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THE NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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Law No.36/2005/QH11
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Hanoi, June 14, 2005
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LAW
COMMERCIAL
(No. 36/2005/QH11)
Pursuant to 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
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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:
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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
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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;
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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
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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.
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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.
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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.
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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.
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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.
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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;
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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
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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.
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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;
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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
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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.
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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.
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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
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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.
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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.
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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 seller 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.
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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.
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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.
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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;
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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.
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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;
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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:
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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:
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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
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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
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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
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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.
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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
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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
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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;
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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
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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
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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.
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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.
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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;
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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.
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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.
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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.
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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
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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
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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.
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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;
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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;
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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
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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 principal 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;
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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.
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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.
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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.
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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.
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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.
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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.
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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;
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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.
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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).
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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:
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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;
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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
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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.
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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.
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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.
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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.
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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.
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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;
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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.
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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.
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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.
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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;
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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
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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;
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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:
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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.
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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.
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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.
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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;
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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:
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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
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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;
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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.
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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.
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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;
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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.
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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
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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
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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.
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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
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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.
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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:
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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;
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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
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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.
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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.
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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.
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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;
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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.
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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;
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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.
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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.
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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.
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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.
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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;
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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;
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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:
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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
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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;
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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:
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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
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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:
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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.
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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;
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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
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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.
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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
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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.
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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.
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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:
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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
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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
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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.
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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.
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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.
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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
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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;
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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.
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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.
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CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Van An