Xem toàn văn và tải về văn bản Luật Thương mại 2005 Tiếng Anh - Law 36/2005/QH11 on Commerce of Vietnam (Commercial Law).
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THE NATIONAL ASSEMBLY SOCIALIST REPUBLIC OF VIET NAM
No.36/2005/QH11 Independence - Freedom - Happiness
Hanoi, June 14, 2005
LAW COMMERCIAL
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 |
Ý KIẾN