Nghị định 85/2021/NĐ-CP sửa đổi Nghị định 52/2013/NĐ-CP về thương mại điện tử

DECREE

AMENDMENTS TO GOVERNMENT’S DECREE NO. 52/2013/ND-CP DATED MAY 16, 2013 ON E-COMMERCE

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amendments to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Civil Code dated November 24, 2015;

The Law on Commerce dated June 14, 2005;

Pursuant to the Law on Electronic Transactions dated November 29, 2005;

Pursuant to the Law on Information Technology dated June 29, 2006;

Pursuant to the Law on consumer protection dated November 17, 2010;

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Pursuant to the Cybersecurity Law dated June 12, 2018;

Pursuant to the Competition Law dated June 12, 2018;

Pursuant to the Law on Investment dated June 17, 2020;

At the request of the Minister of Industry and Trade;

The Government promulgates a Decree providing amendments to the Government’s Decree No. 52/2013/ND-CP dated May 16, 2013 on e-commerce (Decree No. 52/2013/ND-CP).

Article 1. Amendments to Decree No. 52/2013/ND-CP

1. Article 1 is amended as follows:

“Article 1. Scope

1. This Decree deals with development, application and management of e-commerce activities. E-commerce activities shall be performed in accordance with regulations herein and relevant laws, except the provisions in Clause 2 of this Article.

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2. Point c Clause 1 Article 2 is amended as follows:

“c) Foreign traders and organizations that carry out e-commerce activities specified in Section 5 Chapter IV of this Decree in Vietnam.”

3. Clause 16 is added to Article 3 as follows:

“16. e-commerce service means an e-commerce activity whereby a trader or an organization providing e-commerce service (hereinafter referred to as “e-commerce service provider”) sets up an e-commerce website that offers an environment for other traders, organizations and individuals to carry out trade promotion, sale of goods or supply of services.

E-commerce service providers exclude traders and organizations that only provide website design services and do not directly engage in the business, operation or coordination of activities on such websites.”

4. Point a Clause 1 Article 4 is amended as follows:

“a) Taking advantage of e-commerce activities for organizing multi-level marketing without holding a valid certificate of multi-level marketing registration as prescribed by the Law on management of multi-level marketing.”

5. Clause 1 Article 5 is amended as follows:

“1. Formulate and organize the implementation of mechanisms, policies, strategies, plans and programs for e-commerce development and digital transformation in the field of e-commerce."

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“1. Traders, organizations and individuals that set up e-commerce websites to serve their trade promotion, sale of goods or supply of services (owners of sales e-commerce websites).

2. E-commerce service providers.

5. Traders and organizations providing technical infrastructure, logistics and other auxiliary services for e-commerce activities.”

7. Clause 1 Article 25 is amended as follows:

“1. Sales e-commerce websites are e-commerce websites that are established by traders, organizations or individuals to serve their trade promotion, sale of goods or supply of services.”

8. Some Points and Clauses of Article 26 are amended as follows:

a) Point c Clause 3 and Clause 4 Article 26 are amended as follows:

“3. Rules for determining obligations to protect consumers’ rights in e-commerce activities

) If the e-commerce service provider provides information about a seller’s goods and/or services on its e-commerce website to consumers, it shall be considered as a third party in providing information in accordance with regulations of laws on protection of consumers’ rights and interests.

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E-commerce trading of goods/services restricted from trading or subject to certain business conditions must comply with relevant regulations and laws.”

b) Clause 5 is added to Article 26 as follows:

“5. Entities performing e-commerce activities shall also comply with regulations of the Law on cyberinformation security, the Law on cybersecurity and relevant laws.”

9. Clause 1 and Clause 7 Article 27 are amended as follows:

“1. Notify the Ministry of Industry and Trade of the establishment of sales e-commerce website as prescribed in Section 1 Chapter IV of this Decree if the website has online ordering functions.

7. Retain information on transactions conducted on e-commerce websites in accordance with regulations of the Law on accounting; fulfill tax obligations as prescribed by laws."

10. Point dd is added to Clause 2 Article 28 as follows:

“dd) Publish on the homepage of the website links to the information specified in Article 32, Article 33, Article 34 of this Decree if the website has online ordering functions.”

11. Clause 3 Article 29 is amended as follows:

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12. Article 30 is amended as follows:

“Article 30. Information about goods and services

1. Sellers must provide information about their goods/services introduced on websites to customers to accurately determine properties of goods/services and avoid misunderstanding when making decisions on conclusion of contracts.

2. Information about goods published on websites must include required information shown on labels of goods as prescribed by the Law on labeling of goods, except distinguishing characteristics of each product such as date of manufacture, expiry date, lot number, chassis number or engine number.

3. A seller of goods/services subject to certain business conditions must publish information about number, issue date and issuing authority of the license, certificate of eligibility, certification, confirmation or another document type as prescribed by relevant laws on business conditions for trading of such goods/services”.
 13. Point b Clause 1 Article 32 is amended as follows:

“b) Policies on inspection of goods; policies on return of goods, including time limit and methods for returning or changing goods, methods for money refund and refund fees;"

14. Point d is added to Clause 1 Article 33 as follows:

“d) Delegation of responsibility of logistics service providers to provide documents on goods during delivery of goods.”

15. Clause 2 Article 35 is amended as follows:

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a) A website that allows its members to open booths for displaying/promoting their goods or services;

b) A website that allows its members to open accounts to carry out the conclusion of contracts with customers;

c) A website that has specific trading categories or tabs that allow its members to post listings of goods and services;

d) A social network that operates in one of the forms specified in Points a, b, c of this Clause and makes its members directly or indirectly pay fees for carrying out such activities.”

16. Some Clauses of Article 36 are amended as follows:

a) Clause 1, Clause 3, Clause 8 and Clause 9 Article 36 are amended as follows:

“1. Apply for establishment of a website providing e-commerce trading floor services as prescribed in Section 2 Chapter IV of this Decree and publish information about the website owner as prescribed in Article 29 of this Decree on the website’s homepage.

3. Request sellers on the e-commerce trading floor to provide information as prescribed in Article 29 of this Decree when they apply for use of services. Foreign sellers must transcribe specific names into Vietnamese or Latin characters.

8. Take timely remedial actions when detecting or receiving reports about any business acts in violation of laws on the e-commerce trading floor. To be specific:

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b) Remove information on goods/services in violation of laws within 24 hours from the receipt of the request from a competent authority;

c) Cooperate with holders of intellectual property rights to review and remove products infringing intellectual property rights according to procedures announced in Regulations on operation of the e-commerce trading floor;

d) Give warnings or refuse to provide services for a fixed or indefinite term to individuals, traders or organizations that violate the laws;

dd) Take other measures as specified in Regulations on operation of the e-commerce trading floor.

9. Assist state agencies in carrying out investigations and taking actions against business acts in violation of laws and settling disputes and complaints. To be specific:

a) Provide information about entities showing signs or acts in violation of laws on the e-commerce trading floor to competent authorities when detecting or receiving such information;

b) Frequently update keywords as recommended by competent authorities and filter information on goods/services using such keywords before publishing it on the website;

c) Receive and respond to complaints, feedbacks and disputes about the e-commerce trading floor on the E-Commerce Management Portal of the Ministry of Industry and Trade at online.gov.vn.”

b) Clause 11 is added to Article 36 as follows:

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a) Appoint a contact point to receive requests and provide information online to regulatory authorities about the entities denoting violations against laws. This contact point shall provide information within 24 hours from the receipt of the request to promptly serve the inspection, handling of violations, complaints and denunciations;

b) Represent foreign sellers on the e-commerce trading floor in settling consumers’ complaints about goods/services provided by such foreign sellers and notify tax obligations to be fulfilled by such foreign sellers when performing trading activities on the e-commerce trading floor in accordance with the law of Vietnam;  

c) Act as the contact point to receive and settle complaints from consumers if a transaction conducted on the e-commerce trading floor involves more than 02 parties;

d) Retain information about ordering transactions conducted on the e-commerce trading floor in accordance with regulations of the Law on accounting;

dd) Jointly make compensation for damage in case of failure to fulfill the obligations in Clause 8 and Clause 9 of this Article resulting in damage.” 

17. Some Points of Clause 2 Article 38 are amended as follows:

a) Point c, Point dd and Point g Clause 2 Article 38 are amended as follows:

“c) If the e-commerce trading floor combines different forms of operation, description of trading procedures of each form of operation, including delivery procedures (if any) is required;

dd) Rights and obligations of the parties in transactions conducted on the e-commerce trading floor; in case a transaction involves more than 02 parties, responsibilities of the seller of goods and supplier of services must be clearly determined;

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b) Point m, Point n and Point o are added to Clause 2 Article 38 as follows:

“m) Division of responsibility to provide documents on goods between the seller, e-commerce trading floor service provider and logistics service provider in case a contract for third party’s logistics service is concluded;

n) Procedures for cooperation with holders of intellectual property rights to review and remove products infringing intellectual property rights on operation of the e-commerce trading floor;

o) General provisions applied to all transactions conducted on the e-commerce trading floor in respect of inspection of goods, return and change of goods, money refund (including cases of money refund, procedures and methods of refunding money to customers) in case the e-commerce trading floor has online ordering functions.”

18. Clause 1 Article 53 is amended as follows:

“1. Traders, organizations and individuals shall give online notification to the Ministry of Industry and Trade of their establishment of sales e-commerce websites through the E-Commerce Management Portal before selling goods or providing services to consumers."

19. Point a Clause 3 Article 54 is amended as follows:

“a) Model of organization and operation, including service provision, service promotion and marketing both online and offline; logistics services.”

20. Point b Clause 2 Article 55 is amended as follows:

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21. Clause 1 Article 60 is amended as follows:

“1. Traders and organizations performing rating of e-commerce websites or providing electronic contract certification service must apply for registration of their services with the Ministry of Industry and Trade.”

22. Article 63 is amended as follows:

“Article 63. Provision of electronic contract certification service

1. Eligibility requirements to be satisfied to provide electronic contract (e-contract) certification service:

a) The applicant is a trader or organization established in accordance to the law of Vietnam;

b) The applicant has a Scheme for service provision which is made using the form provided in Clause 8 of this Article and appraised by the Ministry of Industry and Trade, and, inter alia, includes the following primary contents:

- Details of the applicant, including: experience and capacity qualified for provision of e-contract certification service;

- Description of technical plans on provision of e-contract certification service, including:  description of the information technology system; description of technical plan on technological solutions, process of operation and certification of e-contracts, including retention plan which must ensure the integrity of data of electronic documents, plan for identification and electronic certification of the parties involving in e-contract certification as prescribed by law, plan for searching for certified e-contracts on the system; plan for ensuring security of e-contract certification service and customers’ information confidentiality; technical plan for maintaining and remedying e-contract certification operations when the system malfunctions.

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a) Assume responsibility for confidentiality and integrity of electronic documents certified and retained;

b) Provide documents and assist competent authorities in investigating into acts of violation against regulations of laws on electronic documents certified and retained;

c) Publicly announce Regulations on provision of e-contract certification which include required contents as prescribed by the Ministry of Industry and Trade;

d) Make connections to the E-Commerce Management Portal, and submit reports to the Ministry of Industry and Trade on provision of e-contract certification service as requested.

3. Application for registration:

a) The application form for registration of provision of e-contract certification service;

b) Copy extracted from master register or certified true copy or copy presented with its original for verification purpose of the establishment decision (of the organization) or enterprise registration certificate or investment certificate (of trader);

) The Scheme on provision of e-contract certification service as prescribed in Point b Clause 1 of this Article.

4. Registration process

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b) For declaration of information, the applicant shall access the E-Commerce Management Portal and follow the following 05 steps:

Step 1: The applicant shall apply for a user account on the system by providing the following information:  the applicant’s name; business registration number (if the applicant is a trader) or number of establishment decision (if the applicant is an organization); applicant’s headquarters address; contact information, including telephone number, fax and email.

Step 2: Within 03 working days from the date of provision of information in Step 1, the applicant shall receive a response from the Ministry of Industry and Trade through the registered email with one of the following contents:

- If the information provided when applying for a user account is adequate, the applicant shall be issued with a user account for accessing the system and follow Step 3;

- If the application for a user account is refused or additional information is requested, the applicant shall repeat registration procedures or provide additional information as requested.  

Step 3: The applicant shall access the system using the issued user account, select the function “Registration of provision of e-contract certification service”, fill in the form and attach application for registration. 

Step 4: Within 20 working days from the date of completion of Step 3, the applicant shall receive a response from the Ministry of Industry and Trade through the registered email with one of the following contents:

- Give certification that the application is adequate and valid, and request the applicant to follow Step 5;

- Notify that the application is invalid or request the applicant to provide additional information.  In such case, the applicant shall repeat Step 3 or provide additional information as requested.

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c) The applicant shall monitor the application processing status via their email or by accessing the system using the issued user account to update and correct information as requested;

d) Within 30 days from the receipt of the receipt of the request for additional information in Step 4 as prescribed in Point b of this Clause, if the applicant fails to provide additional information as requested, its application for registration on the system shall be invalid and the applicant is required to repeat registration procedures from the first step.

5. Certification of registration

a) Deadline for certification: 07 working days from the receipt of a physical application, including adequate and valid documents as required, submitted by the applicant directly or by post to the Ministry of Industry and Trade (Vietnam E-commerce and Digital Economy Agency) when completing registration procedures online.  Where the received physical application does not match the documents and information provided online by the applicant, the Ministry of Industry and Trade shall send a notification to the applicant’s registered email for modification of application;

b) If the certification of registration is given, the Ministry of Industry and Trade shall send a notification of registration certification to the applicant’s registered email, and include the applicant’s name in the list of registered e-contract certification service providers published on the E-commerce Management Portal;

c) After receiving registration certification, the list of websites affixed with certification symbol shall be published on the E-commerce Management Portal;

d) Within 15 days from the date on which the Ministry of Industry and Trade gives registration certification as prescribed in Point b of this Clause, if the enterprise fails to provide physical documents for certification, the applicant shall repeat registration procedures from the first step.

6. Modification of registered information

a) The e-contract certification service provider must notify the modification of registered information within 07 working days from the occurrence of changes in the application for registration prescribed in Clause 3 of this Article;

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c) Within 07 working days from the receipt of an adequate and accurate notification from the e-contract certification service provider as prescribed in Point b of this Clause, the Ministry of Industry and Trade shall consider whether such changes should be certified or not and give a response to the service provider through its user account. If certification is not given, reasons thereof must be provided.

7. Cancellation and termination of registration

a) The Ministry of Industry and Trade shall cancel the registration of an e-contract certification service provider if:

- It is found to have deceptive acts or provide false information when following registration procedures;

- It takes advantage of the provision of e-contract certification service for obtaining illegal profits;

- It fails to comply with the Scheme and Regulations on provision of e-contract certification service as prescribed in this Article;

- It fails to fulfill the obligations specified in Clause 2 of this Article.

b) The Ministry of Industry and Trade shall terminate the registration of an e-contract certification service provider:

- according to its request; or

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c) In case of termination of operation, the e-contract certification service provider must give a prior notification of at least 15 days to the Ministry of Industry and Trade for terminating registration status. Such notification shall be made online by accessing the system using the user account issued when following registration procedures or sent directly or by post to the Ministry of Industry and Trade (Vietnam E-commerce and Digital Economy Agency).  

d) In case of termination or cancellation of registration, the Ministry of Industry and Trade shall remove the trader or organization’s name from the list of registered e-contract certification service providers and delete that trader or organization’s certification symbol on the E-commerce Management Portal.

8. The Ministry of Industry and Trade shall provide instructions for traders and organizations to develop Regulations on provision of e-contract certification service and promulgate samples of application form and Scheme for provision of e-contract certification service.”

23. Point dd is added to Clause 2 Article 64 as follows:

“dd) Provide provincial Departments of Industry and Trade with tools for searching and management of notifications and applications for registration of e-commerce activities of traders, organizations and individuals in the province.”

24. Section 5 is added following Section 4 of Chapter IV on Management of e-commerce activities as follows:

“Section 5

MANAGEMENT OF E-COMMERCE ACTIVITIES OF FOREIGN TRADERS AND ORGANIZATIONS

Article 67a. Foreign traders and organizations setting up websites for provision of e-commerce services in Vietnam

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a) An e-commerce website set up under Vietnam’s domain name;

b) An e-commerce website displayed in Vietnamese language;

c) An e-commerce website that has more than 100.000 transactions originated in Vietnam within a year.

2. The foreign trader or organization setting up website providing e-commerce services in Vietnam as prescribed in Clause 1 of this Article shall follow procedures for registration of e-commerce activities as prescribed in this Decree and establishment of a representative office in Vietnam in accordance with regulations of law or appoint an authorized representative in Vietnam.

Operation of the representative office or authorization contents must ensure the fulfillment of responsibilities set out in Clause 5 of this Article.

3. Imports/exports traded through e-commerce are subject to customs procedures as prescribed by the Law on customs.

4. The traffic of transactions originated in Vietnam shall be determined based on the following sources:

a) Voluntary reports submitted by the trader or organization as prescribed in this Decree;

b) Official statistical reports of Vietnam’s competent authorities, including:  customs authorities; Internet authorities, banking and tax authorities;

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5. Responsibilities of foreign traders or organizations setting up websites for provision of e-commerce services in Vietnam

a) Cooperate with regulatory authorities to prevent transactions of goods and services in violation of the law of Vietnam;

b) Fulfill the obligation to protect consumers’ interests as well as quality of goods and services as prescribed by the law of Vietnam;

c) Submit reports as prescribed in Article 57 of this Decree.

Article 67b. Foreign traders and organizations selling goods on Vietnam’s e-commerce trading floors

1. Foreign traders and organizations shall sell goods according to Regulations on operation of Vietnam’s e-commerce trading floors.

2. Vietnam’s e-commerce trading floor service providers shall assume responsibility to authenticate identity of foreign traders or organizations selling goods on their e-commerce trading floors and undertake any of the followings:

a) Request foreign traders to exercise import/export rights of foreign traders that do not have presence in Vietnam in accordance with regulations of law;

b) Organize import activities as entrusted by buyers in respect of goods traded by foreign traders or organizations on e-commerce trading floors;

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3. Imports/exports traded through e-commerce are subject to customs procedures as prescribed by the Law on customs.

Article 67c. Market access conditions for foreign investors in the field of e-commerce

1. Provision of e-commerce service is considered as one of business lines restricted to foreign investors.

2. Market access conditions:

a) Foreign investors perform e-commerce activities in Vietnam in accordance with Clause 1, Clause 2 Article 21 of the Law on investment;

b) A foreign investor that controls one or more enterprises in the list of 05 leading e-commerce enterprises in Vietnam announced by the Ministry of Industry and Trade shall be subject to the Ministry of Public Security’s assessment of national security conditions.

3. A foreign investor is considered to control over an e-commerce enterprise as prescribed in Point b Clause 2 of this Article if it falls into one of the following cases:

a) It owns more than 50% of charter capital or 50% of voting shares of the enterprise;

b) It has the right to directly or indirectly decide to appoint, dismiss or discharge the majority or all of the members of the Board of Directors, Chairperson of the Board of Members, Director or General Director of the enterprise;

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4. The list of 05 e-commerce enterprises specified in Point b Clause 2 of this Article shall be determined according to total visits, number of sellers, total transactions and total transaction value.

5. In the case specified in Point b Clause 2 of this Article, the investor shall follow procedures for issuance or modification of business license according to the Government's regulations on goods trading and related activities of foreign investors and foreign-invested business entities as follows:

a) During consideration to give opinions about the application for issuance of modification of the business license, the Ministry of Industry and Trade shall give written request for opinions of the Ministry of Public Security;

b) At the request of the Ministry of Industry and Trade, the Ministry of Public Security shall give a written response indicating its approval or refusal to approve the investor’s application to the Ministry of Industry and Trade within 20 days from the receipt of the request from the Ministry of Industry and Trade;

c) Based on opinions given by the Ministry of Public Security, the Ministry of Industry and Trade shall give its opinions to the licensing authority as prescribed;

d) The time limit for getting opinions of the Ministry of Public Security shall not be included in the time limit for giving opinions by the Ministry of Industry and Trade as prescribed by law.

6. Investors making investment in small- and medium-sized startups as prescribed by the Law on support for small- and medium-sized enterprises shall not be subject to the provisions of Clause 2 of this Article."

25. Article 80 is amended as follows:

“Article 80. Implementation organization

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a) Carry out management of e-commerce activities and promote digital transformation in the field of e-commerce;

b) Cooperate with the Ministry of Information and Communications and Ministry of Public Security to protect cyberinformation security and cybersecurity in e-commerce activities. Request the Ministry of Public Security to take actions against violations against regulations on cybersecurity in the field of e-commerce;

c) Organize communication and dissemination of information about laws on e-commerce;

d) Carry out inspection, settle complaints and take actions against violations in the field of e-commerce;

dd) Instruct and inspect the implementation of this Decree.

2. The Ministry of Information and Communications shall:

a) Cooperate in providing information and sharing data with the Ministry of Industry and Trade for Internet management of websites providing e-commerce activities in Vietnam;

b) Play the leading role and cooperate with the Ministry of Industry and Trade in protecting cyberinformation security in the field of e-commerce, revoke “.vn” domain name, and take actions against violations regarding e-commerce websites in accordance with regulations of the Law on penalties for administrative violations.

3. The Ministry of Finance shall:

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b) Update the list of foreign suppliers directly carrying out tax registration or tax declaration; list of foreign suppliers that perform e-commerce activities, digital platform-based business and other services in Vietnam but do not yet carry out tax registration, declare and pay taxes in Vietnam in accordance with regulations of law on taxation on the web portal of the General Department of Taxation.

4. The Ministry of Planning and Investment shall cooperate in providing information and sharing data with the Ministry of Industry and Trade on enterprises whose registered business lines include e-commerce.

5. The Ministry of Public Security shall:

a) Play the leading role in protecting cybersecurity in the field of e-commerce; cooperate with the Ministry of Industry and Trade in providing information about the use of cyberspace in violation of regulations on the national sovereignty, interests and security, social order and security as well as cybercrime prevention and control in the field of e-commerce;

b) Cooperate in assessment of national security conditions for market access by foreign investors in the field of e-commerce at the request of the Ministry of Industry and Trade.”

Article 2. Abrogation of regulations of Decree No. 52/2013/ND-CP

1. Clause 2 Article 2, Clause 2 Article 44, Clause 2 Article 60 and Article 62 are abrogated.

2. The phrases “hoặc chưa được cấp phép” (“or without license”) in Point d Clause 1 Article 4, “hoặc xin cấp phép” (“or without applying for license”) in Point e Clause 1 Article 4, “đã được cấp phép” (“licensed”) in Point b Clause 3 Article 9, “thủ tục xin cấp phép” (“procedures for licensing”) in Point c Clause 2 Article 64, “chấm dứt hoặc bị thu hồi giấy phép” (“termination or revoked license”) in Point l Clause 1 Article 78, and “tước quyền sử dụng giấy phép” (“revoke the license”) in Clause 2 Article 78 are abrogated.

Article 3. Implementation

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2. Transition:

a) Within 180 days from the effective date of this Decree, traders, organizations and individuals performing e-commerce activities that have their applications for registration or notifications certified by the Ministry of Industry and Trade in accordance with the Decree No. 52/2013/ND-CP must follow procedures for notification or registration as prescribed in this Decree;

b) Traders, organizations and individuals performing e-commerce activities that have submitted applications for notification or registration which have not been processed by the Ministry of Industry and Trade before the effective date of this Decree shall follow procedures for notification and registration according to this Decree.

c) Within 12 months from the effective date of this Decree, the traders and organizations specified in Article 67a, Article 67c must follow procedures and fulfill obligations as prescribed in this Decree.

3. Ministers, heads of ministerial agencies, heads of Governmental agencies, and Chairpersons of provincial People’s Committees shall implement this Decree.

ON BEHALF OF THE GOVERNMENT
  PP. PRIME MINISTER
DEPUTY PRIME MINISTER




Le Van Thanh