Name of recommendations: Guidance prescribed by the Civil Code

Status: Responded

Recommended by units: The Hau Cong Ly Representative Consultancy Service & TradingCo., ltd (Address: 276 Nguyen Nghiem Street, Residential Group 5, Duc Pho Town, Duc Pho District, Quang Ngai Province)

Official letter: No 1860/PTM - VP, dated: 2018-08-28

Recommended contents:

In recent years, The Hau Cong Ly Representative Consultancy Service &TradingCo., Ltd, which has an address at 276 Nguyen Nghiem Street, Residential Group5, Duc Pho Town, Duc Pho District, Quang Ngai Province, has participated administrative and civil procedure as the authorized representative to the litigants in accordance with the following legal documents:

According to the provisions of the 2015 Civil Code:

This authorization, I follow the following regulations:

Clause 1 Article 134 of the Civil Code stipulates “Representation means a person (hereinafter referred to as the representative) acting in the name and for the benefit of another person (hereinafter referred to as the principal) enters into and performs a civil transaction within the scope of representation”.

Clause 1, Article 138 of the Civil Code  stipulates“1. Each natural or juridical person may authorize another natural or juridical person to enter into and perform a civil transaction..”.

Article 74 of the 2015 Civil Code stipulates the conditions for becoming a legal entity as "Article 74. Legal entity

1. An organization shall be recognized as a juridical person if it meets all of the following conditions:

a) It is legally established as prescribed in this Code and relevant laws;

b) It has an organizational structure prescribed in Article 83 of this Code;

c) It has property independent from other natural and juridical persons and bears liability by recourse to its property;

d) It participates independently in legal relations in its own name”.

With Point d, Clause 1, Article 74 above, the legal entity is fully qualified as a subject, participating in legal relations independently.

In Article 53 of the Law on Administrative Procedures stipulates “Article 53. Procedure participants

Administrative procedure participants include involved parties, representatives of involved parties, defense counsels of the lawful rights and interests of involved parties, witnesses, expert witnesses and interpreters”.

In Clauses 7, 8, 9 and 10, Article 3 of the Law on Administrative Procedures stipulates:

“7. Involved parties include the plaintiff, defendant and persons with related interests             and obligations.

8. Plaintiff means an agency, organization or individual that institutes an administrative lawsuit over an administrative decision or act, a disciplinary decision on dismissal, a decision on settlement of a complaint about a decision on handling of a competition case, or over a list of voters to elect National Assembly deputies, a list of voters to elect People’s Council deputies or a list of voters in a referendum (below collectively referred to as voter list).

 9. Defendant means an agency, organization or individual that has made an administrative decision, taken an administrative act or issued a disciplinary decision on dismissal, a decision on settlement of a complaint about a decision on handling of a competition case or made a voter list over which a lawsuit is instituted.

10.Person with related interests and obligations means an agency, organization or individual that, though being neither the plaintiff nor the defendant, has his/her/its interests and obligations related to the settlement of an administrative case and, therefore, participates on his/her/its own initiative or at the request of another involved party as accepted by the people’s court (below referred to as court) or summoned by the court to participate in procedures in the capacity as a person with related interests and obligations”.

Thus, when an organization is the petitioner, the defendant, the person with the rights and obligations involved in the procedures shall have the right to authorize another organization to participate in the procedures instead of his organization. If the organization is an economic legal entity authorized to an organization, it is a legal entity (such as a law firm) participating in administrative procedures.

From this basic provision, in Clauses 1,3 and 4, Article 60 of the Law on Administrative Procedures stipulates “1. Representatives in administrative procedures include at-law representatives and authorized representatives.

3. A person appointed by the court, for a person having civil act capacity restricted or having a difficulty in recognizing or controlling his/her act;
4. At-law representatives and authorized representatives in administrative procedures shall terminate their representation in accordance with the Civil Code”.

Clause 4 of Article 60 above stipulates the application of the Civil Code. Furthermore, Clause 3 of Article 60 above uses the word "person" without specifying an individual. The word "person" is a personal pronoun for agencies, organizations and individuals. The administrative procedure law only requires that an authorized representative must be a person with full civil act capacity, meaning that he or she must be eligible to establish and perform authorized work. This provision does not have the meaning of providing only for individuals but also organizations being households, cooperative groups, and associations without legal status. And legal entities have legal capacity and participate in social relations independently; legal entities of course have full civil act capacity, so the Law on Administrative Procedures does not stipulate which is appropriate.

Moreover, in the trial practice, the high-level People's Court in Da Nang accepted the petitioner as the individual who authorizes the legal entity to participate in administrative procedurecase. Specifically, the Judgment No. 94/2018 / HC-PT dated June 5, 2018 of the high-level People's Court in Da Nang adjudged that Mr. Nguyen Buong (the petitioner) who authorized forthe Hau Cong LyRepresentative Consultancy Service & Trading Co., Ltd (This judgment was posted on the SPC website); the first instance administrative judgment No. 01/2018 / HC-ST dated April 10, 2018 of the Duc Pho District People's Court also accepted Mr. Nguyen Hon (the petitioner) to authorize the Hau Cong LyRepresentative Consultancy Service & Trading Co., Ltd involved in administrative procedureswas legal. Thus, if from the point of view of the Quang Ngai People's Court, the statements of the above judgments seriously violated the procedures,but there was also a strange life that the Quang Ngai People's Court appealed the first instance verdict No. 01/2018 / HC-ST of the Duc Pho District People's Court without declaring a serious violation of procedures about the authority.

However, on July 25, 2018, the Quang Ngai People's Court temporarily suspended the first-instance administrative trial withreasons that not acceptedmy authorization for the Hau Cong LyRepresentative Consultancy Service & Trading Co., Ltd, this was not consistent with the above proofs.

Also in the administrative case of Mr. Tran Van Bay, the Quang Ngai People's Court accepted procedures for participation in the legal procedures of the Hau Cong LyRepresentative Consultancy Service & Trading Co., Ltd, concretely wasfrom 04 April 4, 2018 until July 25, 2018 (including public sessions, evidence-based approaches and Dialogue chaired by the judge). However, when judging, it did not accept this authorization.

In civil procedures, according to Clauses 1 and 4, Article 85 of the Civil Procedure Code stipulates “1. Representatives in civil procedure include legal representatives and authorized representatives. The representative may be an individual or a legal person in accordance with the Civil Code.

4. The authorized representative in accordance with the Civil Code is the authorized representative in civil procedure ”.

the Hau Cong LyRepresentative Consultancy Service & Trading Co., Ltdreceived the authorization of the litigant and sent the Deputy Director of the Company to participate in the civil procedurecase to be appellated at the Quang Ngai Provincial People's Court on July 27, 2018, but the Trial Panel of the Quang Ngai Provincial People's Court did not accept the reason in the Power of Attorney without re-authorized content for a third person (ie, the Panel for assuming that this authorization performed must be made by the legal representative of the company).

We believed that a legal entity was an organization with many people, the appointment of a person in a legal entity to perform the task that the legal entity authorized to be decided by the legal entity.

In order to remove problems in the process of legal awareness and application, the Hau Cong Ly Representative Consultancy Service &Trading Co., Ltd would like to propose to guide the following contents:

1 / In the administrative procedures, does the individual who initiates legal procedures to authorize the legal person to participate in the legal procedures violate the law? Is he/she accepted or not?

2 / Any personnel of the Hau Cong Ly Representative Consultancy Service &Trading Co., Ltd or a Law Firm appointed by the company to act on its own behalf in violation of the law by the Authorized Company? Are they accepted or not?