese law. However, the commercial presence of a foreign lawyer organization is allowed to provide consultancy on Vietnamese law if the consulting lawyer has graduated from a Vietnamese law university and meets the requirements applicable to the law of the country Vietnam has a similar practice. [6][16]
The Law on Lawyer stipulate that acts that lawyer must not do in relation to colleagues are specified in the Code of Ethical Conduct ethics and profession of Vietnamese lawyers. However, the regulation is only of the nature of professional ethics, not of the highest legal document nature, intended to recommend things that individual lawyers should not do. National Bar Council (2019), Decision No. 201/QD-HDLSTQ Decision promulgation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers, dated December 13th, 2019 of the National Bar Council. Rule 19 regulates professional competition "lawyers must not engage in unfair competition practices affecting the legitimate rights and interests of their colleagues". This rule does not clearly define what constitutes fair competition in the practice of law. Compared with the Code No. 68/QD-HDLSTQ dated July 20th, 2011 of the Vietnam Bar Federation in Rule 18, which clearly stipulates professional competition, “lawyers take professional competition measures a healthy career in accordance with the provisions of the lawyer's law and related laws, the Charter of the Vietnam Bar Federation, the Code of Ethics and Professional Conduct for lawyers, thereby enhancing the trust of clients and the public for the legal profession, together contribute to promoting the development of the Vietnamese legal profession” [7][7].
The current status of regulations on unfair competition in legal services in Vietnam is not consistent in the perception of regulators promulgating a common legal standard. Depending on the different periods, there are different views expressed through the revised rules as follows. In the Code issued together with Decision No. 68/QD-HDLSTQ stipulates "applying unfair competition tricks for the purpose of winning customers". The set of rules promulgated together with Decision No. 201/QD-HDLSTQ dated December 13th, 2019 of the Vietnam Bar Federation, does not stipulate the application of unfair competition tricks, but rather the phrase "implementation" acts aimed at winning clients in Rule 21 stipulates “things lawyers must not do in relation to colleagues”. Unfair competition in legal services is demonstrated through the performance of prohibited acts specified in the Law on Lawyers and the things that lawyers must not do in relation to their colleagues specified in the Code. 21.5, in addition to the Code, there are provisions on unfair competition scattered in other Rules such as:
- Clients relations; relationship with the procedure-conducting agency, with the procedure-conducting person; relations with other state agencies, organizations and individuals.
- Comparing the professional capacity, distinguishing the region or region of practice of this lawyer or law-practicing organization with that of other lawyers or law-practicing organizations;
- Instigating the client to refuse a colleague to accept the case for himself or inciting the client to make a complaint or denunciation of a fellow lawyer;
- Directly or using their own employees or other people as people to entice or seduce customers in front of the headquarters of the proceedings-conducting agencies, detention camps, state agencies and other organizations.
Compared with the provisions in the Code of Ethics and Professional Conduct for Lawyers issued together with Decision No. 68/QD-HDLSTQ, this Code no longer stipulates that "imposition or willfully influence" to the independence and objectivity in the practice of colleagues who have a dependent relationship with the lawyer such as teacher-student, superior-subordinate, blood relatives" is an act of unfair competition for the purpose of win customers. Performing acts for the purpose of winning new clients are acts of unfair competition in law practice in accordance with the provisions of the Code of Ethics and Professional Conduct for Vietnamese lawyers promulgated under the provisions of law Decision No. 68/QD-HDLSTQ dated July 20th, 2011. Acts of unfair competitive nature but not intended to win clients are not considered unfair competition in law practice or in the business of legal services. In essence, these acts do not win customers but will cause extremely dangerous legal consequences for the legal service market of lawyers. Affecting the legitimate rights and interests of consumers using legal services. Therefore, the Code issued under Decision No. 201/QD-HDLSTQ has expanded the scope of regulation of unfair competition practices than the rule issued under Decision No. 68/QD-HDLSTQ.
The Law on Lawyer and documents guiding the implementation of the Law on Lawyer does not yet have a specific regulation on competition in law practice, while the 2018 competition law has specified specialized laws with specific regulations on fair competition and unfair competition practices, specialized laws apply. The application of competition law provisions in dealing with unfair competition practices in the provision of legal services by lawyers will not be enforced. Meanwhile, the Law on Lawyer stipulate that lawyers respect and compliance with the Code of Ethics and Professional Conduct for Vietnamese lawyers. The new set of rules regulates “what lawyers must not do in relation to their colleagues”, which regulates unfair competition practices. Competition activities of lawyers must first comply with the provisions of the law on competition and the law on lawyers. The professional activities of lawyers with the nature of a noble profession with its own characteristics, competition in lawyer activities should be in accordance with the regulations of the Vietnam Bar Federation. The Code of Ethics and Professional Conduct Vietnamese lawyers emphasize the healthy nature of performing competitive acts. Rule 19. Professional competition stipulates: Lawyers must not engage in unfair competition practices that affect the legitimate rights and interests of their colleagues. The Code stipulates that Lawyers must not engage in unfair competition with colleagues, that is, prohibit lawyers from performing competitive practices that are destructive, eliminate practice activities, and eliminate the law colleagues or affect the legitimate rights and interests of colleagues. The Code of Ethics and Professional Conduct Vietnamese lawyers identify and prohibit Lawyers from performing certain types of acts of an unfair competitive nature in Rule 21. Things Lawyers cannot do in relationships with colleagues. The Code prohibits lawyers from making slanderous words or acts, insulting the honor, dignity and reputation of colleagues or pressuring or threatening colleagues. These acts, if performed, will reduce the reputation of colleagues, limit the normal activities of colleagues: prohibiting lawyers from performing practices aimed at winning clients. Stealing clients not only directly deprives fellow lawyers of their income, limiting their colleagues' professional development, but also affects the reputation of the lawyer profession in the eyes of clients and society.
- It is forbidden to take advantage of and use clients for jobs that may cause harm to colleagues, to the lawyer's professional position and to harm the client, such as: inciting the client to refuse the contract. to receive the case for themselves or incite clients to complain or denounce fellow lawyers.
- It is forbidden for lawyers to directly or use their employees or other people as people to entice and seduce clients, in front of the Headquarters of the proceeding agencies, detention camps, state agencies and organizations other.
- Imposing or deliberately influencing to affect the independence and objectivity in practice of colleagues who have dependent relationships with the lawyer such as teacher-student, superior-subordinate, bloodline, kinship is also an act of unfair competition and is strictly prohibited.
- Lawyers have acts of forming factions or groups among lawyers in order to isolate colleagues in the course of practice or to form associations, joint ventures or establish groups of lawyers operating in contravention of the law on law. Lawyers, the Charter of the Vietnam Bar Federation and the Code of Ethics and Professional Conduct Lawyers are also acts of unfair competition, obstructing the normal activities of colleagues, infringing upon the reputation of lawyer profession and is also prohibited under Rule 21.7 and Rule 21.8. As a service-providing organization, as a service provider, the products provided by the Lawyer to the client are Products and Services.
Lawyers may not disclose confidential information about cases, matters or clients that they know while practicing, unless otherwise agreed by the client or otherwise provided for by law. Lawyers are not allowed to use information about cases and clients that they know while practicing for the purpose of infringing upon the interests of the state, public interests, and legitimate rights and interests of agencies and organizations and personal. In addition, the law practice organization is responsible for ensuring that its employees do not disclose information about the case, the matter, about its clients. Keeping information confidential as prescribed in Rule 7, lawyers are obliged to keep client's information confidential when performing legal services and after completing such services, unless otherwise agreed by the client or as required by law. Lawyers have the responsibility to ask relevant colleagues and employees in their practice organizations to commit not to disclose confidential information they know, and lawyers have the responsibility to explain clearly if they do, be responsible before the law.
This Code is not a binding set of rules applicable to foreign lawyers and foreign law-practicing organizations operating in legal service business in Vietnam in accordance with the law on investment and law on the practice of lawyers. Article 3 Decision No. 201/QD-HDLSTQ dated December 13th, 2019 of the National Bar Council stipulating the subjects of regulation “Lawyers of the Vietnam Bar Federation are obliged to comply with and implement the Code of Conduct this rule”[8][8]. Therefore, the fact that foreign lawyers and foreign lawyers practicing organizations practicing lawyers in Vietnam violate the regulations of this Code is an indispensable thing. The law on law practice in Vietnam in the process of international economic integration has partly had regulations in accordance with international legal regulations. Point b, Clause 2, Article 77 of the Law on Foreign Lawyers, which is obliged to follow the ethical rules and behavior of the Vietnamese lawyer's career, not feasible because of the Code of Ethics and Code of Career of Vietnam Lawyers is a set of standard rules applied to Vietnamese lawyers, Vietnamese lawyers practicing organizations. Foreign lawyers and foreign law-practicing organizations are not subject to this Code, Decision No. 1319/QD-BTP[9] [6] dated June 8th, 2018 has reduced the conditions for commitment to compliance. The code of ethics and conduct for Vietnamese law practice is a condition for practicing foreign lawyers in Vietnam as the basis for amending Clause 3, Article 74 of the Law on Lawyer “commitment to comply with the Constitution and laws of the Socialist Republic of Vietnam and the Code of ethics and professional conduct for Vietnamese lawyers”.
The Competition Law 2018 stipulate that “disclosure and use of confidential information in business without the permission of the owner of such information” is an unfair competition act, the lawyer provides for “disclosure information about a case, matter, or client that one knows while practicing” is a prohibited act. Decree No. 82/2020/ND-CP[10][5] stipulate “disclosure of information about cases, matters and clients that they know while practicing their profession;” for this act will be fined up to 40,000,000 VND.
The Competition Law 2018 stipulate that “providing untruthful information about another enterprise by directly or indirectly giving untruthful information about an enterprise that adversely affects its reputation, financial status or operations.” Business of that enterprise is an act of unfair competition, the Law on Lawyer stipulate the act of “deliberately providing or instructing clients to provide false and untrue documents and exhibits; inciting detainees, the accused, defendants or involved parties to make false statements or inciting customers to make illegal complaints, denunciations or lawsuits;” is a prohibited act. Decree 82/2020/ND-CP stipulates “providing or instructing customers to provide false and untruthful documents and exhibits; inciting customers to make false statements or inciting customers to make illegal complaints or denunciations; The Code of Ethics and Professional Conduct for Vietnamese Lawyers stipulates what lawyers are not allowed to do in relation to procedure-conducting agencies and procedure-conducting persons “to perform acts prohibited by the law” provisions of the law”.
The Competition Law 2018 stipulate that the act of selling goods and providing services below the full cost leading to or potentially leading to the exclusion of other enterprises trading in that type of goods or services is an act of unfair competition strong. A relevant market is a market for goods and services that are interchangeable in terms of characteristics, uses, and prices in a particular geographical area with similar and different competitive conditions significantly different from neighboring geographical areas “Unfair competitive practices can affect competitors that have not yet appeared in the market. For example, when an enterprise engages in unfair competition, potential firms that intend to enter the market cannot enter the market anymore. So, is unfair competition behavior required to target competitors? The Competition Law 2018 also has no such requirement. We will explain how Clause 6, Article 45 of the Competition Law 2018 and infringement of business secrets. Besides, if it is considered that a sign to determine an act of unfair competition is each other's competitors, the relevant market must be determined, but when dealing with acts of unfair competition, the law will not there is no regulation that requires the definition of the relevant market, and if the relevant market has to be identified, it is very difficult to deal with the behavior. Legal service business is a type of providing products and services that cannot be substituted with other legal products and services in terms of the purpose of using legal services and the price of services based on legal services the basis of agreement in a legal service contract depend on the nature and complexity of the type of service provided. The basis for constituting the price of legal services is shown in the method of calculating the lawyer's remuneration based on the following factors: Content and nature of legal services; time and effort of lawyers to perform legal services; lawyer's experience and reputation. Competition law does not stipulate the relevant market and the enterprise's market share in the relevant market for prohibited acts of unfair competition. The relevant market and the market share of enterprises in the relevant market are only applied to the group of acts of agreement to limit competition and economic concentration specified in Article 1 of Decree No. 35/2020/ND- CP[11][4] dated March 24, 2020 of the Government. Compared with the characteristics of the legal service business, the Law on Lawyer does not specify the cost of a legal service product to regulate the act of providing legal services below cost. The Law on Lawyer stipulate that “the remuneration level is agreed upon in the legal service contract; for criminal cases in which lawyers participate in the proceedings, the remuneration must not exceed the ceiling of remuneration set by the Government”. "Lawyers participating in criminal proceedings at the request of procedure-conducting agencies shall receive remuneration and be paid expenses in accordance with the Government's regulations." Decree No. 123/2013/ND-CP stipulate the remuneration as follows: “The remuneration for lawyers participating in legal proceedings in criminal cases shall be agreed upon in the contract by the client and the lawyer's office or law firm. Legal services are based on the grounds specified in Clause 1, Article 55 of the Law on Lawyers and are charged by the hour or by the case-by-case basis, but the maximum rate for 01 working hour of a lawyer must not exceed 0,3 times the base salary prescribed by the Government.” "A lawyer's working time is agreed upon by the lawyer and the client." "For cases where a lawyer is required by a procedure-conducting agency, the remuneration paid for a lawyer's working day is 0.4 times the base salary prescribed by the Government".
According to Ton That Nhan Tuoc (2019) in an article "the object of the contract is the object, property rights, money, valuable papers, work that must or must not be performed."[12][14] Thus, the specificity of the legal service business in law practice can be seen that providing legal services is the "work that must be performed" by lawyers and law-practicing organizations to protect the legal profession best rights and legitimate interests of clients. Remuneration is the amount of “money” that a client must pay to a lawyer when using a lawyer's legal services, a law-practicing organization of which the client is a consumer using such legal services. The contract is positioned as the foundation for the provisions of contract institutions in the civil, commercial, and legal service sectors to meet social needs in the market economy. The legal service contract stipulates the remuneration level based on the agreement of the lawyer, the law practice organization and the client. The Law on Lawyer and Decree 123/2013/ND-CP[13][2] do not stipulate a ceiling of remuneration and a floor of remuneration for lawyers participating in proceedings in civil and business cases. In addition, Decree 123/2013/ND-CP and the Law on Lawyers also stipulate to encourage the provision of legal services to policy beneficiaries, the poor, and exempt or reduce remuneration. The Decree does not stipulate a floor of remuneration for lawyers participating in criminal proceedings. Decree 82/2020/ND-CP does not stipulate sanctions for administrative violations for acts of providing legal services when lawyers participate in proceedings in criminal cases and in civil cases, doing commercial business, therefore, there is no regulation that the act of providing legal services below the service cost is an act of unfair competition. The law does not have a sanction for the act of receiving remuneration in excess of the remuneration ceiling for lawyers participating in legal proceedings in criminal cases, which is also an act of unfair competition.
3. Legal corridor in dealing with acts of unfair competition in the legal services of lawyers
In view of "internalizing" the competition law, clause 2, Article 4 of the Competition law 2018 stipulated state’s policies on competition “if there is any discrepancy between this Law and other laws in terms of anti-competitive practices, economic concentration, unfair competition practices and handling of unfair competition practices, the latter shall prevail.” According to Dr. Nguyen Tu in an article on the 2004 Competition Law, it only applies to businesses and industry associations operating in Vietnam[14][13]. The Competition Law 2018 adds that the subjects of application are "relevant domestic and foreign agencies, organizations and individuals". Accordingly, there are three objects of application: businesses; industry associations operating in Vietnam; relevant domestic and foreign agencies, organizations and individuals. Domestic and foreign agencies, organizations and individuals involved in unfair competition practices are all subject to the Competition Law 2018, regardless of location restrictions in Vietnam or outside Vietnam. The 2018 Competition Law stipulates in clause 7, Article 45 that "other prohibited unfair competition practices prescribed in other laws". Clause 6, Article 113 of the Competition Law 2018 also stipulate that “prohibited acts prescribed in Clause 7 Article 45 of this Law shall be settled as prescribed in relevant laws”. The law on unfair competition practices in legal services of lawyers is an integral part of the law on law practice in the Socialist rule-of-law State of Vietnam.
The law on law practice is a system of legal documents on law practice, however, the system of legal documents on lawyer cannot avoid shortcomings that cause difficulties in the legal process lawyer practice. Although the Law on Lawyer does not have a direct provision in the law on unfair competition in law practice, it is scattered in the Law on Lawyers that regulate prohibited acts in the law practice. Decree No. 123/2013/ND-CP dated October 14, 2013 of the Government detailing a number of articles and measures to implement the Law on Lawyer. Decree No. 137/2018/ND-CP dated October 8, 2018 amending and supplementing a number of articles Decree No. 123/2013/ND-CP dated October 14, 2013 of the Government detailing a number of articles and Law enforcement measures to implement the Law on Lawyers. Decree No. 82/2020/ND-CP dated July 15, 2020 of the Government providing for sanctioning of administrative violations in the field of judicial assistance, judicial administration, marriage and family, civil judgment enforcement law enforcement, bankruptcy of enterprises and cooperatives, stipulating forms of handling violations against regulations on law practice. Regulations on settlement of complaints, denunciations and disciplinary actions of promulgated together with Decision No. 203/QD-HDLSTQ[15][9]. The Prime Minister issued Decision No. 856/QD-TTg[16][10] approving the Charter of the Vietnam Bar Federation. The legal profession has become a profession that is "relatively independent, in compliance with the Constitution and laws, in accordance with the Charter of the Vietnam Bar Federation and the code of ethics and conduct of the Vietnamese legal profession". Starting from relatively independent activities, from the self-governance of socio-professional organizations, it is necessary to promote the leadership role of the Party organization in the organization and activities of lawyers.
4. Completing the law on unfair competition practices in legal services of lawyers in Vietnam
According to the World Trade Organization regulations, legal services are sub-sectors of trade in services. The Law on lawyer and legal documents related to law practice have formed the concept of law-practicing organizations is economic organizations operating in the form of conditional enterprises. Lawyers providing legal services are also subjects in specific economic activities. Therefore, law-practicing organizations and lawyers, in addition to being governed and managed by state agencies specialized in the management of law practice, are also under the management of regulatory agencies other state management of taxes and enterprises. In order for foreign lawyers to practice in Vietnam to comply with the Code of Ethics and Professional Conduct for Vietnamese Lawyers, the Law on Lawyer need to supplement regulations on the duties and powers of the Vietnam Bar Federation. The Bar Associations of provinces and cities supervise foreign law practice activities in Vietnam in accordance with the Code of Ethics and Professional Conduct for Vietnamese Lawyers. The National Bar Council needs to supplement the provisions in Article 3 of Decision No. 201/QD-HDLSTQ in the direction that foreign lawyers practicing in Vietnam must comply with this Code. The National Bar Council and Bar Associations with foreign lawyers practice are entitled to supervise the observance of this Code.
Competition in law practice is an important factor in the Vietnamese legal service market to ensure fairness and protect consumers using legal services. Completing the law on unfair competition practices in legal services of lawyers attached to the improvement of law on law practice in the State of the Socialist rule of law of Vietnam. Completing the law on unfair competition practices in legal services of lawyers actually creates a legal tool to build a safe, transparent and healthy legal service business environment in the operating conditions legal profession in Vietnam. The legal provisions on anti-unfair competition acts in law practice become a legal tool for eliminating unfair competition practices in law practice, creating a legal basis for requesting state agencies to protect legitimate rights and interests that are infringed by acts of unfair competition. When unfair competition practices are handled in accordance with the law, it will make an important contribution to building the trust of consumers using legal services in the legal profession. In our opinion, in order to complete the law on unfair competition practices in the legal services of lawyers in Vietnam, it is necessary to amend the legal regulations on law practice as follows:
First: The characteristics of a lawyer's legal services are always associated with the law, and a lawyer is recognized by the law as a judicial title equal to the judicial titles specified in the penal code. Therefore, when a lawyer commits an act of unfair competition in law practice, in addition to causing harm to competitors, it can also cause serious consequences, infringing upon the safety of judicial activities protected by the Constitution and the law. According to Ton That Nhan Tuoc (2021), “lawyer is a judicial title that is recognized by law as other judicial titles such as prosecutor, investigator, judge. Therefore, the 2015 Penal Code stipulates that the acts of lawyers who exchange evidence or cheat in the provision of evidence are also acts of infringement on judicial activities protected by the criminal law. However, a lawyer is not a procedure-conducting person, only a procedure-participant to defend and protect the lawful rights and interests of the detained person, the accused, the defendant and other involved parties in criminal case. Participating in legal proceedings in criminal cases is one of the functions of providing legal services of lawyers”.[17][15]
The act of providing fake evidences, exchanging evidences to falsify case files is an act of unfair competition in law practice prohibited by the law, with consequences infringing upon the safety of private activities protected by the Constitution and by the law.
Second: On the basis of the "internalization" of the competition law as referred to in Clause 7, Article 45 of the 2018 Competition Law, the law on law practice needs to specify unfair competition practices prohibited in the legal services of lawyers in Vietnam. The intent to win clients as set forth in Rule 21.5 does not adequately represent the nature of unfair competition. Winning clients is not intended to eliminate competitors in the practice of law. The law on unfair competition practices in legal services must reflect the element of eliminating competitors to ensure the goal of internalizing competition law.
Third: In order to ensure equal competition between foreign and Vietnamese lawyers in their practice, the Law on Lawyers should be revised on the basis of amending Rule 19 on professional competition to become law; Similarly, the acts of unfair competition regulated in Rule 21.5, Rule 32 Advertising also need to be raised into law, Advertising in law practice in some the case is also for the purpose of unfair competition, thus ensuring the legality and fair competition and protecting consumers using the legal services of lawyers in Vietnam.
Fourth: Amending Article 42 of Decree 123/2013/ND-CP in the direction of not providing notification of foreign lawyers' violations of the Code of Ethics and Professional Conduct for Vietnamese lawyers.
Fifth: Supplementing the Penal Code to stipulate the act of “Selling goods or providing services below cost to lead or may lead to the exclusion of other enterprises trading the same goods and services, causing disturbance business activities that seriously affect the competitive market” in the category of “violating competition regulations”.
Sixth: The law on law practice needs to stipulate the ceiling and floor level for determining the price of legal service provision for different types of legal service provision. Decree 82/2020/ND-CP does not stipulate sanctions for administrative violations for acts of providing legal services when lawyers participate in proceedings in criminal cases and in civil cases doing commercial business, therefore, there is no regulation that the act of providing legal services below the service cost is an act of unfair competition. The law does not have a sanction for the act of receiving remuneration in excess of the remuneration ceiling for lawyers participating in legal proceedings in criminal cases, which is also an act of unfair competition. For the healthy development of law practice, it is necessary to amend Decree 82/2020/ND-CP in the direction of stipulating the ceiling and floor of the lawyer's remuneration.
Seventh: Acts of unfair competition in legal services need to be extended beyond the national territory in case these acts harm businesses that are law-practicing organizations related lawyers, lawyers, social interests, national interests according to international agreements to which Vietnam is a member. The Vietnam Bar Federation and the Bar Association are professional associations regulated by the law on law practice in the Law on Lawyers, so the Bar Federation and Bar Associations are also subject to legal regulation about unfair competition in legal services of lawyers.
5. Conclusion:
The law on unfair competition practices in legal services of lawyers in Vietnam is associated with the law on law practice in the Socialist State of law of Vietnam. For the legal system, it is necessary to improve the effectiveness and efficiency of state management in the field of lawyers. Completing mechanisms and policies and solutions to improve the quality and efficiency of the activities of lawyers and judicial assistants. To develop a team of lawyers with sufficient numbers, political qualities, professional ethics, and solid professional qualifications. Develop a mechanism to encourage lawyers to participate in legal aid, contributing to ensuring the principle of litigation in criminal proceedings. Renovate the state management of law practice activities in line with the policy of socialization; combining state management with the self-governing role of professional organizations. Training and developing a team of qualified, ethical and professional lawyers, promoting the role of lawyers in legal advice and in legal proceedings. Continue to improve the legal provisions on law practice in accordance with international law, and at the same time create a legal corridor for the legal profession in Vietnam to develop, consumers to use legal services are protection in the Socialist rule-of-law State of Vietnam against the trends of globalization and international integration. The 13th Party Congress continued to steadfastly "enhance the people's and businesses' access to the law. Developing legal services and out-of-court dispute resolution institutions. Improve efficiency and shorten the time for dispute resolution and judgment enforcement in the fields of civil, administrative, investment, business, commercial and consumer protection”[18][1].
CITATION MATERIAL:
1Article 5 Law on Lawyers (2006) amended a number of articles in 2012.
2 https://congly.vn/trien-khai-thi-hanh-bo-quy-tac-dao-duc-va-ung-xu-nghe-nghiep-luat-su-137818.html accessed on 12/11/2022
3Article 60 Law on Lawyers (2006) amended a number of articles in 2012
4 Article 64 Law on Lawyers (2006) amended a number of articles in 2012
5 Article 65 Law on Lawyers (2006) amended a number of articles in 2012
6 Vietnam Chamber of Commerce and Industry - WTO and Integration Center, Vietnam - EU Free Trade Agreement
7 National Bar Council (2011), Decision No. 68/QD-HDLSTQ On the promulgation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers dated July 20th, 2011 of the National Bar Council.
8 National Bar Council (2019), Decision No. 201/QD-HDLSTQ Decision promulgation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers, dated December 13th, 2019 of the National Bar Council.
9 Decision No. 1319/QD-BTP on approving the plan to reduce and simplify business conditions in the fields under the management of the Ministry of Justice dated June 8, 2018
10 Decree No. 82/2020/ND-CP stipulates penalties for administrative violations in the field of judicial assistance, judicial administration, marriage & family, civil judgment enforcement, bankruptcy of enterprises and cooperatives.
11 Decision No. 1319/QD-BTP on approving the plan to reduce and simplify business conditions in the fields under the management of the Ministry of Justice dated June 8, 2018
12 Decree No. 82/2020/ND-CP stipulates penalties for administrative violations in the field of judicial assistance, judicial administration, marriage & family, civil judgment enforcement, bankruptcy of enterprises and cooperatives.
13 Decree No. 123/2013/ND-CP Detailing a number of articles and implementation measures of the law on lawyers
14 Nguyen Tu (2016), competition policy in TPP – impact on "transposition" in to law on competition of Vietnam, People's Court Journal No. 24 (2016), pp.24, 27-34.
15 National Bar Council (2019), Decision No. 203/QD-HDLSTQ Decision promulgating the Regulation on settlement of complaints, denunciations and disciplinary actions, dated December 19th, 2019 of the National Bar Council.
16 Prime Minister (2022), Decision No. 856/QD-TTg approving the Charter of Vietnam Bar Federation dated July 19, 2022 of the Prime Minister
17 Tôn Thất Nhân Tước (2021). Luật sư trong tố tụng hình sự đáp ứng yêu cầu cải cách tư pháp trong giai đoạn hiện nay. Tạp chí Luật sư số 12, tháng 12/2021, tr 43 - tr45.”
18 Communist Party of Vietnam, Document of the 13th National Congress of Deputies, Publishing House of the Communist Party of Vietnam, H.2021, t1 p. 287.
REFERENCES
1. Communist Party of Vietnam (2021). Document of the 13th National Congress of Deputies. Publishing House of the Communist Party of Vietnam, H.2021, t1 p. 287
2. Government of the Socialist Republic of Vietnam (2013). Decree No. 123/2013/ND-CP detailing a number of articles and implementation measures of the law on lawyers.
3. Government of the Socialist Republic of Vietnam (2018). Decree No. 137/2018/ND-CP dated October 8, 2018 amending and supplementing a number of articles Decree No. 123/2013/ND-CP dated October 14th, 2013 of the Government detailing a number of articles and Law enforcement measures of the law on lawyers.
4. Government of the Socialist Republic of Vietnam (2020). Decree No. 35/2020/ND- CP detailing a number of articles of the Competition Law dated March 24th, 2020 of the Government.
5. Government of the Socialist Republic of Vietnam (2020). Decree No. 82/2020/ND-CP stipulates penalties for administrative violations in the field of judicial assistance, judicial administration, marriage & family, civil judgment enforcement, bankruptcy of enterprises and cooperatives.
6. Ministry of Justice (2018). Decision No. 1319/QD-BTP on approving the plan to reduce and simplify business conditions in the fields under the management of the Ministry of Justice dated June 8, 2018.
7. National Bar Council (2011). Decision No. 68/QD-HDLSTQ On the promulgation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers dated July 20th, 2011 of the National Bar Council.
8. National Bar Council (2019). Decision No. 201/QD-HDLSTQ Decision promulgation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers, dated December 13th, 2019 of the National Bar Council.
9. National Bar Council (2019). Decision No. 203/QD-HDLSTQ Decision promulgating the Regulation on settlement of complaints, denunciations and disciplinary actions, dated December 19th, 2019 of the National Bar Council.
10. Prime Minister (2022). Decision No. 856/QD-TTg approving the Charter of Vietnam Bar Federation dated July 19th, 2022 of the Prime Minister
11. National Assembly of the Socialist Republic of Vietnam (2006). Law on Lawyers (2006) amending and supplementing a number of articles in 2012.
12. National Assembly of the Socialist Republic of Vietnam (2018). Law No. 23/2018/QH14 dated June 12th, 2018 of the National Assembly on Competition
13. Nguyen Tu (2016). Competition policy in TPP - impact on "transposition" in to law on competition of Vietnam, People's Court Journal No. 24 (2016), pp.24, 27-34.
14. Ton That Nhan Tuoc (2019). Contracts in the market economy according to Vietnamese law - experience from the French Republic. Viet Nam Lawyer Journal. No 7/2019, pp. 23-26.
15. Tôn Thất Nhân Tước (2021). Luật sư trong tố tụng hình sự đáp ứng yêu cầu cải cách tư pháp trong giai đoạn hiện nay. Tạp chí Luật sư số 12, tháng 12/2021, tr 43-tr45.”
16. Vietnam Chamber of Commerce and Industry - WTO and Integration Center. Vietnam - EU Free Trade Agreement.
17. Mai Thoa (2020). Trien-khai-thi-hanh-bo-quy-tac-dao-duc-va-ung-xu-nghe-nghiep-luat-su. [Online] Available at https://congly.vn/trien-khai-thi-hanh-bo-quy-tac-dao-duc-va-ung-xu-nghe-nghiep-luat-su-137818.html accessed on 12/11/2022.
Author’s information:
PhD. Candidate Ton That Nhan Tuoc - University of Law, Hue University
Pháp luật về hành vi cạnh tranh không lành mạnh trong dịch vụ pháp lý của luật sư ở Việt Nam
Nghiên cứu sinh Tôn Thất Nhân Tước, Trường Đại học Luật - Đại Học Huế
Tóm tắt:
Dịch vụ pháp lý của luật sư là một loại hình kinh doanh có điều kiện được pháp luật công nhận, cạnh tranh trong dịch vụ pháp lý của luật sư là tất yếu như bất kỳ lĩnh vực kinh doanh nào khác. Hoạt động kinh doanh dịch vụ pháp lý trong hành nghề luật sư cũng có quy định về hành vi cạnh tranh không lành mạnh. Pháp luật về hành vi cạnh tranh không lành mạnh còn nhiều bất cập, không đồng bộ giữa pháp luật cạnh tranh và pháp luật chuyên ngành, đôi khi còn có sự mâu thuẫn. Các hành vi cạnh tranh không lành mạnh trong dịch vụ pháp lý của luật sư tại Việt Nam không được xem xét và xử lý theo tinh thần của luật cạnh tranh. Trong bài báo này, tác giả tập trung nghiên cứu phân tích những bất cập trong quy định của pháp luật về hành vi cạnh tranh không lành mạnh trong dịch vụ pháp lý của luật sư ở Việt Nam. Tác giả đề xuất các kiến nghị để hoàn thiện pháp luật về hành vi cạnh tranh không lành mạnh trong dịch vụ pháp lý của luật sư ở Việt Nam.
Từ khóa: dịch vụ pháp lý, cạnh tranh không lành mạnh, hành nghề luật sư, luật cạnh tranh, luật luật sư
