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NATIONAL ASSEMBLY
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SOCIAL REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 42/2019/QH14
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Hanoi, June 14, 2019
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LAW
AMENDMENTS TO SOME ARTICLES OF LAW ON INSURANCE BUSINESS
AND LAW ON INTELLECTUAL PROPERTY
Pursuant to
Constitution of the Socialist Republic of Vietnam;
The National Assembly
promulgated Law on amendments to some articles of Law on Insurance Business No.
24/2000 / QH10 amended to some articles in accordance with Law No. 61/2010 /
QH12 and Law on Intellectual Property No. 50/2005 / QH11 amended to some
articles in accordance with Law No. 36/2009 / QH12.
Article
1. Amendments to Law on Insurance Business
1. Addition of Clauses
21, 22, 23, 24, 25 and 26 after Clause 20 of Article 3:
"21. Insurance
auxiliary service is an integral part of insurance business activities,
implemented by insurers, insurance brokers, other organizations and individuals
for profit purpose, including insurance consulting, insurance risk assessment,
actuarial analysis, insurance loss assessment, insurance claim assistance.
22. Insurance
consulting is an activity that provides consulting services on insurance
programs, insurance products, insurance risk management, prevention and
reduction of losses.
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24. Actuarial analysis
includes collection and analysis of statistical data; calculation of insurance
premiums, professional reserves, capital, solvency margin; evaluation of
business performance results and determination enterprise value in order to
ensure financial safety of insurers.
25. Insurance loss assessment
is an activity that determines actual state, cause, loss level; calculates
and allocates liability for compensation as a basis for insurance claim
assistance.
26. Insurance claim
assistance is an activity that assists policyholders, the insured,
beneficiaries or insurers in carrying out procedures on insurance claim
assistance.
2. Amendments to Article
11:
Article 11. Right to
participate in professional - social organizations on insurance business
Insurers, insurance
agents, insurance brokers, individuals and organizations providing insurance
auxiliary services are able to participate in professional - social
organizations on insurance business for the purpose of developing insurance
market, protecting legitimate rights and interests of members in accordance
with laws.
3. The title of Chapter
IV is changed as follows:
Chapter IV
INSURANCE AGENCIES, INSURANCE BROKERS, INSURANCE AUXILIARY
SERVICES
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Section 3
INSURANCE AUXILIARY SERVICES
Article 93a. Provision
of insurance auxiliary services
1. Principles of
providing insurance auxiliary services:
a) Honesty,
objectiveness, transparency; guarantee of legitimate rights and interests of
related parties;
b) Compliance with
standards and technical regulations in insurance auxiliary services;
c) Compliance with
ethical rules, professional conduct issued by social – professional
organizations.
2. Individuals and
organizations that meet the conditions specified in Article 93b of this Law shall
be entitled to provide insurance auxiliary services in according with the
following provisions:
a) Individuals are
entitled to provide insurance consulting services;
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3. Responsibilities of
individuals and organizations providing insurance auxiliary services:
a) Customers’ information
shall be kept secret and used for right purpose, not be revealed to a third
party without consent of customers, unless it is provided in accordance with
laws;
b) Individuals providing
insurance consulting services shall purchase professional liability insurance
that covers insurance consulting services; insurance auxiliary service
providers shall purchase professional liability insurance in accordance with
each type of insurance auxiliary service;
c) Insurance auxiliary
service providers shall not provide insurance loss assessment services and
insurance claim assistance for insurance contract that the providers are both
the insurance buyer and the insured or beneficiary;
d) Insurance brokers
shall not provide insurance loss assessment services for the insurance
agreements they brokered.
4. Contracts providing
insurance auxiliary services shall be made in writing.
Article 93b.
Conditions on providing insurance auxiliary services
1. Every individual
providing insurance consulting services shall:
a) Be at least 18 years
of age and have full legal capacity; and;
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2. Every organization
providing insurance auxiliary services shall:
a) Be a juridical person,
legally established and operated;
b) Ensure that individuals
directly performing insurance auxiliary activities in the organization meet the
conditions specified in point a, clause 1 of this Article; have qualifications
that are appropriate for the insurance auxiliary services they provide and
granted by a training institution legally operating in Vietnam or overseas.
Individuals directly
performing insurance loss assessment shall also meet the criteria applied to
assessors in accordance with commercial law.
The actuaries shall also
meet the criteria on law compliance, morality,
qualification and experience in actuarial analysis, and are members of
International Actuarial Association.
Government shall provide
detailed guidance on this point.
3. The Minister of
Finance shall provide guidance on the content of training program, examination
and certificate granting on insurance auxiliary services of domestic training
institutions and the recognition of certificates of insurance auxiliary
services granted by overseas training institutions.
5. The title of Chapter
VI is changed as follows:
Chapter VI
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6. Amendments to Clause 2
of Article 105:
”2. Insurers, foreign
insurance brokers providing insurance services across the border, foreign organizations
providing insurance auxiliary services across the border, foreign individuals
providing insurance consulting services in accordance with regulations of
Government.”
7. Amendments to Article
120:
Amendments to
Clause 1:
"1. Promulgate and
provide guidance on implementation of legislative documents on insurance
business and insurance auxiliary services; build strategies, plans and policies
on development of Vietnamese insurance market;"
b) Amendments to Clause
4:
"4. Supervise
insurance business activities through professional operations, financial
standing, enterprise administration, risk management and law compliance of
insurance enterprises and insurance brokers; take necessary measures to make
sure insurance enterprises to fulfill financial requirements and fulfill
commitments to insurance buyers.
Supervise insurance
auxiliary service activities through compliance with regulations on standards
and technical regulations relevant to insurance auxiliary services, liabilities
of individuals and organizations providing insurance auxiliary services,
conditions for providing insurance auxiliary services and provision of
insurance auxiliary services across the border;"
8. Addition of Clause 9a
after Clause 9 of Article 124:
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Article
2. Amendments to Law on Intellectual Property
1. Amendments to Point a,
Clause 3 of Article 6:
a) Industrial property
rights to inventions, industrial designs, layout designs and trademarks shall
be granted on the basis of decisions on granting protection issued by competent
authorities in accordance with registration procedures specified in this Law or
on the basis of recognized international registration granted accordance with
international agreement to which the Socialist Republic of Vietnam is a
signatory.
Industrial property
rights to well-known trademarks shall be granted on the basis of their use
instead of registration.
Industrial property
rights to geographical indications shall be granted on the basis of decisions
on granting protection issued by competent authorities in accordance with
registration procedures specified in this Law or international agreement to
which the Socialist Republic of Vietnam is a signatory.
2. Amendments to Clause 3
and addition of Clause 4 after Clause 3 of Article 60:
"3. It is considered
that an invention does not lose its novelty if it is directly or indirectly
disclosed by the person entitled to registration specified in Article 86 of
this Law or by the person who has information about the invention under the
condition that the patent application is submitted in Vietnam within 12 months
from the date of disclosure.
4. The provisions of
Clause 3 of this Article shall also be applied to any invention disclosed in
the industrial property application or industrial property protection announced
by industrial property authority in case the announcement is inconsistent with
provisions of laws or the application is submitted by a person ineligible for
registration.
3. Amendments to Article
61:
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1. Inventions are
considered to be inventive based on technical solutions that have been publicly
disclosed in the form of use or written description or in any other form at
home and abroad prior to the submitting date or the privilege date of the
patent application if those applications entitled to privileges; or the
invention is an innovation and cannot be easily created by a person with
average knowledge about the corresponding technical field.
2. Technical solution
which is an invention disclosed in accordance with Clause 3 and 4, Article 60
of this Law which must not be used as a basis for evaluation of the level of
invention."
4. Amendments to Article
80:
a) Amendments to Clause
1:
"1. Names and
indications that have become common name of goods widely accepted by consumers
in Vietnam;"
b) Amendments to Clause
3:
"3. Any geographical
indication that is identical or similar to a trademark under protection or
being submitted under a trademark application with early or privileged
submitting date, the use of which may cause confusion over commercial origin of
goods;"
5. Addition of Clause 3
after Clause 2 of Article 89:
"3. Applications for
granting industrial property rights may be submitted physically or
electronically."
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“Section 4
INTERNATIONAL APPLICATIONS, INTERNATIONAL PROPOSALS AND
PROCESSING OF INTERNATIONAL APPLICATIONS, INTERNATIONAL PROPOSALS"
7. Addition of Article
120a after Article 120 in Section 4 of Chapter VIII:
“Article 120a.
International proposals and processing of international proposals on
geographical indications
1. Proposals for
recognition and protection of geographical indications in accordance with
international agreement to which the Socialist Republic of Vietnam is
negotiating, are called international proposals.
2. The announcement of
international proposals and handling of third-party opinions, assessment of
conditions for protection of geographical indications in international
proposals shall comply with the equivalent provisions specified in this Law for
geographical indications in geographical indication applications submitted to
industrial property rights authority.
8. Amendments to Clause 2
of Article 136:
"2. Trademark
holders shall use trademark continuously.
Trademark use under a
trademark use agreement by a transferee is also considered an act of using the
holder’s trademark.
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9. Amendments to Article
148:
"Article 148.
Effect of industrial property rights transfer agreement
1. As for industrial
property rights granted on the basis of registration specified in Point a,
Clause 3, Article 6 of this Law, an industrial property rights transfer
agreement shall only come into force when it has been registered with
industrial property rights authority.
2. As for industrial
property rights granted on the basis of registration specified in Point a,
Clause 3, Article 6 of this Law, industrial property rights agreements shall
come into force according to the agreement between the parties.
3. Industrial property
rights agreements specified in Clause 2 of this Article, except for trademark
use agreements, shall be registered with an industrial property rights
authority to be valid for third parties.
4. An industrial property
rights agreement shall be invalidated if transferor’s industrial property
rights are invalidated.
10. Addition of Clauses 4
and 5 after Clause 3 of Article 89:
"4. The defendant in
a lawsuit over the infringement of intellectual property rights and receive
acquittal from the Court is entitled to request the Court to order the
plaintiff to reimburse for their reasonable expenses such as the cost of hiring
a lawyer or other expenses in accordance with laws.
5. In case an
organization or individual abuses the procedures for intellectual property
protection and thus causes damage to another organization or individual, the
organization and individual suffering damage is entitled to request the Court
to force the abuser to pay damages, including reasonable costs of hiring a
lawyer. Acts of abusing intellectual property rights protection procedures
include acts of intentionally exceeding the scope or objective of this
procedure.”
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"1. In case the
plaintiff can prove that the infringement of intellectual property rights has
caused material losses to him/her, he/she is entitled to request the Court to
decide the compensation amount according to one of the following grounds:
a) The total financial
losses and the profits that the defendant has gained from the infringement of
intellectual property rights, if the plaintiff's reduction in profits has not
been included in material losses;
b) The transfer price of
intellectual property rights if the intellectual property rights were
transferred to the defendant by the plaintiff under an intellectual property
rights agreement within the scope of the infringement;
c) Other material losses
calculated by the intellectual property right holder in accordance with
provisions of lawsoft;
d) In case it is
impossible to determine the damages for material losses according to the
provisions specified in Points a, b and c of this Clause, the damages shall be
determined by the Court based on the level of loss, in which case the damages
shall not exceed VND5 million.”
12. Amendments to Clause
1 of Article 218:
"1. When the
requester for suspension of customs procedures has fulfilled the obligations
specified in Article 217 of this Law, the customs authority shall issue the
decision of suspension.
The customs
authority shall provide the intellectual property rights holder with
information on name and address of shipper; exporter, consignee or importer;
description of goods; quantity of goods; origin of goods (as the case may be),
within 30 days from the date of issuance of the decision to apply
administrative measures to handle trademark counterfeiting and smuggled goods
specified in Clause 4, Article 216 of this Law.”
Article
3. Effect
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2. Addition of section
32a after section 32, Appendix 4, List of Sectors and Trades Subject to
Conditional Business Investment of the Law on Investment No. 67/2014 / QH13,
which was amended in accordance with Law No. 90/2015 / QH13, Law No. 03/2016 /
QH14, Law No. 04/2017 / QH14 and Law No. 28/2018 / QH14 as follows:
“32a. Insurance auxiliary
services include insurance consulting, insurance risk assessment, actuarial
analysis, insurance loss assessment and insurance claim assistance.
3. Insurance auxiliary
services arising from insurance business activities shall be regulated by the
Government and approved by the Standing Committee of the National Assembly
before issuance.
4. Regulations on
intellectual property rights in this Law will take effect from January 14,
2019, applying to the following cases:
a) Applications for
industrial property rights submitted from January 14, 2019;
b) Requests for
invalidation of the Patent for invention, Patent for useful solutions,
Certificates of geographical indications registration issued on the basis of
applications for industrial property rights submitted from January 14, 2019;
c) Requests for
invalidation of trademark registration certificates submitted from January 14,
2019;
d) Lawsuits over infringement
of intellectual property rights accepted by competent authorities from January
14, 2019; other requests relevant to intellectual property protection carried
out from January 14, 2019.
Article
4. Transitional provisions
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2. Applications for
inventions and geographical indications submitted before January 14, 2019 shall
be processed in accordance with Law on Intellectual Property No. 50/2005 / QH11
amended in accordance with Law No. 36/2009 / QH12.
3. Trademark use
agreements signed between the parties but not registered with industrial
property rights authority before January 14, 2019 are only valid for third party
from January 14, 2019.
4. Unsolved lawsuits over
infringement of intellectual property rights accepted by competent authorities
before January 14, 2019 shall be handled in accordance with provisions of Law
on Intellectual Property No. 50/2005 / QH11 amended in accordance with Law No.
36/2009 / QH12.
This Law was passed by
the 14th National Assembly of the Socialist Republic of Vietnam at
its 7th session on June 14, 2019.
CHAIRMAN OF NATIONAL ASSEMBLY
Nguyen Thi Kim Ngan