|
THE NATIONAL ASSEMBLY
-------
|
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------
|
|
Law No.36/2005/QH11
|
Hanoi, June 14, 2005
|
LAW
COMMERCIAL
(No. 36/2005/QH11)
Pursuant to
Article 103 and Article 106 of the 1992 Constitution of the Socialist Republic
of Vietnam, which was amended and supplemented under Resolution No.
51/2001/QH10 of 25 December, 2001, of the X th National Assembly, the 10
th session;
This Law
provides for commercial activities.
Chapter I
GENERAL PROVISIONS
SECTION 1. GOVERNING SCOPE AND SUBJECTS OF APPLICATION
Article
1.- Governing scope
1. Commercial
activities conducted in the territory of the Socialist Republic of Vietnam.
2. Commercial
activities conducted outside the territory of the Socialist Republic of Vietnam
in cases where the involved parties agree to this Law for application, or where
a foreign law or a treaty to which the Socialist Republic of Vietnam is a
contracting party stipulates the application of this Law.
3. Activities not
for profit purposes conducted by a party in its transactions with traders in
the territory of the Socialist Republic of Vietnam in cases where the party
conducting such not-for-profit activities chooses to apply this Law.
Article
2.- Subjects of application
1. Traders
conducting commercial activities as provided for in Article 1 of this Law.
2. Other
organizations and individuals conducting commerce-related activities.
3. Basing itself
on the principles provided for by this Law, the Government shall specify the
application of this Law to individuals who independently and regularly conduct
commercial activities without having to make business registration.
Article
3.- Interpretation of terms
In this Law, the
following terms shall be construed as follows:
1. Commercial
activities mean activities for the purpose of generating profits, including:
sale and purchase of goods, provision of services, investment, commercial
promotion and other activities for the profit purpose.
2. Goods include:
a/ All types of
movables, including those to be formed in the future;
b/ Things
attached to land;
3. Custom in
commercial activities means a code of conduct that has an explicit meaning, is
established and repeated time and again for a long period of time between and
implicitly recognized by involved parties in order identify their respective
rights and obligations in commercial contracts.
4. Commercial
practice means a custom that is widely recognized in commercial activities in
an area, a region or a commercial domain, has an explicit meaning, and is
recognized by involved parties in order to identify their respective rights and
obligations in commercial activities.
5. Data message
means information created, sent, received and stored in electronic media.
6. Vietnam-based
representative office of a foreign trader means a dependent unit of the foreign
trader, which is established under the provisions of Vietnamese law to conduct
market survey and a number of commercial promotion activities permitted by
Vietnamese law.
7. Vietnam-based
branch of a foreign trader means a dependent unit of the foreign trader, which
is established and conducts commercial activities in Vietnam under the
provisions of Vietnamese law or treaties to which the Socialist Republic of
Vietnam is a contracting party.
8. Purchase and
sale of goods mean commercial activities whereby the seller is obliged to
deliver goods, transfer ownership of goods to the purchaser and receive
payment; the purchaser is obliged to pay to the seller and receive goods and the
ownership thereof as agreed.
9. Provision of
services means commercial activities whereby a party (hereinafter referred to
as the service provider) is obliged to provide a service to another party and
receive payment; the service-using party (hereinafter referred to as the
customer) is obliged to pay to the service provider and use the service as
agreed.
10. Commercial
promotion means activities of promoting and seeking opportunities for the
purchase or sale of goods and provision of services, including sale promotion,
commercial advertisement, display and exhibition of goods and services, and
trade fairs and exhibitions.
11. Commercial
intermediary activities mean activities carried out by a trader to effect
commercial transactions for one or several identified traders, including
representation for traders, commercial brokerage, goods sale or purchase
entrustment, and commercial agency.
12. Contractual
breach means the failure of a party to perform, to fully or properly perform
its obligations according to the agreement between the involved parties or the
provisions of this Law.
13. Substantial
breach means a contractual breach by a party, which causes damage to the other
party to an extent that the other party cannot achieve the purpose of the entry
into the contract.
14. Origin of
goods means a country or a territory where all the goods are turned out or
where the last stage of substantial processing of goods is performed in cases
where many countries or territories join in the process of producing such goods.
15. Forms of
validity equivalent to documents include telegraph, telex, facsimile, data
message and other forms provided for by law.
Article
4.- Application of the Commercial Law and relevant laws
1. Commercial
activities must comply with the Commercial Law and relevant laws.
2. Particular
commercial activities provided for in other laws shall comply with the
provisions of such laws.
3. Commercial
activities which are not provided for in the Commercial Law and other laws
shall comply with the provisions of the Civil Code.
Article
5.- Application of treaties, foreign laws and international commercial
practices
1. Where a treaty
to which Vietnam is a contracting party stipulates the application of foreign
laws or international commercial practices, or contain provisions different
from those of this Law, the provisions of such treaty shall apply.
2. Parties to
commercial transactions involving foreign elements may agree to apply foreign
laws or international commercial practices if such foreign laws or
international commercial practices are not contrary to the fundamental
principles of the Vietnamese law.
Article
6.- Traders
1. Traders
include lawfully established economic organizations and individuals that
conduct commercial activities in an independent and regular manner and have
business registrations.
2. Traders are
entitled to conduct commercial activities in occupations and sectors, in
geographical areas, in forms and by modes which are not banned by law.
3. The right of
traders to conduct lawful commercial activities is protected by the State.
4. The State
exercises for a definite time its monopoly over commercial activities in
respect to a number of goods and services or in a number of geographical areas
in order to ensure the national interests. The Government shall specify the
lists of goods, services and geographical areas subject to the State monopoly.
Article
7.- Obligation of traders to register business
Traders are
obliged to register their business according to the provisions of law. Where
traders have not yet registered their business, they are still held responsible
for all of their activities according to the provisions of this Law and other
provisions of law.
Article
8.- Agencies in charge of state management over commercial activities
1. The Government
performs the unified state management over commercial activities.
2. The Trade
Ministry is answerable to the Government for performing the state management
over activities of goods sale and purchase and specific commercial activities
provided for in this Law.
3. Ministries and
ministerial-level agencies shall, within the scope of their respective tasks
and powers, have to perform the state management over commercial activities in
their assigned domains.
4. People’s
Committees at all levels perform the state management over commercial
activities in their respective localities according to the decentralization by
the Government.
Article
9.- Commercial associations
1. Commercial
associations are established to protect the legitimate rights and interests of
traders, mobilize traders to take part in commercial development, and
disseminate and propagate the provisions of law on commerce.
2. Commercial
associations are organized and operate according to the provisions of law on
associations.
SECTION 2. FUNDAMENTAL PRINCIPLES IN COMMERCIAL ACTIVITIES
Article 10.- Principle of traders’ equality before law in commercial
activities
Traders of all
economic sectors are equal before law in commercial activities.
Article 11.- Principle of freedom and freewill to agreement in
commercial activities
1. Parties have
the rights of freedom to reach agreements not in contravention of the
provisions of law, fine traditions and customs and social ethics in order to
establish their rights and obligations in commercial activities. The State
respects and protects such rights.
2. In commercial
activities, the parties shall act on their own freewill, and neither party is
allowed to impose its own will on, to force, intimidate or obstruct, the other
party.
Article 12.- Principle of application of customs in commercial
activities pre-established between parties
Except otherwise
agreed, the parties shall be regarded as automatically applying customs in
commercial activities pre-established between them which they have already
known or ought to know, provided that such customs are not contrary to the
provisions of law.
Article 13.- Principle of application of practices in commercial
activities
Where it is
neither provided for by law nor agreed by the parties, and there exist no
customs pre-established between them, commercial practices shall be applied
provided that such practices are not contrary to the principles provided for in
this Law and the Civil Code.
Article 14.- Principle of protection of legitimate interests of
consumers
1. Traders
conducting commercial activities are obliged to provide consumers with
sufficient and truthful information on goods and/or services they trade in or
provide and take responsibility for the accuracy of such information.
2. Traders
conducting commercial activities must be responsible for the quality and
lawfulness of goods and/or services they trade in or provide.
Article 15.- Principle of recognition of legal validity of data
messages in commercial activities
In commercial
activities, data messages which satisfy all technical conditions and standards
provided for by law shall be recognized legally valid as documents.
SECTION 3. FOREIGN TRADERS CONDUCTING COMMERCIAL ACTIVITIES IN VIETNAM
Article 16.- Foreign traders conducting commercial activities in
Vietnam
1. Foreign
traders mean traders established and making their business registrations
according to the provisions of foreign laws or recognized by foreign laws.
2. Foreign
traders are entitled to set up their representative offices or branches in
Vietnam; to establish in Vietnam foreign-invested enterprises in the forms
provided for by Vietnamese law.
3. Vietnam-based
representative offices and branches of foreign traders have the rights and
obligations specified by Vietnamese law. Foreign traders shall be held
responsible before Vietnamese law for all activities of their Vietnam-based
representative offices and branches.
4.
Foreign-invested enterprises established in Vietnam by foreign traders
according to the provisions of Vietnamese law or international treaties to
which the Socialist Republic of Vietnam is a contracting party shall be
regarded as Vietnamese traders.
Article 17.- Rights of representative offices
1. To operate for
the purposes, within the scope and duration stipulated in their establishment
licenses.
2. To rent
offices, rent and purchase equipment and facilities necessary for their
operations.
3. To recruit
Vietnamese and expatriate employees to work for them according to the
provisions of Vietnamese law.
4. To open
accounts in foreign currencies or foreign currency-based Vietnam dong at banks
licensed to operate in Vietnam, and to be allowed to use those accounts solely
for their operations.
5. To have seals
bearing their names according to the provisions of Vietnamese law.
6. To have other
rights as defined by law.
Article 18.- Obligations of representative offices
1. Not to
directly conduct profit-generating activities in Vietnam.
2. To conduct
commercial promotion activities within the scope permitted by this Law.
3. Not to enter
into contracts, not to amend or supplement contracts already entered into by
foreign traders, except where chief representatives obtain valid letters of authorization
from foreign traders or other cases specified in Clauses 2, 3 and 4, Article 17
of this Law.
4. To pay taxes,
fees and charges, and fulfil other financial obligations provided for by
Vietnamese law.
5. To report on
their operations according to Vietnamese law.
6. To have other
obligations as defined by Vietnamese law.
Article 19.- Rights of branches
1. To rent
offices, rent and purchase equipment and facilities necessary for their
operations.
2. To recruit
Vietnamese and expatriate employees to work for them according to Vietnamese
law.
3. To enter into
contracts in Vietnam in compliance with their operation contents specified in
their establishment licenses and the provisions of this Law.
4. To open
Vietnam dong accounts and foreign-currency accounts at banks licensed to
operate in Vietnam.
5. To transfer
profits overseas according to the provisions of Vietnamese law.
6. To have seals
bearing their own names according to the provisions of Vietnamese law.
7. To conduct
activities of goods purchase and sale and other commercial activities in
compliance with their establishment licenses according to the provisions of
Vietnamese law and treaties to which the Socialist Republic of Vietnam is a
contracting party.
8. To have other
rights provided for by law.
Article 20.- Obligations of branches
1. To observe the
accounting regime provided for by Vietnamese law; in cases where it is
necessary to apply another commonly used accounting system, the approval by the
Finance Ministry of the Socialist Republic of Vietnam is required.
2. To report on
their operations according to the provisions of Vietnamese law.
3. To have other
obligations provided for by law.
Article 21.- Rights and obligations of foreign-invested enterprises
Rights and
obligations of foreign invested enterprises shall be determined according to
the provisions of Vietnamese law or treaties to which the Socialist Republic of
Vietnam is a contracting party.
Article 22.- Competence to license foreign traders to conduct
commercial activities in Vietnam
1. The Government
shall uniformly manage the licensing of commercial activities of foreign
traders in Vietnam.
2. The Planning
and Investment Ministry shall be answerable to the Government for managing the
issuance of licences to foreign traders investing in Vietnam according to the
provisions of Vietnamese law.
3. The Trade
Ministry shall be answerable to the Government for managing the issuance of
licences to set up Vietnam-based representative offices of foreign traders; or
licenses to set up branches, joint-venture enterprises or enterprises with 100%
foreign capital in Vietnam in cases where such traders are specialized in
conducting activities of goods purchase and sale or other activities directly
related to goods purchase and sale in compliance with Vietnamese law and
treaties to which the Socialist Republic of Vietnam is a contracting party.
4. Where a
specialized law contains specific provisions on the competence of ministries or
ministerial-level agencies, which are responsible before the Government for
managing the issuance of licences to foreign traders for conducting commercial
activities in Vietnam, the provisions of such specialized law shall apply.
Article 23.- Termination of operations in Vietnam of foreign traders
1. Foreign
traders shall terminate their operations in Vietnam in the following cases:
a/ Upon
expiration of the operation duration stipulated in their licenses;
b/ At the request
of traders, which is approved by competent state management agencies;
c/ Under
decisions of competent state management agencies as a sanction against their
violations of law and their licenses;
d/ Where traders
are declared bankrupt;
e/ Where foreign
traders terminate their operations according to foreign laws, for representative
offices, branches or foreign parties to business cooperation contracts with
Vietnamese parties;
f/ Other cases
provided for by law.
2. Before
terminating their operations in Vietnam, foreign traders are obliged to pay
debts and fulfill other obligations toward the State, concerned organizations
and individuals in Vietnam.
Chapter II
PURCHASE AND SALE OF GOODS
SECTION 1. GENERAL PROVISIONS ON ACTIVITIES OF PURCHASE AND SALE OF
GOODS
Article 24.- Form of contracts for purchase and sale of goods
1. Contracts for
sale and purchase of goods may be expressed in verbal or written form or
established by specific acts.
2. For types of
contracts for purchase and sale of goods, which, as provided for by law, must
be made in writing, such provisions must be complied with.
Article 25.- Goods banned from business, goods subject to business
restrictions and goods subject to conditional business
1. On the basis
of socio-economic conditions of each period and international treaties to which
the Socialist Republic of Vietnam is a contracting party, the Government shall
specify the lists of goods banned from business, goods subject to business
restrictions, and goods subject to conditional business and the conditions for
trading in such goods.
2. For goods
subject to business restrictions and goods subject to conditional business, the
purchase and sale thereof shall be effected only when goods and the goods
purchasing and selling parties fully meet the conditions provided for by law.
Article 26.- Application of urgent measures with respect to
domestically circulated goods
1. Goods legally
and domestically circulated may be subject to the application of one or all of
such measures as compulsory withdrawal from circulation, circulation ban,
circulation suspension, conditional circulation, or compulsory circulation
permission in the following cases:
a/ Where such
goods constitute sources or transmitters of various epidemics and diseases;
b/ Where an
emergency circumstance occurs.
2. Specific
conditions, order, procedures and competence for announcing the application of
urgent measures to domestically circulated goods shall comply with the
provisions of law.
Article 27.- International purchase and sale of goods
1. International
purchase and sale of goods shall be conducted in form of export, import,
temporary import for re-export, temporary export for re-import and transfer
through border-gates.
2. International
purchase and sale of goods shall be conducted on the basis of written contracts
or other forms of equal legal validity.
Article 28.- Export and import of goods
1. Export of
goods means the bringing of goods out of the territory of the Socialist
Republic of Vietnam or into special zones in the Vietnamese territory, which
are regarded as exclusive customs zones according to the provisions of law.
2. Import of
goods means the bringing of goods into the territory of the Socialist Republic
of Vietnam from foreign countries or special zones in the Vietnamese territory,
which are regarded as exclusive customs zones according to the provisions of
law.
3. On the basis
of socio-economic conditions in each period and treaties to which the Socialist
Republic of Vietnam is a contracting party, the Government shall specify the
lists of goods banned from import and/or export, goods to be imported or
exported under permits of competent state management agencies, and the
procedures for granting permits.
Article 29.- Temporary import for re-export and temporary export for
re-import of goods
1. Temporary
import of goods for re-export means the bringing of goods into Vietnam from
foreign countries or special zones locating in the Vietnamese territory, which
are regarded as exclusive customs zones according to the provisions of law,
with the completion of the procedures for importing such goods into Vietnam,
then procedures for exporting the same goods out of Vietnam.
2. Temporary
export of goods for re-import means the bringing of goods overseas or into
special zones in the Vietnamese territory which are regarded as exclusive
customs zones according to the provisions of law, with the completion of
procedures for exporting such goods out of Vietnam, then procedures for
importing the same goods back into Vietnam.
3. The Government
shall specify activities of temporary import for re-export and temporary export
for re-import of goods.
Article 30.- Transfer of goods through border-gates
1. Transfer of
goods through border-gates means the purchase of goods from a country or
territory for sale to another country or territory outside the Vietnamese
territory without carrying out the procedures for importing such goods into
Vietnam and the procedures for exporting such goods out of Vietnam.
2. Transfer of
goods through border-gates shall be conducted in the following forms:
a/ Goods are
transported directly from the exporting country to the importing country
without going through Vietnamese border-gates;
b/ Goods are
transported from the exporting country to the importing country through
Vietnamese border-gates without carrying out the procedures for importing them
into Vietnam and the procedures for exporting them out of Vietnam;
c/ Goods are
transported from the exporting country to the importing country through
Vietnamese border-gates and brought into bonded warehouses or areas for
transshipment of goods at Vietnamese ports without carrying out the procedures
for importing them into Vietnam and the procedures for exporting them out of
Vietnam.
3. The Government
shall provide for in detail activities of transfer of goods through
border-gates.
Article 31.- Application of urgent measures to activities of
international purchase and sale of goods
Where it is
necessary to protect the national security or other national interests in
compliance with Vietnamese law and treaties to which the Socialist Republic of
Vietnam is a contracting party, the Prime Minister shall decide on the
application of urgent measures to activities of international purchase and sale
of goods.
Article 32.- Labels for domestically circulated, exported and imported
goods
1. Goods labels
mean writings, prints, drawings or photos of texts, pictures or images, which
are stuck, printed, affixed, molded, carved or engraved directly on goods or
their commercial packing or other materials which are attached to the goods or
their packing.
2. All goods that
are domestically circulated, imported and exported must have their labels,
except for some cases specified by law.
3. Contents which
must be inscribed in goods labels and the labeling of goods shall comply with
regulations of the Government.
Article 33.- Certificates of origin of goods and rules of origin of
goods
1. Export goods
and import goods must have certificates of origin in the following cases:
a/ Goods are
eligible for tax or other preferences;
b/ It is so
provided for by Vietnamese laws or treaties to which the Socialist Republic of
Vietnam is a contracting party.
2. The Government
shall provide in detail for the rules of origin for exports and imports.
SECTION 2. RIGHTS AND OBLIGATIONS OF PARTIES TO CONTRACTS FOR PURCHASE
AND SALE OF GOODS
Article 34.- Delivery of goods and goods-related documents
1. The seller
must deliver goods and relevant documents, as agreed in contracts on quantity,
quality, packing and preservation modes and other contractual terms.
2. In cases where
there is no specific agreement, the seller is obliged to deliver goods and
relevant documents according to the provisions of this Law.
Article 35.- Place of delivery of goods
1. The seller is
obliged to deliver goods at the agreed place.
2. In cases where
there is no agreement on place of goods delivery, such a place shall be
specified as follows:
a/ In cases where
goods are things attached to land, the seller must deliver goods at the place
where such goods exist;
b/ In cases where
the contract contains a provision on goods transportation, the seller is
obliged to deliver goods to the first carrier;
c/ In cases where
the contract contains no provision on goods transportation, and at the time the
contract is entered into, the parties know the location of the goods storage,
the place of goods loading or the place of goods manufacture, the seller shall
have to deliver the goods at such place;
d/ In other
cases, the seller shall have to deliver goods at his/her place of business, or
his/her place of residence identified at the time the purchase and sale
contract is entered into in cases he/she has no place of business.
Article 36.- Responsibilities upon delivery of goods where carriers are
involved
1. Where goods
are handed over to the carrier without being identified with specific signs or
marks on them, accompanied with transportation documents or otherwise, the
seller must notify the purchaser of the handover of goods to the carrier and
clearly identify names and method of recognizing transported goods.
2. Where the
seller is obliged to arrange the goods transportation, the seller shall have to
enter into necessary contracts for the transportation of goods to the
destination by means of transportation suitable to specific circumstances and
under normal conditions for such modes of transportation.
3. Where the
seller is not obliged to purchase insurance for the goods in the course of
transportation and if requested by the purchaser, the seller must supply to the
purchaser all necessary information on the goods and the transportation thereof
to enable the purchaser to purchase insurance for the goods.
Article 37.- Time limit for delivery of goods
1. The seller
must deliver goods at the time already agreed upon in the contract;
2. Where only the
time limit for delivery of goods is agreed upon without a specific time for
delivery of goods, the seller may deliver goods at any time within such time
limit and must notify the purchaser of the delivery in advance;
3. Where there is
no agreement on the time limit for delivery of goods, the seller must deliver
goods within a reasonable time limit after the contract is entered into.
Article 38.- Delivery of goods before the agreed time
Where the seller
delivers goods earlier than the agreed time, the purchaser may receive or
reject the goods, unless otherwise agreed upon by the parties.
Article 39.- Goods which are not appropriate to contracts
1. Where it is
not specified in the contract, goods shall be considered not appropriate to the
contract when they fall into one of the following cases:
a/ They are not
suitable to common use purposes of goods of the same type;
b/ They are not
suitable to any specific purpose that has been notified by the purchaser to the
seller or the seller should have known at the time the contract is entered
into;
c/ Their quality
is not the same as the quality of the samples previously handed over by the
seller to the purchaser;
d/ They are not
preserved or packaged by a method common to such goods, or not preserved by
proper preserving methods in cases where no common preserving method is
available.
2. The purchaser
may reject the goods if such goods are not appropriate to the contract
according to the provisions of Clause 1 of this Article.
Article 40.- Liability for goods which are not appropriate to contracts
Unless otherwise
agreed upon by the parties, the liability for goods which are not appropriate
to contracts is provided for as follows:
1. The seller
shall not be liable for any defect of the goods if the purchaser, at the time
the contract is entered into, knew or should have known such defect;
2. Except for the
case specified in Clause 1 of this Article, within the time limit for lodging
complaint provided for in this Law, the seller shall be liable for any defect
of the goods which already exists before the time of passing the risk to the
purchaser despite the fact that such defect may be discovered after passing the
risks.
3. The seller
shall be liable for defects of goods occurring after the pass of risks if such
defects are attributable to contract breaches by the seller.
Article 41.- Remedies in case of delivery of goods in insufficient
quantity or delivery of goods not appropriate to contracts
1. Unless otherwise
agreed, and where the contract only provides for a time limit for delivery of
goods and does not determine a specific time for delivery of goods, and the
seller delivers goods before the expiration of such time limit but in
insufficient quantity or goods not appropriate to the contract, the seller may
still deliver the deficit quantity of goods or provide substitute goods which
are appropriate to the contract or remedy the inappropriateness of the goods
within the remaining duration.
2. Where the seller,
when applying the remedies provided for in Clause 1 of this Article, causes
disadvantages or unreasonable costs to the purchaser, the purchaser shall have
the right to request the seller to deal with such disadvantages or bear such
costs.
Article 42.- Delivery of goods-related documents
1. Where there is
an agreement on the delivery of documents, the seller is obliged to deliver all
goods-related documents to the purchaser within the time limit, at the place
and by mode already agreed.
2. Where there is
no agreement on the time limit and place for delivery of goods-related
documents to the purchaser, the seller must deliver such documents to the
purchaser within a reasonable time limit and at a convenient place so that the
purchaser can receive the goods.
3. Where the
seller has delivered goods-related documents before the agreed time, the seller
can still rectify errors of such documents within the remaining duration of the
time limit.
4. When the
seller, when rectifying errors mentioned in Clause 3 of this Article, causes
disadvantages or unreasonable costs to the purchaser, the purchaser shall have
the right to request the seller to deal with such disadvantages or bear such
costs.
Article 43.- Delivery of goods in excessive quantity
1. Where the
seller delivers goods in excessive quantity, the purchaser may reject or accept
such excessive quantity of goods.
2. Where the
purchaser accepts the excessive quantity of goods, the purchaser must pay for
that quantity at the price agreed in the contract unless otherwise agreed upon
by the parties.
Article 44.- Pre-delivery examination of goods
1. Where it is
agreed by the parties that the purchaser or the purchaser’s representative
shall examine the goods before the delivery, the seller must ensure that the
purchaser or the purchaser’s representative shall be given conditions for
conducting such examination.
2. Except where
it is otherwise agreed, the purchaser or the purchaser’s representative in the
cases mentioned in Clause 1 of this Article must examine the goods within the
shortest period of time allowed by practical circumstances. Where the contract
provides for the transportation of goods, the examination of goods may be
postponed until the goods are transported to the destination.
3. Where the purchaser
or the purchaser’s representative does not conduct the examination of goods
before the delivery of goods as agreed, the seller may deliver the goods
according to the contract.
4. The seller
shall not be liable for defects of goods which the purchaser or the purchaser’s
representative has known or should have known but failed to notify them to the
seller within a reasonable time limit after the examination of goods.
5. The seller
shall be liable for defects of goods already examined by the purchaser or the
purchaser’s representative if the defects of the goods cannot be detected in
the course of examination through common measures and the seller knew or should
have known such defects but failed to notify them to the purchaser.
Article 45.- Obligation to assure the ownership right over goods
The seller must
assure that:
1. The ownership
right of the purchaser over goods sold is not disputed by any third party;
2. The goods are
lawful;
3. The handover
of the goods is lawful.
Article 46.- Obligation to assure intellectual property rights over
goods
1. The seller
must not sell goods infringing upon intellectual property rights. The seller
shall be held responsible for any dispute related intellectual property rights
over goods sold.
2. Where the
purchaser requests the seller to observe technical drawings, designs, formulas
or specifications furnished by the purchaser, the purchaser shall be liable for
complaints related to infringements of intellectual property rights which arise
from the fact that the seller has complied with the request of the purchaser.
Article 47.- Notification requirements
1. The seller
shall lose the right to invoke the provisions of Clause 2, Article 46 of this
Law when failing to promptly notify the purchaser of a third party’s complaint
about the delivered goods after the seller knew or should have known such
complaint, except for cases where the purchaser knew or should have known a
third party’s complaint.
2. The purchaser
shall lose the right to invoke the provisions of Article 45 and Clause 1,
Article 46 of this Law when failing to promptly notify the seller of a third
party’s complaint about the delivered goods after the purchaser knew or should
have known such complaint, except for cases where the purchaser knew or should
have known a third party’s complaint.
Article 48.- Obligation of the seller in cases where goods are subject
to measures of security for performance of civil obligations
Where the goods
sold are subject to measures of security for performance of civil obligations,
the seller must notify the purchaser of such security measures and must obtain
the consent of the security beneficiary regarding the sale of such goods.
Article 49.- Obligation to provide warranty for goods
1. Where goods are
purchased and sold under warranty, the seller shall have to provide warranty
for such goods according to the agreed contents and duration.
2. The seller
must fulfill the warranty obligation as soon as the practical situation
permits.
3. The seller
must bear all warranty expenses unless otherwise agreed.
Article 50.- Payment
1. The purchaser
is obliged to pay for goods and receive goods as agreed upon.
2. The purchaser
must comply with the payment modes and make the payment according to the agreed
order and procedures and the provisions of law.
3. The purchaser
shall still have to pay for goods in cases where goods are lost or damaged
after the time the risk is passed from the seller to the purchaser, except for
cases where the loss or damage is caused due to the fault of the seller.
Article 51.- Suspension of payment for goods
Unless otherwise
agreed, the suspension of payment for goods is provided for as follows:
1. The purchaser
that has proofs of deceit of the seller shall have the right to suspend the
payment.
2. The purchaser
that has proofs that the goods are subject to a dispute shall have the right to
suspend the payment until the said dispute is settled.
3. The purchaser
that has proofs that the seller has delivered goods which do not conform with
the contract shall have the right to suspend the payment until the seller
remedy such inconformity.
4. If the proofs
produced by the purchaser for the cases of payment suspension mentioned in
Clauses 2 and 3 of this Article are unfounded, thus causing damage to the
seller, the purchaser must pay compensations for such damage and be subject to
other penalties provided for in this Law.
Article 52.- Determination of prices
Where there is
neither agreement on goods price or on the price-determining method nor other
price indexes, the goods price shall be determined according to the price of
such type of goods under similar conditions on mode of goods delivery, time of
goods purchase and sale, geographical market, payment mode and other conditions
which affect the prices.
Article 53.- Pricing by weight
Unless otherwise
agreed, if the goods price is determined according to the weight of the goods,
such weight must be net weight.
Article 54.- Place of payment
Where there is no
agreement on specific place of payment, the purchaser must pay to the seller at
one of the following places:
1. The seller’s
place of business, which is identified at the time of entering into the
contract; or the seller’s place of residence where the seller has no place of
business.
2. The place
where the goods or documents are delivered, if the payment is made concurrently
with the delivery of goods or documents.
Article 55.- Time limit for payment
Unless otherwise
agreed, the time limit for payment is provided for as follows:
1. The purchaser
must make payment to the seller at the time the seller delivers the goods or
the goods-related documents.
2. The purchaser
is not obliged to make payment until the goods examination can be completed in
cases where an agreement is reached according to the provisions of Article 44
of this Law.
Article 56.- Receipt of goods
The purchaser is
obliged to receive the goods as agreed upon and do appropriate things to help
the seller deliver the goods.
Article 57.- Pass of risks in cases where there is a fixed place of
delivery of goods
Unless otherwise
agreed, if the seller is obliged to deliver the goods to the purchaser at a
particular place, the risk of goods loss or damage shall be passed to the
purchaser as soon as the goods are delivered to the purchaser or the person
authorized by the purchaser to receive the goods at such place, even in cases
where the seller is authorized to retain the documents which establish the
ownership rights over the goods.
Article 58.- Pass of risks in cases where there is no fixed place of
delivery of goods
Unless otherwise
agreed, if the contract contains provisions on the goods transportation and the
seller is not obliged to deliver the goods at a given place, the risk of goods
loss or damage shall be passed to the purchaser as soon as the goods are
delivered to the first carrier.
Article 59.- Pass of risks in cases where goods are handed over to a
bailee that is not a carrier
Unless otherwise
agreed, if the goods are being kept by a bailee that is not a carrier, the
risks of goods loss or damage shall be passed to the purchaser in one of the
following cases:
1. Upon receipt
by the purchaser of documents of title to the goods;
2. Upon the confirmation
by the bailee of the purchaser’s right to possession of the goods.
Article 60.- Pass of risks in case of purchase and sale of goods in
transportation
Unless otherwise
agreed, if the subject matter of the contract is goods in transportation, the risk
of goods loss or damage shall be passed to the purchaser as from the time the
contract is entered into.
Article 61.- Pass of risks in other cases
Unless otherwise
agreed, the pass of risks in other cases is provided for as follows:
1. For cases not
specified in Articles 57, 58, 59 and 60 of this Law, the risk of goods loss or
damage is to be passed to the purchaser as from the time the goods fall under
the purchaser’s right of disposal and the purchaser breaches the contract by
rejecting the goods.
2. Risk of goods
loss or damage is not to be passed to the purchaser if the goods are neither
clearly identified by their signs, codes or bills of transportation, nor
notified to the purchaser, nor identified by any means.
Article 62.- Time of transferring ownership of goods
Unless otherwise
provided for by law or agreed upon by the parties, ownership of goods shall be
passed from the seller to the purchaser as from the time of handover of the
goods.
SECTION 3. PURCHASE AND SALE OF GOODS THROUGH THE GOODS EXCHANGE
Article 63.- Purchase and sale of goods though the Goods Exchange
1. Purchase and
sale of goods through the Goods Exchange mean commercial activities whereby the
parties agree to purchase and sell a defined quantity of goods of a defined
type through the Goods Exchange under the standards of the Goods Exchange, at a
price agreed upon at the time the contract is entered into, and with the time
of goods delivery determined to be a specific point of time in the future.
2. The Government
shall specify activities of purchase and sale of goods through the Goods
Exchange.
Article 64.- Contracts for purchase and sale of goods through the Goods
Exchange
1. Contracts for
purchase and sale of goods through the Goods Exchange include forward contracts
and option contracts.
2. Forward
contract means an agreement whereby the seller undertakes to deliver and the
purchaser undertakes to receive the goods at a specific point of time in the
future under the contract.
3. Call option or
put option contract means an agreement whereby the purchaser has the right to
purchase or sell a specific goods at a pre-fixed price level (hereinafter
called executed price) and must pay a certain sum of money to buy this right
(hereinafter called option money). The option purchaser may opt to effect or
not to effect such purchase or sale of goods.
Article 65.- Rights and obligations of parties to forward contracts
1. Where the
seller delivers the goods under the contract, the purchaser is obliged to
receive the goods and pay for them.
2. Where the
parties agree that the purchaser may make cash payment and reject the goods,
the purchaser shall have to pay to the seller a sum of money equal to the
difference between the price agreed upon in the contract and the market price
announced by the Goods Exchange at the time the contract is performed.
3. Where the
parties agree that the purchaser may make cash payment and refuse to deliver
the goods, the seller shall have to pay to the purchaser a sum of money equal to
the difference between the market price announced by the Goods Exchange at the
time the contract is performed and the price agreed upon in the contract.
Article 66.- Rights and obligations of parties to option contracts
1. The call
option or put option purchaser shall have to pay for option purchase in order
to become call option or put option holder. The sum of money to be paid for
option purchase shall be agreed upon by the parties.
2. The call
option holder has the right to purchase but is not obliged to purchase goods
ascertained in the contract. Where the call option holder decides to perform
the contract, the seller shall be obliged to sell goods to the call option
holder. The seller that has no goods to deliver shall have to pay to the call
option holder a sum of money equal to the difference between the price agreed
upon in the contract and the market price announced by the Goods Exchange at
the time the contract is performed.
3. The put option
holder has the right to sell but is not obliged to sell goods ascertained in
the contract. Where the put option holder decides to perform the contract, the
purchaser shall be obliged to purchase goods from the put option holder. Where
the purchaser does not purchase goods, it shall have to pay to the put option
holder a sum of money equal to the difference between the market price
announced by the Goods Exchange at the time the contract is performed and the
price agreed upon in the contract.
4. Where the call
option or put option holder decides not to perform the contract within the
valid duration of the contract, the contract shall automatically be
invalidated.
Article 67.- The Goods Exchange
1. The Goods
Exchange has the following functions:
a/ Providing the
material - technical conditions necessary for transactions of purchasing or
selling goods;
b/ Running
trading operations;
c/ Listing
specific prices formed at the Goods Exchange at each specific time.
2. The Government
shall specify the conditions for the establishment of the Goods Exchange, the powers
and tasks of the Goods Exchange, and the approval of the operation charter of
the Goods Exchange.
Article 68.- Goods traded at the Goods Exchange
The list of goods
traded at the Goods Exchange shall be promulgated by the Trade Minister.
Article 69.- Brokers for purchase and sale of goods through the Goods
Exchange
1. Brokers for
purchase and sale of goods through the Goods Exchange shall be allowed to
operate at the Goods Exchange only when they fully satisfy the conditions
provided for by law. The Government shall specify the conditions for operation
of brokers for the purchase and sale of goods through the Goods Exchange.
2. Brokers for
purchase and sale of goods through the Goods Exchange shall be allowed to
conduct only activities of brokerage for purchase and sale of goods through the
Goods Exchange and must not be a party to a contract for purchase and sale of
goods through the Goods Exchange.
3. Brokers for
purchase and sale of goods through the Goods Exchange shall be obliged to
deposit money at the Goods Exchange to secure the performance of their
obligations arising in the course of goods purchase and sale brokerage
activities. The deposit level shall be set by the Goods Exchange.
Article 70.- Prohibited acts of brokers for purchase and sale of goods
through the Goods Exchange
1. Enticing
customers to enter into contracts by promising to compensate the whole or part
of loss incurred or to guarantee profits for them.
2. Offering or
conducting brokerage for goods without entering into contracts with customers.
3. Using sham
prices or other fraudulent measures in the course of brokerage.
4. Refusing or
unreasonably delaying the brokerage for contracts in accordance with contents
agreed upon with customers.
5. Other
prohibited acts specified in Clause 2, Article 71 of this Law.
Article 71.- Prohibited acts in activities of purchase and sale of
goods through the Goods Exchange
1. Staff members
of the Goods Exchange shall not be allowed to conduct the brokerage for,
purchase or sale of goods through the Goods Exchange.
2. Parties
involved in the purchase and sale of goods through the Goods Exchange must not
conduct the following acts:
a/ Committing
fraudulences or deceits about volumes of goods in forward or option contracts
which are transacted or may be transacted, and fraudulences and deceits about
real prices of goods in forward or option contracts;
b/ Supplying
false information on transactions, the market or prices of goods purchased or
sold through the Goods Exchange;
c/ Applying
illegal measures to cause disorder of the goods market at the Goods Exchange;
d/ Committing
other prohibited acts provided for by law.
Article 72.- Application of management measures in emergency cases
1. Emergency
cases mean circumstances where the disorder of the goods market occurs, making
transactions through the Goods Exchange unable to accurately reflect the goods
supply and demand relation.
2. In emergency
cases, the Trade Minister shall be entitled to apply the following measures:
a/ Temporarily
suspending transactions through the Goods Exchange;
b/ Limiting
transactions within a price bracket or a specific quantity of goods;
c/ Changing the
schedule of transactions;
d/ Adjusting the
operation charter of the Goods Exchange;
e/ Other
necessary measures as provided for by the Government.
Article 73.- Right to conduct the purchase and sale of goods through
overseas Goods Exchanges
Vietnamese
traders are entitled to conduct purchase and sale of goods through overseas
Goods Exchanges according to regulations of the Government.
Chapter III
PROVISION OF SERVICES
SECTION 1. GENERAL PROVISIONS ON ACTIVITIES OF PROVISION OF SERVICES
Article 74.- Forms of service contracts
1. A service
contract shall be expressed in verbal or written form or established with
specific acts.
2. For those
types of service contract which are required by law to be made in writing, such
requirement must be abided by.
1. Unless
otherwise provided for by law or treaties to which the Socialist Republic of
Vietnam is a contracting party, traders shall have the following rights to
provide services:
a/ To provide
services to residents in Vietnam for use in the Vietnamese territory;
b/ To provide
services to non-residents in Vietnam for use in the Vietnamese territory;
c/ To provide
services to residents in Vietnam for use in foreign territories;
d/ To provide
services to non-residents in Vietnam for use in foreign territories.
2. Unless
otherwise provided for by law or treaties to which the Socialist Republic of
Vietnam is a contracting party, traders shall have the following rights to use
services:
a/ To use
services provided in the Vietnamese territory by residents in Vietnam;
b/ To use
services provided in the Vietnamese territory by non-residents in Vietnam;
c/ To use
services provided in foreign territories by residents in Vietnam;
d/ To use
services provided in foreign territories by non-residents in Vietnam.
3. The Government
shall specify the residents and non-residents that are subject to the
implementation of tax and import-export management policies toward various
types of services.
Article 76.- Services banned from business, services subject to
business restrictions and services subject to conditional business
1. On the basis
of socio-economic conditions in each period and treaties to which the Socialist
Republic of Vietnam is a contracting party, the Government shall specify the
lists of services banned from business, services subject to business
restrictions and services subject to conditional business as well as the
conditions for providing such services.
2. Services
subject to business restrictions and services subject to conditional business
shall be provided only when these services and parties involved in the provision
thereof fully satisfy the conditions defined by law.
Article 77.-
Application of urgent measures to activities of providing or using services
Where it is
necessary to protect the national security and other national interests in
compliance with the Vietnamese law and treaties to which the Socialist Republic
of Vietnam is a contracting party, the Prime Minister shall decide on
application of urgent measures to activities of providing or using services, including
temporary ban on the provision or use of one or several types of service or
other urgent measures to one or several particular markets for a definite time
period.
SECTION 2. RIGHTS AND OBLIGATIONS OF PARTIES TO SERVICE CONTRACTS
Article 78.- Obligations of the service providers
Unless otherwise
agreed, the service provider shall have the following obligations:
1. To provide
services and fully perform related jobs in accordance with agreements and the
provisions of this Law;
2. To preserve
and hand back to their customers documents and means supplied to them for the
service provision after the completion thereof;
3. To promptly
notify to their customers in cases where information and documents are
insufficient and means are inadequate for completion of the service provision;
4. To keep secret
information they know in the course of service provision if so agreed upon by
the parties or provided for by law.
Article 79.- Obligations of the service providers according to
performance result
Unless otherwise
agreed, if the nature of the type of service to be provided requires a service
provider to achieve a certain result, the service provider must conduct the
service provision with a result appropriate with the terms and purpose of the
contract. Where the contract does not specify the standards of result to be
achieved, the service provider must conduct the service provision with a result
compliant with the common standards applicable to such type of service.
Article 80.- Obligations of the service providers to make the best
effort
Unless otherwise
agreed, if the nature of the type of service to be provided requires a service
provider to make the best effort to achieve a desired result, the service
provider shall perform the obligation of service provision with the best effort
and the highest capacity.
Article 81.- Cooperation among service providers
Where under a
contractual agreement or on the basis of practical circumstances, a service is
jointly performed by many service providers or performed by a service provider
in cooperation with other service providers, each of the said service providers
shall have the following obligations:
1. To exchange
and communicate to each other information on the performance progress and its
demands related to the service provision, at the same time to provide services
at a proper time and by an appropriate mode so as not to impede operations of
other service providers;
2. To carry out
any necessary cooperation with other service providers.
Article 82.- Time limit for completion of services
1. Service
providers must complete their services within the time limits already agreed
upon in contracts.
2. Where there is
no agreement on the time limits for completing services, service providers
shall have to complete their services within a reasonable time limit on the
basis of taking into account all conditions and circumstances which service
providers knew at the time the contracts were entered into, including any
specific needs of customers regarding such time limit for service completion.
3. Where a
service can be completed only when the customer or another service provider
satisfies certain conditions, the provider of such service is not obliged to
complete his/her service until those conditions are satisfied.
Article 83.- Customers’ requests for changes during the provision of
services
1. During the
provision of services, service providers must satisfy all reasonable requests
of their customers for changes during the provision of services.
2. Unless
otherwise agreed, customers must bear reasonable expenses for the satisfaction
of their requests for changes.
Article 84.- Continued provision of services after the expiration of
the time limit for completing the provision of services
If services,
after the expiration of the time limit for completing the provision thereof,
are not yet completed, and if customers have no objection, service providers
shall have to continue providing the agreed services and compensate for damage,
if any.
Article 85.- Obligations of customers
Unless otherwise
agreed, customers shall have the following obligations:
1. To pay charges
for provision of services as agreed upon in contracts;
2. To provide in
a timely manner plans, instructions and other details so that the provision of
services can be made without any delay or interruption;
3. To cooperate
with service providers in all other matters necessary for the proper provision
of services;
4. Where a
service is performed jointly by many service providers or by a provider in
coordination with other service providers, customers shall be obliged to
coordinate operations of these service providers so as not to impede the work
of any service provider.
Article 86.- Service charge rate
Where there is no
agreement on service charge rate, no agreement on methods of determining
service charge rate, and also there is not any indication to service charge
rate, the service charge rate shall be determined according to the charge rate
of the same type of service under similar conditions on mode of provision, time
of provision, geographical market, mode of payment and other conditions which
can affect the service charge rate.
Article 87.- Time limit for payment
Where there is no
agreement and there exist no customs pre-established between the parties
concerning payment for services, the time limit for payment shall be the time
when the provision of services is completed.
Chapter IV
COMMERCIAL PROMOTION
SECTION 1. SALE PROMOTION
Article 88.- Sale promotion
1. Sale promotion
means activities of commercial promotion conducted by traders to promote the
purchase and sale of goods or the provision of services by offering certain
benefits to customers.
2. Traders
conducting sale promotion are those falling into one of the following cases:
a/ Traders
directly conduct sale promotion for goods and/or services that they trade in;
b/ Traders
engaged in providing sale promotion services conduct sale promotion for goods
and/or services of other traders under an agreement with the latter.
Article 89.- Provision of sale promotion service
Provision of sale
promotion services means commercial activities whereby a trader conducts sale
promotion for goods and/or services of other traders on a contractual basis.
Article 90.- Sale promotion service contracts
Sale promotion
service contracts must be made in writing or in other forms of equal legal
validity.
Article 91.-
Rights of traders to conduct sale promotion
1. Vietnamese
traders, branches of Vietnamese traders, and Vietnam-based branches of foreign
traders shall have the right to conduct sale promotion themselves or to hire
traders engaged in provision of sale promotion services to do so.
2. Representative
offices of traders shall not be allowed to conduct sale promotion themselves or
to hire other traders to conduct sale promotion in Vietnam for the traders that
they are representing.
Article 92.- Forms of sale promotion
1. Giving samples
of goods or providing samples of services to customers for trial use free of
charge.
2. Presenting
goods as gifts or providing free-of-charge services to customers.
3. Selling goods
or providing services at prices lower than goods sale prices or service
provision charge rates previously applied during the period of sale promotion
already registered or announced. In case of goods or services subject to the
State management over their prices, the sale promotion in this form shall
comply with regulations of the Government.
4. Selling goods
or providing services together with coupons that allow customers to enjoy one
or several benefits.
5. Selling goods
or providing services together with prize-contest entrance tickets to
customers, for purpose of selecting prize winners according to the rules and
prizes already announced.
6. Selling goods
or providing services together with opportunities for customers to participate
in games of chance, the participation in which comes after the purchase of
goods or services and the winning of prizes depends on the luck of participants
according to the rules and prizes already announced.
7. Organizing
programs for frequent customers whereby gifts are presented to customers on the
basis of the quantities or values of goods purchased or services used by such
customers and expressed in forms of customers’ cards, coupons acknowledging the
purchase of goods or services, or other forms.
8. Organizing
cultural, artistic or entertainment programs or other events for customers for
the purpose of sale promotion.
9. Other forms of
sale promotion if approved by the State management agency in charge of
commerce.
Article 93.- Sale promotion goods and services
1. Sale promotion
goods and services mean goods and services use by traders to promote their sale
and provision in various forms of sale promotion.
2. Sale promotion
goods and services must be those traded lawfully.
Article 94.- Goods and services used for sale promotion, sale promotion
discount rates
1. Goods and
services used for sale promotion mean those given as gifts or prizes or
provided free of charge by traders to customers.
2. Goods and
services used by traders for sale promotion may be goods and services they are
trading in or other goods and services.
3. Goods and
services used for sale promotion must be those traded lawfully.
4. The Government
shall specify the maximum value of goods and services used for sale promotion,
and the maximum discount rate for sale promotion goods and services, which
traders can apply in their sale promotion activities.
Article 95.- Rights of traders conducting sale promotion
1. To choose the
form, time and venue for sale promotion, goods and services to be used for sale
promotion.
2. To define
specific benefits which customers shall be entitled to enjoy according to
Clause 4, Article 94 of this Law.
3. To hire
traders engaged in the business of providing sale promotion services to conduct
sale promotion for them.
4. To organize
the application of the sale promotion forms specified in Article 92 of this
Law.
Article 96.- Obligations of traders conducting sale promotion
1. To fully
comply with the order and procedures provided for by law for conducting sale
promotion in various forms.
2. To publicly
notify all information on sale promotion activities to customers according to
Article 97 of this Law.
3. To strictly
adhere to the sale promotion program already announced, and to fulfill their
commitments with customers.
4. With regard to
the forms of sale promotion specified in Clause 6, Article 92 of this Law,
traders must set aside and remit 50% of the value of the prizes already
announced into the state budget in cases where there is no prize-winner.
The Trade
Minister shall provide for specific forms of sale promotion under prize
programs which must comply with this provision.
5. To comply with
agreements in sale promotion service contracts if traders conducting sale
promotion are those providing sale promotion services.
Article 97.- Information that must be publicly notified
1. For all forms
of sale promotion specified in Article 92 of this Law, traders conducting sale
promotion must publicly notify the following information:
a/ Names of sale
promotion activities;
b/ Sale prices or
charge rates of sale promotion goods or services and related costs for delivery
of sale promotion goods or services to customers;
c/ Names,
addresses and telephone numbers of traders conducting the sale promotion;
d/ Sale promotion
duration, the starting date and ending date and area of sale promotion
activities;
e/ Where benefits
of the participation in sale promotion depend on specific conditions, notices
must clearly state that such sale promotion activities are conditional and
specific conditions.
2. Apart from the
information defined in Clause 1 of this Article, traders shall also publicly
notify the following sale promotion-related information:
a/ Sale prices of
goods or charge rates of services given as gifts to customers, for the form of
sale promotion mentioned in Clause 2, Article 92 of this Law;
b/ Absolute value
or discount percentage of normal prices of goods, or normal charge rates of
services before the sale promotion duration, for the form of sale promotion
specified in Clause 3, Article 92 of this Law;
c/ Monetary
values or specific benefits of coupons which customers are entitled to enjoy;
places of sale of goods or provision of services as well as types of goods or
services which customers may receive from coupons, for the form of sale
promotion specified in Clause 4, Article 92 of this Law;
d/ Types of prize
and value of each prize; rules for participation in sale promotion programs,
method of selecting prize-winners, for the form of sale promotion specified in
Clauses 5 and 6, Article 92 of this Law;
e/ Expenses which
must be borne by customers, for the form of sale promotion specified in Clauses
7 and 8, Article 92 of this Law.
Article 98.- Modes of notification
1. The
notification of sale promotion for goods according to the provisions of Article
97 of this Law shall be made by one of the following modes:
a/ At places
where goods are sold and where goods are displayed for sale;
b/ On goods or
their packing;
c/ In any other
forms which must be attached to goods when such goods are sold.
2. The
notification of sale promotion for services according to the provisions of
Article 97 of this Law shall be made by one of the following modes:
a/ At places
where services are provided;
b/ In any other
forms which must be provided together with services when such services are
provided.
Article 99.- Keeping secret information on sale promotion programs and
details
Where sale
promotion programs must be approved by competent state agencies, such agencies
must keep secret the sale promotion programs and details provided by traders
until such programs are approved by competent state agencies.
Article 100.- Prohibited acts in sale promotion activities
1. Conducting
sale promotion for goods and services banned from business; goods and services
subject to business restrictions; goods not yet permitted for circulation; and
services not yet permitted for provision;
2. Using, for
sale promotion purpose, goods and services which are banned from business;
goods and services subject to business restrictions; goods not yet permitted
for circulation; and services not yet permitted for provision;
3. Conducting
sale promotion for alcohol and beer, or using alcohol and beer for sale
promotion targeted at under-18 people;
4. Conducting
sale promotion for, or using cigarette or alcohol of an alcoholic volume of 30o
or higher for sale promotion in any form;
5. Conducting
untruthful or misleading sale promotion for goods and services so as to deceive
customers;
6. Conducting
sale promotion for selling inferior-quality goods, causing harms to the
environment, human health and other public interests;
7. Conducting
sale promotion at schools, hospitals or offices of state agencies, political
organizations, socio-political organizations and people’s armed forces units;
8. Promising to
present gifts or prizes but failing to do so or doing it improperly;
9. Conducting
sale promotion for purpose of unfair competition;
10. Conducting
sale promotion with the value of sale promotion goods and/or services exceeding
the maximum limit or the maximum discount rate of sale promotion goods and
services mentioned in Clause 4, Article 94 of this Law.
Article 101.- Registration for sale promotion activities with, and
notification of sale promotion results to, the State management agency in
charge of commerce
1. Before
conducting sale promotion activities, traders must register them with the state
management agency in charge of commerce, and after such sale promotion
activities are completed, report sale promotion results to such agency.
2. The Government
shall provide for in detail the registration of sale promotion activities with,
and the notification of results of such activities to, the state management
agency in charge of commerce.
SECTION 2. COMMERCIAL ADVERTISING
Article 102.- Commercial advertising
Commercial
advertising means commercial promotion activities of traders aimed at
introducing to customers their goods and service business activities.
Article 103.- Right to commercial advertising
1. Vietnamese
traders, branches of Vietnamese traders and branches of foreign traders
licensed to conduct commercial activities in Vietnam shall have the right to
advertise their goods and/or service business activities or to hire traders
providing advertising services to do so for them.
2. Representative
offices of traders must not directly conduct commercial advertising activities.
When being authorized by traders, representative offices may sign contracts
with traders providing commercial advertising services to advertise for the
traders they are representing.
3. Foreign
traders who wish to commercially advertise their goods and/or service business
activities in Vietnam shall have to hire Vietnamese traders engaged in business
of providing commercial advertising services to do so.
Article 104.- Provision of commercial advertising services
Provision of
commercial advertising services means commercial activities of traders aimed at
conducting commercial advertisement for other traders.
Article 105.- Commercial advertising products
Commercial
advertising products consist of information in images, actions, sounds, voices,
scripts, symbols, colors and lights containing commercial advertising details.
Article 106.- Means of commercial advertising
1. Means of
commercial advertising are instruments used for introducing commercial
advertising products.
2. Means of
commercial advertising include:
a/ The mass
media;
b/ Means of
communications;
c/ Publications
of all kinds;
d/ All kinds of
boards, signs, banners, panels, posters, fixed objects or means of
transportation and other movable objects;
e/ Other means of
commercial advertising.
Article 107.- Use of means of commercial advertising
1. The use of
means of commercial advertising specified in Article 106 of this Law must
comply with the regulations of the competent state management body.
2. The use of
means of commercial advertising must satisfy the following requirements:
a/ Being in
compliance with the provisions of law on press, publishing, information,
programs on cultural or sport activities, trade fairs and exhibitions;
b/ Being in
compliance with the regulations on locations of advertisement, causing no
adverse impact on the landscape, environment, traffic order and safety, and
social safety;
c/ Being in
accordance with the intensity, time volume and timing prescribed for each type
of mass media.
Article 108.- Protection of intellectual property rights over
commercial advertising products
Traders shall
have the right to register for protection of their intellectual property rights
over commercial advertising products according to the provisions of law.
Article 109.- Prohibited commercial advertisements
1. Advertisements
which reveal state secrets, are detrimental to the national independence,
sovereignty and security, and social order and safety.
2. Advertisements
that use advertising products or means of advertisement which are contrary to
the historic, cultural and ethical traditions and the fine customs and
practices of Vietnam and in contravention of law.
3. Advertisements
for goods and services which are banned or restricted from business or banned from
advertisement by the State.
4. Advertisements
for cigarette and alcohol with an alcoholic volume of 30o or higher and
products and goods not yet permitted for circulation or services not yet
permitted for provision in the Vietnamese market at the time of advertising.
5. Commercial
advertisements which can be taken advantage of to cause harms to interests of
the State, organizations and/or individuals.
6. Advertisements
using the method of comparing a trader’s goods and service production and
business activities with goods and service production and business activities
of the same kind of other traders.
7. Advertisements
containing untruthful information on any of the following contents: quantity,
quality, price, utility, design, origin, category, packing, service mode and
warranty duration of goods or services.
8. Advertisements
for a trader’s business activities by using advertising products which infringe
upon intellectual property rights; using images of other organizations or
individuals for advertising purpose without the consent of such organizations
or individuals.
9. Advertisements
for the purpose of unfair competition according to the provisions of law.
Article 110.- Commercial advertising service contracts
Commercial
advertising service contracts must be made in writing or in other forms of
equivalent legal validity.
Article 111.- Rights of commercial advertising hirers
Unless otherwise
agreed, commercial advertising hirers shall have the following rights:
1. To select
commercial advertising distributors, forms, contents, means, scope and
duration;
2. To inspect and
supervise the performance of commercial advertising service contracts.
Article 112.- Obligations of commercial advertising hirers
Unless otherwise
agreed, commercial advertising hirers shall have the following obligations:
1. To supply
commercial advertising service providers with truthful and accurate information
on goods and commercial service business activities, and to be responsible for
such information;
2. To pay
commercial advertising service charges and other reasonable costs.
Article 113.- Rights of commercial advertising service providers
Unless otherwise
agreed, commercial advertising service providers shall have the following
rights:
1. To request
commercial advertising hirers to supply truthful and accurate information
according to agreements in contracts;
2. To receive
commercial advertising service charges and other reasonable costs.
Article 114.- Obligations of commercial advertising service providers
Unless otherwise
agreed, commercial advertising service providers shall have the following
obligations:
1. To comply with
service hirers’ choice of commercial advertising distributors, forms, contents,
means, scope and duration;
2. To organize
truthful and accurate advertisement for goods or commercial service business
activities according to information supplied by advertising hirers;
3. To perform
other obligations agreed upon in commercial advertising service contracts.
Article 115.- Commercial advertising distributors
Commercial
advertising distributors are persons who directly distribute commercial
advertising products.
Article 116.- Obligations of commercial advertising distributors
Commercial
advertising distributors shall have the following obligations:
1. To comply with
the provisions of Article 107 of this Law on the use of means of commercial
advertising;
2. To perform
advertising distribution contracts already entered into with advertising
distribution hirers;
3. To perform
other obligations provided for by law.
SECTION 3. DISPLAY AND INTRODUCTION OF GOODS AND SERVICES
Article 117.- Display and introduction of goods and services
Display and
introduction of goods and services mean commercial promotion activities of
traders that use goods and/or services and documents thereon to introduce such
goods and/or services to customers.
Article 118.- Right to display and introduce goods and services
1. Vietnamese
traders, branches of Vietnamese traders and Vietnam-based branches of foreign
traders shall have the right to display and introduce goods and/or services; to
select appropriate forms of display and introduction; to organize by themselves
or hire traders providing goods/service display and introduction services to display
and introduce their goods and/or services.
2. Representative
offices of traders shall not be allowed to directly display and introduce goods
and/or services of traders they are representing, except for displays and
introductions at their offices. When being authorized by traders,
representative offices shall have the right to enter into contracts with
traders providing goods/service display and introduction services for the
display and introduction of goods and/or services of traders they are representing.
3. Foreign
traders not yet licensed to conduct commercial activities in Vietnam and
wishing to display and introduce their goods and/or services in Vietnam must
hire Vietnamese traders providing goods/service display and introduction
services to do so.
Article 119.- Provision of goods/service display and introduction
services
Provision of
goods/service display and introduction services means commercial activities
whereby a trader provides goods/service display and introduction services to
other traders.
Article 120.- Forms of display and introduction of goods and services
1. Opening
showrooms for displaying and introducing goods and/or services.
2. Displaying and
introducing goods and/or services at trade centers or in entertainment, sport,
cultural or artistic activities.
3. Organizing
conferences and seminars involving the display and introduction of goods and/or
services.
4. Displaying and
introducing goods and/or services online and in other forms specified by law.
Article 121.- Conditions for displayed and introduced goods and/or
services
1. Displayed and
introduced goods and/or services must be those which are legally traded in the
market.
2. Displayed and
introduced goods and/or services must comply with the provisions of law on
goods quality and goods labeling.
Article 122.- Conditions for goods imported into Vietnam for display
and introduction
Goods imported
into Vietnam for display and introduction must, apart from the conditions
defined in Article 121 of this Law, also satisfy the following conditions:
1. Being goods
permitted for import into Vietnam;
2. Goods which
are temporarily imported for display and introduction must be re-exported after
the end of such display and introduction within six months as from the date of
temporary import; past this time limit, the procedures for time limit
prolongation must be carried out at the customs offices where the temporary
import has been made;
3. Goods
temporarily imported for display and introduction which are sold in Vietnam
shall comply with the provisions of Vietnamese law on import goods.
Article 123.- Cases where display and introduction of goods and/or
services are prohibited
1. The
organization of display and introduction of goods and/or services, or the use
of forms and means of goods and/or service display and introduction, which are
detrimental to national security, social order and safety, landscape,
environment and human health;
2. Display and
introduction of goods and/or services or use of forms and means of display and
introduction, which are contrary to the historic, cultural and ethical
traditions and fine customs of Vietnam;
3. Display and
introduction of goods and/or services, which reveal state secrets;
4. Display and
introduction of goods of other traders for comparison with one’s own goods,
except where the goods for comparison are counterfeit goods or goods infringing
upon intellectual property rights according to the provisions of law;
5. Display and
introduction of goods samples which are inconsistent with goods being traded in
terms of quality, price, utility, design, category, packing, warranty duration
and other quality standards in order to deceive customers.
Article 124.- Contracts for provision of goods and/or service display
and introduction services
Contracts for
provision of goods and/or service display and introduction services must be
made in writing or in other forms of equivalent legal validity.
Article 125.- Rights of goods and/or service display and introduction
service hirers
Unless otherwise
agreed, goods and/or service display and introduction service hirers shall have
the following rights:
1. To request
goods and/or service display and introduction service providers to fulfill
agreements in contracts;
2. To inspect and
supervise the performance of goods and/or service display and introduction
service contracts.
Article 126.- Obligations of goods and/or service display and
introduction service hirers
Unless otherwise
agreed, goods and/or service display and introduction service hirers shall have
the following obligations:
1. To supply all
goods and/or services to be displayed and introduced, or means to service
providers as agreed upon in contracts;
2. To supply
information on goods and/or services to be displayed and introduced and take
responsibility for such information;
3. To pay service
charges and other reasonable expenses.
Article 127.- Rights of goods and/or service display and introduction
service providers
Unless otherwise
agreed, goods and/or service display and introduction service providers shall
have the following rights:
1. To request
service hirers to supply goods and/or services to be displayed and introduced
within time limits agreed upon in contracts;
2. To request
service hirers to supply information on goods and/or services to be displayed
and introduced and other necessary means as agreed upon in contracts;
3. To receive
service charges and other reasonable expenses.
Article 128.- Obligations of goods and/or service display and introduction
service providers
Unless otherwise
agreed, goods and/or service display and introduction service providers shall
have the following obligations:
1. To display and
introduce goods and/or services as agreed upon in contracts;
2. To preserve
displayed and introduced goods, documents and means supplied to them during the
performance of contracts; and upon the completion of the goods and/or service
display and introduction, to return all displayed and introduced goods,
documents and means to service hirers;
3. To conduct the
goods and/or service display and introduction according to contents agreed with
service hirers.
SECTION 4. TRADE FAIRS AND EXHIBITIONS
Article 129.- Trade fairs and exhibitions
Trade fairs and
exhibitions mean commercial promotion activities conducted in a concentrated
manner at particular locations and for given periods of time for traders to
display and introduce their goods and/or services for the purpose of promoting
them and seeking opportunities for entering into contracts for sale and
purchase of goods or service contracts.
Article 130.- Provision of trade fair and exhibition services
1. Provision of
trade fair and exhibition services means commercial activities whereby traders
dealing in these services provide services of organizing or participating in
trade fairs and exhibitions to other traders for receiving trade fair and
exhibition organization service charges.
2. Trade fair and
exhibition organization service contracts must be made in writing or in other
forms of equivalent legal validity.
Article 131.- Rights to organize or participate in trade fairs and
exhibitions
1. Vietnamese
traders, branches of Vietnamese traders, Vietnam-based branches of foreign
traders shall have the right to directly organize or participate in trade fairs
and exhibitions for goods and/or services they trade in or hire traders
providing trade fair and exhibition services to do so.
2. Representative
offices of traders shall not be allowed to directly organize or participate in
trade fairs and exhibitions. When being authorized by traders, representative
offices shall have the right to sign contracts with traders providing trade
fair and exhibition services to do so for the traders they are representing.
3. Foreign
traders shall have the right to directly participate or hire Vietnamese traders
providing trade fair and exhibition services to participate, on their behalf,
in trade fairs and exhibitions in Vietnam. Where they wish to organize trade
fairs and exhibitions in Vietnam, foreign traders must hire Vietnamese traders
providing trade fair and exhibition services to do so.
Article 132.- Organization of trade fairs and exhibitions in Vietnam
1. Trade fairs
and exhibitions organized in Vietnam must be registered with and certified in
writing by the state management agencies in charge of commerce of the provinces
or centrally-run cities where such trade fairs and exhibitions are to be
organized.
2. The Government
shall specify the order, procedures, contents of registration and certification
of the organization of trade fairs and exhibitions in Vietnam provided for in
Clause 1 of this Article.
Article 133.- Organization of and participation in overseas trade fairs
and exhibitions
1. Traders not
providing trade fair and exhibition services, when directly organizing or
participating in overseas trade fairs and exhibitions for goods and/or services
they trade in, must comply with the regulations on export of goods.
2. Traders
providing trade fair and exhibition services, when arranging for other traders to
participate in overseas trade fairs and exhibitions, must register such with
the Ministry of Trade.
3. Traders that
have not yet registered their business of providing trade fair and exhibition
services shall not be allowed to arrange for other traders to participate in
overseas trade fairs and exhibitions.
4. The Government
shall specify the order, procedures and contents of registration for
organization of, and participation in, overseas trade fairs and exhibitions
provided for in Clauses 1 and 2 of this Article.
Article 134.- Goods and/or services displayed and introduced at trade
fairs and exhibitions in Vietnam
1. Goods and/or
services which are not permitted for participation in trade fairs and
exhibitions include:
a/ Goods and/or
services banned from business, subject to business restrictions, or not yet
permitted for circulation according to the provisions of law;
b/ Goods and/or
services provided by overseas traders and banned from import according to the
provisions of law;
c/ Counterfeit
goods and goods infringing upon intellectual property rights, except where they
are displayed and introduced for comparison with genuine ones.
2. Apart from the
provisions of this Law on trade fairs and exhibitions, goods and/or services
subject to specialized management must also comply with regulations on
specialized management of such goods and/or services.
3. Goods
temporarily imported for participation in trade fairs or exhibitions in Vietnam
must be re-exported within thirty days after the end of such trade fairs or
exhibitions.
4. The temporary
import for re-export of goods for participation in trade fairs or exhibitions
in Vietnam must comply with the provisions of customs law and other relevant
provisions of law.
Article 135.- Goods and/or services participating in overseas trade
fairs and exhibitions
1. All types of
goods and services shall be permitted to participate in overseas trade fairs
and exhibitions, except for those banned from export according to the
provisions of law.
2. Goods and/or
services banned from export shall only be permitted for participation in
overseas trade fairs and exhibitions when so approved by the Prime Minister.
3. The time limit
for temporary export of goods for participation in overseas trade fairs and
exhibitions shall be one year from the date such goods are temporarily
exported. If past that time limit, the goods are not re-imported yet, such
goods shall be subject to taxes and other financial obligations as provided for
by Vietnamese law.
4. The temporary
export for re-import of goods for participation in overseas trade fairs and
exhibitions must comply with the provisions of customs law and other relevant
provisions of law.
Article 136.- Sale, presentation of goods as gifts and provision of
services at trade fairs and exhibitions in Vietnam
1. Goods and
services displayed and introduced at trade fairs and exhibitions in Vietnam are
permitted to be sold, presented as gifts or provided at such trade fairs and
exhibitions; for imported goods, registration thereof must be made with customs
offices, except for the cases specified in Clause 2 of this Article.
2. Goods which
are imported under permits of competent state agencies shall be sold or
presented as gifts only after written approvals of such competent state
agencies are obtained.
3. The sale and
presentation of goods as gifts at trade fairs and exhibitions mentioned in
Clause 2, Article 134 o this Law must comply with regulations on specialized
import management of such goods.
4. Goods sold or
presented as gifts, and services provided at trade fairs and exhibitions in
Vietnam shall be subject to taxes and other financial obligations as provided
for by law.
Article 137.- Sale, presentation of Vietnamese goods as gifts and
provision of Vietnamese services participating in overseas trade fairs and
exhibitions
1. Vietnamese
goods and services participating in overseas trade fairs and exhibitions are
permitted to be sold, presented as gifts or provided at such trade fairs and
exhibitions, except the cases defined in Clauses 2 and 3 of this Article.
2. The sale and
presentation as gifts of goods, which are banned from export but have been
temporarily exported for participation in overseas trade fairs and exhibitions,
shall be made only after the Prime Minister’s approval is obtained.
3. Goods exported
under permits of competent state agencies shall be sold or presented as gifts
only after written approvals of such competent state agencies are obtained.
4. Vietnamese
goods and/or services participating in overseas trade fairs and exhibitions and
being sold, presented as gifts or provided overseas shall be subject to taxes
and other financial obligations as provided for by law.
Article 138.- Rights and obligations of organizations and individuals
participating in trade fairs and exhibitions in Vietnam.
1. To exercise
rights and perform obligations as agreed upon with traders organizing trade
fairs and exhibitions.
2. To sell,
present goods as gifts and provide services displayed and introduced at trade
fairs and exhibitions according to the provisions of law.
3. To temporarily
import and re-export goods and documents on goods and/or services for display
at trade fairs and exhibitions.
4. To comply with
regulations on organization of trade fairs and exhibitions in Vietnam.
Article 139.- Rights and obligations of traders organizing or
participating in overseas trade fairs and exhibitions
1. To temporarily
export and re-import goods and documents on goods and/or services for display
and introduction at trade fairs or exhibitions.
2. To comply with
regulations on organization of, and participation in, overseas trade fairs and
exhibitions.
3. To sell and
present as gifts goods displayed and introduced at overseas trade fairs and
exhibitions; and to pay taxes and fulfill other financial obligations as
provided for by Vietnamese law.
Article 140.- Rights and obligations of traders providing trade fair
and exhibition services
1. To post up
topics and durations of trade fairs and exhibitions at places where such trade
fairs and exhibitions are to be organized before their opening dates.
2. To request
service hirers to supply goods for participation in trade fairs and exhibitions
within time limits agreed upon in contracts.
3. To request
service hirers to supply information on goods and/or services for participation
in trade fairs and exhibitions and other necessary means as agreed upon in
contracts;
4. To receive
service charges and other reasonable expenses;
5. To organize
trade fairs and exhibitions as agreed upon in contracts.
Chapter V
INTERMEDIARY ACTIVITIES IN COMMERCE
SECTION 1. REPRESENTATION OF TRADERS
Article 141.
Representation for traders
1. Representation
for traders is defined as an arrangement where a trader is granted
authorization (hereinafter referred to as the representative) by another trader
(hereinafter referred to as the principal) to perform trades under the name or
direction of the former, and earn remunerations for his/her representation
service rendered.
2. Where a trader
assigns one of his/her employees as his/her representative, the Civil Code
shall be applied.
Article 142.
Agreement on representation for traders
An agreement on
representation for traders must be in writing or take other forms which have
the same legal value.
Article 143.
Scope of representation
Contracting
parties may reach an agreement where the representative is authorized to
represent, whether in part or in whole, trading activities that fall within the
remit of the principal.
Article 144.
Duration of representation for traders
1. Duration of
representation shall be agreed upon by contracting parties.
2. In the absence
of any agreement, the validity duration of representation ends in either case
where the principal or the representative notifies the other of termination of
the representation agreement.
3. Unless
otherwise agreed, if the representative unilaterally gives notification of
termination of an agreement on representation in accordance with Clause 2 of this
Article, the representative shall be entitled to claim remunerations paid by
the principal for conclusion of contracts with his/her own clients and other
payments that (s)he would have received.
4. Where duration
of representation ends in such a manner, referred to in Clause 2 of this
Article, upon the request of the representative, the representative shall be
deprived of the right to claim any remuneration for trades that (s)he would
have received, unless otherwise agreed upon by contracting parties.
Article 145.
Obligations of the representative
Unless otherwise
agreed, the representative shall take on the following obligations:
1. Perform trades
under the name, and for the interests of, the principal;
2. Inform the
principal of opportunities for, and outcomes of, performance of trades which
have been authorized;
3. Observe the
principal’s instructions which are not in violation of laws and regulations.
4. Avoid
performing trades under the name of his/her own or of any third party within
the scope of representation;
5. Avoid
disclosing or providing any non-party confidential information about his/her
trades during the validity duration when his/her representation is rendered and
within two years after that representation agreement is terminated;
6. Provide safe
custody of assets or documents which have been entrusted to perform
representation activities.
Article 146.
Obligations of the principal
Unless otherwise
agreed, the principal shall assume the following obligations:
1. Promptly
inform the representative of conclusion of contracts that the representative
has negotiated, execution of contracts that the representative has negotiated,
approval or rejection of activities which do not fall within the agreed remit
of the representative;
2. Provide
assets, documents and any information necessary for the representative’s
contractual representation activities;
3. Pay
remunerations and other reasonable expenses to the representative;
4. Duly inform
the representative of possibility that a contract may not be concluded or
executed within the stated scope of representation.
Article 147.
Entitlement to the representative’s remunerations
1. The
representative shall be entitled to remunerations for any contract which is
concluded within the contractual scope of representation. Entitlement to such
remunerations arises as from the date agreed upon in an agreement on
representation by contracting parties.
2. In the absence
of any agreement, remuneration rate shall be defined in accordance with Article
86 hereof.
Article 148.
Payment for any expense incurred
Unless otherwise
agreed, the representative shall be accorded the right to claim payments for
any expense incurred on a reasonable basis for the purpose of performing
contractual representation activities.
Article 149.
Lien
Unless otherwise
agreed, the representative shall be entitled to exercise lien over entrusted
assets and documents to secure the payment of remunerations and expenses due.
SECTION 2. COMMERCIAL BROKERAGE
Article 150.- Commercial brokerage
Commercial
brokerage means a commercial activity whereby a trader acts as an intermediary
(referred to as broker) between parties selling and purchasing goods or
providing commercial services (referred to as principals) in the course of
negotiations and entering into contracts for sale and purchase of goods or
provision of services and shall be entitled to a remuneration under a brokerage
contract.
Article 151.- Obligations of commercial brokers
Unless otherwise
agreed, a commercial broker shall have the following obligations:
1. To preserve
samples of goods and documents assigned for the performance of brokerage
activities, and to return them to the principals after the completion of
brokerage;
2. Not to
disclose or supply information to the detriment of the interests of the
principals;
3. To be
responsible for the legal status, but not for the solvency, of the principals;
4. Not to take
part in the performance of contracts between the principals, except where so
authorized by the principals.
Article 152.- Obligations of principals
Unless otherwise
agreed, a principal shall have the following obligations:
1. To supply
information, documents, necessary means related to goods and services;
2. To pay brokerage
remuneration and other reasonable expenses to the broker.
Article 153.- The right to enjoy brokerage remuneration
1. Unless
otherwise agreed, the right to enjoy brokerage remuneration arises from the
time the principals enter into contracts.
2. Where there is
no agreement, brokerage remuneration rates shall be determined according to the
provisions of Article 86 of this Law.
Article 154.- Payment of expenses incurred in relation to brokerage
Unless otherwise
agreed, principals must pay all reasonable expenses incurred in relation to
brokerage to brokers, even where the brokerage does not bring about any results
for principals.
SECTION 3. SALE AND PURCHASE OF GOODS BY MANDATED DEALERS
Article 155.- Purchase and sale of goods by mandated dealers
Purchase and sale
of goods by mandated dealers mean commercial activities whereby the mandatory
conducts the purchase and sale of goods in his/her/its own name under terms
agreed upon with the mandator and is entitled to receive mandate commission.
Article 156.- Mandatories
A mandatory for
purchase and sale of goods is a trader dealing in goods which are consistent
with the mandated goods and conducting the purchase and sale of goods under
terms agreed upon with the mandator.
Article 157.- Mandators
A mandator of
purchase and sale of goods may, or may not, be a trader that authorizes a
mandatory to conduct the purchase and sale of goods at his/her/its request and
pays a commission.
Article 158.- Mandated goods
All goods which
are lawfully circulated may become the subject matter of a mandated sale and
purchase.
Article 159.- Mandate contracts
Mandate contracts
for purchase and sale of goods must be made in writing or in other forms of
equivalent legal validity.
Article 160.- Sub-mandate to a third party
A mandatory shall
not be allowed to sub-mandate a third party to perform the signed mandate
contract for purchase and sale of goods, except where it is so approved in
writing by the mandator.
Article 161.- Multilateral mandate
A mandatory may
accept the mandate for purchase and sale of goods from different mandators.
Article 162.- Rights of mandators
Unless otherwise
agreed, mandators shall have the following rights:
1. To request
mandatories to supply adequate information on the performance of mandate contracts;
2. Not to bear
responsibility in cases where mandatories commit law violations, except for
cases specified in Clause 4, Article 163 of this Law.
Article 163.- Obligations of mandators
Unless otherwise
agreed, mandators shall have the following obligations:
1. To provide
information, documents and means necessary for the performance of mandate
contracts;
2. To pay mandate
commissions and other reasonable expenses to mandatories;
3. To hand over
money and goods as agreed upon;
4. To bear joint
responsibility in cases where mandatories commit law violations which are
attributable to acts of mandators or intentional law-breaking acts of the
parties.
Article 164.- Rights of mandatories
Unless otherwise
agreed, mandatories shall have the following rights:
1. To request
mandators to provide information and documents necessary for the performance of
mandate contracts;
2. To receive
mandate commissions;
3. Not to bear
responsibility for goods handed over to mandators strictly under agreement.
Article 165.- Obligations of mandatories
Unless otherwise
agreed, mandatories shall have the following obligations:
1. To conduct the
purchase and sale of goods as agreed upon;
2. To notify
mandators of matters related to the performance of mandate contracts;
3. To follow
instructions of mandators as agreed upon;
4. To preserve
assets and documents assigned to them for the performance of mandate contracts;
5. To keep secret
information related to the performance of mandate contracts;
6. To hand over
money and goods as agreed upon;
7. To bear joint
responsibility for law violation acts of mandators, in cases where such law
violation acts are partially attributable to their own faults
SECTION 4. COMMERCIAL AGENCY
Article 166.- Commercial agency
Commercial agency
means a commercial activity whereby the principal and the agent agree that the
agent, in its own name, sells or purchases goods for the principal or provides
services of the principal to customers for remuneration.
Article 167.- Principals and agents
1. Principals are
traders that deliver goods to agents for sale or provide money to agents for
purchase of goods, or traders that authorize the provision of services to
service-providing agents.
2. Agents are
traders that receive goods to act as sale agents or receive money to act as
purchase agents or accepts the authorization to provide services.
Article 168.- Agency contracts
Agency contracts
must be made in writing or in other forms of equivalent legal validity.
Article 169.- Forms of agency
1. Off-take agency
is a form of agency whereby the agent definitely sells or purchases a specific
quantity of goods or provides a full service for the principal.
2. Exclusive
agency is a form of agency whereby a sole agent is authorized by the principal
to sell or purchase one or more goods items or to provide one or more types of
services within a given geographical area.
3. General goods
sale or purchase or service provision agency is a form of agency whereby an
agent organizes a network of sub-agents to sell or purchase goods, or provide
services for the principal.
The general agent
represents the network of sub-agents. Sub-agents operate under the management
and in the name of the general agent.
4. Other forms of
agency agreed upon by the parties.
Article 170.- Ownership right in commercial agency
The principal is
the owner of goods or money delivered to the agent(s).
Article 171.- Agency remuneration
1. Unless
otherwise agreed, agency remuneration shall be paid to agents in the form of
commission or price margin.
2. Where
principals fix goods purchase or sale prices or service charge rates, agents
shall enjoy commissions calculated in percentage of such goods purchase or sale
prices or service charge rates.
3. Where
principals do not fix goods purchase or sale prices or service charge rates but
fix only agency prices, agents shall enjoy price margins. Price margin is
determined to be the difference between goods purchase or sale price or service
charge rate and the price fixed by the principals for the agent.
4. Where the
parties do not agree upon the agency remuneration level, the remuneration level
shall be calculated as follows:
a/ The actual
remuneration level which has been previously paid by/to parties;
b/ Where Point a
of this Clause cannot apply, the agency remuneration level shall be the average
remuneration level applicable to the same type of goods or service paid by the
principal to other agents;
c/ Where Points a
and b of this Clause cannot apply, the agency remuneration level shall be the
ordinary remuneration level applicable to the same type of goods or service in
the market.
Article 172.- Rights of principals
Unless otherwise
agreed, principals shall have the following rights:
1. To fix prices
of goods purchased or sold or charge rates of services provided to customers
under agency;
2. To fix agency
prices;
3. To request
agents to take security measures as provided for by law;
4. To request
agents to make payments or deliver goods under agency contracts;
5. To inspect and
supervise the performance of contracts by agents;
Article 173.- Obligations of principals
Unless otherwise
agreed, principals shall have the following obligations:
1. To guide,
supply information to, and facilitate, agents to perform agency contracts;
2. To bear
responsibility for quality of goods of goods sale or purchase agents, and
quality of services of service-providing agents;
3. To pay
remuneration and other reasonable expenses to agents;
4. To return to
agents their assets used as security (if any) upon the termination of agency
contracts;
5. To bear joint
responsibility for law violation acts of agents if such law violation acts are
partly attributable to their faults.
Article 174.- Rights of agents
Unless otherwise
agreed by the parties, agents shall have the following rights:
1. To enter into
agency contracts with one or more principals, except for cases specified in
Clause 7, Article 175 of this Law;
2. To request
principals to deliver goods or money under agency contracts; to take back
assets used as security (if any) upon the termination of agency contracts;
3. To request
principals to guide, supply information and create other related conditions for
the performance of agency contracts;
4. To decide on
goods sale prices or service charge rates for customers, for off-take agents;
5. To enjoy
remunerations and other lawful rights and interests brought about by agency
activities.
Article 175.- Obligations of agents
Unless otherwise
agreed, agents shall have the following obligations:
1. To purchase or
sell goods or provide services to customers at prices or charge rates fixed by
principals;
2. To comply
strictly with agreements on handover and receipt of money and goods with
principals;
3. To take
security measures for performance of civil obligations as provided for by law;
4. To pay to
principals any proceeds of the sale of goods, for sale agents; to deliver
purchased goods to principals, for purchase agents; or to pay service charges
to principals, for service-providing agents;
5. To preserve
goods after the receipt thereof, for sale agents, or prior to the delivery
thereof, for purchase agents; to bear joint responsibility for quality of goods
of purchase or sale agents or quality of services of service-providing agents
in cases where they are at fault;
6. To submit to
inspection and supervision by principals, and to report to principals on their
agency activities;
7. Where it is
specified by law that an agent shall be allowed to enter into an agency
contract with a principal for a certain type of goods or service, such
provision of law must be complied with.
Article 176.- Payment in agency activities
Unless otherwise
agreed, payments for goods, payment of service charges and payment of agency
remunerations shall be made in installments after agents complete the purchase
or sale of a specific quantity of goods or the provision of a specific volume
of services.
Article 177.- Duration of agency
1. Unless
otherwise agreed, the duration of agency shall expire only after a reasonable
period of time which must be at least 60 days after either party to the agency
contract notifies the other party of the termination of such agency contract.
2. Unless
otherwise agreed, if the principal notifies the termination of the agency
contract according to the provisions of Clause 1 of this Article, the agent
shall have the right to request the principal to pay a compensation for the
period of time during which it has acted as an agent for such principal.
The value of such
compensation shall be an average one-month’s agency remuneration for each year
the agent has acted as an agent for the principal. Where the duration of agency
is less than one year, such compensation shall be equal to an average
one-month’s agency remuneration during the agency term.
3. Where an
agency contract is terminated at the request of the agent, the agent shall not
have the right to request the principal to pay compensation for the period of
time during which it has acted as an agent for the principal.
Chapter VI
SOME OTHER SPECIFIC COMMERCIAL ACTIVITIES
SECTION 1. COMMERCIAL PROCESSING
Article 178.- Commercial processing
Commercial
processing means a commercial activity whereby a processor uses part or whole
of raw materials and materials supplied by the processee to perform one or
several stages of the production process at the latter’s request in order to
receive remuneration.
Article 179.- Processing contracts
Processing
contracts must be made in writing or in other forms of equivalent legal
validity.
Article 180.- Goods for processing
1. Goods of all
types can be processed, except for goods banned from business.
2. In case of
processing of goods for foreign traders for overseas consumption, goods banned
from business, goods banned from export or import may be processed if so
permitted by competent state agencies.
Article 181.- Rights and obligations of processees
1. To hand over
part or whole of raw materials and materials for processing in accordance with
processing contracts or transfer money for purchase of materials with agreed
quantities, quality and at agreed prices;
2. To take back
all processed products, leased or lent machinery and equipment, raw materials,
auxiliary materials, supplies and discarded materials after the liquidation of
processing contracts, unless otherwise agreed.
3. To sell,
destroy, donate or give as gifts on the spot processed products, leased or lent
machinery and equipments, raw materials, auxiliary materials, redundant
supplies, faulty products and discarded materials according to agreements and
provisions of law.
4. To send their
representatives to examine and supervise processing activities at processing
places, to assign experts to guide production technology and inspect quality of
processed products according to agreements in processing contracts.
5. To be
responsible for the legality of the intellectual property rights over processed
goods, raw materials, materials, machinery and equipment for processing handed
over to processors.
Article 182.- Rights and obligations of processors
1. To supply a
part or whole of raw materials and materials for processing as agreed upon with
processees in terms of quantities, quality, technical standards and prices.
2. To receive
processing remunerations and other reasonable expenses.
3. In case of
processing for foreign organizations and individuals, to be entitled to export
on spot processed products; leased or borrowed machinery and equipment, raw
materials, materials, redundant supplies, faulty products and discarded
materials under the authorization of processees.
4. In case of
processing for foreign organizations and individuals, to be exempt from import
tax on machinery, equipment, raw materials, auxiliary materials and supplies,
that are temporarily imported for the performance of processing contracts
according to the provisions of tax law.
5. To be
responsible for the legality of goods processing activities in cases where
goods being processed are those banned from business, export or import.
Article 183.- Processing remuneration
1. Processors may
receive processing remunerations paid in cash or in processed products, or
machinery and equipment used for the processing.
2. In case of processing
for foreign organizations and individuals, if processors receive processing
remunerations in processed products, machinery and equipment used for
processing, regulations on import of such products, machinery and equipment
must be complied with.
Article 184.- Technology transfer in goods processing with foreign
organizations and individuals.
Technology
transfer in goods processing with foreign organizations and individuals shall
be carried out in accordance with agreements in processing contracts and the
provisions of Vietnamese law on technology transfer.
SECTION 2. AUCTION OF GOODS
Article 185.- Auction of goods
1. Auction of
goods means a commercial activity whereby sellers themselves conduct or hire
auction organizers to conduct public sale of goods to select purchasers that
offer the highest prices.
2. Auctions of
goods shall be performed by either of the following two modes:
a/ Upward bidding
mode, which is an auctioning mode whereby the person who offers the highest
price as compared with the reserve price shall have the right to purchase the
auctioned goods;
b/ Downward
bidding mode, which is an auctioning mode whereby the person who first accepts
the reserve price or the lower price next to the reserve price shall have the
right to purchase the auctioned goods.
Article 186.- Auction organizers, goods sellers
1. Auction
organizers are traders that register the business of providing auctioning
services or sell their own goods in cases where goods sellers conduct auctions
by themselves.
2. Goods sellers
are owners of such goods or persons mandated by goods owners to sell goods or
persons entitled to sell goods of others according to the provisions of law.
Article 187.- Auction participants, auctioneers
1. Auction
participants are organizations and individuals that register to participate in
auctions.
2. Auctioneers
are auction organizers or persons authorized by auction organizers to run
auctions.
Article 188.- Auctioning principles
The auction of
goods in commerce must be conducted on the principles of publicity, honesty and
assurance of legitimate rights and interests of auction participants.
Article 189.- Rights of auction organizers
Unless otherwise
agreed, auction organizers shall have the following rights:
1. To request
goods sellers to provide fully, accurately and promptly necessary information
on auctioned goods, to create conditions for auction organizers or auction
participants to examine auctioned goods and hand over auctioned goods to goods
purchasers in cases where auction organizers are not goods sellers;
2. To determine
reserve prices in cases where auction organizers are sellers of auctioned goods
or persons authorized by goods sellers;
3. To organize
auctions;
4. To request
goods purchasers to make payments;
5. To receive
auction service charges paid by goods sellers according to the provisions of
Article 211 of this Law.
Article 190.- Obligations of auction organizers
1. To organize
auctions of goods in compliance with the principles and procedures provided for
by law and by auction modes agreed upon with goods sellers.
2. To notify and
post up in a public, full and accurate manner necessary information on
auctioned goods.
3. To preserve
auctioned goods when they are entrusted by sellers for safe-keeping.
4. To display
goods, goods samples or documents introducing goods for auction participants to
consider.
5. To compile
documents on auctions of goods and send them to goods sellers and purchasers
and relevant parties according to the provisions of Article 203 of this Law.
6. To deliver
auctioned goods to purchasers according to contracts for provision of goods
auctioning services.
7. To carry out
the procedures for transferring ownership rights over auctioned goods which are
subject to the ownership registration as provided for by law, unless otherwise
agreed with goods sellers.
8. To pay to
goods sellers proceeds from the sale of goods, including differences collected
from persons that withdraw their offered prices defined in Clause 3, Article
204 of this Law or return unsold goods to goods sellers according to
agreements. In case of no agreement, to pay money to goods seller within three
working days after receiving money from goods purchasers, or to return the
goods immediately within a reasonable time after auctions;
Article 191.- Rights of goods sellers that are not auction organizers
Unless otherwise
agreed, goods sellers shall have the following rights :
1. To receive
money amounts for auctioned goods and differences collected in cases specified
in Clause 3, Article 204 of this Law or receive goods back in case of
unsuccessful auctions;
2. To supervise
the organization of auctions of goods.
Article 192.- Obligations of goods sellers that are not auction
organizers
Unless otherwise
agreed, goods sellers shall have the following obligations:
1. To deliver
goods to auction organizers, create conditions for auction organizers and
auction participants to examine goods, and supply in a full, accurate and
timely manner necessary information on auctioned goods;
2. To pay auction
organizing service charges according to Article 211 of this Law.
Article 193.- Goods auction-organizing service contracts
1. Goods auction
organizing service contracts must be made in writing or in other forms of
equivalent legal validity.
2. In cases where
auctioned goods are objects of pledges or mortgages, goods auction organizing
service contracts must be approved by pledgees or mortgagees, and sellers shall
have to notify auction participants of the pledged or mortgaged goods.
3. If the auction
is agreed upon in pledge or mortgage contracts but pledgors or mortgagors are
absent without plausible reasons or refuse to enter into goods auction
organizing service contracts, such contracts shall be entered into between
pledgees or mortgagees and auction organizers.
Article 194.- Determination of reserve prices
1. Goods sellers
must determine reserve prices. In cases where auction organizers are authorized
to determine reserve prices, goods sellers must be notified thereof before
auctions are posted up.
2. In cases where
auctioned goods are objects of pledges or mortgages, pledgees or mortgagees
must reach agreements with pledgors or mortgagors on the determination of
reserve prices.
3. If the auction
is agreed upon in pledge or mortgage contracts but pledgors or mortgagors are
absent without plausible reasons or refuse to enter into goods auction
organizing service contracts, the reserve prices shall be determined by
pledgees or mortgagees.
Article 195.- Notification to persons with rights and obligations
related to goods being objects of mortgage or pledge
In cases where
goods are objects of pledge or mortgage, auction organizers, simultaneously
with posting up goods auctions, must notify persons with related rights and
obligations within seven working days before such goods are auctioned according
to the provisions of Article 197 of this Law.
Article 196.- Time limit for notification and posting up of goods
auctions
1. Within seven
working days before a goods auction is held, the auction organizer must post up
the auction at the auction venue, the place of goods display and his/her/its
head office according to the provisions of Article 197 of this Law.
2. In cases where
auction organizers are also goods sellers, the time limit for posting up
auctions shall be decided by goods sellers themselves.
Article 197.- Contents of goods auction notification and posting up
A notice and
post-up of a goods auction must have all the following contents:
1. The date and
venue of auction;
2. The name and
address of the auction organizer;
3. The name and
address of the goods seller;
4. The list of
goods, their quantities and quality;
5. The reserve
prices;
6. Necessary
information on the goods;
7. The place and
time for displaying the goods;
8. The place and
time for consulting the goods files;
9. The place and
time for registering the purchase of goods.
Article 198.- Persons not allowed to participate in auctions
1. Persons who do
not have civil act capacity, lose civil act capacity, or have restricted civil
act capacity under the provisions of the Civil Code, or persons who, at the
time of auction, are unable to cognize or control their acts;
2. Persons
working in auctioning organizations; their parents, spouses and children;
3. Persons who
have personally conducted the assessment of to be-auctioned goods; their
parents, spouses and children;
4. Persons who do
not have the right to purchase auctioned goods as provided for by law.
Article 199.- Registration for participation in auctions
1. Auction
organizers may request persons who wish to participate in auctions to register
for the auction participation before such auctions take place.
2. Auction
organizers may request persons who wish to participate in auctions to make
token payments which must not exceed 2% of the reserve prices of auctioned
goods.
3. Where persons
participating in auctions purchase auctioned goods, their token payments shall
be cleared against the purchase prices; if they cannot purchase auctioned
goods, their token payments shall be refunded to them right after auctions are
completed.
4. Where persons
who register for participation in auctions have made token payments but later
failed to participate in auctions, auction organizers shall be entitled to
retain such token payments.
Article 200.- Display of auctioned goods
Goods, goods
samples, documents introducing goods and other necessary information on such
goods must be displayed at places announced since the posting up.
Article 201.- Conducting of auctions
An auction shall
be conducted in the following order:
1. The auctioneer
makes a roll call of registered participants in the goods auction;
2. The auctioneer
presents each auctioned goods item, repeats their reserve prices, answer
questions of the auction participants, and ask them to offer bids;
3. As for the
upward bidding mode, the auctioneer must clearly and accurately repeat the
latest offered price which is higher than the price offered by the previous
bidder for at least three times with an interval of at least thirty seconds.
The auctioneer shall announce the winning bidder to purchase the auctioned
goods only if after repeating for three times the price offered by such person,
no one offers a higher price;
4. As for the
downward bidding mode, the auctioneer must clearly and accurately repeat every
reduced price level below the reserve price for at least three times with an
interval of at least thirty seconds. The auctioneer shall announce immediately
the person who first accepts the reserve price or any reduced price level below
the reserve price to have the right to purchase the auctioned goods.
5. In cases where
many persons concurrently offer the last price as for the upward bidding mode,
or the first price as for the downward bidding mode, the auctioneer shall have
to organize a lot drawing among such persons and announce the person who has
drawn the winning lot as the purchaser of auctioned goods.
6. The auctioneer
shall have to prepare a document on goods auction right at the auction venue,
even when the auction is unsuccessful. The auction document must clearly state
the auction result and be signed by the auctioneer, the purchaser and two
witnesses from among the auction participants. For auctioned goods which must
be notarized by the State Notary according to the provisions of law, the
auction document must also be notarized.
Article 202.- Unsuccessful auctions
An auction shall
be considered unsuccessful in the following cases:
1. There is no
auction participant or no bid price is offered;
2. The highest
price offered is lower than the reserve price, for the upward bidding mode.
Article 203.- Goods auction documents
1. Goods auction
documents are documents certifying the goods purchase and sale. A goods auction
document must have the following contents:
a/ The name and
address of the auction organizer;
b/ The name and
address of the auctioneer;
c/ The name and
address of the goods seller;
d/ The name and
address of the goods purchaser;
e/ The time and
venue of the auction;
f/ The auctioned
goods;
g/ The price at
which the goods were sold;
h/ The names and
addresses of two witnesses.
2. Auction
documents must be sent to goods sellers, goods purchasers and related parties.
3. In case of
unsuccessful auctions, auction documents must clearly state that the auctions
were unsuccessful and have the contents specified at Points a, b, c, e, f and
h, Clause 1 of this Article.
Article 204.- Withdrawal of offered prices
1. In case of an
auction by the upward bidding mode, if the person offering the highest price
immediately withdraws his/her bid, the auction shall still continue, starting
again from the preceding offered price. In case of an auction by the downward
bidding mode, if the person who first accepts the price immediately withdraws
the accepted price, the auction shall still continue, starting again from the
preceding accepted price.
2. The person who
withdraws his/her offered price or withdraws his/her acceptance of the price
shall not be allowed to further participate in the auction.
3. Where the
auctioned goods are sold at a price lower than the withdrawn price which is
previously offered for the upward bidding mode, or accepted for the downward
bidding mode, the bid withdrawer shall have to pay the price difference to the
auction organizer. Where the goods are sold at a higher price, the bid
withdrawer shall not be entitled to such a difference.
4. In case of an
unsuccessful auction, the bid withdrawer shall have to bear expenses for the
auction and not be refunded his/her token payment.
Article 205.- Refusal to purchase
1. Unless
otherwise agreed, after auctions are declared to be complete, purchasers shall
be held liable. If purchasers refuse to purchase goods, they must obtain consents
of goods sellers and bear all costs related to the organization of auctions.
2. In cases where
purchasers of auctioned goods have paid token payments but refuse to purchase
such goods, they shall not be refunded such token payments. Such token payments
shall belong to goods sellers.
Article 206.- Registration of ownership right
1. Auction
documents shall serve as basis for the transfer of the ownership right over
auctioned goods, which must be registered according to the provisions of law.
2. On the basis
of goods auction documents and other valid papers, competent state agencies
shall have to register the goods ownership rights for goods purchasers
according to the provisions of law.
3. Sellers and
auction organizers are obliged to carry out procedures for transferring goods
ownership rights to goods purchasers. Expenses for carrying out procedures for
such transfer shall be deducted from proceeds from goods sale, unless otherwise
agreed.
Article 207.- Time of payment for goods purchase
Time of payment
for goods purchase shall be agreed upon by auction organizers and auctioned
goods purchasers. If no agreement is reached, the time of payment for goods
purchase shall be the time provided for in Article 55 of this Law.
Article 208.- Place of payment for goods purchase
Place of payment
for goods purchase shall be agreed upon by auction organizers and goods
purchasers. If no agreement is reached, the place of payment shall be the
places of business of auction organizers.
Article 209.- Time limit for delivery of auctioned goods
Unless otherwise
agreed upon by auction organizers and goods purchasers, the time limit for
delivery of auctioned goods is provided for as follows:
1. For goods over
which the ownership right is not required to be registered, auction organizers
must deliver goods to their purchasers immediately after auction documents are
made;
2. For goods over
which the ownership rights have been registered, auction organizers must
immediately carry out procedures for transferring the ownership rights and
deliver goods to their purchasers immediately after the procedures for
ownership right transfer are completed.
Article 210.- Place of delivery of auctioned goods
1. Where goods
are things attached to land, the place of delivery thereof is the place where
such goods are located.
2. Where goods
are movables, the place of delivery thereof is the place where the auction is
organized, unless otherwise agreed upon by auction organizers and goods
purchasers.
Article 211.- Goods auction service charges
Where there is no
agreement on goods auction service charges, such charges shall be determined as
follows:
1. In case of
successful auctions, auction service charges shall be determined according to
Article 86 of this Law;
2. In case of
unsuccessful auctions, goods sellers must pay a charge equal to 50% of the
charge rate provided for in Clause 1 of this Article.
Article 212.- Expenses related to auctions of goods
Unless otherwise
agreed upon between goods sellers and auction organizers, expenses related to
auctions of goods shall be determined as follows:
1. Goods sellers
shall bear the expenses for transportation of goods to the agreed places and
the expenses for preservation of goods in cases where they do not deliver the
goods to auction organizers for preservation;
2. Auction
organizers shall bear the expenses for preservation of goods delivered to them,
the expenses for posting up, notification and organization of auctions and
other related expenses.
Article 213.- Responsibilities for auctioned goods untrue to notified
or posted up ones
1. Within the
time limit provided for in Article 318 of this Law, goods purchasers may return
the goods to auction organizers and request compensations for damage if the
auctioned goods are untrue to notified or posted up ones.
2. Where the
auction organizer defined in Clause 1 of this Article is not the seller and the
untruthful notified or posted up contents are attributable to the fault of the
seller, the auction organizer shall have the right to return the goods and
claim damages from the seller.
SECTION 3. BIDDING FOR GOODS OR SERVICES
Article 214.- Bidding for goods or services
1. Bidding for
goods or services means a commercial activity whereby a party purchases goods
or services through bidding (referred to as bid solicitor) in order to select,
among traders participating in the bidding (referred to as bidders), a trader
that satisfies the requirements set forth by the bid solicitor and is selected
to enter into and perform a contract (referred to as bid winner).
2. The provisions
on bidding in this Law shall not apply to bidding for public procurement
according to the provisions of law.
Article 215.- Forms of bidding
1. Bidding for
goods or services shall be conducted in either of the following two forms:
a/ Open bidding
which is a form of bidding whereby the bid solicitor does not limit the number
of bidders;
b/ Restricted
bidding which is a form of bidding whereby the bid solicitor invites only a
limited number of bidders to participate in the bidding.
2. The selection
of the form of open bidding or restricted bidding shall be decided by bid
solicitors.
Article 216.- Modes of bidding
1. Modes of
bidding include bidding with one bid dossier bag and bidding with two dossier
bags. Bid solicitors shall have the right to select the mode of bidding and
must notify such in advance to bidders.
2. In case of
bidding by mode of one dossier bag, a bidder shall submit its bid dossier
consisting of technical and financial proposals in one dossier bag according to
the requirements in the tendering dossier and the opening of bids shall be
effected only once.
3. In case of
bidding by mode of two dossier bags, a bidder shall submit its bid dossier
consisting of technical and financial proposals in two separate dossier bags
submitted simultaneously, and the opening of bids shall be effected twice. The
dossier on technical proposals shall be opened first.
Article 217.- Pre-qualification of bidders
Bid solicitors
may organize the pre-qualification of bidders in order to select those bidders
that are capable of satisfying the conditions set forth by bid solicitors.
Article 218.- Tendering dossiers
1. A tendering
dossier comprises:
a/ Tendering
notice;
b/ Requirements
related to goods or services subject to bidding;
c/ Methods of
evaluation, comparison, grading and selection of bidders;
d/ Other
instructions related to bidding.
2. Expenses for
supply of documents provided to bidders shall be stipulated by bid solicitors.
Article 219.- Tendering notice
1. A tendering
notice comprises the following principal contents:
a/ Name and
address of the bid solicitor;
b/ Brief
description of bidding contents;
c/ Time limit,
place and procedures for receipt of tendering dossiers;
d/ Time limit,
place and procedures for submission of bid dossiers;
e/ Instructions
for reading tendering dossiers.
2. Bid solicitors
shall have to notify on the mass media in case of open bidding or send notices
on invitation to register for bidding participation to qualified bidders in
case of restricted bidding.
Article 220.- Instructions to bidders
Bid solicitors
shall have to provide bidders with instructions on the tendering conditions,
procedures to be applied in the bidding process, and to answer questions of
bidders.
Article 221.- Management of bid dossiers
Bid solicitors
shall have to manage bid dossiers.
Article 222.- Bid bonds
1. Bid bonds
shall be made in the form of bid deposit, collateral or guarantee.
2. Bid solicitors
may request bidders to make bid deposits, bid collaterals or provide bid
guarantees when submitting their bid dossiers. The percentage of a bid deposit
or collateral shall be set out by bid solicitor but must not exceed 3% of the
total estimated value of goods or services subject to bidding.
3. Bid solicitors
shall stipulate the mode and conditions for making deposits, collaterals or
providing bid guarantees. In case of bid deposits or collaterals, such deposits
or collaterals shall be returned to unsuccessful bidders within seven working
days from the date the bidding results are announced.
4. Bidders shall
not be allowed to receive back their bid deposits or collaterals in cases where
they withdraw bid dossiers after the expiration of the time limit for
submitting bid dossiers (referred to as “bidding closure”), fail to enter into
contracts or refuse to perform contracts in cases where they are bid winners.
5. Guarantors for
bidders are obliged to guarantee bids for the guaranteed within the value equal
to deposits or collaterals.
Article 223.- Confidentiality of bidding information
1. Bid solicitors
must keep confidential bid dossiers.
2. Organizations
and individuals involved in the organization of bidding and in the evaluation
and selection of bids must keep confidential information relevant to the
bidding.
Article 224.- Bid opening
1. Bid opening is
the opening of bid dossiers at a fixed time or in cases where there is no
prefixed time, the time of bid opening shall be the time immediately after the
bidding closure.
2. All bid
dossiers submitted on time must be opened publicly by bid solicitors. Bidders
shall be entitled to attend the bid opening.
3. Bid dossiers
which are not submitted on time shall be rejected and returned to bidders unopened.
Article 225.- Consideration of bid dossiers upon bid opening
1. Bid solicitors
consider the validity of bid dossiers.
2. Bid solicitors
may request bidders to clarify unclear contents in their bid dossiers. Requests
and clarification of bid dossiers must be made in writing.
Article 226.- Minutes of bid opening
1. Upon bid
opening, the bid solicitor and bidders that are present shall have to sign the
minutes of bid opening.
2. A minutes of
bid opening must have the following contents:
a/ Name of goods
or service subject to bidding;
b/ Date, time and
place of the bid opening;
c/ Names and
addresses of the bid solicitor and bidders;
d/ Bidding prices
of bidders;
e/ Written amendments
or supplements and relevant contents, if any.
Article 227.- Evaluation and comparison of bid dossiers
1. Bid dossiers
shall be evaluated and compared according to each criterion for an overall
evaluation.
The criteria for
evaluation of bid dossiers shall be provided for by bid solicitors.
2. The criteria
mentioned in Clause 1 of this Article shall be evaluated by the score-giving
method or other methods determined prior to the bid opening.
Article 228.- Amendment of bid dossiers
1. Bidders are
not allowed to amend their bid dossiers after the bid opening.
2. In the course
of evaluation and comparison of bid dossiers, bid solicitors may request
bidders to clarify matters related to their bid dossiers. Requests of
solicitors and replies of bidders must be made in writing.
3. Where bid
solicitors amend some contents in tendering dossiers, they must send such
amendments in writing to all bidders at least ten days before the deadline for
submitting bid dossiers so that bidders have enough time to finalize their bid
dossiers.
Article 229.- Classification and selection of bidders
1. On the basis
of the result of the evaluation of bid dossiers, bid solicitors shall have to
classify and select bidders according to the method already determined.
2. Where many
bidders obtain equal scores and equally satisfy criteria to win the bidding,
the bid solicitor shall have the right to select winning bidder.
Article 230.- Notification of bidding results and entry into contracts
1. Immediately
after bidding results are available, bid solicitors shall have to notify them
to bidders.
2. Bid solicitors
shall finalize and enter into contracts with bid winners on the following
bases:
a/ Bidding
results;
b/ Requirements
stated in tendering dossiers;
c/ Contents in
bid dossiers.
Article 231.- Contract performance security
1. Involved
parties may agree that bid winners should make deposits or collaterals or be
provided with guarantees to secure the performance of contracts. Money amount
to be deposited or used as a collateral shall be set by bid solicitors but must
not exceed 10% of the contract value.
2. Contract
performance security measures shall be effective up to the time of completion
of contractual obligations by bid winners.
3. Unless
otherwise agreed, bid winners shall receive back deposits or collaterals as
security for the performance of contracts upon the liquidation of such
contracts. Bid winners shall not be entitled to receive back deposits or collaterals
as security for the performance of contracts if they refuse to perform such
contracts after they are entered into.
4. After paying
deposits or making collaterals to secure the contract performance, bid winners
shall have their bid deposits or collaterals refunded.
Article 232.- Reorganization of bidding
A bidding shall
be reorganized in one of the following cases:
1. Where there is
a violation of the regulations on bidding;
2. Where all
bidders fail to satisfy the bidding requirements.
SECTION 4. LOGISTIC SERVICES
Article 233.- Logistic services
Logistic services
are commercial activities whereby traders organize the performance of one or
many jobs including reception, transportation, warehousing, yard storage of
cargoes, completion of customs procedures and other formalities and paperwork,
provision of consultancy to customers, services of packaging, marking, delivery
of goods, or other services related to goods according to agreements with
customers in order to enjoy service charges.
Article 234.- Conditions for logistic service provision
1. Traders
providing logistic services are enterprises fully satisfying the conditions for
logistic service business provided for by law.
2. The Government
shall specify logistic service business conditions.
Article 235.- Rights and obligations of traders providing logistic
services
1. Unless
otherwise agreed, traders providing logistic services shall have the following
rights and obligations:
a/ To enjoy
service charges and other reasonable expenses;
b/ To depart from
instructions of customers during the performance of contracts for plausible
reasons and in the interests of customers, provided that customers must be
notified thereof immediately;
c/ To notify such
customers immediately for further instructions in cases where instructions of
customers cannot be followed in part or in whole;
d/ To perform
their obligations within a reasonable period of time if there is no agreement
on specific time limit for performance of their obligations to customers.
2. In the course
of transportations of goods, traders providing logistic services must comply
with the provisions of law and transportation practices.
Article 236.- Rights and obligations of customers
Unless otherwise
agreed, customers shall have the following rights and obligations:
1. To guide,
inspect and supervise the performance of contracts;
2. To provide
sufficient instructions to traders providing logistic services;
3. To provide
sufficient, detailed and accurate information on the goods to traders providing
logistic services;
4. To pack and
mark the goods according to contracts for purchase and sale of goods, except
where there is an agreement that traders providing logistic services shall
undertake to do such job;
5. To compensate
for damage caused to, and pay reasonable costs incurred by, traders providing
logistic services if such traders have strictly complied with customers’
instructions or if the customers are at fault;
6. To pay traders
providing logistic services all amounts due.
Article 237.- Liability exemption for traders providing logistic
services
1. Apart from the
cases of liability exemption specified in Article 294 of this Law, traders
providing logistic services shall not be liable for the goods loss caused in
the following cases:
a/ The loss is
caused by faults of customers or their authorized persons;
b/ The loss is
caused by traders that have strictly followed the instructions of their
customers or persons authorized by customers;
c/ The loss is
attributed to defects of the goods;
d/ The loss
occurs in cases of liability exemption according to law and transportation
practices, if traders providing logistic services organize transportation;
e/ Trader
providing logistic services are not notified of complaints within fourteen days
from the date they deliver goods to recipients;
f/ After being
complained against, traders providing logistic services are not notified of
lawsuits against them being instituted at arbitrations or courts within nine
months from the date of delivery of goods.
2. Traders
providing logistic services shall not be liable for the loss of profits which
their customers would have earned, for any services delayed or provided at
wrong addresses, for which they are not at fault.
Article 238.- Limitation to liability
1. Unless
otherwise agreed, the full liability of traders providing logistic services
shall not exceed the limitation of liability for the full loss of the goods.
2. The Government
shall provide in detail for the limitation of liability of traders providing logistic
services in compliance with provisions of law and international practices.
3. Traders
providing logistic services shall not enjoy the limitation of liability for
damage compensation if persons with related rights and benefits prove that the
loss, damage or delayed delivery of goods is caused by deliberate actions or
inactions of traders providing logistic services with the intention to cause
such loss, damage or delayed delivery or their actions or inactions are known
to be risky who were also aware of such loss, damage, or delay would certainly
occur.
Article 239.- The right to withhold and dispose of goods
1. Traders
providing logistic services shall be entitled to withhold a certain quantity of
goods and related documents in order to claim payment of due debts by customers
but shall have to notify promptly customers thereof in writing.
2. After forty
five days from the date of notification of the withholding of goods or their
related documents, if customers fail to pay debts, traders providing logistic
services shall be entitled to dispose of such goods or documents according to
provisions of law. Where there are indications of deterioration of goods,
traders providing logistic services shall have the right to dispose of the
goods immediately after any debt of customers becomes due.
3. Before
disposing of goods, traders providing logistic services must immediately notify
their customers of such disposal.
4. All expenses
for the withholding and disposal of goods shall be borne by customers.
5. Traders
providing logistic services shall be entitled to use proceeds from the disposal
of goods to pay for debts owed to them by their customers and related expenses.
If the proceeds from the disposal of goods exceed the value of debts, the
difference must be returned to customers. From that point of time, traders
providing logistic services shall no longer be responsible for the goods or
documents already disposed of.
Article 240.- Obligations of traders providing logistic services when
withholding goods
When the right to
dispose of goods provided for in Article 239 of this Law is not yet exercised,
traders providing logistic services and withholding goods shall have the
following obligations:
1. To preserve
and keep the goods;
2. Not to use
goods without consent of the parties whose goods are withheld;
3. To return
goods where the conditions for withholding and disposal of goods provided for
in Article 239 of this Law no longer exist;
4. To pay damages
to the parties whose goods are withheld if they cause loss or damage to
withheld goods.
SECTION 5. TRANSIT OF GOODS THROUGH THE VIETNAMESE TERRITORY; AND GOODS
TRANSIT SERVICES
Article 241.- Transit of goods
Transit of goods
means the transportation of goods owned by foreign organizations or individuals
through the Vietnamese territory, including transshipment, portage,
warehousing, shipment separation or alteration of modes of transportation or
other jobs performed in the course of transit.
Article 242.- Right to transit goods
1. All goods
owned by foreign organizations and individuals are allowed to be transited
through the Vietnamese territory and subject only to customs clearance at
import border-gates and export border-gates according to the provisions of law,
except for the following cases:
a/ Goods are
weapons, ammunitions, explosive materials and other type of highly dangerous
goods, unless they are permitted by the Prime Minister;
b/ Goods are
banned from business, export or import, which shall be allowed to be transited
through the Vietnamese territory only when so permitted by the Trade Minister.
2. Goods in
transit when being exported from, and means of transport carrying goods in
transit when leaving, the Vietnamese territory must be the goods or means of
transport which have previously entered the Vietnamese territory.
3. Foreign
organizations or individuals that wish to transit their goods through the
Vietnamese territory must hire Vietnamese traders providing transit services to
do so, except for cases mentioned in Clause 4 of this Article.
4. The transit of
goods through the Vietnamese territory by foreign organizations and individuals
themselves or by hired foreign traders must comply with treaties to which the
Socialist Republic of Vietnam is a contracting party and the provisions of
Vietnamese law on exit, entry and transport.
Article 243.- Routes for transit
1. Goods shall
only be transited through international border-gates and on certain routes in
the Vietnamese territory.
2. On the basis
of treaties to which the Socialist Republic of Vietnam is a contracting party,
the Transport Minister shall specify routes on which the transportation of
goods in transit is allowed.
3. In the course
of transit, any change of routes on which the transportation of goods in
transit is allowed must be consented by the Transport Minister.
Article 244.- Transit by airways
Transit by
airways shall be carried out in accordance with treaties on aviation to which
the Socialist
Republic of Vietnam is a contracting party.
Article 245.- Supervision of goods in transit
Goods in transit
through the Vietnamese territory shall be subject to the supervision by
Vietnamese customs authorities throughout the course of transit.
Article 246.- Transit duration
1. The maximum
duration of transit through the Vietnamese territory shall be thirty days from
the date of completion of customs procedures at import border-gates, except
where goods are warehoused in Vietnam or damaged or lost in the course of
transit.
2. Where goods
are warehoused in Vietnam or damaged or lost in duration of transit and require
more time for warehousing, remedying such damage or loss, the transit duration
may be prolonged according to the amount of time required for such jobs and
with approval of customs authorities where transit procedures are carried out;
in cases where goods are transited under permits of the Trade Minister,
approval of the Trade Minister is required.
3. During the
period of warehousing or remedying damage and loss mentioned in Clause 2 of
this Article, transit goods and means of transport carrying transit goods must
still be subject to supervision by Vietnamese customs authorities.
Article 247.- Goods in transit consumed in Vietnam
1. Goods in
transit defined at Points a and b, Clause 1, Article 242 of this Law shall not
be permitted for consumption in Vietnam
2. Except for
cases mentioned in Clause 1 of this Article, goods in transit shall be
permitted for consumption in Vietnam only when it is so approved in writing by
the Trade Minister.
3. The
consumption of transit goods in Vietnam must comply with the provisions of
Vietnamese law on import of goods, taxes, charges, fees and other financial
obligations.
Article 248.- Prohibited acts during transit
1. To pay transit
remunerations in transit goods.
2. To illegally
consume goods in transit or means of transport carrying goods in transit.
Article 249.- Goods transit services
Goods transit
services mean commercial activities whereby traders carry out the transit of
goods under the ownership of foreign organizations or individuals through the
Vietnamese territory for remunerations.
Article 250.- Conditions for providing transit services
Traders providing
transit services must be enterprises with registrations of business of
providing transportation services or logistic services according to Article 234
of this Law.
Article 251.- Transit service contracts
Transit service
contracts must be made in writing or in other forms of equivalent legal
validity.
Article 252.- Rights and obligations of transit service hirers
1. Unless
otherwise agreed, transit service hirers shall have the following rights:
a/ To request
transit service providers to receive goods at import border-gates at the agreed
time;
b/ To request
transit service providers to promptly notify the conditions of goods in the
course of transit through the Vietnamese territory;
c/ To request
transit service providers to carry out all necessary procedures to limit damage
or loss of goods in transit in the course of transit through the Vietnamese
territory.
2. Unless
otherwise agreed, transit service hirers shall have the following obligations:
a/ To deliver
goods to import border-gates of Vietnam on time as agreed;
b/ To supply
transit service providers with sufficient information on the goods;
c/ To supply
sufficient documents necessary for transit service providers to carry out
procedures for import or transportation in the Vietnamese territory and the
export procedures;
d/ To pay transit
remunerations and other reasonable expenses to transit service providers.
Article 253.- Rights and obligations of transit service providers
Unless otherwise
agreed, transit service providers shall have the following rights:
a/ To request
transit service hirers to deliver goods to import border-gates of Vietnam on
time as agreed;
b/ To request
transit service hirers to supply sufficient necessary information on the goods;
c/ To request
transit service hirers to supply sufficient necessary documents for carrying
out procedures for import and transportation in the Vietnamese territory and
export procedures;
d/ To receive
transit remunerations and other reasonable expenses.
2. Unless
otherwise agreed, transit service providers shall have the following
obligations:
a/ To receive the
goods at import border-gates at the agreed time;
b/ To carry out
procedures to import and export the goods in transit into and out of the
Vietnamese territory;
c/ To be
responsible for goods in transit in the course of transit through the
Vietnamese territory;
d/ To perform
necessary jobs to minimize loss and/or damage to the goods in transit in the
course of transit through the Vietnamese territory;
e/ To pay
assorted fees and charges and other financial obligations applicable to goods
in transit as provided for by Vietnamese law;
f/ To cooperate
with competent state agencies of Vietnam in dealing with matters related to the
goods in transit.
SECTION 6. ASSESSMENT SERVICES
Article 254.- Assessment services
Assessment
services are commercial activities whereby traders perform necessary jobs to
determine actual conditions of goods, results of the provision of services and
other contents at the request of customers.
Article 255.- Contents of assessment
Assessment
comprises one or a number of contents regarding the quantity, quality, packing,
value of goods, origin of goods, losses, safety, hygienic and quarantine
standards, results of the provision of services, method of providing services
and other contents at the request of customers.
Article 256.- Traders providing commercial assessment services
Only traders that
satisfy all the conditions provided for by law and are granted business
registration certificates for provision of commercial assessment services shall
be allowed to provide assessment services and issue assessment certificates.
Article 257.- Conditions for providing commercial assessment services
Traders providing
commercial assessment services must fully satisfy the following conditions:
1. Being enterprises
established according to the provisions of law;
2. Having
assessors who have all the qualifications specified in Article 259 of this Law;
3. Being capable
of carrying out procedures and methods for assessing goods or services under
the provisions of law, the international standards or which are commonlly
applied by countries in assessment of such goods or services.
Article 258.- Scope of providing commercial assessment services
Traders providing
commercial assessment services shall be allowed to provide assessment services
in domains of assessment only when they fully satisfy the conditions provided
for in Clauses 2 and 3, Article 257 of this Law.
Article 259.- Criteria of assessors
1. An assessor
must fully satisfy the following criteria:
a/ Possessing a
university or college degree suitable to the requirements of the domain of
assessment;
b/ Having a
professional certificate for the assessment domain in cases where such
professional certificate is required by law;
c/ Having worked
for at least three years in the domain of assessment of goods or services.
2. Basing
themselves on the criteria specified in Clause 1 of this Article, directors of
enterprises providing commercial assessment services shall recognize assessors
and be responsible before law for their decisions.
Article 260.- Assessment certificates
1. Assessment
certificates are documents determining the actual conditions of goods and
services according to the assessment contents required by customers.
2. Assessment
certificates must be signed by competent representatives of enterprises
providing commercial assessment services, have signatures and full names of
assessors, and be affixed with professional seals already registered with
competent agencies.
3. Assessment
certificates shall only be valid for those contents already assessed.
4. Traders
providing assessment services shall be responsible for accuracy of results and
conclusions in assessment certificates.
Article 261.- Legal validity of assessment certificates with respect to
assessment requesters
Assessment
certificates shall be legally binding on assessment requesters in cases where
they cannot prove that assessment results are non-objective, untruthful or
obtained with technical or professional errors.
Article 262.- Legal validity of assessment certificates with respect to
contractual parties
1. Where
contracting parties agree on the use of an assessment certificate issued by a
particular trader providing assessment services, such assessment certificate
shall be legally binding on all the parties if they cannot prove that the
assessment results are non-objective, untruthful or obtained with technical or
professional errors.
2. Where
contractual parties do not agree on the use of an assessment certificate issued
by a particular trader providing assessment services, such assessment
certificate shall only be binding on the party requesting the assessment
according to Article 261 of this Law. The other contractual party shall have
the right to request re-assessment.
3. If a
re-assessment certificate is inconsistent with the original assessment
certificate:
a/ Where the
trader providing assessment services and issuing the original assessment
certificate accepts the results stated in the re-assessment certificate, such
results shall be legally binding on all the parties;
b/ Where the
trader providing assessment services and issuing the original assessment
certificate does not accept the results stated in the re-assessment
certificate, the parties shall agree to select another trader providing
assessment services to perform the re-assessment for the second time. The
results of the second-time re-assessment shall be legally binding on all the
parties.
Article 263.- Rights and obligations of traders providing assessment
services
1. Traders
providing assessment services shall have the following rights:
a/ To request
customers to supply in a sufficient, accurate and timely manner necessary
documents for performance of assessment services;
b/ To receive
assessment service charges and other reasonable expenses.
2. Traders
providing assessment services shall have the following obligations:
a/ To observe the
standards and other relevant provisions of law on assessment services;
b/ To perform the
assessment in an honest, objective, independent, timely manner and according to
the assessment procedures and methods;
c/ To issue
assessment certificates;
d/ To pay
violation fines and/or damages according to the provisions of Article 266 of
this Law.
Article 264.- Rights of customers
Unless otherwise
agreed, customers shall have the following rights:
1. To request
traders providing assessment services to perform the assessment according to
the agreed contents;
2. To request
re-assessment if they have sound reasons to believe that traders providing
assessment services fail to properly satisfy their requirements or perform the
assessment in an untruthful and non-objective manner or with technical and
professional errors;
3. To request
payment of fines or damages according to the provisions of Article 266 of this
Law.
Article 265.- Obligations of customers
Unless otherwise
agreed, customers shall have the following obligations:
1. To supply in a
sufficient, accurate and timely manner necessary documents to traders providing
assessment services when so requested;
2. To pay
assessment service charges and other reasonable expenses.
Article 266.- Fines and damages in case of incorrect assessment results
1. Where
traders providing assessment services issue assessment certificates showing
incorrect results caused by their unintentional faults, they must pay fines
therefor to customers. The fine level shall be agreed upon by the parties but
must not exceed ten times the assessment service charge.
2. Where traders
providing assessment services issue assessment certificates showing incorrect
results caused by their intentional faults, they must pay compensations for
damage caused to customers that directly request the assessment.
3. Customers are
obliged to prove that assessment results are incorrect and traders providing
assessment services are at fault.
Article 267.- Authorized assessment
Where foreign
traders providing assessment services are hired to perform assessment while
having no license to operate in Vietnam, such traders may authorize traders
providing assessment services which have been licensed to operate in Vietnam to
provide assessment services but must still be held responsible for the assessment
results.
Article 268.- Assessment at the request of state agencies
1. Traders
providing assessment services which fully satisfy the conditions and criteria
suitable with assessment requirements shall have to perform assessment at the
request of state agencies.
2. State agencies
which request the assessment shall have to pay assessment remunerations to
traders providing assessment services according to agreements between the two
parties on the basis of market prices.
SECTION 7. LEASE OF GOODS
Article 269.- Lease of goods
Lease of goods
means commercial activities whereby one party transfers the right to possess
and use goods (referred to as lessor) to another party (referred to as lessee)
for a certain duration to enjoy rentals.
Article 270.- Rights and obligations of lessors
Unless otherwise
agreed, lessors shall have the following rights and obligations:
1. To deliver
leased goods to lessees as agreed upon in lease contracts;
2. To ensure that
the right of lessees to possess and use leased goods is not disputed by a
concerned third party in the lease duration;
3. To ensure that
leased goods are suitable to the use purposes of lessees as agreed upon by the
parties;
4. To maintain
and repair leased goods within a reasonable duration. Where the maintenance and
repair of leased goods cause harms to the use of such goods by lessees, lessors
shall have to reduce rent rates or prolong lease duration corresponding to the
time of maintenance and repair;
5. To receive
rentals according to agreements or provisions of law;
6. To take back
leased goods upon the expiration of the lease duration.
Article 271.- Rights and obligations of lessees
Unless otherwise
agreed, lessees shall have the following rights and obligations:
1. To possess and
use leased goods according to lease contracts and the provisions of law. Where
there is no specific agreement on the manner in which leased goods should be
used, such leased goods shall be used in a manner appropriate to their nature;
2. To maintain
and preserve leased goods in the lease duration and return such goods to
lessors upon the expiration of the lease duration;
3. To request
lessors to perform the maintenance and repair of goods. If lessors fail to
perform such obligation within a reasonable period of time, lessees may perform
the maintenance and repair of leased goods and lessors shall bear all
reasonable expenses for such maintenance and repair;
4. To pay rentals
as agreed or according to the provisions of law;
5. Not to sell or
sub-lease the leased goods.
Article 272.- Repair or alteration of original status of leased goods
1. Lessees must
not repair or alter the original status of leased goods if not so consented by
lessors.
2. Where lessees
perform the repair or alter the original status of the leased goods without
lessors’ consents, lessors shall have the right to request lessees to restore
the original status of the leased goods or claim damages.
Article 273.- Liability for loss occurring in the lease duration
1. Unless
otherwise agreed, lessors shall bear loss of leased goods occurring in the
lease duration if lessees are not at fault in causing such loss.
2. In cases
mentioned in Clause 1 of this Article, lessors shall have to repair leased
goods within a reasonable duration to ensure the achievement of use purposes of
lessees.
Article 274.- Pass of risks incurred to leased goods
Where the parties
agree on the pass of risk to the lessee but the point of time of passing risks
is not determined, that point of time shall be determined as follows:
1. In cases where
the lease contract involves the transportation of goods:
a/ If the
contract does not require the leased goods to be delivered at a designated
place, risks shall be passed to the lessee when the leased goods are delivered
to the first carrier;
b/ If the
contract requires the leased goods to be delivered at a designated place, risks
shall be passed to the lessee or the person authorized by the lessee to receive
the goods at such place;
2. In cases where
the leased goods are received by a bailee other than a carrier for delivery,
risks shall be passed to the lessee as soon as the bailee acknowledge the
lessee’s right to possess the leased goods;
3. In other cases
not mentioned in Clauses 1 and 2 of this Article, risks shall be passed to the
lessee upon the receipt of the leased goods by the lessee.
Article 275.- Leased goods inappropriate to contracts
Where there is no
specific agreement, goods shall be deemed inappropriate to contracts when such
goods fall into one of the following cases:
1. They are suitable
to common utility of goods of the same type;
2. They are not
suitable to specific purposes which the lessee has informed the lessor or the
lessor should have known at the time the contract was entered into;
3. Their quality
is not the same as goods samples handed over by the lessor to the lessee.
Article 276.- Rejection of goods
1. The lessor
shall give the lessee a reasonable time after the receipt of goods for
inspection thereof.
2. The lessee may
reject the goods in the following cases:
a/ The lessor
does not give conditions and a reasonable time to the lessee for inspecting the
goods;
b/ When
inspecting the goods, the lessee discovers that the goods are inappropriate to
the contract.
Article 277.- Rectification or replacement of leased goods
inappropriate to contracts
1. Where the
lessee rejects leased goods inappropriate to the contract, if the time limit
for delivery of goods has not yet expired, the lessor may promptly notify the
lessee of the rectification or replacement of the goods and then perform such
rectification or replacement of goods within the remaining duration.
2. Where the
lessor, when performing the rectification mentioned in Clause 1 of this
Article, causes inconvenience or unreasonable expenses to be borne by the lessee,
the lessee shall have the right to request the lessor to remedy such
inconvenience or pay such unreasonable expenses.
Article 278.- Acceptance of leased goods
1. The lessee
shall be deemed having accepted the leased goods after being given a reasonable
opportunity to inspect the leased goods and taking one of the following acts:
a/ Not rejecting
the leased goods;
b/ Certifying the
appropriateness of the leased goods to agreements in the contract;
c/ Confirming the
acceptance of the goods despite their inappropriateness to agreements in the
contract.
2. If the lessee
discovers the inappropriateness of the leased goods to the contract after
accepting such goods and such inappropriateness is detectable through a
reasonable inspection before the acceptance, the lessee shall not be entitled
to rely on such inappropriateness as an excuse for returning the goods.
Article 279.- Withdrawal of acceptance
1. Lessees may
withdraw their acceptance of part or whole of the leased goods if the
inappropriateness of such leased goods may render them unable to achieve the
objectives of the entry into of contracts and falls into one of the following
cases:
a/ Lessors fail
to make reasonable rectification according to Article 277 of this Law;
b/ Lessees fail
to detect the inappropriateness of the goods due to lessors’ guarantee.
2. The withdrawal
of acceptance must be made within a reasonable period of time, which must not
exceed three months as from the date lessees accept the goods.
Article 280.- Responsibility for defects of leased goods
Unless otherwise
agreed, responsibility for defects of leased goods is provided for as follows:
1. In the lease
duration, lessors shall be responsible for any defects of leased goods which
already exist at the time of delivery of such goods to lessees, except for
cases mentioned in Clauses 2 and 3 of this Article;
2. Lessors shall
not be responsible for any defects of leased goods which already exist prior to
the entry into of contracts and which lessees knew or should have known;
3. Lessors shall
not be responsible for any defects of leased goods which are detected after
lessees have accepted the leased goods and which would have been detected by
lessees through reasonable inspections before accepting the goods.
4. Lessors shall
be responsible for any defects of leased goods appearing after the time of
passing risks due to lessors’ breaches of their committed obligations.
Article 281.- Sub-lease
1. Lessees shall
be entitled to sub-lease goods only when they obtain consents of lessors. Lessees
shall be responsible for sub-leased goods, unless they otherwise agree with
lessors.
2. Where lessees
sub-lease leased goods without consents of lessors, lessors may revoke lease
contracts. Sub-lessees shall have to return the goods to lessors immediately.
Article 282.- Benefits arising in the lease duration
Unless otherwise
agreed, all benefits arising from leased goods in the lease duration shall
belong to lessees.
Article 283.- Change of ownership in the lease duration
Any change of
ownership over leased goods shall not affect the validity of lease contracts.
SECTION 8. COMMERCIAL FRANCHISE
Article 284.- Commercial franchise
Commercial
franchise means a commercial activity whereby franchisors permit and require
franchisees to undertake by themselves to purchase or sell goods or provide
services on the following conditions:
1. The purchase
or sale of goods or provision of services shall be conducted in accordance with
methods of business organization prescribed by franchisors and associated with
the franchisors’ trademarks, trade names, business knows-how, business slogans,
business logos and advertisements.
2. Franchisors
shall be entitled to supervise and assist franchisees in conducting their
business activities.
Article 285.- Commercial franchise contracts
Commercial
franchise contracts must be made in writing or in other forms of equivalent
legal validity.
Article 286.- Rights of franchisors
Unless otherwise
agreed, franchisors shall have the following rights:
1. To receive
franchise sums.
2. To organize
advertising for the commercial franchise system and the commercial franchise
network.
3. To conduct
periodical or extraordinary inspections of activities of franchisees in order
to ensure the uniformity of the commercial franchise system and the stability
of quality of goods and services.
Article 287.- Obligations of franchisors
Unless otherwise
agreed, franchisors shall have the following obligations:
1. To supply
documents guiding the commercial franchise system to franchisees;
2. To provide
initial training and regular technical assistance to franchisees for managing
the latter’s activities in accordance with the commercial franchise system;
3. To design and
arrange places of sale of goods or provision of services at the expenses of
franchisees;
4. To guarantee
the intellectual property rights over objects stated in franchise contracts;
5. To equally
treat all franchisees in the commercial franchise system.
Article 288.- Rights of franchisees
Unless otherwise
agreed, franchisees shall have the following rights:
1. To request
franchisors to provide fully technical assistance related to the commercial
franchise system;
2. To request
franchisors to equally treat all franchisees in the commercial franchise
system.
Article 289.- Obligations of franchisees
Unless otherwise
agreed, franchisees shall have the following obligations:
1. To pay
franchise sums and other amounts under commercial franchise contracts;
2. To invest
adequate material facilities, financial sources and human resources to take
over business rights and know-how transferred by franchisors;
3. To submit to
the control, supervision and instruction by franchisors; to comply with all
requirements set forth by franchisors on designing and arrangement of places of
sale of goods or provision of services;
4. To keep secret
the franchised business know-how even after the expiration or termination of
commercial franchise contracts;
5. To stop using
trademarks, trade names, business slogans, logos and other intellectual
property rights (if any) or systems of franchisors upon the expiration or
termination of commercial franchise contracts;
6. To manage
their activities in accordance with the commercial franchise system;
7. Not to
sub-franchise without permissions of franchisors.
Article 290.- Sub-franchise to a third party
1. A franchisee
shall be entitled to sub-franchise to a third party (referred to as
sub-franchisee) if it is so consented by the franchisor.
2.
Sub-franchisees shall have the rights and obligations of franchisees provided
for in Articles 288 and 289 of this Law.
Article 291.- Registration of commercial franchises
1. Before
granting commercial franchises, intended franchisors must register them with
the Trade Ministry.
2. The Government
shall specify the conditions for conducting business under commercial franchise
and the order and procedures for registering commercial franchises.
Chapter VII
COMMERCIAL REMEDIES AND RESOLUTION OF COMMERCIAL
DISPUTES
SECTION 1. COMMERCIAL REMEDIES
Article 292.- Types of commercial remedies
1. Specific
performance of contracts.
2. Fines for
breaches.
3. Forcible
payment of damages.
4. Suspension of
performance of contracts.
5. Stoppage of
performance of contracts.
6. Cancellation
of contracts.
7. Other remedies
agreed upon by involved parties which are not contrary to the fundamental
principles of Vietnamese law, treaties to which the Socialist Republic of
Vietnam is a contracting party and international commercial practices.
Article 293.- Application of commercial remedies against insubstantial
breaches
Unless otherwise
agreed, aggrieved parties are not entitled to apply the remedy of suspension of
performance of contracts, stoppage of performance of contracts or cancellation
of contracts against insubstantial breaches.
Article 294.- Cases of exemption from liability for breaching acts
1. A party that
breaches a contract shall be exempted from liability in the following cases:
a/ A case of
liability exemption agreed upon by the parties occurs;
b/ A force
majeure event occurs;
c/ A breach by
one party is entirely attributable to the other party’s fault;
d/ A breach is
committed by one party as a result of the execution of a decision of a
competent state management agency which the party cannot know, at the time the
contract is entered into.
2. The
contract-breaching party shall bear the burden of proof of cases of liability
exemption.
Article 295.- Notification and certification of cases of liability
exemption
1. The party must
promptly notify in writing the other party of cases of liability exemption and
possible consequences thereof.
2. When a case of
liability exemption no longer exists, the contract-breaching party must
promptly notify such to the other party. The breaching party must pay damages
if it fails to notify or notifies the other party not in a prompt manner.
3. Breaching
parties are obliged to prove their cases of liability exemption to aggrieved
parties.
Article 296.- Extension of time limit for performance of contracts, or
refusal to perform contracts in force majeure circumstances
1. In a force
majeure circumstance, the parties may agree to extend the time limit for
performing their respective contractual obligations. If the parties do not
agree or cannot agree upon such extension, the time limit for performing
contractual obligations shall be extended for a period of time equal to the
time length of such force majeure circumstance plus a reasonable period of time
for remedying consequences, but not exceeding:
a/ Five months
for goods or services for which the agreed time limit for their delivery or
provision does not exceed twelve months from the date the contract is entered
into;
b/ Eight months
for goods or services for which the agreed time limit for their delivery or
provision exceeds twelve months from the date the contract is entered into.
2. Beyond the
time limits specified in Clause 1 of this Article, the parties may refuse to
perform the contract and neither party is entitled to request the other party
to pay damages.
3. Where a party
refuses to perform a contract, it must, within ten days from the expiry date of
the time limit specified in Clause 1 of this Article, notify the other party
thereof before the latter begins to perform its contractual obligations.
4. The extension
of the time limit for performing contractual obligations mentioned in Clause 1
of this Article does not apply to contracts for purchase and sale of goods or
contracts for provision of services with fixed time limit for goods delivery or
service completion.
Article 297.- Specific performance of contracts
1. Specific
performance of a contract means a remedy whereby the aggrieved party requests
the breaching party to properly perform the contract or apply other measures to
cause the contract to be performed and the breaching party shall have to bear
any costs incurred.
2. Where the
breaching party fails to deliver goods in full or provide services in
accordance with the contract, it shall have to deliver goods in full or provide
services in accordance with the contract. Where the breaching party delivers
goods or provides services of inferior quality, it shall have to rectify
defects of the goods or shortcomings of the services or to deliver other goods
as substitutes or provide services in accordance with the contract. The
breaching party must not use money or goods or services of other types as
substitutes unless so consented by the aggrieved party.
3. Where the
breaching party fails to comply with Clause 2 of this Article, the aggrieved
party may purchase goods or receive services of correct type as stated in the
contract from another seller or provider for substitution and the breaching
party must bear the price difference and relevant expenses, if any; or may rectify
defects of the goods or shortcomings of the services by itself, and the
breaching party must pay actual and reasonable expenses for the rectification.
4. The aggrieved
party shall have to receive goods or services and make payments therefor if the
breaching party has fulfilled all obligations according to Clause 2 of this
Article.
5. Where the
breaching party is the purchaser, the seller may request the purchaser to pay
for and receive goods or fulfill other obligations stipulated in the contract
and provided for in this Law.
Article 298.- Extension of time limit for performance of obligations
In case of
specific performance of a contract, the aggrieved party may extend the time
limit for a reasonable period for the breaching party to perform its contractual
obligations.
Article 299.- Relationship between the remedy of specific performance
of contracts and other remedies
1. Unless
otherwise agreed, during the period of application of specific performance of a
contract, the aggrieved party may claim for damages and fines to be paid but
must not apply other remedies.
2. If the
breaching party fails to carry out the remedy of specific performance of a
contract within the time limit set by the aggrieved party, the aggrieved party
may apply other remedies in order to protect its legitimate rights.
Article 300.- Fine for breach
Fine for breach
means a remedy whereby the aggrieved party requests the breaching party to pay
an amount of fine for its breach of a contract, if so agreed in the contract,
except for cases of liability exemption specified in Article 294 of this Law.
Article 301.- Fine level
The fine level
for a breach of a contractual obligation or the aggregate fine level for more
than one breach shall be agreed upon in the contract by the parties but must
not exceed 8% of the value of the breached contractual obligation portion,
except for cases specified in Article 266 of this Law.
Article 302.- Damages
1. Damages means
a remedy whereby the breaching party pays compensation for the loss caused by a
contract-breaching act to the aggrieved party.
2. The value of
damages covers the value of the material and direct loss suffered by the
aggrieved party due to the breach of the breaching party and the direct profit
which the aggrieved party would have earned if such breach had not been
committed.
Article 303.- Grounds for liability to pay damages
Except for cases
of liability exemption specified in Article 294 of this Law, liability to pay
damages shall arise upon existence of all of the following elements:
1. Breach of the
contract;
2. Material loss;
3. Act of
breaching the contract is the direct cause of the loss.
Article 304.- Burden of proof of loss
The party
claiming damages shall bear the burden of proof of the loss, the extent of the
loss caused by the act of breach, and direct profit amount which the aggrieved
party would have earned if the breach had not been committed.
Article 305.- Obligations to mitigate loss
The party
claiming damages must apply appropriate measures to mitigate the loss caused by
a contract breach, including the loss of direct profit which it would have
earned. If the party claiming damages fails to do so, the breaching party may
request a rebate of the value of damages to the extent of the loss that would
have been mitigated.
Article 306.- Right to claim interest on delayed payment
Where a
contract-breaching party delays making payment for goods or payment of service
charges and other reasonable fees, the aggrieved party may claim an interest on
such delayed payment at the average interest rate applicable to overdue debts
in the market at the time of payment for the delayed period, unless otherwise
agreed or provided for by law.
Article 307.- Relationship between remedy of fines and remedy of
damages
1. Where the
parties do not agree upon fines for breaches, the aggrieved party shall only be
entitled to claim damages, unless otherwise provided for by this Law.
2. Where the
parties agree upon fines for breaches, the aggrieved party shall be entitled to
apply both remedies of fines and damages, unless otherwise provided for by this
Law.
Article 308.- Suspension of performance of contracts
Except for cases
of liability exemption specified in Article 294 of this Law, suspension of
performance of a contract means a remedy whereby a party temporarily ceases the
performance of its contractual obligations in one of the following cases:
1. Upon
commission of a breaching act which serves as a condition for the suspension of
performance of the contract as agreed upon by the parties;
2. Upon a
substantial breach of contractual obligations by a party.
Article 309.- Legal consequences of suspension of performance of
contracts
1. Contracts
which are suspended from performance are still in full force and effective.
2. Aggrieved
parties are entitled to claim damages according to the provisions of this Law.
Article 310.- Stoppage of performance of contracts
Except for cases
of liability exemption specified in Article 294 of this Law, stoppage of
performance of a contract means a remedy whereby a party terminates the
performance of its contractual obligations in one of the following cases:
1. Upon
commission of a breaching act which serves as a condition for stoppage of the
performance of the contract as agreed upon by the parties;
2. Upon a
substantial breach of contractual obligations by a party.
Article 311.- Legal consequences of stoppage of performance of
contracts
1. Where a
contract is stopped from performance, it shall be terminated from the date when
one party receives the notice on stoppage. The parties shall not have to
further perform their contractual obligations. A party that has performed its
contractual obligations may request the other party to pay or perform its reciprocal
obligations.
2. The aggrieved
party may claim damages according to the provisions of this Law.
Article 312.- Cancellation of contracts
1. Cancellation
of a contract includes cancellation of part of a contract or cancellation of
the entire contract.
2. Cancellation
of the entire contract means the complete annulment of the performance of all
contractual obligations for the entire contract.
3. Cancellation
of part of a contract means the annulment of the performance of some
contractual obligations while other parts of the contract are still valid.
4. Except for
cases of liability exemption specified in Article 294 of this Law, the remedy
of cancellation of contracts shall be applied in the following cases:
a/ Upon
commission of a breaching act which serves as a condition for the cancellation
of the contract as agreed upon by the parties;
b/ Upon a
substantial breach of contractual obligations by a party.
Article 313.- Cancellation of contracts in case of delivery of goods or
provision of services in installments
1. Where there is
an agreement on delivery of goods or provision of services in installments, if
one party fails to perform its obligation for the delivery of goods or
provision of services and such failure constitutes a substantial breach in that
time of delivery of goods or provision of services, the other party shall have
the right to declare the cancellation of the contract for such delivery of
goods or provision of services.
2. Where the
failure of a party to perform its obligation for a delivery of goods or a
provision of services serves as the basis for the other party to conclude that
a substantial breach of the contract shall happen in subsequent deliveries of
goods or provisions of services, the aggrieved party shall have the right to
declare the cancellation of the contract for subsequent deliveries of goods or
provisions of services, provided that such party must exercise that right
within a reasonable period of time.
3. Where a party
has declared the cancellation of a contract for a single delivery of goods or
provision of services, such party shall still have the right to declare the
cancellation of the contract for a delivery of goods or provision of services
that has been conducted or will be conducted subsequently if the interrelation
between the deliveries of goods makes the delivered goods or provided services
unable to be used for the purposes intended by the parties at the time they
enter into the contract.
Article 314.- Legal consequences of cancellation of contracts
1. Except for
cases specified in Article 313 of this Law, following the cancellation of a
contract, such contract shall be invalid from the time it is entered into, and
the parties shall not have to continue performing their contractual obligations,
except for their agreements on their post-cancellation rights and obligations
and resolution of disputes.
2. The parties
shall have the right to claim benefits brought about by their performance of
their contractual obligations. Where both parties have indemnity obligations,
their obligations must be performed concurrently. Where it is impossible to
make the indemnity with benefits which one party has enjoyed, the obliged party
must make the indemnity in cash.
3. Aggrieved
parties are entitled to claim damages according to the provisions of this Law.
Article 315.- Notification of suspension of performance of contracts,
stoppage of performance of contracts or cancellation of contracts
A party that
suspends the performance of a contract, stops the performance of a contract or
cancels a contract must immediately notify the other party of such suspension,
stoppage or cancellation. Where a failure to do so causes a loss to the other
party, the party that suspends the performance of the contract, stops the performance
of the contract or cancels the contract must pay damages.
Article 316.- Right to claim damages when other remedies have been
applied
A party shall not
lose its right to claim damages for the loss caused by a contract breach by the
other party when other remedies have been applied.
SECTION 2. RESOLUTION OF COMMERCIAL DISPUTES
Article 317.- Forms of resolution of disputes
1. Negotiations
between the parties.
2. Conciliation
between the parties by a body, organization or individual selected by the parties
to act as the conciliation mediator.
3. Resolution by
the Arbitration or the Court.
Procedures for
resolution of commercial disputes by arbitration or a court shall comply with
procedures applicable to arbitrations or courts provided for by law.
Article 318.- Time limit for lodging complaints
Except for cases
specified at Point e, Clause 1, Article 237 of this Law, the time limit for
lodging complaints shall be agreed upon by the parties, where there is no such
agreement, the time limit for lodging complaints shall be provided for as
follows:
a/ Three months
from the date of delivery of goods for complaints about quantity of goods;
b/ Six months
from the date of delivery of goods for complaints about quality of goods. Where
goods are under warranty, the time limit for lodging complaints shall be three
months from the expiry of the warranty period;
c/ Nine months
from the date on which the breaching party shall have to fulfil its contractual
obligations; or in the case of a warranty, from the expiry of the warranty
period, for complaints about other violations.
Article 319.- Statute of limitations for initiating lawsuits
The statute of
limitations for lawsuits applicable to commercial disputes shall be two years
from the moment when the legitimate rights and interests are infringed upon,
except for cases specified at Point f, Clause 1, Article 237 of this Law.
Chapter VIII
HANDLING OF VIOLATIONS OF COMMERCIAL LAW
Article 320.- Acts of violation of commercial law
1. Acts of
violation of commercial law include:
a/ Violating
provisions on business registration; business licenses of traders;
establishment and operation of representative offices and branches of
Vietnamese traders and foreign traders;
b/ Violating
provisions on domestically traded goods and services, and exported or imported
goods and services; temporary import for re-export, temporary export for
re-import; transfer through border-gates; transit;
c/ Violating
provisions on taxes, invoices, documents, accounting books and reports;
d/ Violating
provisions on prices of goods and services;
e/ Violating
provisions on labeling of domestically circulated goods and exports and
imports;
f/ Smuggling,
trading in goods illegally imported, counterfeit goods or raw materials and
materials for production of counterfeit goods, or conducting illegal business;
g/ Violating
provisions on quality of domestically traded goods and services, and exported
or imported goods and services;
h/ Defrauding and
deceiving customers in the purchase and sale of goods or the provision of
services;
i/ Violating
provisions on protection of interests of customers;
j/ Violating
provisions on intellectual property rights to domestically traded goods and
services; and exported or imported goods and services;
k/ Violating
provisions on origin of goods;
l/ Other
violations in commercial activities according to the provisions of law.
2. The Government
shall specify acts of violation of commercial law provided for in Clause 1 of
this Article.
Article 321.- Forms of handling of violations of commercial law
1. Depending on
the nature, seriousness and consequences of violations, violating organizations
and individuals shall be handled in one of the following forms:
a/ Sanctions
according to the provisions of law on handling of administrative violations;
b/ Where an act
of violation involves all elements constituting a crime, the violator shall be
examined for penal liability according to the provisions of law.
2. Where an act
of violation causes harm to the interests of the State or legitimate rights and
interests of organizations and/or individuals, compensation must be paid
according to the provisions of law.
Article 322.- Sanctioning of administrative violations in commercial
activities
The Government
shall specify the sanctioning of administrative violations in commercial
activities.
Chapter IX
IMPLEMENTATION PROVISIONS
Article 323.- Implementation effect
This Law takes
effect on January 1, 2006.
This Law replaces
the Commercial Law of May 10, 1997.
Article 324.- Detailed provisions and implementation guidance
The Government
shall detail and guide the implementation of this Law.
This Law was
passed on June 14, 2005, by the XIth National Assembly of the Socialist
Republic of Vietnam at its 7th session.
|
|
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Van An
|