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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
138/2006/ND-CP
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Hanoi,
November 15, 2006
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DECREE
DETAILING THE
IMPLEMENTATION OF THE CIVIL CODE'S PROVISIONS ON CIVIL RELATIONS INVOLVING
FOREIGN ELEMENTS
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the National Assembly's Resolution No. 45/2005/QH11 of June 14,
2005, on the implementation of the Civil Code;
At the proposal of the Minister of Justice,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Governing scope
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Article 2.- Subjects of
application
This Decree applies to Vietnamese agencies,
organizations and individuals; foreign agencies, organizations and individuals
engaged in civil relations involving foreign elements.
Article 3.- Interpretation
of terms
In this Decree, the terms below are construed as
follows:
1. "Civil relations involving foreign
elements" means:
a/ Civil, marriage and family, business,
commercial and labor relations in which at least one party is a foreign agency,
organization or individual or overseas Vietnamese;
b/ Civil, marriage and family, business,
commercial and labors relations of which the parties are Vietnamese citizens or
organizations but the bases for establishment, alteration or termination comply
with foreign laws or arise overseas or assets related to which are located
overseas
2. "Foreigners" means those who do not
have Vietnamese nationality, including foreign nationals and stateless persons.
3. "Overseas Vietnamese" means
Vietnamese nationals who are residing and working permanently in foreign
countries.
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5. "Foreign legal persons" means legal
persons set up under foreign laws.
6. "Entry into a civil contract in
absentia" means the entry into a civil contract through electronic means
or other means without the presence of contractual parties at the same place to
sign the contract.
Article 4.- Application of
the civil law of the Socialist Republic of Vietnam, treaties, foreign laws and
international practice
1. The application of the civil law of the
Socialist Republic of Vietnam, treaties, foreign laws and international
practice shall comply with Article 759 of the Civil Code.
2. In case of disparities between the provisions
of Part VII of the Civil Code and those of a specialized law regarding the same
contents, the provisions of that specialized law shall be applied.
3. When the laws of a foreign country with
different legal systems are selected or invoked for application, the involved
parties may request the application of the legal system to which they have the
closest relations regarding citizens' rights and duties.
Article 5.- Involved
parties' burden of proof for law application requests
In case of application of laws to stateless
persons or foreigners with two or more foreign nationalities under Article 760
of the Civil Code or application of laws of foreign countries with different
legal systems under Clause 3, Article 4 of this Decree, the involved parties
are obliged to prove to Vietnamese competent agencies their closest relations
regarding citizens' rights and duties to the legal system requested for
application. When the involved parties fail to prove their closest relations
regarding citizens' rights and duties to the legal system requested for
application, Vietnamese laws shall be applied.
Chapter II
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Article 6.- Civil legal capacity of
foreigners
1. The application of a law to determine the
civil legal capacity of a foreigner shall comply with Article 761 of the Civil
Code.
The civil legal capacity of a foreigner residing
in Vietnam is determined according to the provisions of Article 14 thru Article
16 of the Civil Code.
2. The application of a law to determine the
civil legal capacity of a stateless person or a foreigner with two or more
nationalities shall comply with Article 760 of the Civil Code, Article 5 and
Clause 1, Article 6, of this Decree.
Article 7.- Civil act
capacity of foreigners
1. The application of a law to determine the
civil act capacity of a foreigner shall comply with Article 762 of the Civil
Code.
When a foreigner establishes or enters into a
civil transaction in Vietnam, his/her civil act capacity is determined
according to the provisions of Article 17 thru Article 23 of the Civil Code.
2. The application of a law to determine the
civil act capacity of a stateless person or a foreigner with two or more
nationalities shall comply with Article 760 of the Civil Code, Article 5 and
Clause 1, Article 7, of this Decree.
Article 8.- Determination
of persons as having no, having lost, or having been restricted in, civil act
capacity
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The determination of a foreigner residing in
Vietnam as having no, having lost, or having been restricted in, civil act
capacity shall comply with the provisions of Article 21 thru Article 23 of the
Civil Code.
2. The application of a law to determine a
stateless person or a foreigner with two or more nationalities as having no,
having lost, or having been restricted in, civil act capacity shall comply with
Article 760 of the Civil Code, Article 5 and Clause 1, Article 8, of this Decree.
Article 9.- Determination
of persons as missing or dead
1. The application of a law to determine a
person as missing or dead shall comply with Article 764 of the Civil Code.
The determination of a foreigner residing in
Vietnam as missing or dead shall comply with provisions of Article 78 thru
Article 83 of the Civil Code.
2. The application of a law to determine a
stateless person or a person with two or more nationalities as missing or dead
shall comply with Article 760 of the Civil Code, Article 5 and Clause 1,
Article 9, of this Decree.
Article 10.- Civil legal
capacity of foreign legal persons
1. The application of a law to determine the
civil legal capacity of a foreign legal person shall comply with Article 765 of
the Civil Code.
2. When a foreign legal person establishes or
performs civil transactions in Vietnam, the civil legal capacity of that
foreign legal person is determined in accordance with Article 86 of the Civil
Code.
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1. The application of the law on property
ownership rights shall comply with Article 766 of the Civil Code.
2. When the establishment, exercise, alteration
and termination of property ownership rights or the contents of ownership
rights are allowed to be regulated by the law of the Socialist Republic of
Vietnam, the provisions of Part II of the Civil Code and relevant legal
documents shall be applied thereto.
Article 12.- At-law
inheritance involving foreign elements
1. The application of the law on at-law
inheritance shall comply with Article 767 of the Civil Code.
2. The determination of whether an estate is
immovable or movable shall comply with the law of the country where exists that
estate.
3. When the estate leavers are stateless persons
or persons with two or more nationalities, the determination of the applicable
law on at-law inheritance shall comply with Article 760 of the Civil Code,
Article 5 and Clauses 1 and 2, Article 12, of this Decree.
Article 13.- Testamentary
inheritance
1. The capacity to make, adjust, supplement,
change, replace or cancel testaments shall be determined in accordance with the
law of the country of which the testator is a citizen. When the testator is a
stateless person or a person with two or more nationalities, the application of
the law on testamentary inheritance shall comply with Article 760 of the Civil
Code and this Decree.
2. The form of a testament must comply with the
law of the country where the testament is made. Testaments of Vietnamese people
which are made in foreign countries will be considered lawful in Vietnam, if
they comply with Vietnam's law on the forms of testaments.
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1. The application of the law on the place and
time for entry into a contract in absentia shall comply with Article 771 of the
Civil Code.
2. The place and time for entry into a contract
via electronic means to which the offering party is a Vietnamese agency,
organization or individual are determined in accordance with the Law on
E-Transactions and relevant legal documents of Vietnam.
Article 15.- Civil
contracts
1. The application of the law on the contents of
civil contracts shall comply with Article 769 of the Civil Code.
2. The application of the law on the forms of
civil contracts shall comply with Article 770 of the Civil Code.
3. When the law of the Socialist Republic of
Vietnam on the contents and forms of civil contracts is applied, the provisions
of Section 7, Chapter XVII, and Chapter XVIII, Part Three of the Civil Code and
relevant legal documents shall be applied.
Article 16.- Unilateral
civil transactions
The contents and form of a unilateral civil
transaction is determined in accordance with the law of the country where the
party that voluntarily performs the unilateral civil transaction resides or
conducts principal operations.
Article 17.- Compensation
for damage outside contract
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2. In case of application of the law of the
Socialist Republic of Vietnam on compensation for damage outside contract, the
provisions of Chapter XXI, Part Three of the Civil Code and relevant legal
documents shall be applied.
Article 18.- Copyright and
related rights
1. The copyright of foreign individuals or
organizations is protected in Vietnam in accordance with the provisions of
Article 736 thru Article 743 of the Civil Code, relevant provisions of the Law
on Intellectual Property, relevant legal documents of Vietnam and treaties to
which Vietnam is a contracting party.
2. Copyright-related rights of foreign
individuals and organizations are protected in Vietnam in accordance with the
provisions of Article 744 thru Article 749 of the Civil Code, relevant
provisions of the Law on Intellectual Property and other relevant provisions of
Vietnam and treaties to which Vietnam is a contracting party.
Article 19.- Protection of
industrial property rights and the rights to plant varieties
The protection of industrial property rights and
the rights to plant varieties of foreign individuals and legal persons in
Vietnam shall comply with the provisions of Article 750 thru Article 753 of the
Civil Code, relevant provisions of the Law on Intellectual Property, other
relevant legal documents of Vietnam and treaties to which Vietnam is a
contracting party.
Article 20.- Technology
transfer involving foreign elements
When the involved parties do not agree in the
contracts on the application of foreign laws or when treaties to which Vietnam
is a contracting party do not provide for technology transfer, technology
transfer between Vietnamese individuals or legal persons and foreign
individuals or legal persons, and technology transfer from any foreign country
into Vietnam and from Vietnam to any foreign country shall comply with the
provisions of Article 754 thru Article 757 of the Civil Code, relevant
provisions of the Law on Technology Transfer and relevant legal documents of
Vietnam.
Article 21.- Statute of limitations
for initiation of lawsuits
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Chapter III
IMPLEMENTATION PROVISIONS
Article 22.- Implementation effect and
organization of implementation
1. This Decree takes effect 15 days after its
publication in "CONG BAO" and replaces the Government's Decree No.
60/CP of June 6, 1997, guiding the implementation of the 1995 Civil Code
regarding civil relations involving foreign elements.
2. When requested by courts or state agencies
competent to settle affairs or disputes arising from civil relations involving
foreign elements, the Ministry of Foreign Affairs and the Ministry of Justice
shall assist the requesting agencies in determining applicable laws and provide
applicable foreign legal documents.
3. Ministers, heads of ministerial-level
agencies and government-attached agencies, and presidents of
provincial/municipal People's Committees shall implement this Decree.