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THE
NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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The
Law No. 91/2015/QH13
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Hanoi,
November 24, 2015
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CIVIL CODE
Pursuant to the Constitution of
the Socialist Republic of Vietnam;
The National Assembly
promulgates a Civil Code.
PART ONE
GENERAL PROVISIONS
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
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Article 2.
Recognition, respect, protection and guarantee of civil rights
1. In the Socialist Republic of
Vietnam, all civil rights are recognized, respected, protected and guaranteed
under the Constitution and law.
2. Civil rights may be limited as
prescribed in law in exceptional circumstances that due to national defense and
security, social safety and order, social ethics and the community's health.
Article 3.
Basic principles of civil law
1. Every person shall be equal in
civil relations, may not use any reason for unequal treatment to others, and
enjoy the same protection policies of law regarding moral rights and economic
rights.
2. Each person establishes,
exercises/fulfills and terminates his/her civil rights and obligations on the
basis of freely and voluntarily entering into commitments and/or agreements.
Each commitment or agreement that does not violate regulations of law and is
not contrary to social ethics shall be bound by contracting parties and must be
respected by other entities.
3. Each person must establish,
exercise/ fulfill, or terminate his/her civil rights and/or obligations in the
principle of goodwill and honesty.
4. The establishment, exercise and
termination of civil rights and/or obligations may not infringe national
interests, pubic interests, lawful rights and interests of other persons.
5. Each person shall be liable for
his/her failure to fulfill or the incorrect fulfillment of any such civil
obligations.
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1. This Law is a common law that
applies to civil relations.
2. Any relevant law that applies to
civil relations in specific fields may not be contrary to the basic principle
of civil law prescribed in Article 3 of this Law.
3. If another relevant law has no
regulation or has regulations that infringe Clause 2 of this Article, the
regulations of this Law shall apply.
4. In cases where an international
agreement to which the Socialist Republic of Vietnam is a signatory contains
provisions different from the provisions of this Code with regard to a same
matter, the provisions of such agreement shall apply.
Article
5. Application of practices
1. Practices mean rules of conduct
obvious to define rights and obligations of persons in specific civil
relations, forming and repeating in a long time, recognized and applying
generally in a region, race, or a community or a field of civil.
2. In cases where it is neither
provided for by law nor agreed upon by the parties, practices may apply but
they must not contravene the principles provided for in Article 3 of this Code.
Article 6.
Application of analogy of law
1. In cases where an issue rises
under scope of civil law which it is neither provided for by law nor agreed
upon by the parties nor, nor applied by practices, analogy of law shall apply.
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Article 7.
State policies on civil relations
1. The establishment, performance
and termination of civil rights and obligations must ensure the preservation of
national identities, respect and promote good customs, practices and
traditions, solidarity, mutual affection and cooperation, the principle of
every individual for the community and the community for every individual and
the noble ethical values of ethnicities living together on Vietnamese soil.
2. In civil relations, the
conciliation between contracting parties in accordance with regulations of law
shall be encouraged.
Chapter II
ESTABLISHMENT, EXERCISE AND PROTECTION OF CIVIL RIGHTS
Article 8.
Bases for establishment of civil rights
Civil rights shall be established
on the following bases:
1. Contracts;
2. Unilateral legal acts;
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4. Outcomes of labor, production
and business; or creation of subjects of intellectual property rights;
5. Possession of property;
6. Illegal use of assets or illegal
gain therefrom;
7. Damage caused by an illegal act;
8. Performance of a task without
authorization;
9. Other bases specified by law.
Article 9.
Exercise of civil rights
1. Each person shall exercise
his/her civil on his/her own will in accordance with Article 3 and Article 10
of this Code.
2. The non-exercise of civil rights
does not constitute a basis for termination of those rights, unless otherwise
prescribed by law.
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1. Each person may not abuse
his/her own civil rights to cause damage to other persons or violate his/her
own obligations or for other unlawful purposes.
2. If a person fails to comply with
Clause 1 of this Article, a court or a competent agency shall, according to the
nature and consequences of the violation, either protect part or the whole of
his/her rights, compel him/her to given compensation and other sanctions as
prescribed by law.
Article 11.
Methods for protecting civil rights
If a person has his/her civil
rights violated, he/she may protect them himself/herself as prescribed in this
Code, other relevant laws or request competent authorities to:
1. Recognize, respect, protect and
guarantee of his/her civil rights;
2. Order the termination of the act
of violation;
3. Order a public apology and/or
rectification;
4. Order the performance of civil
obligations;
5. Order compensation for damage;
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7. Other requirements specified by
law.
Article 12.
Self-protection of civil rights
The self-protection of a particular
civil right must conform to the nature and severity of the violation against
such civil right and be not contrary to basic principles of civil law
prescribed in Article 3 of this Code.
Article 13. Compensation
for damage
Each person has his/her civil
rights violated shall be eligible for total damage, unless otherwise agreed by
parties or unless otherwise prescribed by law.
Article 14.
Protection of civil rights by competent authorities
1. Each court and a competent
authority must respect and protect civil rights of persons.
If a particular civil right is
violated or is under a dispute, the protection of such right shall be
implemented as prescribed in procedural law at the court or arbitrator.
The protection of civil rights
under administrative procedures shall be implemented as prescribed by law. A
decision on settlement of case/matter under administrative procedures may be
re-examined at a court.
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Article 15.
Cancellation of isolated unlawful decisions of competent agencies,
organizations or persons
A court or a competent authority is
entitled to cancel an isolated decision of another competent agency,
organization or person, upon a request for protection of civil rights.
If the isolated decision is
cancelled, the civil right against which the decision violates shall be
restored and protected by the methods prescribed in Article 11 of this Code.
Chapter III
NATURAL PERSONS
Section 1.
LEGAL PERSONALITY AND LEGAL CAPACITY OF NATURAL PERSONS
Article 16.
Legal personality of natural persons
1. The legal personality of a
natural person is his/her capability to have civil rights and civil
obligations.
2. All individuals shall have the
same legal personality.
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Article 17.
Contents of the legal personality of a natural person
1. Personal rights not associated
with property, and personal rights associated with property.
2. Ownership rights, inheritance
rights and other rights with respect to property.
3. Rights to participate in civil
relations and to assume obligations arising out of such relations.
Article 18. No
restrictions on the legal personality of natural persons
The legal personality of a natural
person shall not be restricted, unless otherwise provided for by law.
Article 19.
Legal capacity of natural persons
The legal capacity of a natural
person is his/her capability to establish and exercise civil rights and perform
civil obligations through his/her acts.
Article 20.
Adults
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2. Each adult shall have full legal
capacity, except for the cases prescribed in Articles 22, 23 and 24 of this
Code.
Article 21.
Minors
1. Minors are persons who are under
eighteen years of age.
2. Civil transactions of each child
under six years of age shall be established and performed by his/her legal
representative.
3. Each person who is from six to
under eighteen years of age must have the consent of his/her legal
representative to enter in and perform civil transactions, except for civil
transactions which are performed for the purpose of meeting the needs of daily
life suitable for the age group.
4. Each person who is from fifteen
to under eighteen years of age is entitled to enter in and perform civil
transactions by himself/herself, except for civil transactions related to real
estate, movables required registration and other civil transactions as
prescribed by law that are subject to the consent of his/her legal
representative.
Article 22.
Lack of legal capacity
1. A court shall, based on the
opinion of forensic-psychiatric examination by any authorized organization and
at the request of a person with related rights or interests or a relevant
agency or organization, issue a decision to declare a legally incapacitated
person who as a result of his/her mental or other illnesses cannot realize or
conduct his/her actions.
Where the basis on which a person
has been declared incapacitated no longer exists, the court shall, at the
request of such person or any person with related rights or interests, issue a
decision to revoke the decision declaring the incapacitated person.
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Article 23.
Persons with limited cognition or behavior control
1. A court shall, based on the
opinion of forensic-psychiatric examination by any authorized organization and
at the request of a person with related rights or interests or a relevant
agency or organization, issue a decision to declare an adult with limited
cognition or behavior control due to his/her physical or spiritual condition,
and appoint a legal guardian and define rights and obligations of such
guardian.
2. Where the basis on which a
person has been declared limited cognition or behavior control no longer
exists, the court shall, at the request of such person or any person with
related rights or interests, issue a decision to revoke the decision declaring
the person with limited cognition or behavior control.
Article 24. Persons
with limited legal capacity
1. A court shall, at the request of
a person with related rights or interests or a relevant agency or organization,
issue a decision to declare a person with limited legal capacity after
excessive drug consumption or other psychotropic substances, worsening material
situation of the family.
The court shall appoint a legal
representative of the person with limited legal capacity and the representation
scope.
2. All civil transactions related
to the property of a person with limited legal capacity declared by a court
must obtain the consent of his/her legal representative, except for
transactions to meet the needs of daily life.
3. Where the basis on which a
person has been declared limited capacity of exercise no longer exists, the
court shall, at the request of such person or any person with related rights or
interests, issue a decision to revoke the decision declaring the incapacitated
person.
Section 2.
PERSONAL RIGHTS
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1. Personal rights specified in
this Code are civil rights inherent to each natural person, which cannot be
transferred to other persons, unless otherwise provided for by other laws.
2. All civil relations relating to
personal rights of a minor, a legally incapacitated persons, or a person with
limited cognition or behavior control shall be established and performed with
the consent of his/her legal representative as prescribed in this Code, other
relevant laws or decisions of a court.
All civil relations relating to
personal rights of a person declared missing or dead shall be established and
performed with the consent of his/her spouse or adult children; or his/her
parents if he/she has no spouse or child, unless otherwise provided for by this
Code or other relevant laws.
Article 26.
Right to have family and given names
1. Each natural person has right to
have a family name and a given name (including a middle name, if any). The
family and given names of a person shall be the family and given names in the
birth certificate of such person.
2. The family name of a person
shall be passed from his/her biological father's or mother’s as mutually agreed
between the parents; if the parents fails to agree, the person’s family name
shall be determined according to customary practices. If the father of such
person is undetermined, his/her family name shall be passed from his/her
natural mother’s.
If an abandoned child whose natural
parents are unidentified is adopted, his/her family name shall be passed from
his/her adoptive father’s or mother’s as mutually agreed between the parents.
If the child has either an adoptive father or an adoptive mother, his/her
family name shall be passed from such person’s.
If an abandoned child whose natural
parents are unidentified and he/she has not been adopted but has been fostered
by a foster establishment or a , his/her family name shall be determined at the
request of the head of such foster family or at the request of the person
registering the birth of the child.
Biological father and mother
specified in this Code means a father and mother determined at the event of
parturition; intended father and mother and the resulting child as prescribed
in the Law on marriage and families.
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The name of each Vietnamese citizen
must be in Vietnamese or other ethnic minority languages of Vietnam and not
include any figure or any symbol other than a letter.
4. Each natural person shall enter
in and perform his/her civil rights and obligations following his/her family
and given name.
5. A person may not use his/her
code name or pen name to cause damage to the lawful rights and interests of
other people.
Article 27.
Right to change family names
1. An individual has the right to
request a competent authority to recognize a change of a family name in any of
the following cases:
a) Changing the family name of a
natural child from biological father’s to biological mother's or vice versa;
b) Changing the family name of an
adopted child from biological father’s or mother’s to adoptive father's or
mother’s at the request of the adoptive parents;
c) If a person ceases to be an
adopted child and such person or his/her biological father or mother request to
reclaim the family name which is given by the biological father or mother;
d) Changing the family name of a
person whose biological parents have been identified upon the request on that
father or mother or such person;
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e) Changing the family name of a
person to his/her spouse’s in the marriage and family relations involving
foreign elements in accordance with law of the country in which the foreign
spouse is a citizen or retrieves his/her family name before the change;
g) Changing the family names of
children upon the change of family names of their father’s or mother’s;
h) Other cases prescribed in by law
on civil status affairs.
2. The changing of the family name
of a person who is nine years of age or older shall be subject to the consent
of such person.
3. The changing of a family name
shall not change or terminate the civil rights and obligations which were established
in the former family name.
Article 28.
Right to change given names
1. An individual has the right to
request a competent authority to recognize the change of a given name in any of
the following cases:
a) Where it is so requested by the
person who has a given name which causes confusion or has an adverse effect on
his/her feelings or on his/her honor, legitimate rights and interests;
b) Where the adoptive father or
mother of the person wishes to change the given name of their adopted child; of
if a person ceases to be an adopted child and such person or his/her biological
father or mother request to reclaim the given name which is given by the
biological father or mother;
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d) Changing the given name of a
lost person who has discovered the origin of his/her bloodline;
dd) Change the given name of a
person to his/her spouse’s in the marriage and family relations involving
foreign elements in accordance with law of the country in which the foreign
spouse is a citizen retrieves his/her family name before the change;
e) Changing of given name of a
person whose gender identity is re-determined or a transgender person;
g) Other cases prescribed in by law
on civil status affairs.
2. The changing of the given name
of a person who is nine years of age or older shall be subject to the consent
of such person.
3. The changing of a given name
shall not change or terminate the civil rights and obligations which were
established in the former given name.
Article 29.
Right to indentify and re-identify ethnicity
1. Each individual has the right to
identify and re-identify his/her ethnicity.
2. Each individual shall have
his/her ethnicity identified at birth in accordance with the ethnicity of
his/her biological father and mother. Where the biological father and mother
belong to two different ethnic groups, the ethnicity of the child shall be
passed from the father’s or mother’s as mutually agreed between the parents; if
the parents fail to agree, the ethnicity of the child shall be identified in
accordance with relevant customary practices; if the customary practices are
different, the ethnicity of the child shall be identified in accordance with
the customary practice of smaller ethnic minority.
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If an abandoned child whose natural
parents are unidentified and he/she has not been adopted but has been fostered
by a foster establishment, his/her ethnicity shall be identified at the request
of the head of such foster family or at the request of the person temporarily
fostering the child at the time when the birth of the child is registered.
3. An individual has the right to
request a competent authority to identify or re-identify the ethnicity in any
of the following cases:
a) Re-identification of the
ethnicity of the biological father or mother where they belong to two different
ethnic groups;
b) Re-identification of the
ethnicity of the biological father or mother where the adoptive child have
their biological parents identified.
4. The re-identification of the
ethnicity of a person who is from fifteen to eighteen years of age shall be
subject to the consent of such person.
5. It is forbidden to abuse the
ethnicity re-identification intended to profiteering or divisive, prejudicial
to the unity of the ethnic groups of Vietnam.
Article 30.
Right to declaration of birth and death
1. When an individual is born,
he/she has the right to have his/her birth declared.
2. When an individual dies, he/she
has the right to have his/her death declared.
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4. The declaration of birth and
death shall be prescribed in by law on civil status affairs.
Article 31.
Right to nationality
1. Each individual has the right to
nationality.
2. The identification, change,
acquirement, renouncement, or assume of Vietnamese nationality shall be
stipulated in the Law on Vietnamese nationality.
3. Rights of each non-nationality
resident within Vietnam’s territory shall be guaranteed as prescribed by law.
Article 32.
Rights of an individual with respect to his/her image
1. Each individual has rights with
respect to his/her own image.
The use of an image of an
individual must have his/her consent.
When an image of an individual is
used for commercial purposes, that person is eligible for a remuneration,
unless otherwise agreed.
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a) For national and public
benefits;
b) For public activities, including
conventions, seminars, sports activities, art shows and other public activities
that do not infringe the honor, dignity or prestige of the image’s owner.
3. If the use of an image violates
the regulation prescribed in this Article, the image’s owner has the right to
request a court to issue a decision that compel the violator or relevant
entities to revoke, destroy or terminate the use of the image, compensate for
damage and adopt other measures as prescribed in law.
Article 33.
Right to life, right to safety of life, health and body
1. Each individual has the right to
life, the inviolable right to life and body, the right to health protection by
law. No one shall be killed illegally.
2. When any person has a life
threatening accident or illness, a person who discovers such situation must
take such person or require suitable entities to a nearest health facility; the
health facility must provide medical examination and treatment in accordance
with law on medical examination and treatment.
3. The consent of a person is
required for the anesthesia, surgery, amputation, transplant of his/her tissues
or bodily organs; the application of new medical cures to that person; medical,
pharmacy or scientific testing or any method of testing on a human body.
If the person is a minor, a legally
incapacitated person, a person with limited cognition or behavior control or an
unconscious patient, the consent of his/her father, mother, spouse, grown child
or legal guardian is required; in cases where there is a threat to the life of
the patient which cannot wait for the consent of the aforesaid persons, a
decision of the head of the health facility is required.
4. A post-mortem operation shall be
performed in any of the following cases:
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b) In the absence of such consent,
the consent of a parent, spouse, grown child or legal guardian of the deceased
was obtained;
c) In necessary cases, pursuant to
a decision of the head of the health facility or a competent authority as
prescribed in law.
Article 34.
Right to protection of honor, dignity and prestige
1. Honor, dignity and prestige of
an individual is inviolable and protected by law.
2. Each individual has the right to
request a court to reject any piece of information adversely affecting to
his/her honor, dignity and/or prestige.
The honor, dignity and prestige of
a deceased person shall be protected at the request of his/her spouse or grown
children; or his/her parent if he/she has no spouse or child, unless otherwise
prescribed by law.
3. If a piece of information
adversely affecting to the honor, dignity and prestige of a person is posted on
a mean of mass media, that piece of information shall be removed or rectified
by that kind of mean. If that piece of information is kept by an agency,
organization or individual, such entity is required to cancel it.
4. In case it is impossible to
identify the person informing the information adversely affecting the honor,
dignity and/or prestige of a person, the latter person has the right to request
a court to declare that such piece of information is incorrect.
5. The person receiving the
information adversely affected his/her honor, dignity and/or prestige both has
the right to request rejection of such piece of information and has the right
to require to informing person gives a public apology and rectification and
compensation.
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1. Each individual has the right to
donate his/her tissues or body organs when he/she is alive or donate his/her
tissues, body organs or corpse after his/her death for the purpose of medical
treatment of other persons or medical, pharmacy or other scientific researches.
2. Each individual has the right to
receive tissues and/or body organs of other persons for his/her medical
treatment. Health facilities and juridical persons competent to scientific
research have the right to receive human body organs and/or corpses for the
purpose of medical treatment or medical, pharmacy or other scientific
researches.
3. The donation or removal of human
tissues and body organs and donation or removal of corpses must comply with
statutory requirements and regulations of this Code, the Law on donation,
removal and transplantation of human tissues and organs, and donation or
removal of corpses and other relevant laws.
Article 36.
Right to re-determine gender identity
1. An individual has the right to
re-determine his/her gender identity.
The re-determination of the gender
identity of a person is implemented where the gender of such person is subject
to a congenital defect or has not yet been accurately formed and requires
medical intervention in order to identify clearly the gender.
2. The re-determination of the
gender identity of a person shall comply with regulations of law.
3. Each individual undergone
re-determination of gender identity has the right and obligation to apply for
change of civil status affairs as prescribed in law on civil status affairs and
has the personal rights in conformity with the re-determined gender identity as
prescribed in this Code and relevant laws.
Article 37.
Sex reassignment
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Article 38.
Right to private life, personal secrets and family secrets
1. The private life, personal
secrets and family secrets of a person are inviolable and protected by law.
2. The collection, preservation,
use and publication of information about the private life of an individual must
have the consent of that person; the collection, preservation, use and
publication of information about the secrets of family must have the consent of
all family’s members, unless otherwise prescribed by law.
3. The safety of mails, telephones,
telegrams, other forms of electronic information of an individual shall be
ensured and kept confidential.
The opening, control and keeping of
mails, telephones, telegrams, other forms of electronic information of an
individual may only be conducted in cases provided by law.
4. Contracting parties of a
contract may not disclose information about each other's private life, personal
secrets or family secrets that they know during the establishment and
performance of the contract, unless otherwise agreed.
Article 39.
Personal rights in marriage and families
1. Each individual has the right to
marry or divorce, the right to equality between husband and wife, the right to
acknowledge father, mother or child, the right to adopt children and be adopted
in marriage relation, parent-children relation and relations between family’s
members.
All children, of the same parents,
regardless of their parents’ marriage status, have the same rights and
obligations to their parents.
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Section 3.
PLACE OF RESIDENCE
Article 40.
Place of residence of individuals
1. The place of residence of an
individual is the place where such person usually lives.
2. In cases where it is impossible
to determine an individual's place of residence as provided for in Clause 1 of
this Article, his/her place of residence shall be the place where such person
is currently living.
3. If a party, in a particular
civil relation, changes his/her place of residence in association with his/her
exercise of right or fulfillment of obligation, he/she must notify the other of
the new place of residence.
Article 41.
Place of residence of minors
1. The place of residence of a
minor is the place of residence of his/her parents; if the parents have
separate places of residence, the place of residence of the minor shall be the
place of residence of the father or mother with whom the minor usually lives.
2. A minor may have a place of
residence separate from the place of residence of his/her parents if so agreed
by his/her parents or so provided for by law.
Article 42.
Place of residence of wards
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2. A ward may have a place of
residence separate from the place of residence of his/her guardian if so agreed
by the guardian or so provided for by law.
Article 43.
Places of residence of husbands and wives
1. The place of residence of a
husband and wife is the place where the husband and the wife usually live
together.
2. A husband and a wife may have
separate places of residence if they so agree upon.
Article 44.
Places of residence of military personnel
1. The place of residence of a
military personnel member currently performing his/her military service is the
place at which his/her military personnel's unit is stationed.
2. The place of residence of a/an
army officer, regular member of military personnel, defense worker or official
is the place at which his/her unit is stationed, except in cases where he/she
has a place of residence as specified in Clause 1 Article 40 of this Code.
Article 45.
Place of residence of persons performing itinerant occupations
The place of residence of a person
performing an itinerant occupation on a ship, boat or other means for itinerant
work is the place of registration of such ship, boat or means, unless he/she
has a place of residence specified in Clause 1 Article 40 of this Code.
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Article 46.
Guardianship
1. Guardianship means an individual
or organization (hereinafter referred collectively to as guardian) is required
by law or appointed to take care of and protect legitimate rights and interests
of a minor or a legally incapacitated person or a person with limited cognition
and behavior control (hereinafter referred to as a ward).
2. When a person with limited
cognition and behavior control is capable of expressing his/her will anytime
when he/she requests the guardianship, his/her consent is required.
3. The guardianship must be
registered at a competent authority as prescribed in law on civil status
affairs.
Natural guardians must fulfill
their obligations regardless of their registration of guardianship.
Article 47.
Wards
1. Wards include:
a) Minors who have lost their
mothers and fathers, or whose parents are unidentifiable;
b) Minors whose parents are both
incapacitated persons; parents have limited cognition or behavior control;
parents have limited capacity of exercise; parents have their parental rights
restricted by a court; and parents do not have the means to care for or educate
such minor and the parents request the minor to be a ward;
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d) Persons with limited cognition
or behavior control.
2. A person may only be a ward of
one guardian, except where the guardians are parents in charge of one child or
grandparents in charge of one grandchild.
Article 48.
Guardians
1. Each natural person or juridical
person who meets all requirements prescribed in this Code is entitled to be a
guardian.
2. If a person with full legal
capacity chooses a guardian for him/her, such guardian shall be selected if the
person needs the guardianship with the consent of the ward. The selection of
guardian must be made in writing and notarized or certified.
3. Each natural or juridical person
may be a guardian of multiple persons.
Article 49.
Requirements for natural persons to be guardians
Each natural person who meets all
of the following requirements may act as a guardian:
1. Having full legal capacity;
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3. Not being a person facing a
criminal prosecution or a person who has been convicted but his/her criminal record
has been not expunged for a deliberate crime of violation of life, health,
honor, dignity or property of another person;
4. Not being a person having
parental rights to minor child restricted by a court.
Article 50.
Requirements for juridical persons to be guardians
Each juridical person who meets all
of the following requirements may act as a guardian:
1. Having civil legal personality
in conformity with the guardianship;
2. Having necessary means to
exercise rights and fulfill obligations of a guardian.
Article 51.
Supervision of guardianship
1. The relatives of a ward shall
have the responsibility to appoint a representative to supervise the
guardianship in among the relatives or appoint another natural or juridical
person to act as a guardianship supervisor.
The appointment of guardianship
supervisor must have the consent of such person.
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Relatives of a ward means his/her
spouse, parents and children; if there is no such person, relatives of the ward
means his/her grandparents and biological siblings; if there is also no such
person, relatives of the ward means his/her biological uncles and aunts.
2. If there is no relative of a
ward or the relatives fails to appoint a guardianship supervisor as prescribed
in Clause 1 of this Article, the People’s Committees of commune where the
guardian resides shall appoint a natural or juridical person to supervise the
guardianship. If there is a dispute over the appointment of guardianship
supervisor, it shall be subject to a court's decision.
3. Each supervisor being natural
person must have full legal capacity, each supervisor being juridical person
must have legal personality in conformity with the supervision; the supervisor
must have necessary means to conduct the supervision.
4. Each guardianship supervisor has
the following rights and obligations:
a) Monitory and inspect the
guardian in the guardianship;
b) Examine and offer opinions in
writing in terms of establishment and performance of civil transactions
prescribed in Article 59 of this Code.
c) Request a regulatory agency in
charge of guardianship to change or terminate the guardianship or supervision
of guardianship.
Article 52.
Natural guardians of minors
A natural guardian of a minor
prescribed in Points a and b Clause 1 Article 47 of this Code shall be
determined as follows:
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2. If there is no guardian
prescribed in Clause 1 of this Article, the paternal grandfather, grandmother
or the maternal grandfather, grandmother shall be the guardian; or those
persons shall agree to appoint a person or some persons to be guardian(s);
3. If there is no guardian prescribed
in Clause 1 and Clause 2 of this Article, a biological uncle or aunt of the
ward shall be the guardian.
Article 53.
Natural guardians of incapacitated persons
If there is no guardian prescribed
in Clause 2 Article 48 of this Code, the natural guardian of a legally
incapacitated person shall be determined as follows:
1. If a wife is a legally
incapacitated person, her husband shall be the guardian; if a husband is a
legally incapacitated person, her wife shall be the guardian;
2. If both parents are
incapacitated persons or either of them is a legally incapacitated person and
the other does not fully meet requirements to be a guardian, the eldest child
shall be the guardian; if the eldest child does not fully meet the requirements
to be a guardian, the next eldest child shall be the guardian;
3. If an adult being a legally
incapacitated person has no spouse or child or such person has spouse or
children but they do not fully meet the requirements to be a guardian, his/her
father and/or mother shall be the guardian.
Article 54.
Appointment of guardians
1. If a minor or a legally
incapacitated person has no guardian as prescribed in Article 52 and 53 of this
Code, the People’s Committee of commune where such person resides must appoint
a guardian for the ward.
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The expectation of a minor aged 6
years or older in terms of his/her guardian must be considered.
2. The appointment of a guardian
must have the consent of such person.
3. The appointment of a guardian
must be made in writing, specifying the reason for appointing the guardian, the
specific rights and obligations of the guardian and the status of the ward's
property.
4. Apart from the cases prescribed
in Clause 2 Article 48 of this Code, the guardian of a person with limited
cognition and behavior control shall be appointed among the guardians
prescribed in Article 53 of this Code by a court. If there is no such person,
the court shall appoint another natural or juridical person to be a guardian.
Article
55. Obligations of guardians with regard to wards under fifteen years of
age
1. Take care of and educate the
ward.
2. Represent the ward in civil
transactions, except where it is provided for by law that wards under fifteen
years of age can enter in and perform civil transactions by themselves.
3. Manage the property of the ward.
4. Protect legitimate rights and
interests of the ward.
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1. Represent the ward in civil
transactions, except where it is provided for by law that wards from fifteen to
eighteen years of age can enter in and perform civil transactions by
themselves.
2. Manage the property of the ward,
unless otherwise prescribed by law.
3. Protect legitimate rights and
interests of the ward.
Article 57.
Obligations of guardians with regard to incapacitated persons or person with
limited cognition and behavior control
1. The guardian of a legally
incapacitated person shall have the following obligations:
a) Take care of and ensure the
treatment of illness of the ward;
b) Represent the ward in civil
transactions;
c) Manage the property of the ward;
d) Protect legitimate rights and
interests of the ward.
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Article 58.
Rights of guardians
1. The guardian of a minor or a
legally incapacitated person shall have the following rights:
a) Use the property of the ward in
order to take care of and pay for the needs of the ward;
b) Receive payment of all necessary
expenditures on management of the property of the ward;
c) Represent the ward in the
establishment and performance of civil transactions in order to protect
legitimate rights and interests of the ward.
2. The guardian of a person with
limited cognition and behavior control shall have rights specified in the
decision of a court according to the rights prescribed in Clause 1 of this
Article.
Article 59.
Management of property of wards
1. The guardian of a minor or a
legally incapacitated person must manage the property of his/her ward as if it
were his/her own property.
The sale, exchange, lease, lending,
pledge, mortgage, deposit and other transactions involving the property of the
ward, which has a high value, must have the consent of the guardianship
supervisor.
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2. The guardian of a person with
limited cognition and behavior control shall manage the property of the ward
specified in the decision of a court according to guardianship scope prescribed
in Clause 1 of this Article.
Article 60.
Replacement of guardians
1. A guardian may be replaced in
any of the following cases:
a) The guardian no longer meets all
of the requirements specified in Article 49 or 50 of this Code;
b) The guardian being a natural
person dies or is declared by court limited cognition or behavior control,
limited legal capacity, incapacitated, missing or the guardian being a
juridical person cease to exist;
c) The guardian seriously violates
a guardian's obligation;
d) The guardian proposes his/her
replacement and another person agrees to assume the guardianship.
2. In case of replacing a natural
guardian, the persons defined in Article 52 and Article 53 of this Code shall
assume the role of a natural guardian; if there is no natural guardian, the
appointment of a guardian shall comply with the provisions of Article 54 of
this Code.
3. The procedures for replacing a
guardian shall comply with law on civil status affairs.
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1. Upon replacement of a guardian,
the person who formally conducted the guardianship must transfer the
guardianship to the new replacement within fifteen days as from the date the
new guardian is found.
2. The transfer of guardianship
must be made in writing, specifying the reason for the transfer and the status
of the ward's property at the time of transfer. The agency which appointed the
guardian and the guardianship supervisor shall witness the transfer of the
guardianship.
3. With regard to replacement of
guardian prescribed in Clause 1 Article 60 of this Code, the agency which
appointed the guardian shall make a record thereon, clearly stating the status
of the ward's property and the rights and obligations which have arisen in the
course of performing the guardianship for transfer to the new guardian with the
witness of the guardianship supervisor.
Article 62.
Termination of guardianship
1. A guardianship shall be
terminated in any of the following cases:
a) The ward attains full legal
capacity;
b) The ward dies;
c) The ward's father and/or mother
have/has fully met the conditions to exercise his/her rights or fulfill his/her
obligations;
d) The ward has been adopted.
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Article 63.
Consequences of the termination of guardianship
1. When a ward attains full legal
capacity, the guardian shall settle the property with the ward and transfer all
rights and obligations arising from civil transactions concluded by the
guardian on behalf of that ward within 15 days from the date of termination of
guardianship.
2. If a ward dies, the guardian
must settle up the property with the ward's heirs or transfer the property to
the estate administrator of the ward, or transfer all rights and obligations
arising from the civil transactions on behalf of the ward within three months
as from the date on which the guardianship terminates; if the ward's heirs are
unidentifiable upon the expiry of such time limit, the guardian shall continue
to manage the property of the ward until the property has been settled in
accordance with the provisions of law on inheritance and shall notify such to
the People's Committee of the commune where the ward resides.
3. With regard to termination of
guardianship prescribed in Point c and Point d Clause 1 Article 62 of this
Code, the guardian shall settle up the property and transfer all rights and
obligations arising from the civil transactions on behalf of the ward to the
ward’s parent within 15 days from the date of termination of guardianship.
4. The settlement of property and
transfer of rights and obligations prescribed in this Article must be made in
writing under supervision of the guardianship supervisor.
Section 5.
NOTICE OF SEARCH FOR PERSONS WHO ARE ABSENT FROM THEIR PLACES OF RESIDENCE,
DECLARATION OF MISSING PERSONS AND DECLARATION OF DEATH
Article
64. Request for notice of search for persons who are absent from their
places of residence and the management of their property
When a person has disappeared for
six consecutive months or longer, any person with related rights or interests
may request a court to issue a notice of search for the person absent from
his/her place of residence under the provisions of civil procedure law and may request
the court to apply measures for management of the property of the absent person
in accordance with the provisions of Article 65 of this Code.
Article 65.
Management of property of person absent from his/her place of residence
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a) With respect to property of
which the management has been authorized to person by the absent person, such
person shall continue to manage the property;
b) With respect to joint property,
the remaining co-owner(s) shall manage the property;
c) The property being currently
managed by the spouse’s absent person shall continue to be managed by such
spouse; if that spouse dies or that spouse is legally incapacitated, has
limited cognition or behavior control or has limited legal capacity, his/her
adult children or parents shall manage the property.
2. If there is no person defined in
Clause 1 of this Article, a court shall appoint a person among the relatives of
the absent person to manage his/her property; if the absent person does not
have any relative, the court shall appoint another person to manage the
property.
Article 66.
Obligations of persons managing property of person absent from his/her place of
residence
1. Keep and preserve the property
of the absent persons as if it were his/her own property.
2. Sell immediately any property
being crops or other products being in danger of decay;
3. Perform the absent persons'
obligations to pay maintenance their dependents and/or pay due debts or
financial obligations with such persons' property under the court's decisions.
4. Return the property to the
absent persons upon their return and to notify a court thereof; or compensate
for any damage caused during the course of management of the property due to
his/her fault.
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1. Manage the property of the
absent persons.
2. Deduct a portion from the
property of the absent person in order to perform the obligations of such
person to pay maintenance to his/her dependents, due debts or financial
obligations.
3. Receive payment of all necessary
expenditures on management of the property of the absent person.
Article 68.
Declaration of person missing
1. When a person has disappeared
for two consecutive years or longer and there is no reliable information on
whether such person is still alive or dead even though notification and search
measures have been fully applied in accordance with the civil procedure law, a
court may, at the request of a person with related rights or interests, declare
such person is missing.
The two-year time limit shall
commence from the date the last information on such person is obtained; if the
date of the last information cannot be determined, this time limit shall
commence from the first day of the month succeeding the month when the last
information is received; if the date and month of the last information cannot
be determined, this time limit shall commence from the first day of the year
succeeding the year when the last information is received.
2. In cases where the wife or the
husband of a person who has been declared missing files for a divorce, a court
shall grant the divorce as prescribed in law on marriage and family.
3. The decision on declaration of a
missing person issued by a court must be sent to the People’s Committees of
commune where the missing person last resides for record as prescribed in law
on civil status affairs.
Article 69.
Management of property of persons declared missing
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If a court has granted divorce to
the wife or the husband of the person who has been declared missing, the
property of the missing person shall be handed over to the adult children or to
the parents of the missing person for management. If there is no such person,
the property shall be handed over to a relative of the missing person for
management; if there is no relative, the court shall appoint another person to
manage the property.
Article
70. Annulment of decision declaring person missing
1. When a person who has been
declared missing returns or when there is reliable information that such person
is still alive, a court shall, at the request of such person or a person with
related rights or interests, issue a decision on annulment of the decision
declaring the person missing.
2. A person who has been declared
missing shall, upon his/her return, be permitted to receive his/her property
back from the person managing the property after paying the management
expenses.
3. If the wife or the husband of a
person who has been declared missing has been granted a divorce, the decision
granting the divorce shall retain legal effect notwithstanding the return of
the person who has been declared missing or the reliable information that such
person is still alive.
4. The decision on annulment of a
decision declaring a person missing issued by a court must be sent to the
People’s Committees of commune where the missing person resides for record as
prescribed in law on civil status affairs.
Article 71.
Declaration of person dead
1. A person with related rights or
interests may request a court to issue a decision declaring that a person is
dead in any of the following cases:
a) After three years from the
effective date of a court's decision declaring a person missing, there is still
no reliable information that such person is alive;
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c) The person met with an accident,
catastrophe or a natural disaster and there is still no reliable information
that such person is alive for two years from the end of such accident,
catastrophe or natural disaster, unless otherwise provided for by law;
d) The person has been missing for
five consecutive years or longer and there is no reliable information that such
person is still alive; this time limit shall be calculated in accordance with
Clause 1 Article 68 of this Code.
2. A court shall, according to the
cases specified in Clause 1 of this Article, determine the date of death of a
person declared dead.
3. The decision on declaration of a
dead person issued by a court must be sent to the People’s Committees of
commune where the dead person resides for record as prescribed in law on civil
status affairs.
Article
72. Personal relations and property relations of persons declared dead by
courts
1. When a decision of a court
declaring that a person is dead becomes legally effective, all marriage and
family relations and other personal relations of such person shall be resolved
in the same manner as if the person were dead.
2. The property relations of a
person who is declared dead by a Court shall be resolved in the same manners as
if such person were dead; the property of such person shall be dealt with in
accordance with the law on inheritance.
Article
73. Annulment of decision declaring person dead
1. When a person who has been
declared dead returns or when there is reliable information that such person is
still alive, a court shall, at the request of such person or a person with
related rights or interests, issue a decision on annulment of the decision
declaring the person dead.
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a) If the wife or the husband of
the person who has been declared dead was permitted by the Court for her or his
divorce in accordance with the provisions of Clause 2 Article 68 of this Code,
the decision granting the divorce shall remain legally effective;
b) If the wife or the husband of
the person who has been declared dead has married to another person, such
marriage shall remain legally effective.
3. A person who has been declared
dead but is still alive shall have the right to claim his/her property from the
persons who received that his/her inheritance and/or the value of the remaining
property.
If the heir of a person whom a
court has declared dead is aware that such person is still alive, but
intentionally conceals such information for the purpose of enjoying the
inheritance, he/she must return all of the property received, including any
benefits and income derived; if any damage has been caused, he/she must also
pay compensation therefor.
4. Property relations between
spouses shall be dealt with in accordance with this Code and the Law on
marriage and families.
5. The decision on annulment of a
decision declaring a person dead issued by a court must be sent to the People’s
Committees of commune where the dead person resides for record as prescribed in
law on civil status affairs.
Chapter IV
JURIDICAL PERSONS
Article 74.
Juridical persons
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a) It is legally established as
prescribed in this Code and relevant laws;
b) It has an organizational
structure prescribed in Article 83 of this Code;
c) It has property independent from
other natural and juridical persons and bears liability by recourse to its
property;
d) It participates
independently in legal relations in its own name.
2. Every natural
or juridical person has the right to establish a juridical person, otherwise
provided for by law.
Article
75. Commercial juridical persons
1. Commercial juridical person
means a juridical person whose primary purpose is seeking profits and its
profits shall be distributed to its members.
2. Commercial juridical persons
include enterprises and other business entities.
3. The establishment, operation and
termination of commercial juridical person shall comply with regulations of
this Code, Law on enterprises and other relevant laws.
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1. Non-commercial juridical person
means a juridical person whose primary purpose is not seeking profits and its
possible profits may not distributed to its members.
2. Commercial juridical persons
include regulatory agencies, people's armed units, political organizations,
socio-political organizations, political-socio-professional organizations,
social organizations, socio-professional organizations, social funds,
charitable funds, social enterprises and other non-commercial organizations.
3. The establishment, operation and
termination of non-commercial juridical persons shall comply with regulations
of this Code, laws on organizational structure of the state and other relevant
laws.
Article 77.
Charters of juridical persons
1. A juridical person must have a
charter if it is required by law.
2. A charter of a juridical person
must contain the following primary contents:
a) Name of juridical person;
b) Purpose and scope of its
operation;
c) Head office; branches or
representative offices (if any);
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dd) Legal representative;
e) Organizational structure, the
procedures for nomination, election, appointment, discharge from office and
dismissal; duties and powers of the positions in the managing body and other
bodies;
g) Membership requirements, if the
judicial person has members;
h) Rights and obligations of the
members, if the judicial person has members;
i) Procedures for ratifying
decisions of the judicial person; rules for internal settlement of disputes;
k) Procedures for amending and
supplementing the charter;
l) Conditions for consolidation,
acquisition, total division, partial division or dissolution the juridical
person.
Article 78.
Names of judicial persons
1. Each judicial person’s name must
be in Vietnamese.
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3. Each juridical person must use
its own name in civil transactions.
4. The name of a juridical person
shall be recognized and protected by law.
Article 79.
Head offices of judicial persons
1. The head-office of a juridical
person is the place where its executive body is located.
Any change of the judicial person’s
head office must be announced.
2. The contact address of a
juridical person shall be the address of its head-office. The juridical person
may select another place as its contact address.
Article 80.
Nationality of judicial persons
Each juridical person established
in accordance with Vietnamese law shall be a Vietnamese juridical person.
Article 81.
Property of judicial persons
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Article 82.
Establishment and registration of juridical persons
1. A juridical person may be
established on the initiative of an individual or another juridical person, or
under a decision of a regulatory agency.
2. Registration of juridical person
includes registration of establishment, modification to registration and other
registration as prescribed by law.
3. The registration of juridical
person must be announced.
Article 83.
Organizational structure of juridical persons
1. Each juridical person must have
an executive body. The organization, duties and powers of the executive body of
a juridical person shall be stipulated in its charter or establishment
decision.
2. Each juridical person may have
other bodies as decided itself or as prescribed by law.
Article 84.
Branches and representative offices of juridical persons
1. Each branch and/or
representative office is an affiliate other than a juridical person.
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3. Each representative office shall
perform its duties as authorized by the in accordance with within the
authorized scope and for the juridical person's interests.
4. The
establishment or termination of a branch or a representative office of a
juridical person must be registered as prescribed by law and announced.
5. The head of each branch or
representative office shall perform his/her duties as authorized by the
juridical person within the authorized scope and for the authorized duration.
6. A juridical person shall have
civil rights and obligations arising from civil transactions established and
performed by its representative offices and/or branches.
Article 85.
Representatives of juridical persons
The representative of a juridical
person may be a legal representative or an authorized representative. The
representative of a juridical person must comply with regulations on
representation in Chapter IX of this Part.
Article 86.
Legal personality of juridical persons
1. The legal personality of a
juridical person is its capability to have civil rights and civil obligations.
The legal personality of a
juridical person shall not be restricted, unless otherwise provided for in this
Code or relevant laws.
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3. Legal personality of a juridical
person terminates from the time of termination of such juridical person.
Article 87.
Civil liability of juridical persons
1. Each juridical person must bear
civil liability for the civil rights and obligations established and performed
in the name of the juridical person by its representative.
The juridical person shall bear the
civil liability for obligations assumed by its founder or founder’s
representative to establish and/or register the juridical person, unless
otherwise agreed or prescribed by law.
2. Each juridical person must bear
civil liability by recourse to its property; shall not bear civil liability for
its members with respect to civil obligations established and performed by such
members not in the name of the juridical person, unless otherwise prescribed by
law.
3. A member of a juridical person
shall not bear civil liability of the juridical person for the civil
obligations established and performed by such juridical person, unless
otherwise prescribed by law.
Article 88.
Consolidation of juridical persons
1. Juridical persons may
consolidate into a new juridical person.
2. After consolidation, the former
juridical persons shall cease to exist from the time of establishment of the
new juridical person; the civil rights and obligations of the former juridical
persons shall be transferred to the new juridical person.
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1. A juridical person (hereinafter
referred to as acquired juridical person) may be merged into another juridical
person (hereinafter referred to as acquiring juridical person).
2. After acquisition, the acquired
juridical person shall cease to exist; the civil rights and obligations of the
acquired juridical person shall be transferred to the acquiring juridical
person.
Article 90.
Total division of juridical persons
1. A juridical person may be
totally divided to multiple juridical persons.
2. After total division, the
transferor juridical person shall cease to exist; the civil rights and
obligations of the transferor juridical person shall be transferred to new
juridical persons.
Article 91.
Partial division of juridical persons
1. A juridical person may be
partially divided to multiple juridical persons.
2. After partial division, the
transferor juridical person and transferee juridical persons shall perform
their civil rights and obligations in accordance with their own operation
objectives.
Article 92.
Conversion of forms of juridical persons
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2. After conversion of form, the
converting juridical person shall cease to exist from the time of establishment
of the converted juridical person, the civil rights and obligations of the
converting juridical person shall be transferred to the converted juridical
person.
Article 93.
Dissolution of juridical persons
1. A juridical person shall be
dissolved in any of the following cases:
a) In accordance with the
provisions of its charter;
b) Pursuant to a decision of a
competent authority;
c) Upon expiry of its term of
operation as provided in its charter or in the decision of the competent
authority;
d) Other cases as prescribed by
law.
2. Prior to dissolution, a
juridical person must fulfill all of its property obligations.
Article 94.
Settlement of property of dissolved juridical persons
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a) Dissolution expenses of the
juridical person;
b) Unpaid salaries, severance pay,
social insurance, health insurance for employees as prescribed by law, other
benefits of employees according to collective bargaining agreement and signed
employment contracts;
c) Tax debts and other debts.
2. After all debts
and dissolution costs are paid, the remaining value shall be received by the
juridical person’s owner, capital contributors, except for the case prescribed
in Clause 3 of this Article or otherwise prescribed by law.
3. In case a
dissolved social fund or charity fund has paid fully dissolution expenses and
other debts prescribed in Clause 1 of this Article, the remaining property
shall be transferred to another fund with the same purpose.
If there is no fund with the same
purpose that receives the property or the above fund is dissolved because of
its violation against to prohibition of law or contrary to social ethics, its
property shall vest in the State.
Article 95.
Bankruptcy of juridical persons
The bankruptcy of each juridical
person shall comply with regulations of law on bankruptcy.
Article 96.
Termination of juridical persons
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a) Consolidation, acquisition,
total division, conversion of legal, or dissolution prescribed in Articles 88,
89, 90, 92 and 93 of this Code;
b) Declaration of bankruptcy in
accordance with law on bankruptcy.
2. A legal person shall terminate
from the time its name is removed from the juridical person registry or as from
the time stated in a decision of competent authority.
3. When a juridical person
terminates, its property shall be resolved in accordance with this Code and
relevant laws.
Chapter V
THE SOCIALIST REPUBLIC OF VIETNAM, CENTRAL AND LOCAL
REGULATORY AGENCIES IN CIVIL RELATIONS
Article 97.
The Socialist Republic of Vietnam, central and local regulatory agencies in
civil relations
When the Socialist Republic of
Vietnam or a central or local regulatory agency engages in a civil relation, it
shall have the equality with other entities and bear civil responsibility as
prescribed in Article 99 and 100 of this Code.
Article 98.
Representatives in civil relations
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Article 99.
Liability for civil obligations
1. The Socialist Republic of
Vietnam, central and local regulatory agencies shall bear liability for their
civil obligations by recourse to the property whose ownership for which they
represent and take centralized management, other than the case that the
property is transferred to the juridical person prescribed in Clause 2 of this
Article.
2. The juridical persons
established by the Socialist Republic of Vietnam, or a central or local
regulatory agency shall not bear liability for civil obligations of the
Socialist Republic of Vietnam, or such central or local regulatory agency.
3. The Socialist Republic of
Vietnam, a central or local regulatory agency shall not bear liability for
civil obligations of the juridical persons established themselves, including
state-owned enterprises, unless the Socialist Republic of Vietnam or such
central or local regulatory agency has acted as a guarantee for those juridical
persons as prescribed by law.
4. A central or local regulatory
agency shall not bear liability for civil obligations of the juridical persons
of the Socialist Republic of Vietnam, or other central or local regulatory
agencies, unless otherwise prescribed by law.
Article 100.
Liability for civil obligations of the Socialist Republic of Vietnam, a central
or local regulatory agency in civil relation in which a foreign state, natural
or juridical person is a party
1. The Socialist Republic of
Vietnam, a central or local regulatory agency shall bear liability for its
civil obligations arising from the following cases with a foreign state,
natural or juridical person is a party:
a) An international agreement to
which the Socialist Republic of Vietnam is a signatory has regulations on
waiving immunity;
b) An agreement on waiving immunity
concluded by the parties in such civil relation;
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2. The liability for civil
obligations of a foreign state, natural or juridical person with the Socialist
Republic of Vietnam, Vietnamese central or local regulatory agencies, natural
or juridical persons shall apply Clause 1 of this Article.
Chapter VI
HOUSEHOLDS, CO-OPERATIVE GROUPS AND OTHER
NON-JURIDICAL PERSONS IN CIVIL RELATIONS
Article 101.
Entities in civil relations with the participation of households, co-operative
groups and other non-juridical persons
1. In case a household,
co-operative group or another non-juridical person engages in a civil relation,
the entities establishing or performing civil transactions for such household,
co-operative group or the other organization shall be its member or a
representative authorized. The authorization must be made in writing, unless
otherwise agreed. If there is any change of representative, it is required to
keep the other party informed about the change.
If a member of a household,
co-operative group or another non-juridical person, without authorization from
other members to act as a representative, engages in a civil relation, he/she
shall be the entity of such civil relation.
2. The entities of civil relations
with the participation of households using land shall be determined as
prescribed in the Law on land.
Article 102.
Common property of members of households, co-operative groups and other
non-juridical persons
1. Common property of members of a
household and their rights and obligations to such property shall be determined
as prescribed in Article 212 of this Code.
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3. Common property of members of
another non-juridical person and their rights and obligations to such property
shall be determined as agreed, unless otherwise prescribed by law.
Article 103.
Civil liability of members of households, co-operative groups and other
non-juridical persons
1. Civil obligations arising from
the engaging in civil relations by households, co-operative groups, other
organizations as non-juridical person shall be fulfilled by recourse their
common property.
2. If all members have no property
or not enough property to fulfill their common obligations, the obligee may
request those members to fulfill the obligations as prescribed in Article 288
of this Code.
3. If the members have no
agreement, co-operative contract or not otherwise prescribed by law, they must
bear the civil liability as prescribed in Clause 1 and Clause 2 of this Article
in proportion to each member’s contribution, if it fails to determine
particular proportions, each member shall have the same proportion.
Article 104.
Consequences of civil transactions established and/or performed by unauthorized
persons or by representatives beyond scope of representation
1. If an unauthorized member, on
behalf of other members of a household, co-operative group or another
non-juridical person, establish or perform a civil transaction, or a
representative establish or perform a civil transaction beyond his/her scope of
representation, the legal consequences of such transaction shall apply
provisions of Articles 130, 142 and 143 of this Code.
2. If a civil transaction
established and/or performed by an authorized member or by a representative
beyond his/her scope of representation cause damage to other members of the
household, co-operative group or the non-juridical persons or a third party,
such person must compensate for the infringed person.
Chapter VII
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Article 105.
Property
1. Property comprises objects,
money, valuable papers and property rights.
2. Property includes immovable
property and movable property. Immovable property and movable property may be
existing property or off-plan property.
Article 106.
Registration of property
1. Ownership and other rights to
immovable property shall be registered in accordance with this Code and law on
registration of property.
2. Ownership and other rights to
movable property shall not be required to be registered, unless otherwise
prescribed by law.
3. The registration of property
must be public.
Article 107.
Immovable property and movable property
1. Immovable property includes:
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b) Houses and constructions
attached to land;
c) Other property attached to land,
houses and constructions;
d) Other property as prescribed by
law.
2. Moveable property is property
which is not immovable property.
Article 108.
Existing property and off-plan property
1. Existing property means a
property which is formed and to which an entity has established his/her
ownership rights and other rights before or at the time of transaction
establishment.
2. Off-plan property includes:
a) Non-formed property;
b) Formed property that the entity
has established his/her ownership rights after the time of transaction
establishment.
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1. Yield means natural products
brought by property.
2. Income means a profit earned
from the development of the property.
Article 110.
Primary objects and auxiliary objects
1. A primary object is an
independent object the utility of which can be exploited according to its
functions.
2. An auxiliary object is an object
which directly supports the exploitation of the utility of a primary object and
which is part of the primary object but which may be separated from it.
3. Upon performance of an
obligation to transfer a primary object, any auxiliary objects must also be
transferred, unless otherwise agreed.
Article 111.
Divisible objects and indivisible objects
1. A divisible object is an object
which, after being divided, retains its original characteristics and usage.
2. An indivisible object is an
object which, after being divided, is not able to retain its original
characteristics and usage.
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Article 112.
Consumable objects and non-consumable objects
1. A consumable object is an object
which, after being having been used once, loses or is not capable of retaining
its original characteristics, appearance and usage.
A consumable object may not be the
object of a lease contract or of a lending contract.
2. A non-consumable object is an
object which, after being having been used many times, substantially retains
its original characteristics, appearance and usage.
Article 113.
Fungible objects and distinctive objects
1. Fungible objects are objects
which have the same appearance, characteristics and usage and which can be
determined by units of measurement.
Fungible objects of the same quality
may be interchangeable.
2. A distinctive object is an
object which is distinguishable from other objects by its own characteristics
regarding markings, appearance, color, material, nature or position.
An obligation to transfer a
distinctive object is only able to fulfill by transferring that particular
distinctive object.
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An integrated object is an object
comprised of components or parts which fit together and are connected with each
other to make up a complete from whereby one of the parts or components is
missing, or if there is a part or component which is not of the right
specification or category, it is not able to be used or its utility value is
decreased.
An obligation to transfer an
integrated object must be fulfilled by transferring all parts or components
thereof, unless otherwise agreed.
Article 115.
Property rights
Property rights are rights which
are able to be valued in money, including property rights to subjects of
intellectual property rights, right to use land and other property rights.
Chapter VIII
CIVIL TRANSACTIONS
Article 116.
Civil transactions
Civil transaction is a contract or
a unilateral legal act which gives rise to, changes or terminates civil rights
and/or obligations.
Article 117.
Conditions for effective civil transactions
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a) Participants in the transaction
have legal personality and/or legal capacity in conformity with such
transaction;
b) Participants in the transaction
act entirely voluntarily;
c) The purpose and contents of the
transaction are not contrary to the law and/or social ethics.
2. The forms of civil transactions
shall be the conditions for its effectiveness in cases where it is so provided
for by law.
Article 118.
Objectives of civil transactions
The objectives of a civil
transaction are legitimate interests which the parties wish to achieve at the
time when they enter into such transaction.
Article 119.
Forms of civil transactions
1. A civil transaction shall be
expressed verbally, in writing, or through specific acts.
Civil transactions by way of
electronic means in form of data messages prescribed in law on electronic
transactions shall be deemed to be written civil transactions.
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Article 120.
Conditional civil transactions
1. In cases where the parties have
agreed on the conditions which shall give rise to or terminate a civil
transaction, such civil transaction shall arise or be terminated upon the
occurrence of such conditions.
2. In cases where the conditions
which give rise to or terminate a civil transaction cannot occur due to the
direct or indirect action of deliberate impeding of one party, such conditions
shall be considered having occurred; if the direct or indirect efforts of one
of the parties promotes deliberately promote the occurrence of conditions so as
to give rise to or terminate the civil transaction, such conditions shall be
deemed not to have occurred.
Article 121.
Interpretation of civil transactions
1. In cases where a civil
transaction may be understood in different ways, such transaction must be
interpreted in the following order:
a) In accordance with the real
intention of the parties at the time when the transaction was entered into;
b) In a manner consistent with the
objective of the transaction;
c) In accordance with the customary
practice of the place where the transaction was entered into.
2. The interpretation of civil
contracts shall comply with the provisions of Article 404 of this Code and the
interpretation of the contents of testaments shall comply with the provisions
of Article 648 of this Code.
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Civil transactions which fail to
satisfy any one of the conditions specified in Article 117 of this Code shall
be invalid.
Article 123.
Invalidity of civil transactions due to breach of legal prohibitions or
contravention of social ethics
Civil transactions with objectives
and contents which breach legal prohibitions or which contravene social ethics
shall be invalid.
Legal prohibitions mean provisions
of law which do not permit entities to perform certain acts.
Social ethics are common standards
of conduct as between persons in social life, which are recognized and
respected by the community.
Article 124.
Invalidity of civil transactions due to falsification
1. If the parties falsely enter
into a civil transaction for the purpose of concealing another transaction, the
false transaction shall be invalid and the concealed transaction remains valid,
unless it is also invalid under the provisions of this Code or relevant laws.
2. If the parties enter into a
civil transaction falsely for the purpose of evading responsibilities to a
third person, such transaction shall be invalid.
Article 125.
Invalidity of civil transactions established and performed by minors or legally
incapacitated persons or persons with limited cognition and behavior control or
persons with limited legal capacity
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2. A civil transaction of a person
prescribed in Clause 1 of this Article shall not be invalid in any of the
following cases:
a) The civil transaction of a child
less than 6 years of age or a legally incapacitated person established for
his/her daily needs;
b) The civil transaction only
either arising rights or exempting from obligations for the minor, the legally
incapacitated person, the person with limited cognition and behavior control,
the person with limited legal capacity and their contracting parties;
c) The civil transaction of which
validity is recognized by the person established such transaction that become
an adult or restore his/her legal capacity.
Article 126.
Invalidity of civil transactions due to misunderstanding
1. If there is a misunderstanding
in a civil transaction that make a party or the parties fails to meet the
objectives of the transaction establishment, the mistaken party shall have the
right to request a court to declare such transaction invalid, except for the
case prescribed in Clause 2 of this Article.
2. A civil transaction having
misunderstanding shall not be invalid if the parties may meet the objectives of
the transaction establishment or the parties may correct the misunderstanding
resulting in the achievement of the objectives of the transaction
establishment.
Article 127.
Invalidity of civil transactions due to deception, threat or compulsion
Any party entering into a civil
transaction as a result of deception, threat or compulsion has the right to
request a court to declare such transaction invalid.
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Threat or compulsion in a civil
transaction means an intentional act of a party or a third person which compels
the other party to conduct the civil transaction in order to avoid danger to
the life, health, honor, reputation, dignity and/or property or that of its
relatives.
Article 128.
Invalidity of civil transactions established by person lacking in cognition and
behavior control
A person who has legal capacity but
has entered into a civil transaction at the time of he/she is lacking in
cognition and behavior control shall have the right to request a court to
declare such civil transaction invalid.
Article 129.
Invalidity of civil transactions due to non-compliance with form
A civil transaction violating
conditions for validity pertaining to form shall be invalid, except for any of
the following cases:
1. If the form of a civil
transaction, required to be established in writing, does not comply with
regulations of law, but a party or the parties has/have fulfill at least two
third of the obligations in the transaction, a court, at his/her/their
request(s), shall issue a decision on recognition of the validity of such transaction.
2. If the form of a civil
transaction, required to be established in writing, violates against
regulations on notarizing or authorization, but a party or the parties has/have
fulfill at least two third of the obligations in the transaction, a court, at
his/her/their request(s), shall issue a decision on recognition of the validity
of such transaction. In this case, the parties need not perform the notarizing
or authorization.
Article 130.
Partially invalid civil transactions
A civil transaction shall be
partially invalid when one part of the transaction is invalid but such
invalidity does not affect the validity of the remaining parts.
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1. An invalid civil transaction
shall not give rise to, change or terminate any civil rights and obligations of
the parties as from the time the transaction is entered into.
2. When a civil transaction is
invalid, the parties shall restore everything to its original state and shall
return to each other what they have received.
If the restitution is not able to
make in kind, it may paid in money.
3. A bona fide person in receiving
yield and/or income is not required to return such yield and/or income.
4. The party at fault which caused
damage must compensate therefore.
5. The settlement of consequences
of invalid civil transactions regarding personal rights shall be prescribed in
this Code and relevant laws.
Article 132.
Time limit for requesting court to declare civil transactions invalid
1. The time limit within which a
request may be made to a court to declare a civil transaction invalid as
specified in Articles 125 thru 129 of this Code shall be two years as from the
date on which:
a) The representative of a minor, a
legally incapacitated person, a person with limited cognition and behavior
control or a person with limited legal capacity knows and should know the ward
established and/or performed the transaction himself/herself.
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c) The person that threatened or
compelled other persons in a transaction put an end to such acts;
d) The person lacking in cognition
and behavior control establishes his/her transaction;
dd) The civil transaction is
established in non-compliance with form.
2. After the time limit prescribed
in Clause 1 of this Article, if there is still no request for declaring civil
transaction invalid, such transaction still remains valid.
3. For civil transactions specified
in Articles 123 and 124 of this Code, the time limit for requesting a court to
declare such civil transactions invalid shall not be restricted.
Article 133.
Protection of the interests of bona fide third parties with regard to invalid
civil transactions
1. In cases where a civil
transaction is invalid but the transacted property being a moveable property is
not required to be registered and such property has already been transferred to
a bona fide third party through another transaction, the transaction with the
third party shall remain valid, except for the case specified in Article 167 of
this Code.
2. In cases where a civil
transaction is invalid but the transacted property is registered at a competent
authority and such property has already been transferred to a bona fide third
party through another transaction which is established according to that
registration, such transaction shall remain valid.
In cases where the transacted
property which is required to be registered has not registered at a competent
authority, the transaction with the third party shall be invalid, except for
cases the bona fide third party received such property through an auction or a
transaction with an another party being the owner of such property pursuant to
a judgment or decision of a competent authority but thereafter such person is
not the owner of the property as a result of the judgment or decision being
amended or annulled.
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Chapter IX
REPRESENTATION
Article 134.
Representation
1. Representation means a person
(hereinafter referred to as the representative) acting in the name and for the
benefit of another person (hereinafter referred to as the principal) enters
into and performs a civil transaction within the scope of representation.
2. Each natural or juridical person
may enter into and/or perform civil transactions through a representative. A
natural person may not allow another person to represent him/her; if the law
provides for that they must personally enter into and perform such transaction.
3. The representative, if required
by law, must have legal personality and/or legal capacity in accordance with
the transactions that he/she enters into and performs.
Article 135.
Basis for establishment of representation rights
Representation rights shall be
established according to a power of attorney between a principal and a
representative (hereinafter referred to as authorized representation);
according to a decision of a competent authority, a charter of a juridical
person or as prescribed by law (hereinafter referred to as legal
representation).
Article 136.
Legal representatives of natural persons
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2. The guardian with respect to a
ward. The guardian of a person with limited cognition and behavior control is a
legal representative if appointed by a court.
3. The person appointed by a court
in case where it is not able to determine the representative prescribed in
Clause 1 and Clause 2 of this Article.
4. The person appointed by a court
with respect to a person with limited legal capacity.
Article 137.
Legal representatives of juridical persons
1. Legal representatives of
juridical persons include:
a) The person appointed by the
juridical person according to its charter;
b) The person competent to
represent as prescribed by law;
c) The person appointed by a court
during the proceedings at the court.
2. Each juridical person may have
multiple legal representatives and each representative is entitled to represent
the juridical person as prescribed in Articles 140 and 141 of this Code.
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1. Each natural or juridical person
may authorize another natural or juridical person to enter into and perform a
civil transaction.
2. Members of a household,
co-operative group or a non-juridical person may agree to authorize another
natural or juridical person to enter into and perform a civil transaction
related to their common property.
3. A person aged from fifteen years
to below eighteen years may be an authorized representative, except where the
law provides for that the civil transaction must be entered into and performed
by a person who has reached eighteen years of age.
Article 139.
Legal consequences of representative acts
1. A civil transaction entered into
and performed with a third person by a representative in accordance with
his/her scope of authorization shall give rise to rights and obligations of the
principal.
2. The representative is entitled
to enter into and/or perform necessary acts to attain the objectives of the
authorization.
3. In case where a representative
still enters into or performs a civil transaction although he/she knew or
should know the establishment of authorization due to misunderstanding, deception,
threat or compulsion, such civil transaction shall not give rise to rights and
obligations of the principal, except for the case that the principal knew or
should know such misunderstanding, deception, threat or compulsion without any
objection.
Article 140.
Term of representation
1. The term of representation shall
be determined according to a power of attorney, a decision of a competent
authority, and a charter of a juridical person or as prescribed by law.
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a) If the representation right is
determined according to a specific civil transaction, the time limit for
representation shall be determined until the time of termination of such civil
transaction;
b) If the representation right is
not determined according to a specific civil transaction, the term of
representation is 1 year, from the time of arising representation right.
3. The authorized representation
shall terminate in any of the following cases:
a) Upon an agreement;
b) Upon expiry of the term of
authorization;
c) Upon completion of the
authorized tasks;
d) The principal or the
representative unilaterally revokes the authorization;
dd) The principal or the
representative being natural person dies; the principal or the representative
being juridical person ceases to exist;
e) The representative does not meet
the conditions prescribed in Clause 3 Article 134 of this Code;
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4. The legal representation shall
terminate in any of the following cases:
a) The principal being natural
person becomes an adult or has his/her legal capacity restored;
b) The principal being person dies;
c) The principal being juridical
person ceases to exist;
d) Upon another basis as prescribed
in this Code and relevant laws.
Article 141.
Scope of representation
1. Each representative may only
enter into and/or perform civil transactions within his/her scope of
representation according to any of the following bases:
a) The decision of the competent
authority;
b) The charter of the juridical
person;
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d) Other regulations as prescribed
by law.
2. If it fails to determine the
specific scope authorization prescribed in Clause 1 of this Article, the legal
representative has the right to enter into and perform all civil transactions
in the interests of the principal, unless otherwise prescribed by law.
3. A natural or juridical person may
represent multiple natural or juridical persons but he/she/it may not, on
behalf of the principal, enter into and perform a civil transaction with
him/her/it or with a third party that he/she/it also acts as a representative
therefor, unless otherwise prescribed by law.
4. The representative must inform
the parties of the scope of his/her representation.
Article 142.
Consequences of civil transactions entered into and performed by unauthorized
persons
1. A civil transaction entered into
and performed by an unauthorized person representative shall not give rise to
rights and obligations of the principal, except for any of the following cases:
a) The principal recognizes the
transaction;
b) The principal knows it without
any objection within an appropriate time limit;
c) It is the principal's fault that
the other party does not know or is not able to know that the person entering
into and performing the civil transaction therewith was unauthorized.
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3. A person having transacted with
an unauthorized person has the right to terminate unilaterally the performance
of or to terminate the civil transaction entered into and to demand
compensation for any damage, except where such person knew or should have known
that the representative was unauthorized or the case prescribed in Point a
Clause 1 of this Article.
4. If the unauthorized person and
the other party in a civil transaction deliberately enter into and perform such
transaction and thereby cause damage to the principal, they must jointly
compensate for the damage.
Article 143.
Consequences of civil transactions entered into and performed by
representatives beyond scope of representation
1. A civil transaction entered into
and performed by a representative beyond his or her scope of representation
shall not give rise to rights and obligations of the principal with respect to
that part of the transaction which exceeded the scope of representation, except
for any of the following cases:
a) The principal gives consent;
b) The principal knows it without
any objection within an appropriate time limit;
c) It is the principal's fault that
the other party does not know or is not able to know that the person entering
into and performing the civil transaction therewith was beyond his/her scope of
representation.
2. If a civil transaction entered
into and performed by a representative beyond his/her scope of representation
does not give rise to rights and obligations of the principal with respect to
that part of the transaction, the representative must fulfill the obligations
owning to the person with which he/she transacted in respect of the part of
transaction which is beyond the scope of representation, unless such person
knew or should have known that the scope of representation was exceeded.
3. A person having transacted with
such representative has the right to terminate unilaterally the performance of
or to terminate the civil transaction with respect to that part which is beyond
the scope of representation or with respect to the entire transaction and to
demand compensation for any damage, except where such person knew or should
have known that the scope of representation was exceeded or the case prescribed
in Point a Clause 1 of this Article.
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Chapter X
TIME LIMITS AND PRESCRIPTIVE PERIODS
Section 1.
TIME LIMITS
Article 144.
Time limits
1. Time limit means a length of
time calculated from one point of time to another point of time.
2. A time limit may be calculated
by reference to minutes, hours, days, weeks, months or years, or by reference
to the happening of an event.
Article 145.
Methods for calculating time limits
1. The method for calculating a
time limit shall be apply in accordance with the provisions of this Code,
unless otherwise agreed or otherwise provided by law.
2. A time limit shall be calculated
according to the solar calendar, unless otherwise agreed.
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1. Where the parties have agreed on
a time limit which is one year, half of one year, one month, half of one month,
one week, one day, one hour or one minute, but such length of time is not
continuous, the time limit shall be calculated as follows:
a) One year shall be three hundred
and sixty five (365) days;
b) Half of one year shall be six
months;
c) One month shall be thirty (30)
days;
d) Half of one month shall be
fifteen (15) days;
dd) One week shall be seven days;
e) One day shall be twenty four
(24) hours;
g) One hour shall be sixty (60)
minutes;
h) One minute shall be sixty (60)
seconds.
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a) The beginning of a month shall
be the first day of that month;
b) The middle of a month shall be
the fifteenth day of that month;
c) The end of a month shall be the
last day of that month.
3. Where the parties have agreed on
a point of time which is at the beginning of the year, the middle of a year or
the end of a year, such point of time shall be determined as follows:
a) The beginning of a year shall be
the first day of January;
b) The middle of a year shall be
the last day of June;
c) The end of a year shall be the
last day of December.
Article 147.
Commencement of time limits
1. Where a time limit is stated by
reference to minutes or hours, it shall commence from a defined moment of time.
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3. Where a time limit is stated by
reference to the happening of an event, the date on which the event happens shall
not be taken into account and the time limit shall commence from the day
following the date on which the event happened.
Article 148.
End of time limits
1. Where a time limit is stated by
reference to days, the time limit shall end at the last moment of the last day
of the time limit.
2. Where a time limit is stated by
reference to weeks, the time limit shall end at the last moment of the
corresponding day of the last week of the time limit.
3. Where a time limit is stated by
reference to months, the time limit shall end at the last moment of the
corresponding day of the last month of the time limit. If the month in which
the time limit ends does not have a corresponding day, the time limit shall end
on the last day of such month.
4. Where a time limit is stated by
reference to years, the time limit shall end at the last moment of the
corresponding day and month of the last year of the time limit.
5. Where the last day of a time
limit falls on a weekend or a public holiday, the time limit shall end at the
last moment of the next working day following such day.
6. The last moment of the last day
of a time limit shall be precisely twelve o'clock midnight on that day.
Section 2.
PRESCRIPTIVE PERIODS
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1. Prescriptive period means a time
limit provided by law where, upon its expiry, a legal consequence arises as
prescribed by law.
The prescriptive periods shall
apply as prescribed in this Code and relevant laws.
2. A court only applies provisions
in terms of prescriptive periods at the request of a party or the parties
provided that such request is filed before the first trial court of first
instance gives a judgment and/or a decision on settlement.
The person benefiting from the
application of the prescriptive period may refuse to apply such prescriptive
period, unless such refusal is aimed at evading his/her obligations.
Article 150.
Types of prescriptive periods
1. A prescriptive period for
enjoying civil rights is the time limit where, upon its expiry, an entity
enjoys civil rights.
2. A prescriptive period for a
release from civil obligations is the time limit where, upon its expiry, a
person with civil obligations is released from the fulfillment of those civil
obligations.
3. A prescriptive period for
initiating legal action is the time limit within which an entity has the right
to initiate legal action to request a court to resolve a civil case to protect
the infringed legal rights or interests of the entity. When such time limit
expires, the right to initiate such legal action shall be lost.
4. A prescriptive period for
requesting resolution of a civil case is the time limit within which an entity
has the right to request a court to resolve a civil case in order to protect
the legal rights and interests of natural persons, juridical persons, public
interest and/or the interest of the State. When such time limit expires, the
right to request shall be lost.
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A prescriptive period shall be
calculated from the first moment of time of the first day and shall end at the
last moment of time of the last day of the period.
Article 152.
Effectiveness of prescriptive periods for enjoyment of civil rights and release
from civil obligations
Where the law provides for that a
subject may enjoy civil rights or be released from civil obligations by
reference to a prescriptive period, the enjoyment of civil rights or the
release from civil obligations shall take effect only upon expiry of the
prescriptive period.
Article 153.
Continuity of prescriptive periods for enjoyment of civil rights and release
from civil obligations
1. The prescriptive period for
enjoyment of civil rights or release from civil obligations shall continue
uninterrupted from its beginning to its expiry. If there is an event causing an
interruption, the prescriptive period shall recommence from the moment when the
event causing the interruption ends.
2. The prescriptive period for
enjoyment of civil rights or release from civil obligations shall be suspended
upon occurrence of any of the following events:
a) A competent authority makes a
resolution with respect to the civil rights and obligations which are the
subject of the prescriptive period;
b) Civil rights or obligations
which are the subject of a prescriptive period are disputed by a person with
related rights or obligations and they are settled by an effective judgment or
decision issued by a court.
3. The prescriptive period shall
continue uninterrupted where the enjoyment of civil rights or the release from
civil obligations or the right to initiate legal action is lawfully transferred
to another person.
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1. The commencement of the
prescriptive period for initiating legal action for a civil case shall be
calculated from the date on which the eligible person knows or should know that
his/her legal rights or interests are infringed, unless otherwise provided by
law.
2. The commencement of the
prescriptive period for requesting resolution of a civil case shall be
calculated from the date when the right to request arises, unless otherwise
provided by law.
Article 155.
Non-applicability of prescriptive periods
A prescriptive period for
initiating legal action for a civil case shall not apply in any of the
following cases:
1. Request for the protection of
personal rights not associated with property;
2. Request for the protection of
ownership rights, unless otherwise provided by this Code or relevant laws.
3. Dispute over land use right as
prescribed in the Law on land;
4. Other cases as provided by law.
Article 156.
Time periods excluded from prescriptive periods for initiating legal action for
civil cases and from prescriptive periods for requesting resolution of civil
cases
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1. An event of force majeure or
other objective hindrance which renders the person with the right to initiate
legal action for a civil case or make the request not able to do so within the
prescriptive period.
An event of force majeure is an
event which occurs in an objective manner which is not able to be foreseen and
which is not able to be remedied by all possible necessary and admissible
measures being taken.
An objective hindrance is a
hindrance which in an objective context results in a person with civil rights
or obligations not knowing that his or her lawful rights and interests have
been infringed or not being able to exercise his or her rights or fulfill his
or her civil obligations;
2. The person with the right to
initiate legal action for a civil case or to make the request is a minor or a
legally incapacitated person, a person with limited cognition and behavior
control or a person with limited legal capacity, and does not yet have a
representative.
3. The representative of a minor or
a legally incapacitated person, a person with limited cognition and behavior
control or a person with limited legal capacity has not yet been replaced in
any of the following cases:
a) The representative being natural
person dies or the representative being juridical person ceases to exist;
b) The representative, for good
reasons, cannot continue his/her representation.
Article 157.
Re-commencement of prescriptive period for initiating legal action for civil
cases
1. The prescriptive period for
initiating legal action for a civil case shall re-commence in any of the
following cases:
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b) The obligor has acknowledged or
fulfilled part of its obligations to the plaintiff;
c) The parties have become
reconciled.
2. The prescriptive period for
initiating legal action for a civil case shall re-commence from the date
following the date on which the event provided in clause 1 of this Article
occurs.
PART TWO
OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED RIGHTS
Chapter XI
GENERAL PROVISIONS
Section 1.
Rules for establishing and exercising ownership rights and other
property-related rights
Article 158.
Ownership rights
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Article 159.
Other property-related rights
1. Other property-related rights
mean rights of entities directly hold or control the property belonging to
ownership rights of another entity.
2. Other property-related rights
include:
a) Right to adjacent immovable
property;
b) Usufruct right;
c) Surface rights.
Article 160.
Rules for establishing and exercising ownership rights and other
property-related rights
1. Ownership rights and other
property-related rights shall be established and exercised if they are
prescribed in Code and relevant laws.
Other property-related rights shall
remain valid although the ownership right have been transferred, otherwise
provided by this Code or relevant laws.
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3. Each holder of other
property-related rights is entitled to perform all acts within the scope
prescribed in this Code and relevant laws but it is not contrary to the
provisions of the law, damage or adversely affects national interests, ethnicity,
public interests, rights and legitimate interests of the owner or other people.
Article 161.
Time of establishing ownership rights and other property-related rights
1. The time of establishing
ownership rights and other property-related rights shall be determined as
prescribed in this Code and relevant laws; if there is no relevant regulations
of law, the agreement of the parties shall prevail; if there is no either
relevant regulations of law or agreement of the parties, the time of
establishing ownership rights and other property-related rights shall be the
time when the property is transferred.
The time when the property is
transferred is the time when the obligee or his/her legal representative
possesses the property.
2. In case where the property which
has been not transferred arise yield or income, such yield or income shall
belong to the transferor, unless otherwise agreed.
Article 162.
Bearing risks of property
1. Each owner shall bear all risks
of the property under his/her ownership, unless otherwise agreed or unless
otherwise prescribed by this Code or relevant laws.
2. Each holder of other
property-related rights shall bear risks of the property within his/her right
scope, unless otherwise agreed with the owner of the property or unless otherwise
prescribed by this Code or relevant laws.
Section 2.
PROTECTION OF OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED RIGHTS
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1. No one may be illegally
restricted in or deprived of his/her ownership rights or other property-related
rights to his/her property.
2. In case of extreme necessity for
reasons of national defense, security or national interests, the State shall
affect a compulsory purchase or requisition with compensation of the property
of organizations or individuals in accordance with the market prices.
Article 164.
Measures for protection of ownership rights and other property-related rights
1. Each owner or holder of other
property-related rights is entitled to self-protect and prevent anyone from
infringing his/her rights by measures in accordance with regulations of law.
2. Each owner or holder of other
property-related rights shall have the right to request a court or another
competent authority to compel the person infringing upon their rights to return
the property and terminate the acts of illegally obstructing the exercise of
their ownership rights or other property-related rights, and to request
compensation for any damage.
Article 165.
Possession with a legal basis
1. Possession with a legal basis is
the possession of a property in any of the following cases:
a) The owner possesses the
property;
b) A person is authorized by the
owner to manage the property;
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d) A person who discovers and keeps
derelict property, property with unidentified owners, property which has been
let drop on the ground, left over out of inadvertence, buried or sunken in
accordance with this Code and/or relevant laws.
dd) A person who discovers and
keeps stray domestic animals, poultry or raised aquatic animals in accordance
with this Code and/or relevant laws;
e) Other cases as prescribed by
law.
2. A possession of property which
does not comply with the provisions of Clause 1 of this Article is a possession
without a legal basis.
Article 166.
The right to reclaim property
1. Owners and/or holders of other
property-related rights shall have the right to request the persons possessing,
using or receiving benefits from the property without a legal basis to return
such property.
2. The owner of a property has no
right to reclaim such property that is in the possession of a holder of other
property-related rights.
Article
167. The right to reclaim movable property not subject to ownership right
registration from bona fide possessors
Owners may reclaim movable property
not subject to ownership right registration from bona fide possessors in cases
where such bona fide possessors have acquired such property through
unindemifiable contracts with persons who have no right to dispose of the
property; in case of indemifiable contracts, the owners may reclaim the movable
property if such movable property has been stolen, lost or other cases of
possession against the owners' will.
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Owners may reclaim their movable
property subject to ownership right registration and immovable property, except
for cases prescribed in Clause 2 Article 133 of this Code.
Article
169. The right to request the prevention of acts of illegally obstructing
the exercise of ownership rights and other property-related rights
When exercising their ownership
rights or other property-related rights, the owners or holders shall have the
right to request persons committing acts of illegally obstructing the exercise
of their lawful ownership rights or possession rights to terminate such acts or
request a court or another competent authority to compel such persons to
terminate their violations.
Article
170. The right to request compensation for damage
Owners or holders of other
property-related rights are entitled to request persons infringing upon their
ownership rights or other property-related rights to compensate for any damage.
Section 3.
RESTRICTIONS ON PROTECTION OF OWNERSHIP RIGHTS AND OTHER PROPERTY-RELATED
RIGHTS
Article 171.
Rights and obligations of owners and holders of other property-related rights
in emergency circumstances
1. An emergency circumstance is a
circumstance where in order to avert a danger actually and directly threatening
the interests of the State or of a collective, or the legitimate rights or interests
of their own or of other persons, a person has no alternative but to take an
act which would cause lesser damage than the damage to be prevented.
2. In an emergency circumstance,
the owner and holder of other property-related rights to a property must not
hinder another person from using his/her own property or hinder another person
from causing damage to such property in order to prevent or abate the greater
danger or damage that threatens to happen.
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Article
172. Obligations to protection of the environment
When exercising ownership rights
and/or other property-related rights, the owner or the holder must comply with
the provisions of law on environmental protection; if he/she causes
environmental pollution, the owner shall have to terminate the acts which cause
the pollution, to take measures to remedy the consequences and to compensate
for damage.
Article
173. Obligations to respect and ensure social order and safety
When exercising ownership rights
and/or other property-related rights, the owner or the holder must respect and
ensure social order and safety and must not abuse his/her ownership rights to
cause social disorder or unsafety, causing damage to the State interests,
public interests or legitimate rights and interests of other persons.
Article
174. Obligation to respect building regulations
When constructing a project, the
owners and holders of other property-related rights must comply with the law on
construction, ensure safety. It may not build beyond the height and distance
specified by the law on construction and infringes the legitimate rights and
interests of owners of adjoining and surrounding immovable properties.
Article 175.
Boundaries between immovable properties
1. The boundaries between adjoining
immoveable properties shall be determined in accordance with the agreement of
the owners or in accordance with a decision of the competent authority.
The boundaries may also be
determined in accordance with customary practice or according to boundaries which
have existed for thirty (30) or more years without dispute.
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2. A person having land use rights
may use the airspace and the sub-surface according to the vertical dimensions
of the boundaries around the land as prescribed by law and may not interfere
with the use by other persons of the adjoining land.
A land user may only plant trees
and performs other activities within the area covered by its land use rights
and according to the defined boundaries. If the roots and branches of trees
extend beyond the boundaries, such person must clip and prune the parts of the
trees beyond the boundaries, except as otherwise agreed.
Article 176.
Boundary markers separating immovable property
1. An owner of adjoining immoveable
property may only erect boundary stakes and fences and build separating walls
on the area covered by its land use rights.
2. Adjoining land users may agree
to the erection of boundary stakes and fences, the building of separating walls
and the planting of trees on the boundary for use as boundary markers between
the immoveable properties, and the boundary markers shall be under the multiple
ownership of such persons.
Where a boundary marker is erected
on the boundary by only one party with the consent of the owner of the
adjoining immoveable property, such boundary marker shall be multiple ownership
property and the construction expenses shall be borne by the party having
erected the marker, unless otherwise agreed. If the owner of the adjoining
immoveable property does not give consent and has legitimate reason, the owner
having erected the boundary stake or fence or built the separating wall must
remove it.
3. With respect to boundary markers
which are common house walls, the owner of the adjoining immoveable property
may not cut out a window or air ventilating hole or drill the wall in order to
install building structures, except with the consent of the owner of the
adjoining property.
Where houses are separately built,
but with adjoining walls, an owner may only drill and install building
structures up to the space between the adjoining walls.
With respect to trees which are
common boundary markers, the parties have equal obligations to protect the
trees, and the fruits from the trees shall be distributed equally, unless
otherwise agreed.
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1. Where there is a danger that a
tree or a construction will collapse onto an adjoining immoveable property, the
owner must cut down the tree or repair or demolish the construction at the
request of the owners of adjoining immovable property or a competent authority.
If such person does not cut down the tree or demolish the construction, the
owner of an adjoining immoveable property may request a competent authority to
procure that the tree be cut down or the structure be demolished. The expenses
for cutting down the tree or demolishing the construction shall be borne by the
owner of the tree or the structure.
2. When digging a well or a pond or
constructing underground structures, the owner of the project must do so at the
distance away from the boundaries provided by the law on construction.
When constructing a hygiene
construction work, a storehouse of hazardous materials and other construction
works likely to cause environmental pollution, the owner of that property must
build it a distance far from the markers and in reasonable location, ensure
hygiene and safety and do not affect the owners of other immovable properties.
3. If damage is caused to the
owners of adjoining or neighboring properties prescribed in Clauses 1 and 2 of
this Article, compensation must be made.
Article 178.
Installing doors and windows opening onto adjacent immovable property
1. A house owner may only install
entry and exit doors and windows opening onto adjacent houses or opposite
houses and common walkways in accordance with the law on construction.
2. The underside of awnings above
entry and exit doors or the underside of awnings of windows opening onto common
walkways must be at least two point five (2.5) meters above the ground.
Chapter XII
POSSESSION
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1. Possession means that an entity
holds and controls a property directly or indirectly as holder of rights to
such property.
2. Possession includes possession
of owners and possession of non-owners.
The possession of non-owners may
not be the basis for establishment of ownership, except for the cases
prescribed in Articles 228, 229, 230, 231, 232, 233 and 236 of this Code.
Article 180.
Possession in good faith
Possession in good faith means the
possession that the possessor has bases to believe that he/she has the right to
the property under his/her possession.
Article 181.
Possession not in good faith
Possession not in good faith means
that the possession that the possessor knew or should have known that he/she
has no right to the property under his/her possession.
Article 182.
Continuous possession
1. Continuous possession of
property is possession of property which occurs over a period of time without
dispute relating to such property or with dispute but no effective judgment or
decision on settlement of such dispute is issued, including the case when the
property is delivered to another person for possession.
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Article 183.
Overt possession
1. Possession of property shall be
deemed to be overt possession when it occurs in a transparent manner, without
concealment; when property currently being possessed is used in accordance with
its functions and usage and is preserved and retained by the possessor as if it
were his or her own property.
2. The overt possession shall not
be treated as the basis for presuming status and rights of possessors
prescribed in Article 184 of this Code.
Article 184.
Presuming status and rights of possessors
1. Each possessor shall be presumed
in good faith. If a person believes that such possessor is not in good faith,
he/she must prove it.
2. If there is a dispute over the
rights to a property, the possessor of such property shall be presumed to have
those rights. The disputing person must prove that the possessor have no right.
3. A person possessing in good
faith, continuously and overtly shall be eligible for prescriptive periods for
enjoying the rights and enjoy the yield and income derived from the property as
prescribed in this Code and relevant laws.
Article 185.
Protection of possession
When the possession is violated by
another person, the possessor is entitled to, personally or through a court or
a competent authority, compels the violator to terminate his/her violation,
make restitution, return the property and compensate for any damage.
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OWNERSHIP RIGHTS
Section 1.
Contents of ownership rights
Sub-section 1. RIGHT TO POSSESS
Article 186.
Right to possess of owners
Where an owner possesses its own
property, such owner may do all things to keep and manage the property in
accordance with his or her wishes provided that it is not contrary to law or
social morals to do so.
Article 187.
Right to possess of persons managing property under authorization of owner
1. When an owner authorizes another
person to manage his or her property, the authorized person shall exercise the
right to possess such property within the scope, in the manner and for the
duration determined by the owner.
2. A person authorized to manage
property is not able to become the owner of the property delivered as
prescribed in Article 236 of this Code.
Article 188.
Right to possess of persons to which property is delivered through civil
transactions
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2. The person to which the property
is delivered has the right to use such property and is entitled to transfer the
right to possess and use the property to another person if the owner so agrees.
3. The person to whom the property
is delivered is not able to become the owner of that property as prescribed in
Article 236 of this Code.
Sub-section 2. RIGHT TO USE
Article 189.
Right to use
Right to use means the right to
exploit the usage of, and to enjoy the yield and income derived from, property.
The right to use may be transferred
to another person upon an agreement or as prescribed by law.
Article 190.
Right to use of owners
The owner has the right to use
property in conformity with his/her wishes provided that this will not cause
damage to or adversely affect the interests of the State or the public or the
legal rights and interests of other persons.
Article 191.
Right to use of non-owners
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Sub-section 3. RIGHT OF DISPOSAL
Article 192.
Right of disposal
Right of disposal means the right
to transfer ownership rights, renounce ownership rights, right to use, or
destruct the property.
Article 193.
Conditions for disposal
Disposal of property must be
performed by a person with legal capacity in accordance with law.
Where the law provides formalities
and procedures for disposal of property, such formalities and procedures must
be complied with.
Article 194.
Right of disposal of owners
Owners shall have the right to
sell, exchange, give, loan, bequeath, renounce or ownership rights, right to
use, destruct or implement other forms of disposal in conformity with the law
on property.
Article 195.
Right of disposal of non-owners
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Article 196.
Restrictions on right of disposal
1. The right of disposal shall only
be restricted in cases where the law so provides.
2. Where a property for sale is an
historic or cultural relic as prescribed in law on cultural heritage, the State
shall have the right of first refusal to purchase.
Where a natural or juridical person
has the right of first refusal to purchase certain property in accordance with
law, upon the sale of such property, the owner must grant such right of first
refusal to purchase to such person.
Section 2.
FORMS OF OWNERSHIP
Sub-section 1. THE PEOPLE’S
OWNERSHIP
Article 197.
Property under the people’s ownership
Land, water resources, mineral
resources, resources in the waters, airspace and other natural resources and
the assets invested and/or managed by the State belong to the entire people
with the representation and centralized management of the State.
Article 198.
Exercise of right of owner with respect to the people-owned property
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2. The Government shall manage
centrally and ensure the appropriate, efficient and economic use of the
people-owned property.
Article 199.
Possession, use and disposal of the people-owned property
The possession, use and disposal of
the people-owned property shall be performed within the scope and in accordance
with the procedures provided by law.
Article 200.
Exercise of the people ownership rights with respect to property invested in
enterprises
1. Where the people-owned property
is invested in an enterprise, the State shall exercise the rights of the owner
with respect to such property in accordance with the law on enterprises,
management and use of state capital investing in business at enterprises and
relevant laws.
2. Enterprises have the right to
manage and use capital, land, natural resources and other property invested by
the State in accordance with the relevant laws.
Article 201.
Exercise of the people ownership rights with respect to property allocated to
regulatory agencies and units of armed forces
1. Where property in the category
of the people-owned property is allocated to a regulatory agency or unit of the
armed forces, the State shall exercise the right to inspect the management and
use of such property.
2. The regulatory agency or unit of
the armed forces shall manage and use the property allocated by the State for
the correct purpose in accordance with law.
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1. Where property in the category
of the people-owned property is allocated to a political organization,
socio-political organization or socio-political professional organization,
social organization or socio-professional organization, the State shall
exercise the right to inspect the management and use of such property.
2. The political organization,
socio-political organization or socio-political professional organization,
social organization or socio-professional organization has the right to manage
and use the property allocated to it by the State for the correct purpose,
within the scope and in accordance with the methods and procedures provided by
law, and consistent with the functions and duties of such organization as
provided in its charter.
Article 203.
Rights of natural and juridical persons with respect to use of property in
category of the people-owned property
Natural and juridical persons may
use land and extract aquatic resources, natural resources and other properties
in the category of the people-owned property for the correct purpose and
effectively and must fulfill all of their obligations to the State in
accordance with law.
Article 204.
Property in category of the people-owned property not having been allocated to
natural and juridical persons for management
With respect to property in the
category of the people-owned property which has not been allocated to a natural
and juridical person for management, the Government shall organize protection,
investigation and survey, and formulation of zoning in order to make such
property available for use.
Sub-section 2. PRIVATE OWNERSHIP
Article 205.
Private ownership and property under private ownership
1. Private ownership means the
ownership by a natural person or a juridical person.
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Article 206.
Possession, use and disposal of property under private ownership
1. An owner has the right to
possess, use and dispose of property under his or her ownership for the purpose
of satisfying the needs of daily life, consumption or business activities and
other purposes in accordance with law.
2. The possession, use and disposal
of property under private ownership must not cause damage to or adversely
affect the interests of the State or the public or the legal rights and
interests of other persons.
Sub-section 3. MULTIPLE
OWNERSHIP
Article 207.
Multiple ownership and types of multiple ownership
1. Multiple ownership means
ownership of property by more than one owner.
2. Multiple ownership comprises
ownership in common and joint ownership.
Article 208.
Establishment of multiple ownership rights
Multiple ownership rights shall be
created as agreed by the owners or in accordance with provisions of the law or
in accordance with customary practice.
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1. Ownership in common is multiple
ownership whereby each owner's share of the ownership rights with respect to
the multiple ownership property is specified.
2. Each of the owners in common has
rights and obligations with respect to the multiple ownership property
corresponding to its share of the ownership rights, unless otherwise agreed.
Article 210.
Joint ownership
1. Joint ownership means multiple
ownership whereby each owner's share of the ownership rights with respect to
the multiple ownership property is not specified.
Joint ownership includes divisible
joint ownership and indivisible joint ownership.
2. Joint owners have equal rights
and obligations with respect to the multiple ownership property.
Article 211.
Multiple ownership between communities
1. Multiple ownership between a
community is the ownership by a family line, hamlet, village, tribal village,
mountainous hamlet, ethnic hamlet, religious community or other community of
property which is formed in accordance with customary practice, which is
jointly contributed to and raised by the members of the community or which was
given to the whole community, and property which is obtained from other lawful
sources for the purpose of satisfying the common lawful interests of the entire
community.
2. Members of a community shall
jointly manage, use and dispose of multiple ownership property in the interests
of the community as agreed or in accordance with customary practice, but not
inconsistent with the law or social morals.
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Article 212.
Multiple ownership between family members
1. Property of family members
living together includes property that they contributed or made together and
other properties whose ownership rights are established in accordance with this
Code and relevant laws.
2. The possession, use and disposal
of multiple ownership property by family members shall be conducted as mutually
agreed. With respect to disposal of an immovable property, a movable property
required registration, or a property being the primary income of the family,
the agreement between all family members being adults with full legal capacity
is required, unless otherwise prescribed by law.
If there is no agreement, the
regulations on ownership in common prescribed in this Code and relevant laws
shall apply, except for the case prescribed in Article 213 of this Code.
Article 213.
Multiple ownership between husbands and wives
1. Multiple ownership between a
husband and wife is divisible joint ownership.
2. A husband and wife jointly
create and develop their marital property through their efforts and have equal
rights to possess, use and dispose of such property.
3. A husband and wife shall
discuss, agree on or authorize each other in relation to the possession, use
and disposal of the marital property.
4. The marital property may be
divided as agreed or pursuant to a decision of a court.
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Article 214.
Multiple ownership in apartment buildings
1. The areas, equipment and
furnishings which are for common use in an apartment building prescribed in the
Law on Housing are under multiple ownership of all owners of the apartments in
the apartment building and are indivisible, unless otherwise provided by law or
unless all of the owners reach some other agreement.
2. The owners of the apartments in
an apartment building have equal rights and obligations with respect to the
management and use of common areas and equipment prescribed in Clause 1 of this
Article, unless otherwise agreed or prescribed by law.
3. Where an apartment building is
destroyed, the rights of the owners of the apartment building shall be
exercised in accordance with law.
Article 215.
Mixed multiple ownership
1. Mixed multiple ownership means
ownership of property in respect of which owners from different economic
sectors contribute capital for the purpose of conducting production and
business for profit-making purposes.
2. Property which is formed from
sources being capital contribution by owners, lawful profits derived from
production and business activities or other lawful sources in accordance with
law is mixed multiple ownership property.
3. The possession, use and disposal
of property under mixed multiple ownership must comply with the provisions of
Article 209 of this Code and other relevant laws relating to capital
contribution; to the organization and operation of production and business
activities; to the administration and management of property; and to the
liability for property and distribution of profits.
Article 216.
Management of multiple ownership property
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Article 217.
Use of multiple ownership property
1. Each owner in common has the
right to exploit, and to enjoy the yield and income derived from, the multiple
ownership property in proportion to its share of the ownership rights, unless
otherwise agreed or otherwise provided by law.
2. Joint owners have equal rights
to exploit and to enjoy the yield and income derived from, the multiple
ownership property, unless otherwise agreed.
Article 218.
Disposal of multiple ownership property
1. Each owner in common has the
right to dispose of its share of the ownership rights.
2. Disposal of joint property shall
be implemented as agreed by the owners of the property or as provided by law.
3. Where an owner of multiple
ownership property sells its share of the ownership rights, the other owners of
the property have the right of first refusal to purchase such share.
Such owner may sell such share to
other persons if no other owner purchases within three months in the case of
immoveable property, or within one month in the case of moveable property, from
the date on which the other owners received notice of the sale and the
conditions of the sale. The notice must be made writing and conditions for sale
applying to other owners in common shall be similar to those applying to
non-owners in common.
In the case where there is a sale
of a share of the multiple ownership rights in breach of this regulation on
priority purchase right, within the time limit of three months from the date of
discovery of the breach, any one of the multiple owners has the right to
request a court to transfer to it the rights and obligations of the purchaser;
and the party at fault which caused damage shall be liable to compensate for
damage.
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5. Where one of the owners of
movable property renounces its share of the ownership rights or where such
person dies without leaving an heir, its share of the ownership rights shall
belong to the remaining members.
6. Where all owners renounce their
ownership rights with respect to multiple ownership property, the ownership
rights shall be established as prescribed in Article 228 of this Code.
Article 219.
Division of multiple ownership property
1. Where multiple ownership
property is divisible, each owner has the right to request the property to be
divided. If the property must be maintained within a certain period of time as
agreed by all owners or as prescribed by law, each owner only has the right to
request the property to be divided upon expiry of that period. Where the
property is not able to be divided in kind, it shall be valued in terms of
money for the purposes of division, unless otherwise agreed.
2. Where a person requests one of
the owners of multiple ownership property to fulfill a payment obligation and
such owner does not have private property or sufficient private property to
make the payment, the requesting person has the right to request that the
multiple ownership property be divided in order to receive monetary payment and
such person shall be entitled to participate in the division of the property,
unless otherwise provided by law.
If the shares of ownership rights
are not able to be divided in kind or if such a division is opposed by the
remaining owners, the requesting person has the right to request the owner with
the obligation to sell to sell its share of ownership rights in order to
fulfill the payment obligation.
Article 220.
Termination of multiple ownership
Multiple ownership shall terminate
in any of the following circumstances:
1. The multiple ownership property
has been divided;
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3. The multiple ownership property
no longer exists;
4. Other cases as provided by law.
Section 3.
CREATION AND TERMINATION OF OWNERSHIP RIGHTS
Sub-section 1. CREATION OF
OWNERSHIP RIGHTS
Article 221.
Basis for establishing ownership rights
Ownership rights are created with
respect to property in any of the following cases:
1. Through labour, lawful
production and business activities, or creation of subjects of intellectual
property rights;
2. Transfer of ownership rights as
agreed or pursuant to a decision of a competent authority;
3. Receipt of yield and/or income;
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5. Inheritance of property;
6. Acquisition in accordance with
law on objects of which owner is unidentified, buried or sunken objects; lost
or mislaid objects, stray poultry or livestock or aquaculture stock.
7. Possession and gain from
property prescribed in Article 236 of this Code;
8. Other cases as provided by law.
Article 222.
Establishment of ownership rights with respect to property earned from labour
and lawful business and production activities or creation of subjects of
intellectual property rights
Workers and persons conducting lawful
business and production activities have ownership rights with respect to
property earned from labour and the lawful business and production activities
from the time when such property is earned.
Person conducting creation
activities has ownership rights to the property gained from those activities as
prescribed in the Law on intellectual property.
Article 223.
Establishment of ownership rights under agreements
A person to which property has been
transferred through a contract of sale and purchase or by a gift, exchange or
loan or another contract of transfer of ownership rights has the right to own
such property as provided by law.
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An owner or a user of property has
ownership rights with respect to the yield and income derived from such
property as agreed or in accordance with law from the time when such yield and
income are derived.
Article 225.
Establishment of ownership rights in case of merger
1. Where property of more than one
owner is merged to form an indivisible object and it is not possible to
determine whether the property which is merged is a primary object or an
auxiliary object, the newly formed object shall be the multiple ownership
property of such owners. If the property which is merged consists of a primary
object and an auxiliary object, the newly formed object shall belong to the
owner of the primary object from the time when the new object is formed. The
owner of the new property must pay the value of the auxiliary object to its
owner, unless otherwise agreed.
2. Where a person merges the
moveable property of another person with his/her own moveable property, even
though he/she knew or should have known that such property was not his/her own
and he/she did not have the consent of the owner of the property which was
merged, the owner of the property which is merged shall have one of the
following rights:
a) Request the person having merged
the property to deliver the new property to it and to pay the value of the
property;
b) Request the person having merged
the property to pay the value of the merged property and to compensate for any
damage if the owner of the property which is merged does not wish to take the
new property.
c) Other rights as provided by law.
3. Where a person merges the
moveable property of another person with his/her own immoveable property, even
though he/she knew or should have known that such property was not his/her own
and he/she did not have the consent of the owner of the property which was
merged, the owner of the property which is merged shall have one of the
following rights:
a) Request the person having merged
the property to pay the value of the merged property and to compensate for any
damage;
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4. Where a person merges the
immoveable property of another person with his/her own moveable property, the
owner of the immovable property has the right to request such person to
demolish the illegally merged property and compensate for any damage, or retain
the property and pay the value of the merged property to such person, unless
otherwise agreed.
Article 226.
Establishment of ownership rights in case of mixing
1. Where the property of more than
one owner is mixed to form a new indivisible object, the new object shall be
the multiple ownership property of such owners from the moment of mixing.
2. Where a person has mixed the
property of another person with its own property, even though it knew or should
have known that such property is not its own and it does not have the consent
of the owner of the property which has been mixed, the owner of the property
which has been mixed may:
a) Request the person having mixed
the property to deliver the new property to it and pay such person the value of
the property of such person;
b) If the owner of the property
which has been mixed does not wish to take the new property, request the person
having mixed the property to pay the value of the property of the owner and to
compensate for any damage.
Article 227.
Establishment of ownership rights in case of processing
1. An owner of raw materials which
are processed to form a new object is also the owner of the newly formed
object.
2. A person using raw materials
under the ownership of another person for processing who acts in good faith
shall become the owner of the new property, but must pay the value of the raw
materials to the owner and compensate it for any damage.
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Article 228.
Ownership rights are established with respect to abandoned objects and objects
the owner of which is not able to be identified
1. An abandoned object is an object
in respect of which the owner has renounced its ownership rights.
A person finding an abandoned
object which is moveable property shall have the right to own such property,
unless otherwise prescribed by law. If the found object is immoveable property,
it shall belong to the State.
2. A person finding an object the
owner of which is not able to be identified must inform or deliver the object
to the people's committee or police station of the nearest commune in order
that a public announcement may be made notifying the owner to reclaim the
object.
The delivery of the object must be
recorded, specifying the surnames, given names and addresses of the finder and
the receiver and the condition, quantity and volume of the property delivered.
The people's committee or police
station of commune which received the object must notify the finder of the
results of their inquiries in order to determine the owner.
Where the object, the owner of
which is not able to be identified, is moveable property, if the owner of the
object is still not able to be identified after one year from the date of the
public announcement, such property shall be under the ownership of the finder
in accordance with law.
Where the object is immoveable
property, if the owner is still not able to be identified after five years from
the date of the public announcement, such property shall belong to the State.
The finder shall be entitled to enjoy a monetary reward in accordance with law.
Article 229.
Establishment of ownership rights with respect to buried or sunken objects
which are found
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2. Ownership rights with respect to
a buried or sunken object which is found, but which has no owner or the owner
of which is not able to be identified, shall be determined, after deducting
search and maintenance expenses, as follows:
a) A found object which is an
historic or cultural relic shall belong to the State as prescribed in Law on
cultural heritage and the finder shall be entitled to enjoy a monetary reward
in accordance with law.
b) A found object which is not an
historic or cultural relic as prescribed in Law on cultural heritage, and which
has a value equivalent up to ten-month base salary provided for by the State,
shall belong to the finder; if the value of the found object is more than the
equivalent of ten-month base salary provided for by the State, the finder shall
be entitled to the value of ten-month base salary plus fifty (50) per cent of
the remaining value of the object in excess of the ten-month base salary
provided for by the State, with the remaining value belonging to the State.
Article 230.
Establishment of ownership rights with respect to objects which other persons
have lost or mislaid
1. A person finding an object which
another person has lost or mislaid and being aware of the address of the person
having lost or mislaid the object must inform or return the object to such
person. If the finder is not aware of the address of the person having lost or
mislaid the object, it must inform or deliver the object to the people's
committee or police station of the nearest commune in order that a public
announcement may be made notifying the owner to reclaim the object.
The people's committee or police
station of commune which received the object must notify the finder of the
results of their inquiries in order to determine the owner.
2. If, after one year from the date
of the public announcement of the object having being found, the owner of the
object is still not able to be identified or the owner does not claim the
object, the ownership rights with respect to such property shall be determined
as follows:
a) If the value of lost or mislaid
object is up to ten-month base salary provided for by the State, it shall
belong to the finder as prescribed in this Code and relevant laws; if the value
of the found object is more than the equivalent of ten-month base salary
provided for by the State, the finder shall be entitled to the value of
ten-month base salary, deducted from preservation expenses, and plus fifty (50)
per cent of the remaining value of the object in excess of the ten-month base
salary provided for by the State, with the remaining value belonging to the
State.
b) A lost or mislaid object which
is an historic or cultural relic as prescribed in the Law on cultural heritage
shall belong to the State. The finder shall be entitled to enjoy a monetary
reward in accordance with law.
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1. A person capturing a stray
domestic livestock must take care of it and notify the people's committee of
the commune in which such person resides in order that a public announcement
may be made notifying the owner to reclaim the stray domestic livestock. After
6 months or after 1 year, with regard to domestic livestock allowed to roam
according to customary practice, from the date of the public announcement, the
ownership rights with respect to domestic livestock and any offspring born
thereof shall belong to the capturer.
2. If the owner reclaims the stray
domestic livestock, he/she must pay care remuneration and other expenses for
the capturer. During the period of feeding and taking care of the stray
domestic livestock, the capturer shall be entitled to half of or 50% of value
any offspring born. Such person must compensate for any damage if it
intentionally causes the death of the stray domestic livestock.
Article 232.
Establishment of ownership rights with respect to stray domestic poultry
1. Where the domestic poultry of a
person is lost and captured by another person, the person having captured the
stray domestic poultry must make a public announcement notifying the owner to
reclaim such poultry. If no one reclaims the stray domestic poultry after one
month from the date of the public announcement, it shall be under the ownership
of the person having captured it.
2. An owner reclaiming the stray
poultry must remunerate the person having captured it for feeding and taking
care of the stray domestic poultry and any other expenses incurred. During the
period of feeding and taking care of the stray domestic poultry, the person
having captured it shall enjoy the benefits from the stray domestic poultry.
Such person must compensate for any damage if it intentionally causes the death
of the stray domestic poultry.
Article 233.
Establishment of ownership rights with respect to aquaculture stock
Where the aquaculture stock of a
person moves naturally into the field, pond or lake of another person, the
stock shall be under the ownership of the person having such field, pond or
lake. Where the aquaculture stock has special marks which make it possible to
determine that it is not under the ownership of the person having such field,
pond or lake, such person must make a public announcement notifying the owner
to reclaim the stock. If no one reclaims the stock after one month from the
date of the public announcement, it shall be under the ownership of the person
having such field, pond or lake.
Article 234.
Establishment of ownership rights due to inheritance
An heir shall have ownership rights
with respect to inherited property in accordance with Part Four of this Code.
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Ownership rights may also be
created on the basis of an effective judgment or decision of a court or an
effective decision of another competent authority.
Article 236.
Establishment of ownership rights resulting from prescriptive periods with
respect to possession or deriving benefits from property unlawfully
A person unlawfully but in good
faith possessing, or deriving benefits from, property continuously and in an
overt manner for ten (10) years with respect to moveable property, and for
thirty (30) years with respect to immoveable property, shall become the owner
of such property from the moment of commencement of possession, unless
otherwise prescribed by this Code and relevant laws.
Sub-section 2. TERMINATION OF
OWNERSHIP RIGHTS
Article 237.
Bases for terminating ownership rights
Ownership rights terminate in any
of the following cases:
1. The owners transfers his or her
ownership rights to another person;
2. The owner renounces his or her
ownership rights;
3. The property is consumed or
destroyed;
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5. The property is requisitioned;
6. The property is confiscated;
7. Other persons have established
ownership rights with respect to property in accordance with this Code;
8. Other bases as provided by law.
Article 238.
Transfer of ownership rights by owner
Where an owner transfers its
ownership rights to another person through a contract for sale and purchase, by
exchange, gift or loan, or through inheritance, the ownership rights of the
owner with respect to the property shall terminate from the time when the
ownership rights of the transferee arise.
Article 239.
Renunciation of ownership rights
An owner may terminate ownership
rights with respect to its property by publicly declaring, or by performing
certain acts evidencing, its renunciation of the right to possess, use and
dispose of such property.
With respect to property the
renunciation of which may harm social order or security or cause environmental
pollution, the renunciation of ownership rights must comply with the law.
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When a person has, in accordance
with Article 228 through 233 of this Code, lawfully established ownership
rights with respect to an object the owner of which is not able to be
identified; a buried or sunken objects; a lost or mislaid object or stray
domestic livestock, poultry or aquaculture stock, the ownership rights of the
person formerly having the property shall terminate.
When the ownership rights of a
possessor or a person benefiting from property have been created in accordance
with Article 236 of this Code, the ownership rights of the person who formally
had the property shall terminate.
Article 241.
Realization of property in order to fulfill obligations of owner
1. Ownership rights with respect to
property shall terminate when such property is realized in order to fulfill the
obligations of the owner pursuant to a decision of a court or another competent
authority, unless otherwise provided by law.
2. Property which the law provides
is not able to be seized may not be realized in order to fulfill the
obligations of the owner.
3. The ownership rights with
respect to property realized in order to fulfill the obligations of the owner
shall terminate at the time when the ownership rights of the recipient of such
property arise.
4. The realization of land use
rights shall be carried out in accordance with the law on land.
Article 242.
Destroyed property
When property is destroyed, the
ownership rights with respect to such property shall terminate.
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Where property is compulsorily
acquired as prescribed by law, the ownership rights of the owner shall
terminate from the time when the decision of the competent authority becomes
legally effective.
Article 244.
Confiscated property
Where property of an owner is
confiscated and paid into the State Budget due to the owner committing a crime
or an administrative offence, the ownership rights of the owner with respect to
such property shall terminate from the time when the judgment or decision of
the court or the decision of the competent authority becomes legally effective.
Chapter XIV
OTHER PROPERTY-RELATED RIGHTS
Section 1.
Right to adjoining immovable property
Article 245.
Right to adjoining immovable property
Right to adjoining immovable
property means a right to be exercised on an immovable property (hereinafter
referred to as obliged immovable property) to serve the exploitation of another
immovable property under ownership of another person (hereinafter referred to
as entitled immovable property).
Article 246.
Bases for establishment of right to adjoining immovable property
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Article 247.
Effect of right to adjoining immovable property
The right to adjoining immovable
property shall take effect to every natural and juridical person and it is
transferred concurrently with the transferred immovable property, unless
otherwise prescribed by law.
Article 248.
Rules for exercising right to adjoining immovable property
The right to adjoining immovable
property shall be exercised as agreed by the parties. If the parties fail to
agree, the rules below must be followed:
1. Ensure the appropriate
exploitation of the entitled immovable property in conformity with the use
purposes of both entitled and obliged immovable property;
2. Do not abuse the right to the
obliged immovable property;
3. Do not obstruct or hassle the
exercising of right to the entitled immovable property.
Article 249.
Change of exercising right to adjoining immovable property
In case the change of use or
exploitation of the obliged immovable property leading the change of exercising
of right to the entitled immovable property, the owner of the former immovable
property must notify the owner of the latter immovable property within an
appropriate period. The owner of the obliged immovable property must enable the
owner of the entitled immovable property to adapt to such change.
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An owner of house or construction
works must install water drain pipes in order that the rainwater from its roof
does not run onto any adjoining immoveable properties.
Article 251.
Obligation of owners relating to draining of waste water
An owner of house or construction
work must install underground drains or water drainage channels to discharge
waste water to the prescribed location in order that the waste water does not
run and spill onto any adjoining immoveable properties or onto public streets
or public places.
Article 252.
Rights relating to supply and drainage of water through adjoining immoveable
property
Where, due to the natural location
of immoveable property, the supply and drainage of water must pass through
another immoveable property, the owner of the immoveable property through which
the water flows must provide an appropriate channel for the supply and drainage
of water and may not hinder or prevent the flow of water.
The person using the water supply
and drainage channel must minimize to the lowest possible extent any damage to
the owner of the immoveable property through which the water flows when
installing the water channel. If damage is caused, compensation must be made.
Where water flows naturally from a higher position to a lower position and
causes damage to the owner of the property through which the water flows, the
person using the water supply and drainage channel shall not be liable to
compensate for any damage.
Article 253.
Rights relating to irrigation and water drainage in cultivation
A person having the right to use
land for cultivation has the right to request neighboring land users to provide
a reasonable and convenient water channel for irrigation and drainage. A person
having been so requested has the obligation to grant such request. If the
person using such water channel causes damage to neighboring land users,
compensation must be made.
Article 254.
Right of passage
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The passage shall be opened in the
adjoining immoveable property which is deemed to be the most convenient and
reasonable, taking into consideration the special characteristics of the
location, the interests of the immoveable property which does not have an exit,
and what will cause the least damage to the immoveable property through which
the passage is created.
The owner of the immovable property
eligible for the passage must compensate for the obliged immovable property,
unless otherwise agreed.
2. The location and the length,
width and height of the passage shall be agreed by the owners in order to ensure
convenient passage and minimize inconvenience to the parties. If there are any
disputes regarding the passage, the parties may request the authorized State
body to resolve.
3. Where immoveable property is
divided into more than one portion for different owners or users, upon
division, necessary passages must be provided, without compensation, to persons
in the interior as provided in Clause 2 of this Article.
Article 255.
Right to install electricity transmission cables and communication cables
through other immoveable properties
An owner of immoveable property has
the right to install electricity transmission cables and communication cables
in a reasonable manner through the immoveable property of other owners, but
must ensure the safety and convenience of such owners. If damage is caused,
compensation must be made.
Article 256.
Termination of easements over adjoining immoveable property
An easement over adjoining
immoveable property shall terminate in the following circumstances:
1. The entitled immovable property
and the obliged immovable property belong to ownership rights of a person;
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3. Upon agreement of contracting
parties;
4. Other bases as provided by law.
Section 2.
USUFRUCT RIGHT
Article 257.
Usufruct right
Usufruct right means the right to
use a property, under ownership of another entity, and enjoy its yield or
income in a specific period of time.
Article 258.
Bases for establishment of usufruct right
The usufruct right shall be
established as prescribed by law, according to agreement or will.
Article 259.
Effect of usufruct right
The usufruct right shall be
established from the time of transfer of the property, unless otherwise agreed
or otherwise prescribed by law.
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Article 260.
Time limit of usufruct right
1. The time limit of usufruct right
shall be agreed by the parties or prescribed by law provided that its maximum
length is the full life of the first usufructary being natural person or the
period of time for which the first usufructary being juridical person exists as
long as it does not exceed 30 years.
2. The usufructary has the right to
lease the usufruct right within a specific period of time prescribed in Clause
1 of this Article.
Article 261.
Rights of usufructary
1. On his/her own or permit another
person exploit, use and enjoy yield and/or income from the object of the
usufruct right.
2. Request the owner of the
property perform obligation to repair the property as prescribed in Clause 4
Article 263 of this Code; if the usufructary performs the obligation on behalf
of the owner of property is entitled to request the owner to refund the
expenses.
3. Lease the usufruct right to the
property.
Article 262.
Obligations of usufructary
1. Receive property under current
conditions and register it if required by law.
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3. Preserve property as if it is
his/her own property.
4. Maintain and repair property
periodically to ensure the normal use; restore the status of the property and
remedy the bad consequences of property due to his/her poor performance of
obligations in line with technical requirements or by custom of property
preservation.
5. Return the property to the owner
of the expiration of usufruct time limit.
Article 263.
Rights and obligations of property owner
1. Dispose property without any
change of the usufruct right which has been established.
2. Request a court to deprive
usufruct right from a usufructary who seriously breaches his/her obligations.
3. Do not obstruct or hassle or
otherwise violate the legitimate rights and interests of the usufructary.
4. Perform obligation to repair
property to ensure that there is no significant decline leading the property
cannot be used or lost all its utility and value.
Article 264.
Right to enjoy yield and income
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2. If the usufruct right cease to
exist before the harvest time of yields and income, the usufructary shall, upon
the harvest time, be entitled to enjoy the value of yield and income received
corresponding the time that person is entitled to such usufruct right.
Article 265.
Termination of usufruct right
The usufruct right shall terminate
in any of the following cases:
1. The time limit of usufruct right
has expired;
2. As agreed by the parties;
3. The usufructary becomes the
owner of the property being the subject of the usufruct right;
4. The usufructary waives or fails
to exercise the usufruct right during a time limit prescribed by law;
5. The property being subject of
the usufruct right no longer exists;
6. Pursuant to a decision of a
court;
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Article 266.
Returning property upon termination of usufruct right
The property being subject of
usufruct right must be returned to the owner upon the termination of usufruct
right, unless otherwise agreed or otherwise prescribed by law.
Section 3.
SURFACE RIGHTS
Article 267.
Surface rights
Surface rights mean an entity's
rights to the ground, water surface, space thereon and earth bowel of the land
whose land use rights belong to another entity.
Article 268.
Bases for establishment of surface rights
Surface rights shall be established
by law, according to agreement or will.
Article 269.
Effect of surface rights
Surface rights shall take effect
from the point of time when the holder of land use rights transfer ground,
water surface, space thereon and earth bowel of the land to the holder of
surface rights, unless otherwise agreed or otherwise prescribed by law.
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Article 270.
Time limit of surface rights
1. The time limit of surface rights
shall be established by law, according to agreement or will provided that it does
not exceed the time limit of land use rights.
2. If the agreement or will does
not mention the time limit of surface rights, each party is entitled to
terminate any time provided that it provides a written notification to the
other party within 6 months.
Article 271.
Contents of surface rights
1. Each holder of surface rights
has the right to exploit and use ground, water surface, space thereon, the
water and the earth bowel of the land whose land use rights belong to another
entity for construction, planting or cultivation provided that it is not
contrary to the provisions of this Code, the law on land, construction,
planning, resources, minerals and other provisions of relevant laws.
2. The holder of surface rights has
the ownership rights to every property derived as prescribed in Clause 1 of
this Article.
3. If part of the whole of surface
rights is transferred, the transferee shall inherit the surface rights
according to conditions and within the scope in proportion to the part or the
whole transferred surface rights.
Article 272.
Termination of surface rights
The surface rights shall terminate
in any of the following cases:
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2. The holder of surface rights and
the holder of land use rights shall be the same;
3. The holder of surface rights
waives his/her rights;
4. Surface rights of land use
rights are appropriated as prescribed in law on land;
5. As agreed by the parties or as
prescribed by law.
Article 273.
Realization of property upon termination of surface rights
1. Upon the termination of surface
rights, its holder must return ground, water surface, space thereon and earth
bowel of the land to the holder of land use rights, unless otherwise agreed or
otherwise prescribed by law.
2. The holder of surface rights
must realize the property under ownership upon its termination, unless
otherwise agreed.
If the holder of surface rights
must realize the property under ownership upon its termination, the ownership
of such property shall be transferred to the holder of land use rights from the
termination time, unless the latter holder refuse such property.
If the holder of land use rights
refuses the property while the property is required to be realized, the holder
of surface rights must pay the property realization expenses.
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OBLIGATIONS AND CONTRACTS
Chapter XV.
GENERAL PROVISIONS
Section 1.
Bases for giving rise to and subject matter of obligations
Article 274.
Obligations
Obligations means acts whereby one
or more entities (hereinafter referred to as obligors) must transfer objects,
transfer rights, pay money or provide valuable papers, perform other acts or
refrain from performing certain acts in the interests of one or more other
subjects (hereinafter referred to as obligees).
Article 275.
Bases for giving rise to obligations
Obligations arise from the
following bases:
1. Contracts;
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3. Unauthorized performance of
acts;
4. Unlawful possession or use of or
receipt of benefits from property;
5. Causing damage through unlawful
acts;
6. Other bases as provided by law.
Article 276.
Subject matter of obligations
1. The subject matter of an
obligation may be property or acts which must be performed or acts which must
not be performed.
2. The subject matter of an
obligation must be defined precisely.
Section 2.
Performance of obligations
Article 277.
Places for performing obligations
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2. Where the parties do not have an
agreement, the place for performance of the obligation shall be:
a) The location of the immoveable
property, if the subject matter of the obligation is immoveable property;
b) The place of residence or head
office of the obligee, if the subject matter of the obligation is not
immoveable property.
Where the obligee changes its place
of residence or head office, it must notify the obligor of the change and must
bear any increase in expenses resulting from the change in residence or head
office, unless otherwise agreed.
Article 278.
Time limits for performing obligations
1. The time limit for performing an
obligation shall be as agreed by the parties or as provided by law.
2. The obligor must perform the
obligation strictly in accordance with the relevant time limit, unless
otherwise prescribed by this Code or relevant laws.
If the obligor performs the
obligation prior to the time limit and the obligee accepts such performance,
the obligation shall be deemed to have been fulfilled on time.
3. Where the parties do not have an
agreement and the time limit for the performance of a civil obligation is not
identifiable prescribed in Clause 1 of this Article, a party may fulfill the
obligation or demand the fulfillment of the obligation as the case may be at
any time, but must give reasonable prior notice to the other party.
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1. A person having the obligation
to deliver an object must take care of and preserve the object until the time
of delivery.
2. Where an object to be delivered
is a distinctive object, the obligor must deliver that particular object in the
same condition as agreed. If the object is a fungible object, it must be
delivered in accordance with the quality and quantity agreed. If there is no
agreement as to the quality, the object delivered must be of average quality.
If the object is an integrated object, the whole integrated object must be
delivered.
3. An obligor must bear all
expenses related to the delivery of an object, unless otherwise agreed.
Article 280.
Performance of obligations to pay money
1. An obligation to pay money shall
be performed in full, strictly on time, at the place and by the method as
agreed.
2. The obligation to pay money
shall include the payment of interest on principal, unless otherwise agreed.
Article 281. Performance
of obligations to perform acts or not to perform acts
1. Obligation to perform an act
means an obligation whereby the obligor must perform that particular act.
2. Obligation not to perform an act
means an obligation whereby the obligor must not perform that particular act.
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An obligation may be performed in
stages if so agreed or so provided by law or pursuant to a decision of a
competent authority.
The late performance of one stage
of an obligation shall be deemed to be late performance of the obligation.
Article 283.
Performance of obligations through third parties
With the consent of the obligee, an
obligor may authorize a third person to perform an obligation on behalf of the
obligor provided that the obligor shall be liable to the obligee if the third
person fails to perform or performs incorrectly the obligation.
Article 284.
Conditional performance of obligations
1. Where the parties have agreed on
conditions for the performance of a civil obligation or where the law provides
certain conditions for the performance of an obligation, the obligor must
perform the obligation when such conditions are satisfied.
2. If the conditions do not occur
or occur resulting from the influence of a party, Clause 2 Article 120 of this
Code shall apply.
Article 285.
Performance of obligations having optional subject matters
1. Obligation having an optional
subject matter means an obligation the subject matter of which is one of
several different items of property or acts from which the obligor may select
at its discretion, except where it is agreed or provided by law that the right
to select is reserved to the obligee.
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3. Where there remains only one
property or one act to select, the obligor must deliver that particular
property or perform that particular act.
Article 286.
Performance of substitutable civil obligations
Substitutable obligation means an
obligation whereby if the obligor fails to perform the original obligation, it
may perform a different obligation as agreed by the obligee as a substitute for
the original obligation.
Article 287.
Performance of severable obligations
Where more than one person jointly
performs an obligation and each person has a clearly defined share of the
obligation which is severable from that of the other person, each person must
perform only its own share of the obligation.
Article 288.
Performance of joint obligations
1. Joint obligation means an
obligation which must be performed by more than one person and which the
obligee may request any one of the obligors to perform in its entirety.
2. When one person has performed an
obligation in its entirety, such person may require the other joint obligors to
make payment for their respective shares of the joint obligation to such
person.
3. Where an obligee designates one
person from amongst the joint obligors to perform an entire obligation and
later releases that person, the other obligors shall also be released from
performing the obligation.
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Article 289.
Performance of obligations for joint obligees
1. Civil obligation for joint
obligees means an obligation whereby each joint obligee may require the obligor
to perform the obligation in its entirety.
2. An obligor may perform its
obligation with respect to any one of the joint obligees.
3. Where one of the joint obligees
releases the obligor from performing the share of the obligation owed to such
joint obligee, the obligor must, nevertheless, perform the remaining shares of
the obligation owed to the other joint obligees.
Article 290.
Performance of divisible obligations
1. Divisible obligation means an
obligation the subject matter of which is a divisible object or an act which is
able to be divided into portions for the purpose of performance.
2. An obligor may perform the
obligation in stages, unless otherwise agreed.
Article 291.
Performance of indivisible obligations
1. Indivisible obligation means an
obligation the subject matter of which is an indivisible object or an act which
must be performed in its entirety at the one time.
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Section 3.
SECURITY FOR PERFORMANCE OF OBLIGATIONS
Sub-section 1. GENERAL
PROVISIONS
Article 292.
Types of security for performance of obligations
Types of security for the
performance of obligations comprise the following:
1. Pledge of property;
2. Mortgage of property;
3. Deposit;
4. Security collateral;
5. Escrow deposit;
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7. Guarantee;
8. Fidelity guarantees;
9. Lien on property.
Article 293.
Scope of security for performance of obligations
1. An obligation may be fully or
partly secured, as agreed or as provided by law. If there is no agreement on or
if the law does not provide, the scope of the security, the obligation,
including the obligation to pay interest and to compensate for any damage,
shall be deemed to be fully secured.
2. Secured obligations may comprise
current obligations, future obligations and conditional obligations.
3. With respect to a future
obligation which is going to arise within a guaranteed time limit, it shall be
the secured obligation, unless otherwise agreed.
Article 294.
Security for performance of future obligations
1. With respect to a future
obligation, the parties may agree on the scope of the secured obligation and the
deadline by which the secured obligation must be performed, unless otherwise
prescribed by law.
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Article 295.
Collateral
1. Collateral must be under the
ownership rights of the securing party, except for the cases of lien on
property or title retention.
2. Collateral may be described
generally but must be identified.
3. Collateral may be existing
property or off-plan property.
4. The value of collateral may be
greater, equal or smaller than the value of the secured obligation.
Article 296.
Single item of property used as security for performance of several obligations
1. A single item of property may be
used as security for performance of several obligations if, at the time of
establishment of the security transaction, the value of such property is
greater than the total aggregate value of the secured obligations, unless
otherwise agreed or otherwise provided by law.
2. Where a single item of property
is used as security for performance of several obligations, the securing party
must notify the later secured party that the security property is being used as
security for performance of other obligations. The provision of security on
each occasion must be made in writing.
3. Where the security property must
be realized in order to satisfy one obligation which has fallen due, the other
obligations which have not yet fallen due shall also be deemed due and all
secured parties shall be entitled to take part in the realization. The secured
party which provided notice of realization of the property shall be responsible
for realizing the property, unless otherwise agreed by the secured parties.
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Article 297.
Effectiveness against third parties
1. Security shall take effect
against a third party from the time of registration of such security or the
secured party keeps or possess the collateral.
2. When the security takes effect
against a third party, the secured party is entitled to reclaim the collateral
and the payment prescribed in Article 308 of this Code and relevant laws.
Article 298.
Registration of security
1. Security shall be registered as
agreed by the parties or provided by law.
The registration shall be the
condition for a secured transaction become valid only the case as prescribed by
law.
2. A registered security shall take
effect against third party from the time of registration.
3. The registration of security
shall comply within regulations of law on registration of security.
Article 299.
Cases of realization of collateral
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2. An obligator must perform the
secured obligation before time limit due to his/her violation against the
obligation as agreed or prescribed by law.
3. Other cases as agreed by the
parties or prescribed by law.
Article 300.
Notification of realization of collateral
1. Before a collateral is realized,
a secured party must notify the securing party and other secured parties of the
realization of the collateral within a reasonable time limit.
If the collateral at risk of being
damaged resulting in diminished value or lose the entire value, a secured party
may realize it immediately and notify the securing party and other secured
parties of the realization of such asset.
2. If the secured party does not
notify the realization of collateral as prescribed in Clause 1 of this Article
that cause damage to the securing party and/or other secured parties,
compensation must be made.
Article 301.
Giving collateral for realization
The holder of collateral is obliged
to give it to the secured party for realization in any of the cases prescribed
in Article 299 of this Code.
If the holder of collateral fails
to give the asset, the secured party is entitled to request a court for settlement,
unless otherwise prescribed by relevant laws.
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The securing party may reclaim the
collateral if, before the realization of the collateral, it completely performs
its obligations and pay all expenses incurred for the late performance of
obligations, unless otherwise prescribed by law.
Article 303.
Methods of realizing collateral
1. The securing party and the
secured party may agree any of the following methods of realizing collateral:
a) Put collateral up for an
auction;
b) The secured party sells
collateral itself;
c) The secured party accepts the
collateral as substitutions for the performance of obligations of the securing
party;
d) Other methods.
2. If there is no agreement on
methods of realizing collateral as prescribed in Clause 1 of this Article, the
collateral shall be put up for auction, unless otherwise prescribed by law.
Article 304.
Selling collateral
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2. The collateral sold by the
secured party must comply with the regulations on property sale in this Code
and the regulations below:
a) The payment amount derived from
the realization of collateral shall comply with Article 307 of this Code;
b) The owner of collateral and the
person competent to realize the collateral, upon the completion of the sale,
shall comply with procedures for transfer of ownership rights to the buyer.
Article 305.
Acceptance of the collateral as substitution for the performance of obligations
of the securing party
1. The secured party may accept the
collateral as substitution for the performance of obligations of the securing
party if agreed by the parties.
2. If there is no agreement
prescribed in Clause 1 of this Article, the secured party may only accept the
collateral as substitution for the performance of obligations of the securing
party with the written consent of the securing party.
3. Where the value of the
collateral is greater than the value of the secured obligation, the secured
party must pay the difference amount to the securing party; where the value of
the collateral is less than the value of the secured obligations then the
unpaid obligations become unsecured obligations.
4. The securing party is obliged to
follow the procedures for transfer of ownership rights to the secured party as
prescribed by law.
Article 306.
Valuation of collateral
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If there is no agreement mentioned
above, the collateral shall be valuated by an asset valuation organization.
2. The valuation of the collateral
must be objective and in conformity with market price.
3. The asset valuation organization
must compensate for any damage to the securing party and/or the secured party
during the process of valuation due to its legal violations.
Article 307.
Payment of the sum of money obtained from the realization of collateral
1. The sum of money obtained from
the realization of the collateral after deducting from the cost of
preservation, capture and realization of the collateral shall be paid in order
of priority specified in Article 308 of this Code.
2. Where the sum of money obtained
from the realization of the collateral, after deducting from the cost of
preservation, seizure and realization of the collateral is greater than the
value of secured obligations, the difference amount must be paid to the
securing party.
3. Where the sum of money obtained
from the realization of the collateral, after deducting from the cost of
preservation, seizure and realization of the collateral is less than the value
of secured obligations, part of the unpaid obligations are defined as unsecured
obligations, unless the parties otherwise agree additional collateral. The
secured party may request the obligor to perform the unpaid secured
obligations.
Article 308.
Order of priority for payment between joint secured parties
1. When an asset is used to secure
the performance of many obligations, payment priority order between the joint
secured parties shall be determined as follows:
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b) If there are some types of
security take effect against a third party while some types of security do not
take effect against the third party, the payment of obligations with security
taking effect against the third party shall be given priority;
c) If all types of security do not
take effect against a third party, the order of priority for payment shall be
determined according to the order of establishment of types of security.
2. The order of priority for
payment prescribed in Clause 1 of this Article may be changed as agreed by the
parties. The subrogating party of the right to priority of payment shall only
be given priority within the secured extent of the subrogated party.
Sub-section 2. PLEDGE OF PROPERTY
Article 309.
Pledge of property
Pledge of property means the
delivery by one party (hereinafter referred to as the pledgor) of property
under its ownership to another party (hereinafter referred to as the pledgee)
as security for the performance of an obligation.
Article 310.
Effectiveness of pledge of property
1. Agreement on pledge of property
shall take effect from the time of concluding, unless otherwise agreed or
prescribed by law.
2. Pledge of property shall take
effect against third party from the time at which the pledgee keeps the pledged
property.
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Article 311.
Obligations of pledgors
1. Deliver the pledged property to
the pledgee as agreed.
2. Notify the pledgee of any third
person rights with respect to the pledged property. In the case of failure to
provide such notice, the obligee shall have the right to cancel the contract of
pledge of property and demand compensation for damage or the right to maintain
the contract and agree on the rights of the third person with respect to the
pledged property.
3. Pay the pledgee reasonable
expenses for taking care of and preserving the pledged property, unless
otherwise agreed.
Article 312.
Rights of pledgors
1. Require the pledgee to suspend
use of the pledged property in cases provided in Clause 3 of Article 314 of
this Code if the pledged property is in danger of losing its value or
depreciating in value as a result of such use.
2. Require the pledgee to hold the
pledged property to return the pledged property and related documents after the
obligation secured by the pledge has been fulfilled.
3. Require the pledgee to
compensate for any damage caused to the pledged property.
4. Sell, substitute, exchange, or
give the pledged property to other property if so agreed by the pledgee or
prescribed by law.
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1. Take care of and preserve the
pledged property; if the pledgee loses or damages the pledged property, the
pledgee must compensate the pledgor for the damage.
2. Do not sell, exchange, give or
use the pledged property as security for the performance of another obligation.
3. Do not lease, lend, exploit the
yield or income derived from, the pledged property, unless otherwise agreed.
4. Return the pledged property and
related documents upon fulfillment of the secured obligation or where the
pledge is substituted with another security.
Article 314.
Rights of pledgees
1. Require a person unlawfully
possessing or using the pledged property to return the property.
2. Demand the realization of the
pledged property in accordance with the methods as agreed or as provided by
law.
3. Lease, lend, exploit, and to enjoy
the yield and income derived from, the pledged property if so agreed.
4. Receive reimbursement of
reasonable expenses incurred in taking care of the pledged property upon
returning the pledged property to the pledgor.
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A pledge of property shall
terminate in any of the following cases:
1. The obligation secured by the
pledge has terminated;
2. The pledge has been cancelled or
substituted with another security;
3. The pledged property has been
realized;
4. As agreed by the parties.
Article 316.
Return of pledged property
Where a pledge of property is
terminated in accordance with Clause 1 or Clause 2 of Article 315 of this Code
or as agreed by parties, the pledged property and documents evidencing the
ownership rights with respect to the property shall be returned to the pledgor.
Any yield and income derived from the pledged property shall also be returned
to the pledgor, unless otherwise agreed.
Sub-section 3. MORTGAGES ON
PROPERTY
Article 317.
Mortgage of property
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2. The mortgaged property shall be
held by the mortgagor. The parties may agree to deliver the mortgaged property
to a third person to hold.
Article 318.
Mortgaged property
1. Where entire immoveable property
or moveable property having auxiliary objects is mortgaged, such auxiliary
objects shall also form part of the mortgaged property, unless otherwise
agreed.
2. Where a portion of immoveable
property or moveable property having auxiliary objects is mortgaged, such
auxiliary objects shall also form part of the mortgaged property, unless
otherwise agreed by the parties.
3. With respect to mortgage on land
use rights that property on land is owned by the mortgagor, such property shall
also part of the mortgaged property, unless otherwise agreed.
4. Where mortgaged property is
insured, the mortgagee must notify the insurer that the insured property is
being mortgaged. The insurer shall pay the insured sum directly to the
mortgagee upon occurrence of an insured event.
If the mortgagee failed to notify
the insurer that the insured property was mortgaged, the insurer shall pay the
insured sum in accordance with the insurance contract and the mortgagor shall
be obliged to make payment to the mortgagee.
Article 319.
Effectiveness of mortgage of property
1. Agreement on mortgage of
property shall take effect from the time of concluding, unless otherwise agreed
or prescribed by law.
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Article 320.
Obligations of mortgagor
1. Transfer documents related to
the mortgaged property, unless otherwise agreed or prescribed by law.
2. Take care of and preserve the
mortgaged property.
3. If the mortgaged property is in
danger of losing its value or depreciating in value due to its exploitation, to
take necessary remedial measures, including ceasing the exploitation of the
mortgaged property.
4. When the mortgaged property is
damaged, the mortgagor is obligated to, within a reasonable period, repair or
substitute another property with equivalent value, unless otherwise agreed.
5. Provide information about the
actual condition of the mortgaged property to for the mortgagee.
6. Deliver the mortgaged property
to the mortgagee for realization in one of the cases prescribed in Article 299
of this Code.
7. Notify the mortgagee of any
third person rights with respect to the mortgaged property (if any). In the
case of failure to provide such notice, the mortgagee shall have the right to
cancel the contract of mortgage of property and demand compensation for damage
or the right to maintain the contract and agree on the rights of the third
person with respect to the mortgaged property.
8. Do not sell, exchange or give
the mortgaged property, except in the cases provided in Clauses 4 and 5 of
Article 321 of this Code.
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1. Exploit, and to enjoy the yield
and income derived from, the property, except where the yield and income also
form part of the mortgaged property as agreed.
2. Invest in order to increase the
value of the mortgaged property.
3. Recover the mortgaged property
and related documents held by a third person when the obligation secured by the
mortgage is terminated or is substituted by other security.
4. Sell or replace mortgaged
property being goods rotating during the production and business process. In
the case of a sale of mortgaged property being goods rotating during the
production and business process, the right to require the purchaser to pay money,
the proceeds received or the assets formed from the proceeds received shall
form the mortgaged property in substitution for the property which was sold.
When a warehouse is mortgaged, the
mortgagor may substitute goods in the warehouse but must ensure the value of
the goods in the warehouse remains the value agreed.
5. Sell, exchange or give mortgaged
property not being goods rotating during the production and business process
with the consent of the mortgagee or as prescribed by law.
6. Lease or lend the mortgaged
property provided that notice must be provided to the lessee and the borrower
that the property is being mortgaged and that the mortgagee must also be
notified that such notice has been provided.
Article 322.
Obligations of mortgagees
1. Where the parties agree that the
mortgagee will hold the documents relating to the mortgaged property, to return
to the mortgagor such documents upon termination of the mortgage.
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Article 323.
Rights of mortgagees
1. Examine and inspect directly the
mortgaged property provided that such examination and inspection does not
hinder or cause difficulty to the use and exploitation of the mortgaged
property.
2. Require the mortgagor to provide
information on the current status of the mortgaged property.
3. Require the mortgagor to apply
necessary measures to preserve the property and the value of the property if
there is a danger that use and exploitation of the mortgaged property will
cause loss of value or depreciation in value of the property.
4. Conduct the registration of
mortgage as prescribed by law.
5. Require the mortgagor or a third
person holding the mortgaged property to deliver it to the mortgagee for
realization if, upon expiry of the term for fulfillment of the obligation, the
obligor has failed to perform or performed incorrectly the obligation.
6. Hold documents related to
mortgaged property as agreed by parties, unless otherwise prescribed by law
7. Follow procedures for
realization of mortgaged property as prescribed in Article 299 of this Code.
Article 324.
Rights and obligations of third parties holding mortgaged property
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a) Exploit the property if so
agreed;
b) Receive remuneration and be
reimbursed for expenses incurred in taking care of and preserving the mortgaged
property, unless otherwise agreed.
2. A third person holding mortgaged
property has the following obligations:
a) Take care of and preserve the
mortgaged property, and to compensate for any damage if the third person loses
the mortgaged property or causes the mortgaged property to lose its value or
depreciate in value;
b) Cease the exploitation of the
property if it is in danger of losing its value or depreciating in value;
c) Return the mortgaged property to
the mortgagee or mortgagor as agreed or prescribed by law.
Article 325.
Mortgage on land use rights without mortgage of property on land
1. With respect to mortgage on land
use rights without mortgage property on that land but the land user is also the
owner of the property on land; such property shall also part of the realized
property, unless otherwise agreed.
2. With respect to mortgage on land
use rights that the land user is not also the owner of the property on land,
such owner may keep using such land within his/her rights and obligations
during the realization of the land use rights. The rights and obligations of
the mortgagor in relation with the owner of the property on land shall be
transferred to the transferee of the land use rights, unless otherwise agreed.
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1. With respect to mortgage of
property on land without mortgage on land use rights but the owner of the
property on land is also the land user, such land use rights shall also part of
the realized property, unless otherwise agreed.
2. With respect to mortgage of
property on land without mortgage on land use rights that the owner of the
property on land is not also the land user, the transferee of property on land
may keep using such property within the transferred rights and obligations from
the owner of the property on land during the realization of the land use
rights, unless otherwise agreed.
Article 327.
Termination of property mortgages
A mortgage of property shall
terminate in any of the following cases:
1. The obligation which is secured
by the mortgage has terminated;
2. The mortgage of the property has
been cancelled or substituted with another security;
3. The mortgaged property has been
realized;
4. As agreed by the parties.
Sub-section 4. DEPOSIT, SECURITY
COLLATERAL, ESCROW DEPOSIT
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1. Deposit is an act whereby one
party (hereinafter referred to as the depositor) transfers to another party
(hereinafter referred to as the depositary) a sum of money or precious metals,
gemstones or other valuable things (hereinafter referred to as the deposited
property) for a period of time as security for the entering into or performance
of a contract.
2. Upon a contract being entered
into or performed, any deposited property shall be returned to the depositor,
or deducted from the amount of an obligation to pay money. If the depositor
refuses to enter into or perform the contract, the deposited property shall
belong to the depositary. If the depositary refuses to enter into or perform
the contract, it must return the deposited property and pay an amount
equivalent to the value of the deposited property to the depositor, unless
otherwise agreed.
Article 329.
Security collateral
1. Security collateral is an act
whereby a lessee of a movable property transfers a sum of money or precious
metals, gems or other valuable things (hereinafter referred to as security
collateral property) to the lessor for a specified time limit to secure the
return of the leased property.
2. In cases where the leased
property is returned, the lessee shall be entitled to reclaim the security
collateral property after pay the rental; if the lessee does not return the
leased property, the lessor shall be entitled to reclaim the leased property;
if the leased property is no longer available for the return, the security
collateral property shall belong to the lessor.
Article 330.
Escrow deposit
1. Escrow deposit is an act whereby
an obligor deposits a sum of money, precious metals, gems or valuable papers
into an escrow account at a credit institution to secure the performance of an
obligation.
2. In cases where the obligor has
failed to perform or has improperly performed an obligation, the obligee shall
be entitled to receive payment and compensation for damage caused by the
obligor from the bank where the escrow deposit is affected, after deducting the
bank service charges.
3. The procedures for making
deposits and making payments shall be as provided by the law.
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Article 331.
Title retention
1. In a sale contract, the
ownership of property of the seller may remain until the buyer pays the
purchase price in full.
2. Title retention must be made in
a separate document or included in the sale contract.
3. The title retention shall take
effect against third party from the time of registration.
Article 332.
Right to reclaim property
If the buyer fails to fulfill the
payment obligation for the seller as agreed, the seller is entitled to reclaim
the property. The seller shall refund the paid amount by the buyer deducted
from the depreciated value due to use. Where the buyer lost or damaged
property, the seller has the right to claim damages.
Article 333.
Rights and obligations of the buyer
1. Using the property and enjoying
the yield and income derived therefrom within the effective term of title
retention.
2. Facing the risks of the property
within the effective term of the title retention, unless otherwise agreed.
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The title retention shall terminate
in any of the following cases:
1. Payment obligation fulfilled
completely by the buyer;
2. The seller receives the property
under title retention back;
3. As agreed by the parties.
Sub-section 6. GUARANTEES
Article 335.
Guarantees
1. Guarantee means an undertaking
made by a third person (hereinafter referred to as the guarantor) to an obligee
(hereinafter referred to as the creditor) to perform an obligation on behalf of
an obligor (hereinafter referred to as the principal debtor) if the obligation
falls due and the principal fails to perform or performs incorrectly the
obligation.
2. The parties may agree that the
guarantor shall only be obliged to perform the obligation if the principal
debtor is incapable of performing it.
Article 336.
Scope of guarantees
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2. A guaranteed obligation includes
interest on the principal, penalties and compensation for any damage and
interest on late payment, unless otherwise agreed.
3. The parties may agree on using
security as property to secure the performance of guaranteed obligation.
4. If the obligation to guarantee
is an obligation arising in the future, the scope of guarantee is exclusive of
any obligations arising after the guarantor being natural person dies or the
guarantor being juridical person ceases to exist.
Article 337.
Remuneration
The guarantor shall be entitled to
receive remuneration if so agreed by the guarantor with the principal debtor.
Article 338.
Joint guarantors
When more than one person guarantee
an obligation, those persons must perform jointly the guarantee, except where
it is agreed or provided by law that the guarantee comprises separate portions.
The obligee may require any of the joint guarantors to perform the obligation
in its entirety.
Where one of the joint guarantors
has performed the entire obligation on behalf of the principal debtor, the
guarantor may require the other guarantors to perform their respective portions
of the obligation with respect to that guarantor.
Article 339.
Relationship between guarantors and creditors
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2. A creditor may not require a
guarantor to perform an obligation on behalf of the principal debtor until the
obligation falls due.
3. Where a guarantor is able to
offset an obligation with a principal debtor, a guarantor does not have to
perform the guaranteed obligation.
Article 340.
Rights to require of guarantors
Each guarantor may require the
principal debtor to indemnify the guarantor to the extent of the guarantee,
unless otherwise agreed.
Article 341.
Discharge from guaranteed obligations
1. Where the guarantor must perform
the guaranteed obligation but the creditor discharges the guarantor from an
obligation, the principal debtor is discharged from performance of the
obligation with respect to the creditor, except where it is agreed or provided
by law.
2. Where one person from amongst
the joint guarantors is discharged from the performance of its portion of the
guaranteed obligation, the other joint guarantors must, nevertheless, perform
their portion of the guaranteed obligation.
3. Where one person from amongst
the joint creditors discharge the guarantor from the performance of its portion
of the guaranteed obligation, the guarantor must, nevertheless, perform their
portion of the guaranteed obligation with respect to remaining joint creditors.
Article 342.
Civil liability of guarantor
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2. If the guarantor performs
incorrectly the guaranteed obligation, the creditor is entitled to request the
guarantor to pay the value of the breached obligation and compensate for any
damage.
Article 343.
Termination of guarantees
A guarantee shall terminate in any
of the following cases:
1. The obligation secured by the
guarantee terminates;
2. The guarantee is cancelled or is
substituted by another security;
3. The guarantor has satisfied the
guaranteed obligation;
4. As agreed by the parties.
Sub-section 7. FIDELITY GUARANTEES
Article 344.
Fidelity guarantees provided by socio-political organizations
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Article 345.
Formalities and contents of fidelity guarantees
A loan guaranteed by a fidelity
guarantee must be made in writing with certification of a socio-political
organization in terms of conditions and circumstances of the borrower.
The agreement on fidelity guarantee
must specify the loan amount, the purpose of loan, the term of loan, the
interest rate, and the rights, obligations and responsibilities of the
borrower, the lending bank or credit institution and the guarantor
organization.
Sub-section 8. LIEN ON PROPERTY
Article 346.
Lien on property
Lien on property means that the
obligee (hereinafter referred to as the lienor) who is legally possessing the
property being an object of a bilateral contract is entitled to retain the
property when the obligor fails to perform the obligations or has performed the
obligations not strictly as agreed upon.
Article 347.
Establishment of lien on property
1. Lien on property shall arise
from the due time for performance of obligation that the obligor failed to
perform or perform incorrectly the obligation.
2. Lien on property shall take
effect against third party from the time of possession of the possessor.
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1. Request the obligor to fulfill
completely the obligations arising from a bilateral contract.
2. Require the obligor to pay
expenses necessary for taking care of and keeping such property.
3. Exploit the property to obtain
yield and income therefrom with the consent of the obligor.
The value of benefits from the
exploitation of the property shall be offset against the value of the
obligation of the obligor.
Article 349.
Obligations of lienors
1. Take care and preserve the
property
2. Do not change the status of the
property.
3. Do not transfer or use the
property without the consent of the obligor.
4. Return the property upon the
complete performance of the obligation.
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Article 350.
Termination of lien on property
A lien on property shall terminate
in any of the following cases:
1. The lienor actually no longer
retains the property;
2. Contracting parties shall agree
on another security instead of retain on property;
3. upon the complete performance of
the obligation;
4. The property ceases to exist;
5. As agreed by the parties.
Section 4.
CIVIL LIABILITY
Article 351.
Civil liability arising from breach of civil obligations
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Breach of obligations means that
the obligor fails to perform the obligations on time, perform the obligations
incompletely or incorrectly.
2. Where an obligor is not able to
perform a civil obligation due to an event of force majeure, it shall not have
civil liability, unless otherwise agreed or otherwise provided by law.
3. An obligor shall not have civil
liability if it is able to prove that failure to perform an obligation is due entirely
to the fault of the obligee.
Article 352.
Responsibility for continuing performing obligations
When an obligor perform its
obligations improperly, the obligee is entitled to request the obligor to
continue perform such obligations.
Article 353.
Late performance of civil obligations
1. Late performance of a civil
obligation is the failure to have performed the civil obligation in whole or in
part as at the expiry of the time limit for the performance of such obligation.
2. The party being late in performance
of a civil obligation must notify immediately the obligee about the failure to
have performed the civil obligation in a timely manner.
Article 354.
Postponement of performance of civil obligations
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In the case of failure to notify
the obligee, the obligor must compensate for any damage arising, unless
otherwise agreed or unless it was impossible to provide notification due to
objective reasons.
2. The obligor may postpone the
performance of the obligation only if the obligee consents. The performance of
the civil obligation in this case of postponement shall be deemed to be
performance in a timely manner.
Article 355.
Late acceptance of performance of civil obligations
1. The late acceptance of the
performance of a civil obligation is where the time limit for the fulfillment
of the civil obligation has expired and the obligor has already fulfilled the
civil obligation as agreed but the obligee does not accept the performance of
such obligation.
2. When the subject matter of late
acceptance of performance of a civil obligation is property, the obligor may
hand over the property to a bailee must or take the necessary measures to take
care of the property and is entitled to demand reimbursement of reasonable
expenses. If the property is kept by a bailee, the obligor must notify the
obligee.
3. The obligor has the right to
sell property which is in danger of being damaged or of deteriorating, and
shall pay the proceeds of sale of such property to the obligee after deducting
necessary expenses for the preservation and sale of the property.
Article 356.
Civil liability for failure to perform obligations to deliver objects
1. Where an obligor fails to
deliver a distinctive object, the obligee has the right to require the obligor
to deliver that particular object. If the object no longer exists or is
damaged, the obligor must pay the value of the object.
2. Where an obligor fails to
deliver a fungible object, the obligee has the right to require the obligor to
deliver another fungible object. If there is no fungible object, the obligor
must pay the value of the object.
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Article 357.
Liability for late performance of the obligation to pay
1. Where the obligor makes late
payment, then it must pay interest on the unpaid amount corresponding to the
late period.
2. Interest arising from late
payments shall be determined by agreement of the parties, but may not exceed
the interest rate specified in paragraph 1 of Article 468 of this Code; if
there no agreement mentioned above, the Clause 2 of Article 468 of this Code
shall apply.
Article 358.
Civil liability for failure to perform obligations to perform acts or not to
perform acts
1. Where an obligor fails to
perform an act which it must perform, the obligee has the right to request the
obligor to perform the act, or the obligee may perform the act or assign the
performance of the act to another person and to require the obligor pay
reasonable expenses incurred and compensate for any damage.
2. Where a person has an obligation
not to perform an act but, nevertheless, performs such act, the obligee has the
right to require the obligor to cease performing the act, make restitution and
compensate for any damage.
Article 359.
Liability for late acceptance of performance of civil obligations
An obligee which is late in
accepting the performance of a civil obligation, and thereby causes damage to
the obligor, must compensate the obligor for any damage and shall accept all
risks arising from the time when acceptance fell due, unless otherwise agreed
or otherwise provided by law.
Article 360.
Liability for compensation due to breach of obligations
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Article 361.
Damage caused by breach of obligations
1. Damage caused by breach of
obligations comprises physical damage and spiritual damage.
2. The physical damage means those
actual physical losses, comprising loss of property, reasonable expenses to
prevent, mitigate or restore damage, and the actual loss or reduction of
income.
3. Spiritual damage means losses
related to life, health, honor, dignity or reputation and other personal benefits
of an entity.
Article 362.
The obligation to prevent or limit damage
The obligee must adopt the
necessary and reasonable measures to prevent or limit its damage.
Article 363.
Compensation for damages in case of the aggrieved party at fault
Where the breach of the obligations
and damage incurred due to part of the fault of the aggrieved party, the
violating party only be required to pay damages corresponding to its degree of
fault.
Article 364.
Fault in civil liability
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Intentional fault means that a
person is fully aware that its act will cause damage to another person but,
nevertheless, performs the act and, irrespective of whether or not it so
wishes, allows the damage to occur.
Unintentional means that a person
does not foresee that its act is capable of causing damage, even though it
knows or should know that the damage will occur, or where it does foresee that
such act is capable of causing damage but believes that the damage will not
occur or will be able to be prevented.
Section 5.
TRANSFER OF RIGHT TO DEMAND AND TRANSFER OF CIVIL OBLIGATIONS
Article 365.
Transfer of right to demand
1. A party having the right to
demand the performance of a civil obligation may transfer such right to demand
to a subrogatee of the obligee as agreed, except in the following cases:
a) The right is the right to demand
support or the right to demand compensation for any damage resulting from harm
to life, health, honor, dignity or reputation;
b) The obligee and the obligor
agree that the right to demand may not be transferred;
2. Where a person having a right to
demand transfers such right to a subrogatee, the subrogatee of the obligee
shall become the person having the right to demand. The transfer of right to
demand does not require the consent of the obligor.
A person transferring a right must
notify the obligor in writing of the transfer of the right to demand, unless
otherwise agreed. If the person transferring the right fails to notify the obligor
thereby the obligor incurs expenses, the person transferring the right must pay
for those expenses.
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1. A person transferring a right to
demand must provide the necessary information and the relevant documents to the
subrogatee of the obligee.
2. A person transferring a right to
demand and breaching the provisions in Clause 1 of this Article, thereby
causing damage, must compensate for such damage.
Article 367.
No liability after transfer of right to demand
A person transferring a right to
demand shall not be liable for the capability of the obligor to perform the
obligation, unless otherwise agreed.
Article 368.
Transfer of right to demand performance of secured civil obligations
Where a right to demand the
performance of a secured civil obligation is transferred, the transfer of the
right to demand shall include the security.
Article 369.
Right to refuse of obligors
1. Where the obligor is not
notified of the transfer of the right to demand or where the subrogatee of the
obligee does not prove the authenticity of the transfer of the right to demand,
the obligor has the right to refuse to perform the obligation with respect to
the subrogatee of the obligee.
2. Where the obligor is not
notified of the transfer of the right to demand and has already fulfilled the
obligation with respect to the person having transferred the right to demand,
the subrogatee of the obligee may not demand the obligor to perform the
obligation with respect to that subrogatee.
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1. An obligor may transfer a civil
obligation to a subrogatee of the obligor with the consent of the obligee,
except where the obligation is personal to the obligor or where the law
provides that the obligation may not be transferred.
2. Upon a transfer of the
obligation, the subrogatee of the obligor shall become the obligor.
Article 371.
Transfer of secured civil obligations
Where a secured civil obligation is
transferred, the security shall terminate, unless otherwise agreed.
Section 6.
TERMINATION OF CIVIL OBLIGATIONS
Section 372.
Termination of civil obligations
A civil obligation shall terminate
in any of the following cases:
1. The obligation is fulfilled;
2. The parties so agree;
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4. The obligation is substituted by
another civil obligation;
5. The obligation is offset;
6. The obligee and the obligor
merge;
7. The prescriptive period for a
release from the civil obligation has expired;
8. The obligor being a natural
person dies, or the obligor being a juridical person ceases to exist, and the
obligation must be performed by that particular natural person or juridical
person;
9. The obligee being a natural
person dies and the right to demand does not form part of the bequeathed
estate, or the obligee being a juridical person ceases to exist and the right
to demand is not able to be transferred to another juridical person;
10. A distinctive object which is
the subject matter of the civil obligation no longer exists and is substituted
by another civil obligation.
11. Other cases as provided by law.
Article 373.
Fulfillment of civil obligations
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Article 374.
Fulfillment of civil obligations where obligees are late in accepting subject
matter of obligations
When an obligee is late in
accepting the subject matter of an obligation which is an object, the
obligation to deliver an object shall be fulfilled at the moment when the
object is deposited for bailment as prescribed in Clause 2 Article 355 of this
Code.
Article 375.
Termination of civil obligations by agreement
Parties may agree to terminate a
civil obligation at any time but must not cause damage to the interests of the
State or the public or the legal rights or interests of other persons.
Article 376.
Termination of civil obligations due to waiver
1. A civil obligation shall
terminate when the obligee waives the obligation of the obligor, unless
otherwise provided by law.
2. When a secured civil obligation
is waived, the security arrangement shall also terminate.
Article 377.
Termination of civil obligations by substitution
1. Where parties agree to
substitute an original civil obligation with another civil obligation, the
original civil obligation shall terminate.
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3. Where a civil obligation is an
obligation to support others or to compensate for any damage due to harm to
life, health, honor, dignity or reputation, or another personal obligation
which is not able to be transferred to other persons, such obligation may not
be substituted with another obligation.
Article 378.
Termination of civil obligations where obligations are offset
1. Where parties have reciprocal
obligations with respect to fungible objects, when both obligations fall due,
the parties shall not be required to perform their obligations to each other,
and the obligations shall be deemed to have terminated, unless otherwise
provided by law.
2. Where the values of properties
or acts are not equivalent, the parties shall settle with each other the
difference in value.
3. Objects having monetary value
may be used to offset an obligation to pay money.
Article 379.
Cases where civil obligations may not be offset
A civil obligation may not be
offset in the following cases:
1. The civil obligation is in
dispute;
2. The obligation is to compensate
for harm to life, health, dignity, honor or reputation;
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4. Other obligations as provided by
law.
Article 380.
Termination of civil obligations upon merger of obligor and obligee
A civil obligation of an obligor
shall terminate when the obligor becomes the obligee with respect to that
particular obligation.
Article 381.
Termination of civil obligations due to expiry of duration of waiver of civil
obligation
Upon expiry of the duration of
waiver of a civil obligation, the obligation shall terminate.
Article 382.
Termination of civil obligations when obligor being natural person dies or when
obligor being juridical person ceases to exist
Where parties have agreed or the
law provides that an obligation must be performed by a particular obligor, when
such natural person dies or such juridical person ceases to exist, the
obligation shall terminate.
Article 383.
Termination of civil obligations when distinctive objects no longer exist
An obligation to deliver a
distinctive object shall terminate when such distinctive object no longer
exists.
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Article 384.
Termination of civil obligations in cases of bankruptcy
In cases of bankruptcy, civil
obligations shall terminate in accordance with the Law on bankruptcy.
Section 7.
CONTRACTS
Sub-section 1. ENTERING INTO
CIVIL CONTRACTS
Article 385.
Definition of civil contract
Civil contract means an agreement
between parties in relation to the establishment, modification or termination
of civil rights and obligations.
Article 386.
Offers to enter into civil contracts
1. Offer to enter into a contract
means a clear expression by the offeror of its intention to enter into a
contract and to be bound by such offer made to another specific party or the
public (hereinafter referred to as the offeree).
2. Where an offer to enter into a
contract has specified the time for reply and the offeror enters into a
contract with a third person during the time limit for reply by the offeree, if
the offeror fails to enter into the contract with the offeree and the offeree
suffers damage, the offeror must compensate the offeree for such damage.
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1. Each party must notify the other
party of any piece of information affecting the acceptance of offer to enter
into the contract by the latter party.
2. When a party receives any secret
information from the other party during the process of entering into the
contract, it must protect that information and may not use it for its own
purposes or other illegal purposes.
3. Any party violating Clause 1 or
Clause 2 of this Article thereby causes damage must compensate for it.
Article 388.
Time limit within which offer to enter into contract remains effective
1. The time limit within which an
offer to enter into a contract remains effective shall be determined as
follows:
a) Where an offeror has specified
such time limit;
b) Where an offeror has not
specified the time limit, the offer to enter into the contract is effective as
from the time the offeree receives the offer.
2. The following cases shall be
deemed to be receipt of an offer to enter into a contract:
a) The offer is delivered to the
place of residence if the offeree is a natural person, or the offer is
delivered to the head office if the offeree is a juridical person;
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c) When the offeree knows about the
offer to enter into a contract by way of other means.
Article 389.
Modification or withdrawal of offers to enter into contracts
1. An offeror may modify or
withdraw an offer to enter into a contract in the following cases:
a) If the offeree receives notice
of modification or withdrawal of the offer prior to or at the same time as
receipt of the offer;
b) The offeror clearly specified
the circumstances in which the offer could be modified or withdrawn and such
circumstances have in fact arisen.
2. When the offeror modifies the
contents of the offer, that offer shall be deemed to be a new offer.
Article 390.
Rescission of offers to enter into contracts
If the offeror exercises the right
to rescind the offer to enter into a contract on the ground that such right was
specified in the offer, the offeror must notify the offeree and such notice
shall only be effective if the offeree receives the notice prior to the offeree
providing its acceptance of the offer to enter into the contract.
Article 391.
Termination of offers to enter into contracts
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1. The offeree replies that the
offer is accepted.
2. The offeree replies that the
offer is not accepted;
3. The time limit for acceptance
has expired;
4. When notice of modification or
withdrawal of the offer becomes effective;
5. When notice of rescission of the
offer becomes effective;
6. As agreed by the offeror and the
offeree within the time limit within which the offer to enter into a contract
remains effective.
Article 392.
Amendment of offer proposed by offeree
When an offeree accepts the offer
to enter into a contract but specifies conditions or amendments to the offer,
the offeree shall be deemed to have made a new offer.
Article 393.
Acceptance of offers to enter into contracts
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2. The silence of the offeree shall
not mean an acceptance of the offer to enter into the contract, unless it is
agreed upon or habit established by the parties.
Article 394.
Time limits for acceptance of offers to enter into civil contracts
1. Where an offeror has specified a
time limit for reply, a reply accepting shall only be effective if it is made
within that time limit. If the offeror receives an acceptance after the time
limit has expired, such acceptance shall be deemed to be a new offer from the
party which is late in replying.
When the offeror does not specify
the time limit for reply, the reply accepting shall only be effective if it is
made within reasonable period.
2. If a notice of acceptance of an
offer to enter into a contract arrives late for objective reasons which the
offeror knows or should know, such notice shall still be effective, unless the
offeror immediately replies that it does not agree with such acceptance by the
offeree.
3. Where the parties communicate
directly, including conversations by telephone or other means of communication,
the offeree must reply immediately as to whether or not it will accept, except
where there is an agreement on the time limit for reply.
Article 395.
Cases where offeror dies or lacks of legal capacity or has limited cognition
and behavior control
Where the offeror dies or lacks of
legal capacity or has limited cognition and behavior control after the offeree
has replied accepting the offer, the offer to enter into a contract shall still
be valid, unless the contents of contract is associated with the personal
identity of the offeror.
Article 396.
Cases where offeree dies or lacks of legal capacity or has limited cognition
and behavior control
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Article 397.
Withdrawal of notice of acceptance to enter into contract
The offeree may withdraw notice of
acceptance to enter into a contract if such notice arrives prior to or at the
same time as the offeror receives the reply accepting the offer to enter into a
contract.
Article 398.
Contents of contracts
1. The contracting parties may
agree on the contents of a contract.
2. A contract may have the
following contents:
a) Subject matter of the contract;
b) Quantity and quality;
c) Price and method of payment;
d) Time limit, place and method of
performing the contract;
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e) Liability for breach of
contract;
g) Methods of settlement of
disputes.
Article 399.
Places for entering into contracts
The place where a contract is
entered into shall be as agreed by the parties; if there is no agreement, such
place shall be the residence of the individual, or the head office of the legal
entity, having made the offer to enter into the contract.
Article 400.
Time when contracts are entered into
1. A contract is entered into at
the time when the offeror receives the reply accepting to enter into the
contract.
2. If the parties have agreed that
silence shall constitute an acceptance within a time limit, the contract shall
also be deemed to be entered into when such time limit has expired.
3. The time when an oral contract
is entered into is the time when the parties have reached agreement on the
contents of the contract.
4. The time when a written contract
is entered into shall be the time when the last party signs the contract or by
other forms of written acceptance.
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Article 401.
Effectiveness of contracts
1. A contract legally entered into
shall take effect from the time when it is entered into, unless otherwise
agreed or otherwise provided by law.
2. From the effective date of the
contract, contracting parties must mutually exercise rights and perform
obligations as agreed. A contract may be amended or terminated as agreed by the
parties or prescribed by law.
Article 402.
Principal types of contracts
Contracts comprise the following
principal types:
1. A bilateral contract is a
contract whereby each party has an obligation to the other;
2. A unilateral contract is a
contract whereby only one party has an obligation;
3. A principal contract is a
contract the effectiveness of which does not depend on another contract;
4. An ancillary contract is a
contract the effectiveness of which depends on a principal contract;
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6. A conditional contract is a
contract the performance of which depends on the occurrence, modification or
termination of a specified event.
Article 403.
Appendices to contracts
1. Appendices providing details on
certain terms and conditions of a contract may be attached to the contract. The
appendices shall have the same effectiveness as the contract. The contents of
the appendices shall not contradict the contents of the contract.
2. If the terms and conditions of
the appendices contradict the terms and conditions of the contract, such terms
and conditions of the appendices shall be ineffective, unless otherwise agreed.
If the parties agree that the terms and conditions of the appendices contradict
the terms and conditions of the contract, the terms and conditions of the
contract which are contradicted shall be deemed to have been amended.
Article 404.
Interpretation of contracts
1. Where a contract contains terms
and conditions which are unclear, the interpretation of such terms and
conditions shall be based not only on the wording of the contract but also on
the mutual intentions of the parties during the process prior to and after the
time of establishment and performance of the contract.
2. Where a term of a contract may
be interpreted in different ways, it shall be interpreted in the way which,
when effective, will best benefit the parties.
3. Where the wording of a contract
may be interpreted in different ways, such wording shall be interpreted in the
way most appropriate to the nature of the contract.
4. Where a contract contains a term
or wording which is difficult to understand, such term or wording shall be
interpreted in accordance with the customary practice of the place where the
contract was entered into.
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6. Where the party in a powerful position
inserts into the contract contents which are disadvantageous to the party in a
weak position, the contract shall be interpreted in a manner favoring the party
in a weak position.
Article 405.
Standard form contracts
1. Standard form contract means a
contract containing terms and conditions which are prepared by a party based on
a standard form requiring the other party to reply within a reasonable period
of time. If the offeree accepts, it shall be deemed to have accepted the entire
contract provided by the offeror.
The standard form contract must be
public in order for the parties to know or should know the contents of the
contract.
Procedures for announcement of
standard form contract shall comply with regulations of law.
2. Where a standard form contract
contains terms and conditions which are unclear, such terms and conditions
shall be interpreted in a manner favoring the offeree.
3. Where a standard form contract
contains provisions exempting the party providing such standard form contract
from liability, or increasing the liability of or waiving legitimate interests
of the other party, such provisions shall be ineffective, unless otherwise
agreed.
Article 406.
General trading conditions in concluding contracts
1. General trading conditions are stable
terms announced by a party to apply to the offeree; if the offeree accepts the
contract is then deemed to accept these terms.
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The procedures for announcement of
general trading conditions shall comply with regulations of law.
3. The general trading conditions
must ensure equality between the parties. If the general trading conditions
contain provisions on discharge of liability from the party giving the general
trading conditions, increase of responsibility or removal of the legitimate
interests of the other party, these provisions do not take effect, unless
otherwise agreed.
Article 407.
Invalid civil contracts
1. The provisions on invalid civil
transactions in Articles 123 to 138 inclusive of this Code shall also govern
invalid contracts.
2. Invalidity of a principal
contract shall terminate an ancillary contract, unless the parties agree that
the ancillary contract replaces the principal contract. This provision shall
not apply with respect to security for the performance of civil obligations.
3. Invalidity of an ancillary
contract shall not terminate the principal contract, unless the parties agree
that the ancillary contract is an inseparable part of the principal contract.
Article 408.
Invalidity of civil contracts due to impossibility of performing subject matter
1. If, immediately as from the time
a contract is signed, it is impossible to perform the subject matter of the
contract for objective reasons, the contract shall be invalid.
2. If, when entering into a
contract, one party knew or should have known that it was impossible to perform
the subject matter of the contract for objective reasons but failed to notify
the other party which entered into the contract, the former party must
compensate the latter party for damage, unless the latter party knew or should
have known that it was impossible to perform the subject matter of the
contract.
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Sub-section 2. PERFORMANCE OF
CONTRACTS
Article 409.
Performance of unilateral contracts
With respect to a unilateral
contract, the obligor must perform the obligation strictly as agreed. The
obligor may only perform the obligation prior to or after the time limit with
the consent of the obligee.
Article 410.
Performance of bilateral contracts
1. With respect to a bilateral
contract, where the parties have agreed on a time limit for the performance of
an obligation, each party must perform its obligation when the obligation falls
due. One party may not postpone performance by reason of the other party not
having performed the obligations owed to the former party, except in the cases
provided in Articles 411 and 413 of this Code.
2. Where the parties have no
agreement on which party will perform its obligation first, the parties must
perform their obligations concurrently; where obligations are not able to be
performed concurrently, the obligation the performance of which will take
longer shall be performed first.
Article 411.
Right to postpone performance of civil obligations in bilateral contracts
1. The party which is required to
perform its obligation first has the right to postpone the performance of such
obligation, if the property of the other party has substantially decreased in
value such that its obligation is not able to be performed as undertaken, until
the other party is able to perform its obligation or has a guarantor.
2. The party which is required to
perform its obligation last has the right to postpone the performance of such
obligation when it falls due if the party which was required to perform its
obligation first failed to do so when such obligation fell due.
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If the obligor fails to perform
his/her obligations, the obligee shall establish the right to lien on property
of the obligor as prescribed in Article 346 to Article 350 of this Code.
Article 413.
Obligations not able to be performed due to fault of obligee
With respect to a bilateral
contract, when one party is not able to perform its obligations due to the
fault of the other party, the former party has the right to demand the latter
party to continue to perform its obligation with respect to the former party or
has the right to cancel the contract and demand compensation for damage.
Article 414.
Failure to perform obligations not due to fault of parties
With respect to a bilateral
contract, when one party is not able to perform its obligations but there is no
fault of any party, the party not being able to perform does not have the right
to demand the other party to perform its obligation with respect to the former
party. When one party has performed part of its obligations, such party has the
right to demand the other party to perform its corresponding obligation with
respect to the former party.
Article 415.
Performance of contracts for benefit of third parties
Where a contract is performed for
the benefit of a third person, the third person has the right to demand
personally the obligor to perform the obligations with respect to such third
person. If there is a dispute between the parties over the performance of the
contract, the third person does not have the right to demand performance until
the dispute is resolved.
An obligee also has the right to
demand the obligor perform a contract for the benefit of a third person.
Article 416.
Right to waive of third persons
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2. If a third person waives its
[right to] benefits after the obligor has performed the obligation, the
obligation shall be deemed to have been fulfilled and the obligee must perform
its undertakings with respect to the obligor. In this case, benefits derived
from the contract shall be enjoyed by a party that should have been the
beneficiary if the contract is performed for the interests of a third party,
unless otherwise agreed.
Article 417.
No amendment or cancellation of contracts for benefit of third persons
Where a third person has agreed to
receive a benefit, the parties to the contract may not amend or cancel the
contract, even where the contract is yet to be performed, except with the
consent of the third person.
Article 418.
Agreements on fines against violations
1. Agreements on fines for
violations are reached by the parties to a contract which requires the
violating party to pay a fine to the aggrieved party.
2. The fine levels shall be agreed
among the parties, unless otherwise prescribed by relevant laws.
3. The parties may reach an
agreement that the violating party has to pay only a fine for violations and is
not liable to any compensation for damage, or has to pay both a fine for
violations and a compensation for damage.
In case the parties have an
agreement on fines against violation which does not specify that the violating
party has to pay both a find for violations and a compensation for damage, then
the violating party has to pay only the fine for violations.
Article 419.
The damage to be compensated for breach of contract
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2. The obligee may demand
compensation for damage to its supposed benefits that will be enjoyed by the
contract offer. The obligee also may request the obligor to pay the costs
incurred due to its non-fulfillment of contractual obligations which do not
overlap with the compensation for damages for contractual benefits.
3. At the request of the obligee, a
court may compel the obligor to pay spiritual damages to the obligee. The
damages shall be decided by the court according to contents of case.
Article 420.
Performance of contract upon the basic change of circumstances
1. The change of circumstances
shall be deemed basic when it meets all following conditions:
a) The circumstances change due to
objective reasons occurred after the conclusion of the contract;
b) At the time of concluding the
contract, the parties could not foresee a change in circumstances;
c) The circumstances change such
greatly that if the parties know in advance, the contract has not been
concluded or are concluded, but with completely different content;
d) The continuation of the contract
without the change in the contract would cause serious damage to one party;
dd) The party having interests
adversely affected has adopted all the necessary measures in its ability, in
accordance with the nature of the contract, cannot prevent or minimize the
extent of effect.
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3. If the parties cannot reach an
agreement on amending the contract within a reasonable period of time, any of
the parties may request a court to:
a) Terminate the contract at a
specific time;
b) Amend the contract to balance
the lawful rights and interests of the parties due to basic change of
circumstances.
The court may only decide to amend
the contract in the event that the termination of the contract would cause
greater damage than the cost to perform the contract if it is modified.
4. In the process of negotiating
amendments and termination of the contract and the court handling the case, the
parties must continue to perform its obligations under the contract, unless
otherwise agreed.
Sub-section 3. AMENDMENT AND
TERMINATION OF CONTRACTS
Article 421.
Amendment to contracts
1. Parties may agree to amend a
contract.
2. Each contract may be amended as
prescribed in Article 420 of this Code.
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Article 422.
Termination of contracts
A civil contract shall terminate in
any of the following cases:
1. The contract has been completed;
2. The parties so agree;
3. Where a contract is only able to
be performed by a particular natural person or juridical person having entered
into the contract, and that particular natural person dies or that juridical
person ceases to exist.
4. The contract is cancelled or
unilaterally terminated;
5. The contract is not able to be
performed because the subject matter of the contract no longer exists;
6. The contract terminates as
prescribed in Article 420 of this Code;
7. Others circumstances as provided
by law.
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1. A party has the right to cancel
a contract and shall not be liable to compensate for damage in any of the
following cases:
a) A violation of contract by the
other party gives rise to cancellation as agreed by the parties;
b) The other party seriously
violates the obligations in the contract;
c) Others circumstances as provided
by law.
2. Serious violation means the
failure to fulfill obligations properly by a party leading the failure to
achieve the purposes of entering into contract by the other party.
3. A party cancelling a contract
must notify the other party immediately of the cancellation [and] must
compensate if the failure to notify causes damage.
Article 424.
Cancellation of the contract due to late performance of obligations
1. Where the obligor fails to
perform the obligations that the obligee requests in a reasonable period of
time but the obligor still fails to perform, the obligee may cancel the
contract.
2. If, due to the nature of the
contract or by the will of the parties, the contract will not achieve the
objective if it is not performed within a certain time limit, but the obligor
fails to perform that contract upon the expiry date of such time limit, the
obligee has the right to cancel the contract without adherence to Clause 1 of
this Article.
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Where the obligor cannot perform
part or all of its obligations to make the purpose of the obligee may not be
reached, the obligee party can cancel the contract and claim damages.
Article 426.
Cancellation of the contract in the case of lost or damaged property
Where a party losses or causes
damage to property being the subject of a contract that cannot be refunded or
compensated by other property or cannot be repaired or replaced with the same
type of property, the other party may cancel contract.
The violating party shall
compensate in cash equal to the value of lost or damaged property, unless
otherwise agreed or stipulated in Clause 2, Clause 3, Article 351 and Article
363 of this Code.
Article 427.
Consequences of cancellation of contracts
1. When a contract is canceled, the
contract is void from the time of signing; the parties do not have to fulfill
the obligations agreed upon, except for agreement on fines against violations,
compensation and settlement of disputes.
2. The parties must return to each
other what they have received after deducting from the reasonable costs of
contract performance and cost of preservation and development of property.
The refund is made in kind. In case
it cannot be returned in kind, it is worth the money to repay.
Where the parties are jointly
obliged to refund, the refund must be made at the same time, unless otherwise
agreed or otherwise provided by law.
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4. The settlement of the
consequences of the cancellation of the contract relating to personal rights
shall comply with this Code and other relevant law provisions.
5. In case of canceling the
contract without grounds specified in Articles 423, 424, 425 and 426 of this
Code, the cancellation of the contract is determined as the violating party to
perform its obligations and responsibilities to comply with its obligations
under the provisions of this Code, other relevant laws.
Article 428.
Unilateral termination of performance of contracts
1. A party has the right to
terminate unilaterally the performance of a contract without any compensation
for damage when a party violates its obligations seriously if so agreed by the
parties or so provided by law.
2. A party terminating unilaterally
the performance of a contract must notify the other party immediately of its
termination of the contract and must compensate if the failure to notify causes
damage.
3. Where the performance of a
contract is terminated unilaterally, it shall terminate from the time when the
other party is notified of the termination. In such case, the parties are not
required to continue to perform their obligations, except for agreement on
fines for violations, compensation for damage and settlement of disputes. A
party which has already performed its obligation may demand the other party to
make payment for the performed obligation.
4. The aggrieved party shall
receive a compensation for damage caused by the improper performance of
obligation by the violating party.
5. If a contract is terminated
unilaterally without any basis prescribed in Clause 1 of this Article, the
party terminating unilaterally the performance of the contract shall be deemed
to be the violating party and must perform civil liability as prescribed in
this Code and relevant laws.
Article 429.
Prescriptive period for initiating legal action with respect to contracts
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Chapter XVI
COMMON CONTRACTS
Section 1.
SALE CONTRACTS OF PROPERTY
Article 430.
Sale contract of property
Sale contract means an agreement
between parties whereby a seller is obligated to transfer the ownership rights
of property to the purchaser and the purchaser is obligated to make a payment
to the seller.
Sale contracts of houses or sale
contracts of houses for other purposes shall comply with this Code, the Law on
Housing and relevant laws.
Article 431.
Subject matter of sale contracts
1. Each property prescribed in this
Code may be the subject matter of a sale contract. If a property is banned or
restricted from transfer as prescribed by laws, it shall become a subject
matter of a sale contract if it complies with the regulations of such laws.
2. The property is under ownership
of the seller and the seller has the right to sell it.
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1. The quality of an object for
sale and purchase shall be as agreed by the parties.
2. Where the quality of an object
has been proclaimed or is provided by a competent authority, the quality of the
object agreed by the parties shall not be lower than the quality proclaimed
standard or the stipulations of the competent authority.
3. Where parties have not agreed on
or agree unclearly on the quality of the object for sale, its quality shall
conform to requirements pertaining to quality of the object proclaimed or
prescribed by a competent authority or by industry standards.
If there is no quality standard,
regulations of a competent authority and industry standard in terms of an
object for sale, its quality shall be determined according to normal standards
or separate standards in conformity with the purposes of entering into contract
and as prescribed in the Law on consumers’ right protection.
Article 433.
Price and method of payment
1. Price shall be as agreed by the
parties or as determined by a third person at the request of the parties. With
respect to property in a transaction for which a competent authority has
provided price and method of payment, the parties shall reach an agreement in
accordance with such regulations.
2. Where parties reach no agreement
or reach an agreement with unclear terms about price and method of payment, the
price shall be determined according to the market price and the method of
payment shall be determined according to the customary practice at the time and
place of entering into the contract.
Article 434.
Time limits for performance of sale contracts
1. The time limit for performance
of a sale contract shall be as agreed by the parties. The seller must deliver
the property to the purchaser at the agreed time. The seller may only deliver
the property prior to the time limit with the consent of the purchaser.
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3. The purchaser shall make the
payment according to the agreed time. Where the parties have no agreement or
have an unclear agreement on the time limit for payment, the purchaser must pay
immediately upon receipt of the property or documents proving the ownership of
the property.
Article 435.
Place for delivery of property
The place for delivery of the
property shall be as agreed by the parties. If there is no agreement, Clause 2
of Article 277 of this Code shall apply.
Article 436.
Method for delivery of property
1. Property shall be delivered by
the method as agreed by the parties. If there is no agreement on the method for
delivery of the property, the property shall be delivered at one time directly
to the purchaser.
2. If the parties agreed that the
seller shall deliver property to the purchaser many times, but the seller
violates obligation of delivery in a certain time, the purchaser may cancel the
part of contract related to such violation and claim compensation.
Article 437.
Liability in respect of delivery of objects in incorrect quantities
1. Where a seller delivers objects
in a quantity which is more than that agreed, the purchaser has the right to
accept or not to accept the excess. If it accepts the excess, payment shall be
made in accordance with the agreement on the excess.
2. Where a seller delivers objects
in a quantity which is less than that agreed, the purchaser has one of the
following rights:
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b) Accept the amount delivered and
demand compensation for damage;
c) Cancel the contract and demand
compensation for damage if the violation prevents the purchaser from achieving
the purposes of enter into the contract.
Article 438.
Liability in respect of delivery of incomplete integrated objects
1. Where an integrated object is
delivered incomplete, thereby rendering the object unusable, the purchaser has
one of the following rights:
a) Accept the object and demand the
seller to deliver the remaining parts, demand compensation for damage, and
postpone payment in respect of the parts received until the missing parts are
delivered;
b) Cancel the contract and demand
compensation for damage.
2. Where a purchaser has paid for,
but not yet accepted, the delivery of an incomplete integrated object, the
purchaser shall be paid interest on the amount pre-paid as agreed by the
parties provided it does not exceed the interest rate prescribed in Clause 1
Article 468 of this Code. If the parties do not agree the interest rate, Clause
2 Article 468 of this Code shall apply and the purchaser may demand the seller
to compensate for damage due to the delivery of the incomplete integrated
object from the time when the contract is required to be performed to the time
when the complete integrated object is delivered.
Article 439.
Liability in respect of delivery of objects of incorrect type
Where an object delivered is of an
incorrect type, the purchaser has one of the following rights:
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2. Demand delivery of an object of
the correct type and compensation for damage;
3. c) Cancel the contract and
demand compensation for damage if the delivery of incorrect type prevents the
purchaser from achieving the purposes of enter into the contract.
With regard to an object including
many types, if the seller fails to deliver it in conformity with the agreement,
the purchaser may cancel the part of contract related to such object and claim
compensation.
Article 440.
Obligation to make payment
1. A purchaser must pay the full
price at the agreed place and time.
2. If the parties only agree on
time limit for delivery of object, the time limit for payment shall be
determined equivalent to the time limit for delivery of object. If the parties
do not agree on time limit for delivery of object and payment, the purchaser
must make payment upon the receipt of the object.
3. If the purchaser fails to make
payment, he/she/it must pay interest on the late payment as prescribed in
Article 357 of this Code.
Article 441.
Transfer of risks
1. The seller shall bear all risks
of the property until the property is delivered to the purchaser, the purchaser
shall bear all risks of the property from the time of acceptance of the
property, unless otherwise agreed or prescribed by law.
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Article 442.
Transport costs and costs related to transfer of ownership rights
1. Transport costs and costs
related to transfer of ownership rights shall be agreed by the parties, unless
otherwise prescribed by law.
2. Where the parties do not reach
an agreement or reach an unclear agreement on transport costs and costs related
to transfer of ownership rights, those costs shall be determined according to the
costs proclaimed or prescribed by a competent authority or industry standards.
3. If there is no basis prescribed
in Clause 1 and Clause 2 of this Article, the transport costs and costs related
to transfer of ownership rights shall be determined according to normal
standards or separate standards in conformity with the purposes of entering
into contract.
4. Where the parties have not
agreed on and the law does not provide transport costs and costs related to
transfer of ownership rights, the seller shall be liable for the costs of
transportation to the place of delivery of the property and the costs related
to the transfer of the ownership rights.
Article 443.
Obligation to provide information and instructions for use
A seller has the obligation to
provide a purchaser with necessary information on the property for sale and
instructions on the use of the property. If the seller fails to perform this
obligation, the purchaser has the right to require the seller to perform such
obligation within a reasonable time limit and, if the seller still fails to
perform such obligation that prevents the purchaser from achieving the purposes
of entering into the contract, the purchaser has the right to cancel the
contract and demand compensation for damage.
Article 444.
Assurances as to ownership rights of purchasers with respect to purchased
property
1. A seller has the obligation to
assure that the ownership rights with respect to the property sold to a
purchaser are not disputed by a third person.
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3. Where a purchaser knows or
should know that property for sale and purchase is under the ownership of a
third person but, nevertheless, purchases the property, the purchaser must
return the property to the owner and does not have the right to demand
compensation for damage.
Article 445.
Assurances as to quality of objects for sale
1. A seller must assure the utility
value or the characteristics of the object for sale and purchase. If, after
having purchased an object, a purchaser discovers defects which cause the
object to lose its value or diminish its utility value, the purchaser must
notify the seller immediately of such defects and has the right to require the
seller to repair or replace the defective object with another object, to reduce
its price and to compensate for damage, unless otherwise agreed.
2. A seller must assure that an
object for sale corresponds to descriptions on any package, to any trademark or
to any sample selected by the purchaser.
3. A seller shall not be liable for
any defect of an object in the following cases:
a) Where the purchaser knew or
should have known of the defect at the time of purchase;
b) Where the object was sold at an
auction or a second-hand shop;
c) Where the purchaser was at fault
for causing the defect.
Article 446.
Warranty obligation
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The warranty period shall be
calculated from the time when the purchaser has the obligation to accept the
object.
Article 447.
Right to claim on warranty
If a purchaser discovers a defect in
a purchased object during the warranty period, it has the right to require the
seller to repair the object free of charge, or reduce its price or replace it
with another object, or it has the right to return the object in exchange for a
refund.
Article 448.
Repairs of objects during warranty periods
1. A seller must repair a defective
object and assure that it satisfies the quality standards or characteristics as
undertaken.
2. A seller shall pay the costs for
repairing a defective object and for transporting it from the place of
residence or head office of the purchaser to the place of repair and vice
versa.
3. A purchaser has the right to
require the seller to complete the repairs within a time limit agreed by the
parties or within a reasonable time. If the seller is not able to make or
complete the repairs within such time, the purchaser has the right to demand a
price reduction or replacement of the defective object with another object, or
it has the right to return the object in exchange for a refund.
Article 449.
Compensation for damage during warranty periods
1. In addition to demanding the
performance of warranty obligations, a purchaser has the right to require the
seller to compensate for damage caused during the warranty period due to
technical defects of the object.
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Article 450.
Sale of property rights
1. Where property rights are sold,
a seller must deliver the relevant documents and complete the procedures for
transferring the ownership rights to the purchaser and the purchaser must pay
the seller.
2. Where property rights are the
right to demand payment of a debt and the seller has guaranteed the ability to
pay of the debtor, the seller must be jointly liable for payment if the debt
falls due and the debtor fails to pay.
3. The time when ownership rights
with respect to property rights are transferred is the time when a purchaser
receives documents evidencing the ownership rights with respect to the property
rights, or the time when the transfer of the ownership rights is registered if
so provided by law.
Article 451.
Auctions
Property may be sold at an auction
as required by the owner or as provided by law. A sale by auction of multiple
ownership property must have the consent of all owners, unless otherwise agreed
or otherwise provided by law.
The auction must be conducted in
conformity of principles of objective, public and transparent, assurance of
lawful rights and interests of the participants and in accordance with law on
auction.
Article 452.
Purchases after trial use
1. Parties may agree on the trial
use of purchased property by the purchaser for a period, hereinafter referred
to as the trial use period. During the trial use period, the purchaser may
inform the seller whether or not the purchaser wishes to make the purchase. If
the purchaser fails to inform the seller prior to the expiry of the trial use
period, the purchaser shall be deemed to have accepted the purchase on the
terms agreed prior to the property being received for trial use.
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2. During the trial use period,
property shall remain under the ownership of the seller. The seller shall bear
all risks of the property, unless otherwise agreed. During the trial use
period, the seller may not sell, give, lease, exchange, mortgage or pledge the
property until the purchaser informs the seller whether or not it wishes to
make the purchase.
3. Where a prospective purchaser
informs the seller that it does not wish to make the purchase, the prospective
purchaser must return the property to the seller and must compensate the seller
if the prospective purchaser loses or damages the trial property. The
prospective purchaser shall not be liable for normal wear and tear caused by
the trial use and shall not have to return any yield derived from the trial
use.
Article 453.
Purchases by deferred payment or payment in instalments
1. Parties may agree that the
purchaser may purchase by deferred payment or payment in instalments of the
purchase price within a time limit after delivery of the purchased property.
The seller has title retention of the property sold until the purchaser has
paid the purchase price in full, unless otherwise agreed.
2. Contracts for purchase by
deferred payment or payment in instalments shall be made in writing. The
purchaser may use the property purchased by deferred payment or payment in
instalments and bear all risks during the period of use, unless otherwise
agreed.
Article 454.
Buy-back of property sold
1. A seller and purchaser of
property may agree that the seller has the right to buy-back the property
within a period of time following the sale (hereinafter referred to as the
buy-back period).
The buy-back period for property
shall be as agreed by the parties but shall not exceed one year in respect of
moveable property, and five years in respect of immoveable property, from the
time of delivery of the property, unless otherwise prescribed by law. During
this period, the seller may buy back the property at any time provided that
reasonable prior notice is given to the purchaser. The buy-back price shall be
the market price at the time when and place where the buy-back occurs, unless
otherwise agreed.
2. During the buy-back period, a
purchaser may not sell, exchange, give, lease, mortgage or pledge the property,
and shall bear all risks with respect to the property, unless otherwise agreed.
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Article 455.
Contracts for exchange of property
1. Contract for the exchange of
property means an agreement between parties whereby they deliver property, and transfer
the ownership rights thereto, to each other.
2. A contract for the exchange of
property must be made in writing, and must be notarized, certified or
registered if so provided by law.
3. Where one party exchanges with
another party property which it does not own or property in respect of which it
has no authorization from the owner, the other party may cancel the contract
and demand compensation for damage.
4. Each party shall be deemed to be
the seller of the property delivered to the other party and the purchaser of
the property delivered to it. The provisions on contracts for sale and purchase
in articles 430 to 439 inclusive and articles 449 to 454 inclusive of this Code
shall also apply to contracts for the exchange of property.
Article 456.
Settlement of differences in value
Where exchanged property differs in
value, the parties must settle that difference between themselves, unless
otherwise agreed or otherwise provided by law.
Section 3.
CONTRACTS FOR GIFTS OF PROPERTY
Article 457.
Contracts for gifts of property
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Article 458.
Gifts of moveable property
1. A contract for a gift of
moveable property shall take effect when the recipient accepts the property,
unless otherwise agreed.
2. Where the law requires the
ownership rights with respect to such moveable property to be registered, the
contract shall take effect from the time of registration.
Article 459.
Gifts of immoveable property
1. A gift of immoveable property
must be recorded in writing and notarized or certified, and must be registered
if the law on immoveable property requires registration of ownership.
2. A contract for a gift of
immoveable property shall take effect from the time of registration. In the
case of immoveable property for which no registration of ownership rights is
required, the gift contract shall take effect from the time when the property
is delivered.
Article 460.
Liability in respect of intentional gift of property not under one's ownership
Where a giver intentionally gives
property which is not under its ownership and the recipient does not know or is
not able to know, such giver must reimburse the recipient for expenses incurred
by the recipient in increasing the value of the property at such time as it is
reclaimed by the owner.
Article 461.
Disclosure of defects in gifts
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Article 462.
Conditional gifts of property
1. A giver may require a recipient
to perform one or several civil obligations prior to or after the giving of a
gift. The conditions for giving a gift must not contravene the law or social
morals.
2. Where a recipient performs an
obligation required to be performed as a condition to the giving of a gift and
the giver fails to deliver the gift, the giver must pay for the obligation
already performed by the recipient.
3. Where a recipient fails to
perform an obligation required to be performed after the giving of a gift, the
giver may reclaim the gift and demand compensation for damage.
Section 4.
CONTRACTS FOR LOAN OF PROPERTY
Section 463.
Contracts for loan of property
Contract for the loan of property
means an agreement between parties whereby a lender delivers property to a
borrower. When the loan falls due, the borrower must repay the lender property
of the same type in accordance with the correct quantity and quality, and must
pay interest if so agreed or so provided by law.
Article 464.
Ownership rights with respect to property lent
A borrower shall become the owner
of borrowed property from the time of delivery of the property.
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1. Deliver the property to the
borrower in full, strictly in accordance with the quality and quantity, and at
the time and place, agreed.
2. Compensate the borrower for any
damage where the lender knows that the property is not of the agreed quality
but fails to notify the borrower, unless the borrower accepts the property with
knowledge that the property is not of the agreed quality.
3. Do not demand the borrower to
return the property prior to the due date, except in the cases provided in
article 470 of this Code or relevant laws.
Article 466.
Obligations of borrowers to repay loans
1. Where the property lent is a sum
of money, the borrower must repay the lender the loan in full when due. If the
property is an object, the borrower must deliver to the lender an object of the
same type, quantity and quality, unless otherwise agreed.
2. Where a borrower is not able to
deliver an object, it may, with the consent of the lender, repay the value of
the borrowed object, in cash, as at the time and place of delivery.
3. The place for repayment of a
loan shall be the place of residence or head office of the lender, unless
otherwise agreed.
4. If a borrower fails to repay all
or any instalment of an interest-free loan, in whole or in part, when payment
falls due, the borrower must, if the parties so agree, pay interest on the
overdue amount from the due date until the date on which payment is made, at
the basic interest rate prescribed in Clause 2 Article 468 of this Code, unless
otherwise agreed or otherwise prescribed by law.
5. If a borrower fails to repay, in
whole or in part, a loan with interest, the borrower must pay:
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b) Overdue interest on the
principal equals one hundred and fifty (150) per cent of the interest rate in
proportion to the late payment period, unless otherwise agreed.
Article 467.
Use of borrowed property
Parties may agree that borrowed
property may only be used for the agreed purpose of the loan. The lender may
check the use of the property and may demand its early return if, despite
warning, the borrower continues to use the property contrary to the agreed purpose.
Article 468.
Interest rates
1. The rate of interest for a loan
shall be as agreed by the parties.
The rate of interest for a loan
agreed by the parties may not exceed 20% per year, unless otherwise prescribed
by law. According to actual conditions and at the proposal of the Government,
the Standing Committee of National Assembly shall adjust the above interest and
send report to the National Assembly at the latest session.
If the agreed interest exceeds the
maximum interest prescribed in this Clause, the agreed interest shall become
invalid.
2. Where parties agree that
interest will be payable but fail to specify the interest rate, or where there
is a dispute as to the interest rate, the interest rate for the duration of the
loan shall equal 50% of the maximum interest prescribed in Clause 1 of this
Article at the repayment time.
Article 469.
Performance of contracts for loans without fixed term
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2. With respect to a contract for a
loan with interest without a fixed term, the lender may reclaim the property at
any time, subject to giving reasonable prior notice to the borrower, and shall
be paid interest until the time when the property is returned. The borrower may
also return the property at any time, subject to giving reasonable prior notice
to the lender, in which case the borrower shall pay interest only up to the
date on which repayment is made.
Article 470.
Performance of contracts for fixed term loans
1. With respect to a contract for a
fixed term interest-free loan, the borrower may return the property at any
time, subject to giving reasonable prior notice to the lender. The lender may
reclaim the property prior to the due date, subject to the consent of the
borrower.
2. With respect to a contract for a
fixed term loan with interest, the borrower may return the property prior to
the due date, but must pay interest for the entire term, unless otherwise
agreed or otherwise prescribed by law.
Article 471.
"Họ, hụi, biêu, phường"
1. "Họ, hụi, biêu,
phường" (hereinafter referred to as "ho") means a form of
transaction regarding property in accordance with customary practice on the
basis of an agreement reached by a group of people who assemble together and
jointly determine the number of people, the term, the amount of money or other
property, the form of contribution and payment of "ho", and the
rights and obligations of the members of the group.
2. "Ho" is aimed at
mutual assistance of citizens and shall be implemented in accordance with law.
3. If "ho" is organized
with interest, it shall comply with this Code.
4. It shall be strictly prohibited
to organize "ho" in the form of lending at high interest rates.
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Sub-section 1. GENERAL
PROVISIONS ON CONTRACTS FOR LEASE OF PROPERTY
Article 472.
Contracts for lease of property
Contract for lease of property
means an agreement between parties whereby a lessor delivers property to a
lessee for use during a fixed term and the lessee is required to pay rent.
Lease contracts of houses or lease
contracts of houses for other purposes shall comply with this Code, the Law on
Housing and relevant laws.
Article 473.
Rent
1. Rent for a lease of property
shall be as agreed by the parties or determined by a third party at the request
of the parties, unless otherwise prescribed by law.
2. Where parties reach no agreement
or reach an agreement with unclear terms about the rent, it shall be determined
according to the market price at the time and place of entering into the
contract.
Article 474.
Lease term
1. The term of a lease shall be as
agreed by the parties. If there is no agreement, the term of the lease shall be
determined according to the purpose of the lease.
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Article 475.
Sub-leases
A lessee may sub-lease leased
property with the consent of the lessor.
Article 476.
Delivery of leased property
1. A lessor must deliver property
to the lessee strictly in accordance with the agreed quantity, quality, type
and condition and at the agreed place and time, and must provide information
necessary for use of the property.
2. Where a lessor is late in
delivering property, the lessee may extend the time for the delivery of the
property or may cancel the contract and demand compensation for damage. If the
leased property is not of the quality agreed, the lessee has the right to
require the lessor to repair the property or reduce the rent, or to cancel the
contract and demand compensation for damage.
Article 477.
Obligation to assure utility value of leased property
1. A lessor must assure that leased
property is in the condition agreed and is suitable for the purpose of the
lease contract for the entire term of the lease. The lessor must repair any
damage to or defect in the leased property, with the exception of minor damage
which the lessee must repair in accordance with customary practice.
2. Where the utility value of
leased property decreases otherwise than due to the fault of the lessor, the
lessee has the right to demand the lessor:
a) Repair the property;
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c) Replace the property or, if the
leased property is beyond repair and the purpose of the lease is not able to be
achieved as a result or if the property has defects which the lessee did not
know of, the lessee may terminate unilaterally the performance of the contract
and demand compensation for damage.
3. Where a lessee demands repair
but the lessor fails to repair in time or at all, provided that the lessee
informs the lessor, the lessee has the right to repair personally the leased
property and has the right to require the lessor to reimburse the costs of
repair.
Article
478. Obligation to assure right of lessees to use property
1. A lessor must assure the right
of a lessee to uninterfered use of the property.
2. In the event of a dispute as to
the ownership rights with respect to leased property, which interferes with use
of that property by the lessee, the lessee has the right to terminate
unilaterally the performance of the contract and demand compensation for
damage.
Article 479.
Obligation to take care of leased property
1. A lessee shall take care of
leased property as if it were its own and shall carry out minor repairs and
maintenance. If the lessee causes any loss of or damage to the property, it
must compensate the lessor.
The lessee shall not be liable for
normal wear and tear due to the use of the leased property.
2. A lessee may, with the consent
of the lessor, carry out repairs and improvements to leased property which
increase its value and may require reimbursement from the lessor for reasonable
costs incurred.
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1. A lessee must use leased
property strictly in accordance with its utility and the agreed purpose.
2. Where a lessee fails to use
leased property strictly in accordance with its utility and purpose, the lessor
has the right to terminate unilaterally the performance of the contract and to
demand compensation for damage.
Article 481.
Payment of rent
1. A lessee must pay rent in full
and on time as agreed. If there is no agreement on the time for payment of
rent, the time shall be determined in accordance with the customary practice at
the place of payment. If it is not possible to determine the time of payment in
accordance with such customary practice, the lessee must make payment when the
lessee returns the leased property.
2. Where the parties have agreed on
payment of rent in instalments, if the lessee fails to make payment for three
consecutive instalments, the lessor has the right to terminate unilaterally the
performance of the lease contract, unless otherwise agreed or otherwise
provided by law.
Article 482.
Return of leased property
1. A lessee must return leased
property in the same condition in which it was received, normal wear and tear
excepted, or in the condition agreed. If the value of the leased property has
decreased in comparison with its condition at the time it was received, the
lessor has the right to demand compensation for any damage, normal wear and tear
excepted.
2. Where leased property is
moveable property, the place for returning the leased property shall be the
place of residence or head office of the lessor, unless otherwise agreed.
3. Where leased property is
livestock, the lessee must return both the leased livestock and any offspring
born during the term of the lease, unless otherwise agreed. The lessor must
reimburse the lessee for expenses incurred in caring for the offspring.
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5. The lessee must bear the risk in
relation to the leased property during the period of delay.
Sub-section 2. CONTRACTS FOR
"THUE KHOAN" OF PROPERTY
Article 483.
Contracts for "thue khoan" of property
Contract for "thue khoan"
of property means an agreement between parties whereby a "thue khoan"
lessor delivers the property to a "thue khoan" lessee for the
exploitation of its utility and for the enjoyment of the yield and income
derived from such property and the lessee has the obligation to pay rent.
Article 484.
Subject matter of contracts for "thue khoan" of property
The subject matter of a contract
for "thue khoan" may be land, forest, and water surfaces which have
not been exploited, livestock, production and business facilities, and other
means of production together with the equipment required to exploit the utility
of such property and to enjoy the benefits and income derived therefrom, unless
otherwise provided by law.
Article 485.
Terms of "thue khoan"
The term of a "thue
khoan" shall be agreed by parties. If the parties do not reach an
agreement and reach an unclear agreement on the term of “thue khoan”, such
period shall be determined according to the production or business cycle
appropriate to the nature of the subject matter of the "thue khoan".
Article 486.
Rent in respect of "thue khoan"
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Article 487.
Delivery of "thue khoan" property
Upon delivery of "thue
khoan" property, parties must record their assessment of the condition and
value of the property.
If the parties are not able to
determine the value, a third person shall be invited to determine the value.
Such determination shall be made in writing.
Article 488.
Payment of "thue khoan" rent and method of payment
1. "Thue khoan" rent may
be paid in kind or money, or by performance of acts.
2. A "thue khoan" lessee
must pay "thue khoan" rent in full even where the lessee does not
exploit the utility of the "thue khoan" property.
3. When entering into a contract
for "thue khoan", parties may agree on conditions for a reduction in
rent. If at least one third of the benefits or income is lost due to an event
of force majeure, a "thue khoan" lessee may demand a reduction of or
exemption from rent, unless otherwise agreed.
4. Where a "thue khoan"
lessee must pay in kind according to the season or cycle in the exploitation of
the utility of the "thue khoan" property, payment must be made at the
end of such season or cycle, unless otherwise agreed.
5. Where a "thue khoan"
lessee is required to perform an act, the "thue khoan" lessee must
perform that particular act.
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Article 489.
Exploitation of "thue khoan" property
A "thue khoan" lessee
must exploit "thue khoan" property strictly in accordance with the
agreed purpose and must inform the "thue khoan" lessor periodically
of its condition and its exploitation. If the "thue khoan" lessor
demands or requires information at any other time, the "thue khoan"
lessee must provide such information promptly. If the "thue khoan"
lessee does not exploit the "thue khoan" property strictly in
accordance with the agreed purpose, the "thue khoan" lessor has the
right to terminate unilaterally the performance of the contract and demand
compensation for damage.
Article 490.
Taking care, maintenance and disposal of "thue khoan" property
1. During the period of
exploitation of the "thue khoan" property, the "thue khoan"
lessee must take care of and preserve the "thue khoan" property and
any related equipment at its own expense, unless otherwise agreed. If the
"thue khoan" lessee loses or damages the "thue khoan"
property or causes any loss or reduction in its value, the "thue
khoan" lessee must compensate for damage. The "thue khoan"
lessee shall not be liable for normal wear and tear due to the use of the
"thue khoan" property.
2. A "thue khoan" lessee
may replace or improve "thue khoan" property if the parties so agree,
but must preserve its value.
A "thue khoan" lessor
must reimburse a "thue khoan" lessee for the reasonable expenses
incurred in replacing or improving the "thue khoan" property as
agreed.
3. A "thue khoan" lessee
may not sub-lease "thue khoan" property without the consent of the
"thue khoan" lessor.
Article 491.
Enjoyment of benefits and liability for damage with respect to "thue
khoan" livestock
During the term of a "thue
khoan" of livestock, the "thue khoan" lessee shall be entitled
to enjoy half of the number of offspring born and shall be liable for half of
any damage of the "thue khoan" livestock caused by an event of force
majeure, unless otherwise agreed.
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1. Where a party terminates unilaterally
the performance of a "thue khoan" contract, that party must give
reasonable prior notice to the other party. If the "thue khoan" is
based on a season or cycle of exploitation, the period of prior notice must
conform to such season or cycle.
2. Where a "thue khoan"
lessee breaches an obligation and the exploitation of the "thue
khoan" property is the sole means of livelihood of the lessee and
continuation of the "thue khoan" would not seriously affect the
interests of the "thue khoan" lessor, the "thue khoan"
lessor may not terminate unilaterally the performance of the contract. In such
case, the "thue khoan" lessee must undertake to the "thue
khoan" lessor not to commit further breaches of the contract.
Article 493.
Return of "thue khoan" property
Upon termination of a "thue
khoan" contract, the "thue khoan" lessee must return the
"thue khoan" property in a condition which takes into account the
agreed depreciation. If the "thue khoan" lessee has caused any reduction
in the value of the "thue khoan" property, the "thue khoan"
lessee must compensate for damage.
Section 6.
CONTRACTS FOR BORROWING PROPERTY
Article 494.
Contracts for borrowing property
Contract for borrowing property
means an agreement between parties whereby a lender delivers property to a
borrower for use free of charge for a period of time and the borrower returns
the property at the end of the period of time or when the purpose of the
borrowing has been achieved.
Article 495.
Subject matter of contracts for borrowing property
Any non-consumable object may be
the subject matter of a contract for borrowing property.
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1. Take care of and preserve the
borrowed property and not to change the condition thereof at the volition of
the borrower. The borrower must repair any normal damage to the property.
2. Do not on-lend the property to
any other person without the consent of the lender.
3. Return the borrowed property on
the due date. If there is no agreement on the time for returning the property,
the borrower must return the property immediately after the purpose of the
borrowing has been achieved.
4. Compensate for damage where the
borrower causes damage to or loss of the borrowed property.
5. The borrower must bear the risk
in relation to the borrowed property during the period of late return.
Article 497.
Rights of borrowers of property
1. Use the borrowed property
strictly in accordance with its utility and agreed purpose.
2. Require the lender to reimburse
reasonable expenses incurred in carrying out repairs or improvements to the
borrowed property which increase its value if so agreed.
3. Do not bear liability for normal
wear and tear of the borrowed property.
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1. Provide necessary information on
the use of the property and its defects, if any.
2. Reimburse the borrower for
expenses incurred in carrying out repairs or improvements to the borrowed
property which increase its value if so agreed.
3. Where the lender knows but fails
to notify the borrower of a defect in the property which results in damage to
the borrower, to compensate the borrower for such damage, except where the
borrower knows or should know of such defect.
Article 499.
Rights of lenders of property
1. Reclaim the property immediately
after the borrower has achieved its purpose where there is no agreement on the
borrowing period. If the lender suddenly and urgently needs to use the borrowed
property, the lender may reclaim it upon giving reasonable prior notice to the
borrower, even if the borrower has not yet achieved its purpose.
2. Reclaim the property where the
borrower fails to use it strictly in accordance with the agreed purpose,
utility, or method or where the borrower on-lends the property without the
consent of the lender.
3. Demand compensation for damage
to the property caused by the borrower.
Section 7.
CONTRACTS OF LAND USE RIGHTS
Article 500.
Contract of land use rights
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Article 501.
Contents of contract of land use rights
1. General provisions on contracts
and the content of common contracts related in this Code shall also apply to
contracts on land use rights, unless otherwise provided by law.
2. Contents of the contract of land
use rights are not contrary to the provisions of the purpose of use, the
duration of land use, zoning, land use planning and the rights and obligations
stipulated by law on land and other provisions of relevant laws.
Article 502.
Forms and procedures for performing contract of land use rights
1. Contracts relating to land use
rights must be made in writing in the form consistent with the provisions of
this Code, the law on land and other provisions of relevant laws.
2. The performance of the contract
for the land use rights must follow the procedures prescribed by the law of the
land and other provisions of relevant laws.
Article 503.
Effect of the transfer of land use rights
The transfer of land use rights
shall be effect from the date of registration under the provisions of the law
on land.
Section 8.
COOPERATION CONTRACT
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1. A cooperation contract means an
agreement between natural and/or juridical persons regarding the property
contribution, effort to perform certain jobs, the same benefit and mutual
responsibility.
2. Each cooperation contract must
be made in writing.
Article 505.
Contents of cooperation contract
Each cooperation contract shall
contain the major contents below:
1. Purpose and duration of
cooperation;
2. Full name and place of residence
of natural person; name and headquarters of juridical person;
3. Contributed property (if any);
4. Contributed labor (if any);
5. Method of distributing the yield
and/or income;
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7. Rights and obligations of
representatives (if any);
8. Conditions for participation and
withdrawal from the cooperation contract (if any);
9. Conditions for termination of
cooperation.
Article 506.
Common property of the cooperative members
1. Property contributed and created
by the members and other property as prescribed by law shall be considered as
common property part of the cooperative members.
Where there is agreement on the
contribution that members fail to contribute money on schedule, they must pay
interest on the unpaid portion of the money under the provisions of Article 357
of this Code and must pay damages.
2. The disposition of the property
is land use rights, housing, factories, other production materials must have a
written agreement of all the members; the disposal of other property shall be
decided by the representatives of the members, unless otherwise agreed.
3. The common property may not be
divided before the termination of the cooperation contract, unless otherwise
agreed by all members.
The division of common property
shall not change or terminate the rights and obligations established before the
division time.
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1. Enjoy the yield and income
gained from cooperation activities.
2. Participate in decisions
involving issues of performance of cooperation contract and co-operation
monitoring.
3. Compensate for damages to other
cooperative members caused by their faults.
4. Perform other rights and
obligations under the contract.
Article 508.
Establishing and performing civil transactions
1. Where the cooperative members
appoint representatives, they shall establish and perform civil transactions.
2. Where the cooperative members do
not appoint any representative, they shall jointly establish and perform civil
transactions, unless otherwise agreed.
3. Civil transactions that are be
established and performed by entities specified in Clauses 1 and 2 of this
Article shall give rise to rights and obligations of all cooperative members.
Article 509.
Civil liability of cooperative members
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Article 510.
Withdrawal from the cooperation contract
1. A member has the right to withdraw
from the cooperation contract in any of the following cases:
a) Satisfy the conditions specified
in the cooperation contract;
b) There is a good reason and the
consent of more than half the total cooperative members.
2. The member withdrawing from the
cooperation contract has the right to reclaim contributed property, divided
part of the property in the common property and must pay all obligations under
the agreement. Where the division of property in kind affects the cooperation
activities, the property are worth the money to divide.
The withdrawal of a member from the
cooperation contract does not terminate his/her rights and obligations that are
established or performed before the withdrawal time.
3. The withdrawal of a member from
the contract in a case other than Clause 1 of this Article shall be defined as
the breach of contract and should execute the civil liability as prescribed in
this Code and other relevant laws.
Article 511.
Joining cooperation contract
Unless the cooperation contract
otherwise specifies, a natural or juridical person shall become a new member of
the contract with the consent of more than half the total cooperative members.
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1. A cooperation contract shall
terminate in any of the following cases:
a) As agreed by cooperative
members;
b) The time limit mentioned in the
cooperation contract has expired;
c) The purpose of cooperation has
been achieved;
d) Pursuant to a decision of a
competent authority;
dd) Other cases prescribed in this
Code or other relevant laws.
2. Upon the termination of the
cooperation contract, the debts arising from the contract must be paid; if the
common property is insufficient to repay it to private assets of cooperative
members to pay under the provisions of Article 509 of this Code.
Where the debt was repaid and the
common property still exists, it shall be divided by the cooperative members in
proportion to the contribution of each person, unless otherwise agreed.
Section 9.
CONTRACTS FOR SERVICES
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Contract for services means an
agreement between parties whereby a service provider performs an act for a
client which pays a fee for that act.
Article 514.
Subject matter of contracts for services
The subject matter of a contract
for services must be an act which is capable of being performed, which is not
prohibited by law and which does not contravene social morals.
Article 515.
Obligations of clients
1. Supply the service provider with
the information, documentation and facilities necessary for the performance of
the act if so agreed or required for the performance of the act.
2. Pay a fee to the service
provider as agreed.
Article 516.
Rights of clients
1. Require the service provider to
perform the act strictly in accordance with the agreement on quality, quantity,
time, location and other matters.
2. Where a service provider commits
a serious breach of its obligations, the client may terminate unilaterally
performance of the contract and demand compensation for damage.
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1. Perform the act strictly in
accordance with the agreement on quality, quantity, time, location and other
matters.
2. Do not assign the act to another
person for performance on its behalf without the consent of the client.
3. Take care of, and to return to
the client after completion of the act, the documents and facilities provided
to it.
4. Notify the client promptly of
any inadequacy in the information or documents and any failure of the
facilities to satisfy the quality required for the completion of the act.
5. Keep confidential any
information of which it has had knowledge during the period of providing the
service as agreed or as provided by law.
6. Compensate the client for damage
where the service provider causes any loss of or damage to the documents or
facilities supplied or discloses confidential information.
Article 518.
Rights of service providers
1. Require the client to provide
information, documents and facilities.
2. Amend the terms of service in the
interests of the client without necessarily asking for the opinion of the
client where waiting for such opinion would cause damage to the client provided
that the service provider promptly informs the client thereof.
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Article 519.
Payment of fees
1. A client must pay the agreed fee
for services.
2. If, upon entering a contract,
there is no agreement on the service fee rate or on the method for fixing the
fee for services and there are no other instructions on fees, the service fee
rate shall be fixed on the basis of market fees for services of the same type
at the time when and place where the contract was entered into.
3. A client must pay the fee for
services at the place where the service is provided and at the time of its
completion, unless otherwise agreed.
4. Where the services provided fail
to meet the terms of the agreement or the act is not completed in time, the
client has the right to reduce the fee for services and demand compensation for
damage.
Article 520.
Unilateral termination of performance of contracts for services
1. Where the continued provision of
services does not benefit the client, the client has the right to terminate
unilaterally the performance of the contract but must provide reasonable prior
notice to the service provider, in which case the client must pay a fee
according to the portion of services already provided and [must] compensate for
damage.
2. Where the client fails to
perform its obligations or performs its obligations not as agreed, the service
provider has the right to terminate unilaterally the performance of the
contract and demand compensation for damage.
Article 521.
Continuation of contracts for services
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Section 10.
TRANSPORT CONTRACTS
Sub-section 1. Transport
contracts
Article 522.
Contracts for transport of passengers
Contract for transport of
passengers means an agreement between parties whereby a carrier transports
passengers and luggage to an agreed destination and the passengers must pay
transport fares.
Article 523.
Formalities for contracts for transport of passengers
1. A contract for transport of
passengers may be made in writing or orally.
2. A ticket is evidence of the
entry into a contract for transport of passengers by the parties.
Article 524.
Obligations of carriers
1. Carry the passengers safely from
the place of departure to the agreed destination on time, in a civilized and
courteous manner, by the means agreed and on the agreed route; to ensure that
there are sufficient seats for the passengers and that the transport capacity
of the carrier is not exceeded.
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3. Ensure that the departure time
is adhered to as notified or agreed.
4. Carry and return the luggage to
the passenger or person entitled to receive the luggage in accordance with the
agreed destination, time and route.
5. Refund the transport fare to any
passenger as agreed or as prescribed by law.
Article 525.
Rights of carriers
1. Require the passengers to pay in
full the passenger transport fares and fares for the transport of personal
luggage in excess of the prescribed limit.
2. Refuse to carry a passenger in
the following cases:
a) Where the passenger fails to
follow the regulations of the carrier, where the acts of the passenger disturb
public order, obstruct the work of the carrier, or pose a threat to life,
health or property of other persons, or where a passenger commits other acts
which make it impossible to ensure safety during the journey. In this case, the
passenger shall not receive a refund of the passenger transport fare, and must
pay a fine if so provided by the transport regulations;
b) Where the health of the passenger
is such that it is obvious to the carrier that the transport [of such person]
will endanger the passenger or other persons during the journey;
c) In order to prevent the spread
of contagious diseases.
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1. Pay in full the passenger
transport fare and fares for the transport of luggage in excess of the
prescribed limit, and to take care of his or her hand-luggage.
2. Present at the place of
departure at the agreed time.
3. Respect and comply strictly with
the regulations of the carrier and all other regulations ensuring traffic
safety.
Article 527.
Rights of passengers
1. Request to be transported by the
agreed means of transport, in the class commensurate with the value of the
ticket and in accordance with the agreed route.
2. Be exempt from transport fares
for check-in luggage and hand-luggage within the limits as agreed or as
provided by law.
3. Demand reimbursement of expenses
incurred or compensation for any damage if the carrier is at fault in failing
to transport according to the agreed time schedule and destination.
4. Receive a refund of all or part
of the transport fare in the cases provided for in Points b and c Clauses 2 of
Article 525 of this Code and in other cases as agreed or as provided by law.
5. Receive the luggage at the
agreed destination in accordance with the agreed time and route.
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Article 528.
Liability to compensate for damage
1. In case of loss of life of or
damage to the health or luggage of a passenger, the carrier must compensate for
any damage in accordance with law.
2. Unless otherwise provided by
law, a carrier shall not be liable to compensate for loss of life of or damage
to the health and luggage of a passenger in the case where such loss or damage
is entirely due to the fault of the passenger, unless otherwise prescribed by
law.
3. A passenger which breaches the
agreed terms for transport or the transport regulations, thereby causing damage
to the carrier or a third person, must compensate.
Article 529.
Unilateral termination of contracts for transport of passengers
1. A carrier has the right to
terminate unilaterally the performance of a contract in the cases provided in
Clause 2 of Article 525 of this Code.
2. A passenger has the right to
terminate unilaterally the performance of a contract where the carrier breaches
the obligations provided in Clauses 1, 3 and 4 of article 524 of this Code.
Sub-section 2. CONTRACTS FOR
TRANSPORT OF PROPERTY
Article 530.
Contracts for transport of property
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Article 531.
Formalities for contracts for transport of property
1. A contract for transport of
property may be entered into orally or in writing or a specific act.
2. A bill of lading or equivalent
source document of transport shall be evidence of the entering into of a
contract by the parties.
Article 532.
Delivery of property to carriers
1. A customer has the obligation to
deliver property to a carrier at the agreed time and place and pack the
property in accordance with the agreed specifications. The customer must bear
the costs f loading the property onto and unloading the property from the means
of transport, unless otherwise agreed.
2. Where a customer is late in
delivering property to the agreed place, the customer must reimburse the
carrier for the costs associated with the delay and pay the freight charges for
transporting the property to the place agreed in the contract, or must pay a
penalty for breach of the contract.
If the carrier is late in accepting
the property at the agreed at the agreed place, it shall be liable for the
costs incurred due to such late acceptance.
Article 533.
Freight charges
1. The rate of freight charges
shall be as agreed by the parties. If the law regulates freight charges,
charges shall apply as regulated.
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Article 534.
Obligations of carriers
1. Transport the property in its
entirety and safely to the agreed destination at the agreed time.
2. Deliver the property to the
person entitled to receive it.
3. Bear all costs related to the
transport of the property, unless otherwise agreed.
4. Purchase civil liability
insurance as required by law.
5. Compensate the customer for
damage where the loss of or damage to the property is caused by the fault of
the carrier, unless otherwise agreed or otherwise provided by law.
Article 535.
Rights of carriers
1. Check the authenticity of the
property and the bill of lading or equivalent source document of transport.
2. Refuse to transport property
which is different from that agreed in the contract.
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4. Refuse to transport property if
the carrier knows or should know that the transacting of such property is
prohibited or the property is of a dangerous or toxic nature.
Article 536.
Obligations of customers
1. Pay in full the freight charges
to the carrier, at the time and by the method of payment as agreed.
2. Provide necessary information
about the transported property to ensure its safety.
3. Take care of the property during
transport if so agreed. Where the customer takes care of the property and it is
lost or damaged, the customer shall not be entitled to compensation.
Article 537.
Rights of customers
1. Demand the carrier to transport
the property to the agreed destination at the agreed time.
2. Receive directly the property
which has been transported, or appoint a third person to receive it.
Article 538.
Delivery of property to recipients
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2. A carrier must deliver the
property to a recipient in full, at the time and place and by the method as
agreed.
3. Where property has been
delivered to the point of delivery on time but there is no recipient of the
property, the carrier may deposit such property at a place of bailment and must
notify immediately the customer or the recipient of the property. The customer
or recipient of the property must bear the reasonable expenses incurred in
relation to the bailment of the property.
The obligation to deliver property
shall be completed upon bailment of the property in compliance with the agreed
terms and when the customer or the recipient of the property has been notified
about the bailment.
Article 539.
Obligation of recipients of property
1. Produce to the carrier the bill
of lading or other equivalent source document of transport, and to receive the
property at the agreed time and place.
2. Bear the costs for loading and
unloading the transported property, unless otherwise agreed or otherwise
provided by law.
3. Reimburse the carrier for
reasonable costs incurred due to late acceptance of the property.
4. Notify the customer of the
acceptance of the property and provide other necessary information required by
the customer if the recipient is a third party appointed by the customer.
Article 540.
Rights of recipients of property
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2. Accept the delivered property.
3. Require the carrier to reimburse
reasonable costs incurred due to any delay by the carrier in delivering the
property.
4. Require the carrier compensate
for loss of or damage to the property.
Article 541.
Liability to compensate for damage
1. Where a carrier is responsible
for the loss of or damage to property, the carrier must compensate the customer
for damage, except in the case provided in Clause 3 of Article 536 of this
Code.
2. A customer must compensate a
carrier and any third parties for damage caused by the transport of dangerous
or toxic property which is not safely packaged or the safety of which is not
otherwise ensured.
3. A carrier shall not be liable to
compensate for damage in the event of force majeure causing loss or
deterioration of or damage to the property during transport, unless otherwise
agreed or otherwise provided by law.
Section 11.
PROCESSING CONTRACTS
Article 542.
Processing contracts
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Article 543.
Subject matter of processing contracts
The subject matter of a processing
contract shall be items which are specified by samples, the standard of which
is agreed by the parties or provided by law.
Article 544.
Obligation of suppliers
1. Supply raw materials to the
processor strictly in accordance with the agreed quantity, quality, time and
place, unless otherwise agreed by the parties; and to provide necessary
documents relating to the processing.
2. Provide the processor with
instructions as to how to perform the contract.
3. Pay agreed fees.
Article 545.
Rights of suppliers
1. Accept the processed products in
accordance with the agreed quantity, quality, manner, time and place.
2. Terminate unilaterally
performance of the contract and demand compensation for damage if the processor
commits a serious breach of the contract.
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Article 546.
Obligations of processors
1. Take care of the raw materials
supplied by the supplier.
2. Notify the supplier to replace
any raw materials supplied which are not of the agreed quality; to refuse to
perform the processing if the use of the raw materials may create products
which pose a danger to society.
3. Deliver the products to the
supplier strictly in accordance with the agreed quantity, quality, method, time
and place.
4. Keep confidential all
information relating to the processing and the products.
5. Bear liability for the quality
of the products, unless the lack of quality is due to the raw materials
supplied by the supplier or due to the unreasonable instructions of the
supplier.
6. Return any leftover raw
materials to the supplier after completing performance of the contract.
Article 547.
Rights of processors
1. Require the supplier to deliver
the raw materials strictly in accordance with the agreed quality, quantity, time
and place.
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3. Require the supplier to make
payment of the fees in full, at the time and by the method as agreed.
Article 548.
Liability for risk
Unless otherwise agreed, the owner
of the raw materials shall bear all risks with respect to such materials and
the products processed therefrom until the products are delivered to the
supplier.
If the supplier is late in
accepting the products, it shall bear all risks during the period of delayed
acceptance, including where the products are processed from the raw materials
of the processor, unless otherwise agreed.
If the processor delays delivery of
the products and the delay damages the processed property, the processor must
compensate for damage suffered by the supplier.
Article 549.
Delivery and acceptance of processed products
A processor must deliver, and the
supplier must accept, products at the agreed time and place.
Article 550.
Late delivery and acceptance of processed products
1. Where the processor is late in
delivering processed products, the supplier may extend the time of delivery.
If, upon expiry of such extension, the processor still has not delivered the
products, the supplier has the right to terminate unilaterally the performance
of the contract and demand compensation for damage.
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Article 551.
Unilateral termination of performance of processing contracts
1. Unless otherwise agreed or
otherwise provided by law, each party has the right to terminate unilaterally
the performance of a processing contract if continued performance would not
benefit that party but must give reasonable prior notice to the other party.
2. If the supplier terminates
unilaterally the performance of the contract, the supplier must pay fees for
the work already performed, unless otherwise agreed. If the processor
terminates unilaterally the performance of the contract, it shall not be paid
fees, unless otherwise agreed.
3. A party which unilaterally
terminates the performance of a contract and thereby causes damage to the other
party must compensate.
Article 552.
Payment of fees
1. Unless otherwise agreed, the
supplier must pay fees in full at the time of accepting the products.
2. If there is no agreement on the
rate of fees, the applicable rate shall be the average rate charged for the
production of products of the same type at the place of processing at the time
of payment.
3. If the products fail to meet the
agreed quality due to the raw materials supplied or the unreasonable
instructions provided by the supplier, the supplier does not have the right to
reduce the fees.
Article 553.
Dealing with leftover raw materials
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Section 12.
CONTRACTS FOR BAILMENT OF PROPERTY
Article 554.
Contracts for bailment of property
Contract for bailment of property
means an agreement between parties whereby a bailee accepts the property of a
bailor for safekeeping, for return to the bailor upon expiry of the duration of
the contract, and the bailor must pay a fee to the bailee, except where the
bailment is free of charge.
Article 555.
Obligation of bailors of property
1. Inform the bailee of the
condition of the property and the appropriate safekeeping measures upon
delivery of the property; if the bailor fails to inform the bailee, and the
property is destroyed or damaged as a result of inappropriate safekeeping, the
bailor must be liable itself for such destruction of or damage to the bailed
property and must compensate for other damage caused.
2. Pay the bailment fees in full,
at the time and by the method as agreed.
Article 556.
Rights of bailors of property
1. Reclaim the property at any time
subject to giving reasonable prior notice to the bailee if the bailment
contract does not specify a period of time.
2. Demand compensation for loss of
or damage to the bailed property caused by the bailee, except in the case of an
event of force majeure.
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1. Take care of the property as
agreed and return it to the bailor in the same condition in which the bailee
received it.
2. Change the method for
safekeeping of the property only where such change is necessary for better
safekeeping of such property and provided that the bailor is notified
immediately of the change.
3. Notify promptly the bailor in
writing and request the bailor to advise, within a certain period of time, a
solution where, due to its nature, the bailed property is in danger of being
damaged or destroyed. If the bailor fails to reply within such period of time,
the bailee has the right to take all necessary measures to take care of the
property and to require the bailee to reimburse the costs incurred.
4. Compensate for damage where the
bailee causes any loss of or damage to the bailed property, except in the case
of an event of force majeure.
Article 558.
Rights of bailees of property
1. Require the bailor to pay the
agreed bailment fees.
2. Require the bailor to pay the
reasonable costs of taking care of the property where the bailment is free of
charge.
3. Request, at any time, the bailor
to take back the property subject to giving reasonable prior notice to the
bailor where the bailment is for an indefinite period of time.
4. Sell the property in the
interests of the bailor where the bailed property is in danger of being damaged
or destroyed, inform the bailor thereof and pay the proceeds of the sale to the
bailor after deduction of reasonable expenses incurred for the sale of the property.
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1. A bailee must return the same
property that was received, including any benefits derived therefrom, unless
otherwise agreed.
The bailed property shall be
returned to the bailor at the place where it was delivered. If the bailor
wishes to have the property returned at another place, the bailor must bear the
transport costs to such place, unless otherwise agreed.
2. A bailee must return property at
the agreed time and only has the right to request the bailor take back the
property prior to such time for a legitimate reason.
Article 560.
Late taking back of bailed property
If a bailee is late in returning
the property, the bailee may not require the bailor to pay bailment fees and
costs for taking care of the property incurred from the agreed time for return
of the property to the time it is actually returned and bears the risk with
respect to the property during such period.
Where a bailor is late in taking
back property, the bailor must pay all costs for taking care of the property
and the bailment fees to the bailee during the period for which the bailor is
late.
Article 561.
Payment of fees
1. A bailor must pay bailment fees
in full when taking back the bailed property, unless otherwise agreed.
2. Where the parties have no
agreement on the rate of bailment fees, the applicable rate shall be the
average rate of bailment fees at the time when and place where the bailment fee
is paid.
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4. Where a bailee requests a bailor
to take back the property prior to the agreed time, the bailee shall not be
entitled to be paid bailment fees and must compensate for any damage to the
bailor, unless otherwise agreed.
Section 13.
AUTHORIZATION CONTRACTS
Article 562.
Authorization contracts
Authorization contract means an
agreement between parties whereby an attorney has the obligation to perform an
act in the name of a principal. The principal shall only be required to pay
remuneration if so agreed or so provided by law.
Article 563.
Duration of authorization
The duration of the authorization
shall be as agreed by the parties or as provided by law. If there is no
agreement and the duration is not provided by law, the authorization contract
shall be effective for one year from the date on which the authorization is
made.
Article 564.
Sub-authorization
1. An attorney may only
sub-authorize its authorization to a third person in any of the following
cases:
a) With the consent of the
principal;
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2. A sub-authorization shall not
exceed the scope of the original authorization.
3. The formalities of the
sub-authorization contract must conform to the formalities of the original
authorization contract.
Article 565.
Obligation of attorneys
1. Perform the act in accordance
with the authorization and inform the principal of such performance.
2. Notify any third parties
involved in the performance of the authorized act of the duration and scope of
the authorization and of any amendments of or additions to such scope.
3. Take care of and preserve
documents and facilities provided for the performance of the authorized act.
4. Keep all information
confidential which the attorney comes to know during the performance of the
authorized act.
5. Return to the principal any
property received and benefits derived during the performance of the authorized
act as agreed or as provided by law.
6. Compensate for damage caused by
a breach of any of the obligations provided in this Article.
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1. Require the principal to provide
the information, documentation and facilities necessary for performance of the
authorized act.
2. Receive remuneration and be
reimbursed for reasonable expenses incurred in the performance of the
authorized act.
Article 567.
Obligation of principals
1. Provide the information,
documentation and facilities necessary for the attorney to perform the
authorized act.
2. Be liable for undertakings given
by the attorney within the scope of the authorization.
3. Reimburse the attorney for
reasonable expenses incurred by the attorney in the performance of the
authorized act and pay any agreed remuneration to the attorney.
Article 568.
Rights of principals
1. Require the attorney to report
fully on the performance of the authorized act.
2. Require the attorney to return
any property and benefits derived from the performance of the authorized act,
unless otherwise agreed.
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Article 569.
Unilateral termination of performance of authorization contracts
1. Where an authorization involves
payment of remuneration, the principal has the right, at any time, to terminate
unilaterally the performance of the contract but must remunerate the attorney
in proportion to the acts performed and compensate for damage. If the
authorization does not involve payment of remuneration, the principal has the
right, at any time, to terminate the performance of the contract, subject to
giving reasonable prior notice to the attorney.
A principal must notify any third
person in writing of the termination of the performance of the contract by the
principal. If the principal fails to do so, any contract with any such third
person shall remain in effect, unless such third person knows or should know of
the termination of the performance of the contract.
2. Where an authorization does not
involve payment of remuneration, the attorney has the right, at any time, to
terminate unilaterally the performance of the contract, subject to giving
reasonable prior notice to the principal. If the authorization involves payment
of remuneration, the attorney has the right, at any time, to terminate
unilaterally the performance of the contract and must compensate for any damage
caused to the principal.
Chapter XVII
PROMISES OF REWARDS AND PRIZE COMPETITIONS
Article 570.
Promises of rewards
1. A person having made a public
promise of a reward must pay that reward to a person having performed the act
requested by the promissor.
2. An act for which a reward is
promised must be specific and capable of being performed and must not be
prohibited by law nor contravene social morals.
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A promissor may withdraw its
promise of a reward at any time prior to the commencement of the performance of
the act. A withdrawal of a promise of reward must be made in the same manner
and by the same media in which the promise of reward was announced.
Article 572.
Payment of rewards
1. Where a person performs an act
for which a reward is promised, that person shall be given the reward upon
completion of the act.
2. Where several persons perform an
act for which a reward is promised, concurrently but independently, the person
having first completed the act shall be given the reward.
3. Where more than one person
complete, at the same time, an act for which a reward is promised, the reward
shall be distributed in equal shares amongst such persons.
4. Where more than one person
co-operate with each other to perform, at the request of the promissor, an act
for which a reward is promised, each person shall receive a share of the reward
in proportion to its contribution.
Article 573.
Prize competitions
1. Organization of a cultural,
artistic, sports, scientific, technical or other competition shall not violate
prohibitions of law and contravene social morals.
2. A person organizing the
competition must announce publicly the terms of participation, the scale of
marks, the prizes and the value of each prize.
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3. A winner of a prize has the
right to demand the organizer of a competition give a prize of the value
announced.
Chapter
XVIII
PERFORMANCE OF ACTS WITHOUT AUTHORIZATION
Article 574.
Performance of acts without authorization
Performance of acts without
authorization means the voluntary performance of acts by a person being under
no obligation to perform the act, solely for the benefit of a beneficiary,
without the knowledge of the beneficiary, or with its knowledge but without the
beneficiary raising any objection.
Article 575.
Obligation to perform acts without authorization
1. A person performing an act
without authorization has the obligation to do so in accordance with its
capabilities and conditions.
2. A person performing an act
without authorization must do so as if such person were performing such act for
its own benefit. If such person knows or is able to guess the wishes of the
beneficiary, such person must perform the act in accordance with such wishes.
3. A person performing an act
without authorization must, if requested, notify the beneficiary of the
progress and results of the performance, unless the beneficiary already knows
such information or the person performing the act without authorization does
not know the place of residence of the beneficiary.
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5. Where a person performing an act
without authorization has legitimate reasons for not being able to continue
performance, such person must notify the beneficiary, or the representative or
close relatives of the beneficiary, or may ask another person to perform the
act on its behalf.
Article 576.
Obligation of beneficiary to pay for acts performed without authorization
1. A beneficiary of an act
performed without authorization must accept the results of the act when it is
handed over to the beneficiary by the person having performed the act and
[must] reimburse that person for reasonable expenses incurred in performing
such act, even where the performance has failed to achieve the results desired
by the beneficiary.
2. If a person has performed an act
properly for the benefit of a beneficiary, the beneficiary must remunerate the
person having performed the act, unless the person having performed the act
refuses to accept the remuneration.
Article 577.
Obligation to compensate for damage
1. If a person performing an act
without authorization intentionally causes damage to the beneficiary while
performing the act, such person must compensate for such damage.
2. If a person performing an act
without authorization unintentionally causes damage to the beneficiary while
performing the act, the compensation by such person may be reduced on the basis
of the circumstances in which the act was performed.
Article 578.
Termination of performance of acts without authorization
The performance of acts without
authorization shall terminate in the following cases:
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2. The beneficiary, or its heir or
representative, takes over the acts;
3. The person performing the acts
without authorization becomes not able to continue performance in accordance
with Clause 5 Article 575 of this Code;
4. The person performing the acts
without authorization dies with regard to natural person or juridical person
ceases to exist with regard to juridical person.
Chapter XIX
OBLIGATIONS TO RETURN PROPERTY DUE TO UNLAWFUL
POSSESSION OR USE OF PROPERTY OR DERIVING OF BENEFITS FROM PROPERTY
Article 579.
Obligation to return property
1. A person possessing or using
property of another unlawfully must return the property to its owners and
holders of other property-related rights. If the lawful owners and holders of
other property-related rights of such property are not able to be found, the
property must be delivered to a competent authority, except in the case
provided in article 236 of this Code.
2. A person deriving benefits from
property unlawfully, thereby causing damage to another person, must give such
benefits to such other person, except in the case provided in Article 236 of
this Code.
Article 580.
Property to be returned
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2. Where the property to be
returned is a distinctive object, that particular object must be returned and,
if such distinctive object is lost or damaged, monetary compensation must be
paid, unless otherwise agreed.
3. If the property to be returned
is a fungible object which has been lost or damaged, an object of the same type
must be returned or monetary compensation must be paid, unless otherwise
agreed.
4. A person deriving benefits from
property unlawfully must return, either in kind or in money, the benefits
derived from the property to any person having suffered loss of such benefits.
Article 581.
Obligation to return yield and income
1. A person possessing or using
property, or a person deriving benefits from property, unlawfully and not in
good faith, must return yield and income derived from the property during the
time of unlawful possession or use of, or deriving benefits from, the property.
2. A person possessing or using
property, or a person deriving benefits from property, unlawfully but in good
faith, must return any yield and income derived from the property from the time
when it knew or should have known that the possession or use of, or deriving benefits
from, the property was unlawful, except in the case provided in Article 236 of
this Code.
Article 582.
Right to require third person to return property
Where a person unlawfully
possessing or using property transfers the property to a third person, the
third person must return the property if so demanded by the owner and holders
of other property-related rights, unless this Code contains some other
provision. If money or compensation has been paid for such property, the third
person has the right to demand the party having transferred the property to the
third person to compensate for damage.
Article 583.
Obligation to pay
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Chapter XX
LIABILITY FOR COMPENSATION FOR NON-CONTRACTUAL DAMAGES
Section 1.
GENERAL PROVISIONS
Article 584.
Grounds giving rise to liability to compensate for damage
1. A person intentionally or
unintentionally harming the life, health, honor, dignity, reputation, property,
or other legal rights or interests of a person, must compensate for such
damage, unless otherwise prescribed in this Code or relevant laws.
2. The person who causes damage
shall be discharged from liability for compensation in case where the damage
incurs due to force majeure events or at entire fault of the aggrieved person,
unless otherwise agreed or otherwise prescribed by law.
3. If a property causes damage, its
owner or possessor must compensate for the damage, except for the damage
prescribed in Clause 2 of this Article.
Article 585.
Principles of compensation for damage
1. Actual damage must be
compensated in full and promptly. Unless otherwise provided by law, parties may
agree on the amount of compensation; on the form of compensation, which may be
money, in kind or the performance of an act; lump sum payment or payment in
instalments; and on the method of compensation.
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3. If the amount of compensation
determined becomes unrealistic, the aggrieved person, or the person having
caused damage, has the right to request a court or another competent authority
to change the amount of compensation.
4. If the aggrieved party is partly
his/her fault for causing the damage, that part of damage shall not be
compensated.
5. The party having rights and
interests infringed shall not be compensated if such damage incurs due to his/her
failure to adopt necessary measures to prevent the damage.
Article 586.
Capacity of individuals for liability to compensate for damage
1. A person of eighteen years of
age or older who causes damage shall be personally liable to compensate.
2. Where a minor under fifteen
years of age causes damage, his or her parents, if any, must compensate for the
total damage. If the parents have insufficient property to compensate and the
minor who has caused the damage has property of his or her own, such property
shall be used to satisfy the outstanding amount of compensation, except in the
cases provided in Article 599 of this Code.
Where a person who is between
fifteen and eighteen years of age causes damage, such person must compensate by
recourse to his or her own property. If such person has insufficient property
to compensate, the parents of such person must satisfy the outstanding amount
by recourse to their own property.
3. Where a minor, legally
incapacitated person, person with limited cognition and behavior control,
causes damage but there is a guardian, such guardian shall use the property of
the ward to compensate. If the ward has no or insufficient property to
compensate, the guardian must do so by recourse to the property of the
guardian. If the guardian is able to prove that he or she was not at fault with
respect to guardianship, the guardian shall not be required to use its property
to compensate.
Article 587.
Compensation for damage caused jointly by several persons
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Article 588.
Prescriptive period for initiating legal action claiming compensation for
damage
The prescriptive period for
initiating legal action claiming compensation for damage shall be 03 years from
the date on which the legal rights or interests of an individual, legal entity
or other subject were infringed.
Section 2.
ASSESSMENT OF DAMAGE
Article 589.
Damage caused by infringement of property
In the event of an infringement of
property, the compensable damage shall comprise:
1. Property which was lost,
destroyed or damaged;
2. Interests associated with the
use and exploitation of the property was lost or declined;
3. Reasonable costs for the
prevention, mitigation and remedy of the damage;
4. Other damage as prescribed by
law.
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1. Damage caused by harm to health
shall comprise:
a) Reasonable costs for treating,
nursing and rehabilitating health, and functional losses and impairment of the
aggrieved person;
b) Loss of or reduction in the
actual income of the aggrieved person. If the actual income of the aggrieved
person is irregular and is not able to be determined, the average income level
for the type of work performed by the aggrieved person shall be applied;
c) Reasonable costs and actual
income losses of the carers of the aggrieved person during the period of
treatment. If the aggrieved person loses his or her ability to work and
requires a permanent carer, the damage shall also include reasonable costs for
taking care of the aggrieved person.
d) Other damage as prescribed by
law.
2. A person causing harm to the
health of another person must pay the items provided in Clause 1 of this
Article together with an amount of money as compensation for mental suffering
of the aggrieved person. The amount of compensation for mental suffering shall
be as agreed by the parties; if the parties are not able to agree, the maximum
sum shall not exceed fifty-month base salary prescribed by the State.
Article 591.
Damage caused by harm to life
1. Damage caused by harm to life
shall comprise:
a) Damage caused by harm to life
prescribed in Article 590 of this Code;
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c) Support for the dependants of
the aggrieved person;
d) Other damage as prescribed by
law.
2. A person causing death to
another person must pay compensation for damage as provided in Clause 1 of this
Article together with an amount of money as compensation for mental suffering
of the closest relatives in the first line of succession to the deceased. If
there are no such relatives, this sum shall be paid to the persons who were
directly reared by the deceased or to the persons who directly reared the
deceased. The amount of compensation for mental suffering shall be as agreed by
the parties; if the parties are not able to agree, the maximum sum shall not
exceed one-hundred-month base salary prescribed in by the State.
Article 592.
Damage caused by harm to honor, dignity or reputation
1. Damage caused by harm to the
honor, dignity or reputation shall comprise:
a) Reasonable costs for mitigating
and remedying the damage;
b) Loss of or reduction in actual
income;
c) Other damage as prescribed by
law.
2. A person causing harm to the
honor, dignity or reputation of another person must pay compensation for damage
as provided in Clause 1 of this Article together with another amount of money
as compensation for mental suffering of the aggrieved person. The amount of
compensation for mental suffering shall be as agreed by the parties; if the
parties are not able to agree, the maximum sum shall not exceed ten-month base
salary prescribed by the State.
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1. Where an aggrieved person loses
totally the ability to work, the aggrieved person shall receive compensation
until the time of his or her death, unless otherwise agreed.
2. Where the aggrieved person dies,
his or her dependants shall be entitled to receive support for the following
durations:
a) A child of the deceased, whether
living or conceived prior to his or her death, shall be entitled to
compensation until the age of eighteen years, except a child between fifteen
and eighteen years of age who is employed and earns sufficient income to look
after himself or herself;
b) An adult who is not able to work
shall be entitled to receive support until his or her death.
3. With regard to the conceived
child of the deceased, the compensation shall be paid from the time he/she is
born and alive.
Section 3.
COMPENSATION FOR DAMAGE IN A NUMBER OF SPECIFIC CASES
Article 594.
Compensation for damage by persons exceeding limits of reasonable self-defense
A person causing damage while
acting in reasonable self-defense shall not be liable to compensate any
aggrieved person.
A person causing damage while not
acting in reasonable self-defense must compensate any aggrieved person.
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1. A person causing damage as a
result of exceeding the requirements of an emergency situation must compensate
any aggrieved person for that part of the damage which resulted from exceeding
the requirements of an emergency situation.
2. A person creating an emergency
situation which leads to damage being caused must compensate any aggrieved
person.
Article 596.
Compensation for damage caused by persons using stimulants
1. A person who, due to the
consumption of alcohol or the use of other stimulants, becomes incapable of being
aware of or controlling his or her acts, thereby causing damage to another
person, must compensate such person.
2. A person who intentionally
causes another person to take alcohol or stimulants, thereby causing such
person to become incapable of being aware of or controlling his or her acts,
must compensate any person aggrieved thereby.
Article 597.
Compensation for damage caused by persons belonging to juridical persons
A juridical person must compensate
for any damage caused by any person belonging to the juridical person during
the performance of duties assigned by it to such person. If a juridical person
has compensated for any damage, it has the right to demand the person at fault
for causing the damage to reimburse it an amount of money in accordance with
law.
Article 598.
Compensation for damage caused by law enforcers
The State must compensate for
damage caused by law enforcers as prescribed in the Law on compensation
liability of the State.
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1. Where a person under fifteen
years of age causes damage during school hours, the school must compensate for
the damage.
2. If a legally incapacitated
person causes damage to another person while under the direct supervision of a
hospital or another juridical person, such hospital or the juridical person
must compensate for the damage.
3. If, in the cases provided in
Clauses 1 and 2 of this Article, the school, hospital or another juridical
person proves that it was not at fault with respect to supervision, the parents
or guardian of the person under fifteen years of age or of the legally
incapacitated person must compensate.
Article 600.
Compensation for damage caused workers and trainees
A natural person or juridical
person must compensate for any damage caused by any worker or trainee belonging
to it during the performance by the employee or trainee of his or her assigned
duties. The natural person or juridical person has the right to demand such
worker or trainee reimburse it an amount of money in accordance with law.
Article 601.
Compensation for damage caused by sources of extreme danger
1. Sources of extreme danger
comprise motorized means of transport, power transmission systems, operating
industrial plants, weapons, explosives, inflammable substances, toxic
substances, radioactive substances, dangerous animals and other sources of
extreme danger as provided by law.
An owner of a source of extreme
danger must comply strictly with the regulations on taking care of, preserving,
transporting and using sources of extreme danger in accordance with law.
2. An owner of a source of extreme
danger must compensate for damage caused by such source. If the owner has
transferred possession or use of the source of extreme danger to another
person, such other person must compensate [for the damage], unless otherwise
agreed.
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a) The aggrieved person is entirely
at fault for intentionally causing the damage;
b) The damage occurred due to an
event of force majeure or in an emergency situation, unless otherwise provided
by law.
4. Where a source of extreme danger
is taken into possession or used unlawfully, the person possessing or using [it]
unlawfully must compensate for damage.
Where an owner, or a person to
which an owner has transferred possession or use, of a source of extreme danger
is at fault by allowing the unlawful possession or use of the source of extreme
danger, the owner, or the person to which the owner has transferred possession
or use, of the source of extreme danger as the case may be must compensate
jointly for the damage.
Article 602.
Compensation for damage caused by environmental pollution
Any entity polluting the environment,
thereby causing damage, must compensate in accordance with the law, including
when the entity polluting the environment was not at fault.
Article 603.
Compensation for damage caused by livestock
1. An owner of livestock must
compensate for damage caused to another person by such livestock. The possessor
or user of livestock must compensate during the period of possession or using,
unless otherwise agreed.
2. Where a third person is entirely
at fault in causing livestock to cause damage to another person, the third
person must compensate for the damage. If both the third person and the owner
are at fault, both of them must compensate jointly for the damage.
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4. Where livestock which is allowed
to roam according to customary practice causes damage, its owner must
compensate according to customary practice provided that such compensation does
not contravene the law or social morals.
Article 604.
Compensation for damage caused by trees
An owner, a possessor or a person
in charge of trees must compensate for damage caused by the trees.
Article 605.
Compensation for damage caused by houses and other construction works or
buildings
An owner or a possessor of a house
or another construction work, or a person to which the owner has assigned the
management or use thereof, must compensate for damage if such house or
construction causes damage to another person.
If the executor of the house or
construction work is partly fault that such house or construction work causes
damage, he/she must jointly compensate for such damage.
Article 606.
Compensation for damage caused by infringement of corpses
1. Each natural person or juridical
causing damage to a corpse must compensate.
2. Damage caused by infringement of
a corpse shall include reasonable costs for mitigating and remedying the
damage.
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Article 607.
Compensation for damage caused by infringement of graves
1. Each natural person or juridical
person causing damage to the grave of another must compensate.
2. Damage caused by infringement of
a grave shall include reasonable costs for mitigating and remedying the damage.
3. A person causing damage to a
grave must pay an amount of money as provided in Clause 2 of this Article
together with another amount of money as compensation for mental suffering of
the closest relatives in the first line of succession to the deceased. If there
are no such relatives, this sum shall be paid to the persons who directly
reared the deceased. The amount of compensation for mental suffering shall be
as agreed by the parties; if the parties are not able to agree, the maximum sum
for each damaged grave shall not exceed ten-month base salary prescribed by the
State.
Article 608.
Compensation for damage caused by infringement of consumer interests
A natural person or juridical
person carrying out production or business and failing to ensure the quality of
goods, thereby causing damage to consumers, must compensate for such damage.
PART FOUR
INHERITANCE
Chapter XXI
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Article 609.
Rights of inheritance
A natural person may make a will to
dispose of his or her estate, may leave his or her property to an heir in
accordance with law, or may inherit an estate left to him or her under a will
or in accordance with law.
An heir not being natural person
has the right to inherit estate under a will.
Article 610.
Equality of individuals with respect to rights of inheritance
All natural persons are equal with
respect to rights to bequeath their property to others and to inherit estates
under wills or in accordance with law.
Article 611.
Time and place of commencing inheritance
1. The time of commencement of an
inheritance shall be the time when the deceased dies. Where a court declares
that a person is dead, the time of commencement of the inheritance shall be the
date provided in Clause 2 of Article 71 of this Code.
2. The place of commencement of the
inheritance shall be the last place of residence of the owner of the estate. If
the last place of residence is not able to be determined, the place of
commencement of the inheritance shall be the place at which all or most of the
estate is located.
Article 612.
Estates
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Article 613.
Heirs
If an heir is an individual, such
person must be alive at the time of commencement of the inheritance or, if such
person is born and alive after the commencement of inheritance, must have been
conceived prior to the time when the deceased dies. Where an heir under a will
is a body or organization, it must be in existence at the time of commencement
of the inheritance.
Article 614.
Time when rights and obligations of heirs arise
From the time of commencement of an
inheritance, the heirs have the property rights and obligations left by the
deceased.
Article 615.
Performance of property obligations left by deceased
1. A person entitled to an
inheritance has the responsibility to perform the property obligations within
the scope of the estate left by the deceased, unless otherwise agreed.
2. Where an estate has not yet been
divided, the property obligations left by the deceased shall be performed by
the administrator of the estate as agreed by the heirs.
3. Where an estate has already been
divided, each heir shall perform those property obligations left by the
deceased corresponding to, but not exceeding, that part of the estate that the
heir has inherited, unless otherwise agreed.
4. Where the heir inheriting an
estate under a will is not a natural person, it must perform the property
obligations left by the deceased in like manner as a natural person.
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1. Administrator of an estate means
the person who is appointed in the will or by agreement of the heirs.
2. Where a will fails to appoint,
and the heirs have not yet appointed, an administrator, any person currently
possessing, using or managing property within the estate at the time of the
commencement of the inheritance shall continue its administration until the
heirs have appointed an administrator.
3. Where an heir has not yet been
determined and there is not yet an administrator of the estate as prescribed in
Clauses 1 and 2 of this Article, the estate shall be administered by a
competent authority.
Article 617.
Obligations of administrators of estates
1. An administrator of an estate as
provided in Clauses 1 and 3 of article 616 of this Code has the following
obligations:
a) Make a list of the property
within the estate and collect any property belonging to the estate of the
deceased which is possessed by others, unless otherwise provided by law;
b) Take care of the estate and do
not sell, exchange, give, pledge, mortgage or otherwise dispose of property
within the estate without the written consent of the heirs;
c) Notify the heirs of the estate;
d) Compensate for any damage if the
administrator breaches any of its obligations, thereby causing damage;
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2. A person possessing, using or
managing property within an estate as provided in Clause 2 of Article 638 of
this Code has the following obligations:
a) Take care of the estate and do
not sell, exchange, give, pledge, mortgage or otherwise dispose of property
within the estate;
b) Notify the heirs of the estate;
c) Compensate for any damage if the
administrator breaches any of its obligations, thereby causing damage;
d) Deliver back the estate as
agreed with the deceased in a contract or at the request of the heirs.
Article 618.
Rights of administrators of estates
1. An administrator of an estate as
provided in clauses 1 and 3 of article 616 of this Code has the following
rights:
a) Represent the heirs in dealings
with any third parties in relation to the estate of inheritance;
b) Receive remuneration as agreed
with the heirs;
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2. A person possessing, using or
managing property within an estate as provided in Clause 2 of Article 616 of
this Code has the following rights:
a) Continue to use the estate as
agreed with the deceased in a contract or with the consent of the heirs;
b) Receive remuneration as agreed
with the heirs;
c) Receive payment of costs of
estate preservation.
3. If the estate administrator
fails to reach an agreement on the remuneration with the heirs, he/she shall be
entitled to receive an appropriate remuneration.
Article 619.
Inheritance by persons entitled to inherit each other's estate but dead at same
time
Where persons who are entitled to inherit
each other's estate die at the same time or are deemed to have died at the same
time because it is impossible to determine who of them died first (hereinafter
referred to as simultaneous death), they do not have the right to inherit each
other's estate and the estate of each of the deceased shall be inherited by
their respective heirs, except in the case of inheritance pursuant to Article
652 of this Code.
Article 620.
Disclaimer of inheritance
1. An heir may disclaim an
inheritance, unless such disclaimer is for the purpose of avoiding the
performance of its property obligations to other persons.
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3. The disclaimer of an estate must
be expressed before the time of inherit distribution.
Article 621.
Persons not entitled to inherit
1. The following persons are not
entitled to inherit:
a) Persons convicted of having
intentionally caused the death of or harmed the health of the deceased, of
having seriously mistreated or tortured the deceased, or of having harmed the
honor or dignity of the deceased;
b) Persons having seriously
breached their duty to support the deceased;
c) Persons convicted of having
intentionally caused the death of another heir in order to obtain all or part
of the entitlement of such other heir to the estate;
d) Persons deceiving, coercing or
obstructing the deceased with respect to the making of the will, or forging,
altering or destroying the will in order to obtain all or part of the estate
contrary to the wishes of the deceased.
2. Persons provided in Clause 1 of
this Article may, nevertheless, inherit the estate if the deceased was aware of
such acts but, nevertheless, allowed them to inherit the estate under the will.
Article 622. Estates which no
one inherits
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Article 623.
Prescriptive periods with respect to inheritance
1. The prescriptive period with
respect to a claim of an heir for distribution of an estate shall be thirty
years regarding immovable property or ten years regarding movable property from
the time of commencement of the inheritance. Upon the expiry date of the
aforesaid period, the estate shall belong to the estate administrator. In case
where there is no estate administrator, the estate shall be dealt with as
follows:
a) It shall belong to the person
possessing it as prescribed in Article 236 of this Code;
b) It shall belong the State if
there is no possessor prescribed in Point a of this Clause.
2. The prescriptive period with
respect to a claim of an heir for a declaration of right of inheritance of the
requester or to disallow the claim to inheritance of another shall be ten years
from the time of commencement of the inheritance.
3. The prescriptive period with
respect to a claim for an heir to fulfill property obligations of the deceased
shall be three years from the time of commencement of the inheritance.
Chapter XXII
INHERITANCE UNDER WILLS
Article 624.
Wills
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Article 625.
Testators
1. An adult satisfying conditions
prescribed in Point a Clause 2 Article 630 of this Code may make a will to
dispose his/her property.
2. A person who is between fifteen
and eighteen years of age may make a will with the consent of his or her
parents or guardian.
Article 626.
Rights of testators
A testator has the following
rights:
1. Appoint heirs or to deprive an
heir of the right to inherit the estate;
2. Determine those parts of the
estate which each heir is entitled to;
3. Reserve part of the estate as a
gift or for worship purposes;
4. Designate heirs to perform
obligations;
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Article 627.
Formalities for wills
A will must be made in writing. If
it is not able to be made in writing, it may be made orally.
Article 628.
Written wills
Written wills comprise:
1. Unwitnessed written wills;
2. Witnessed written wills;
3. Written wills which are
notarized;
4. Written wills which are
certified.
Article 629.
Oral wills
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2. If the testator is alive and is
of sound mind three months after he or she has made an oral will, such will
shall automatically become invalid.
Article 630.
Lawful wills
1. A will must satisfy the
following requirements in order to be lawful:
a) The testator was of sound mind
when he or she made the will; and he or she was not deceived, threatened or
coerced into making the will;
b) The contents of the will are not
contrary to law or social morals and the will complies with legal formalities.
2. A will made by a person between
fifteen and eighteen years of age must be made in writing and with the consent
of the parents or guardian of such person.
3. A will made by a person who is
incapacitated or illiterate must be made in writing by a witness and must be
notarized or certified.
4. A written will which is not
notarized or certified shall be deemed lawful only if it satisfies the
requirements provided in Clause 1 of this Article.
5. An oral will shall be deemed
lawful only if the testator orally expressed his or her last wishes before at
least two witnesses who immediately thereafter recorded those wishes in writing
and signed or fingerprinted the document. Such will must be notarized or certified
within five working days of the date on which the testator orally expressed his
or her last wishes.
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1. A will must specify clearly the
following:
a) The date on which the will is
made;
b) The full name and place of
residence of the testator;
c) The full names of the persons
and the bodies or organizations entitled to inherit the estate;
d) The estate to be bequeathed and
its location.
2. Apart from the contents
prescribed in Clause 1 of this Article, the will may have other contents.
3. A will may not be written using
abbreviations or other symbols. If a will consists of several pages, each page
must be numbered and bear the signature or fingerprint of the testator.
Where a will has erasure or
correction, the testator or the testament witness must sign beside erasing and
corrected place.
Article 632.
Witnesses to making of will
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1. Persons who are heirs of the
testator under the will or at law;
2. Persons with property rights or
obligations which relate to the will;
3. Minors, legally incapacitated
persons, persons with limited cognition and behavior control.
Article 633.
Unwitnessed written wills
A testator must write a will by his
or her own hand and must sign it.
The drawing up of a written will
without witnesses must comply with article 631 of this Code.
Article 634.
Witnessed written wills
Where a testator is not able to
write a will by his or her own hand, the testator may request another person to
write the will, but there must be at least two witnesses. The testator must
sign or fingerprint the will in the presence of the witnesses; the witnesses
shall acknowledge the signature or fingerprint of the testator and sign the will.
The will must be made in compliance
with articles 631 and 632 of this Code.
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A testator may request that the
will be notarized or certified.
Article 636.
Procedures for preparation of wills at notary office or people's committee of
commune
The preparation of a will at a
notary office or the people's committee of the commune must comply with the
following procedures:
1. The testator shall declare the
contents of his or her will to a notary public officer or a member of the
people's committee of the commune who has the authority to certify it. The
notary public officer or the person having the authority to certify must record
the wishes stated by the testator. The testator shall sign or fingerprint the
will after acknowledging that it has been recorded accurately and that it
expresses faithfully the intentions of the testator. Thereafter, the notary
public officer or the member of the people's committee of the commune shall
sign the will;
2. Where the testator is not able
to read or hear the will or not able to sign or fingerprint it, there must be a
witness who must acknowledge the will by signing it before a notary public
officer or a member of the people's committee of the commune who has the
authority to certify it. The notary public officer shall notarize the will, or
the member of the people's committee of the commune who has the authority to
certify the will shall certify it, in the presence of the testator and the
witnesses.
Article 637.
Persons not permitted to notarize or certify wills
A notary public officer or a member
of the people's committee of the commune who has authority shall not be
permitted to notarize or certify a will if such person is:
1. An heir of the testator under
the will or at law;
2. A person whose father, mother,
wife, husband or child is an heir under the will or at law;
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Article 638.
Written wills valid as though notarized or certified
1. A written will made by a serving
soldier who is not able to request a notarization or certification of his or
her will provided that such will is certified by the head of his or her unit
having the rank of a company commander or higher.
2. A written will made by a person
travelling on a seagoing vessel or aircraft provided that the will is certified
by the captain of the vessel or aircraft.
3. A written will made by a person
undergoing medical treatment in a hospital or other medical establishment or
sanatorium provided that the will is certified by the person in charge of such
hospital or establishment or sanatorium.
4. A written will made by a person
conducting surveys, explorations or research in mountainous areas, forests or
offshore islands provided that the will is certified by the person in charge of
the unit.
5. A written will made by a
Vietnamese citizen residing abroad provided that the will is certified by a
Vietnamese consular or diplomatic representative mission in that country.
6. A written will made by a person
held in temporary detention, serving a prison sentence or administrative
penalty, or at an educational or medical facility provided that the will is
certified by the person in charge of such facility.
Article 639.
Wills prepared by notary public officers at places of residence of testators
1. A testator may request a notary
public officer to visit his or her place of residence in order to prepare a
will.
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Article 640.
Amendment of, addition to, replacement or revocation of wills
1. A testator may amend, add to,
replace or revoke his or her will at any time.
2. If a testator adds to his or her
will, the original will and the codicil shall have equal validity. If a part of
the original will and the codicil conflict with each other, the codicil shall
prevail.
3. Where a testator replaces a will
with a new will, the previous will shall be deemed to have been revoked.
Article 641.
Custody of wills
1. A testator may request a notary
office or another person to keep custody of the will of the testator.
2. Where a will is kept in custody
by a notary office, it must be taken care of and looked after in accordance
with the law on notaries.
3. An individual keeping custody of
a will has the following obligations:
a) Keep the contents of the will
confidential;
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c) Upon the death of the testator,
to deliver the will to his or her heirs or to the person authorized to announce
the will. The delivery of the will must be recorded in writing and signed by
the person delivering the will, and by the person receiving it, in the presence
of two witnesses.
Article 642.
Loss and damage of wills
1. If, from the commencement of the
inheritance, the will is lost or damaged to the extent that it is incapable of
indicating clearly the wishes of the testator and there is no evidence of the
true wishes of the testator, it shall be deemed that no will exists and
inheritance at law shall apply.
2. Where the will is found prior to
distribution of the estate, the estate shall be distributed according to the
will.
3. Within the prescriptive periods
for requesting estate distribution, if a will is found after the distribution
of the estate, the estate shall be distributed according to the will at the
request of the heir under will.
Article 643.
Legal effectiveness of wills
1. A will shall become legally
effective from the time of commencement of the inheritance.
2. All or part of a will shall be
legally ineffective in any of the following cases:
a) An heir under the will dies
prior to or at the same time as the testator dying;
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Where there are several heirs under
a will and one of them dies prior to or at the same time as the death of the
testator or one of the bodies or organizations named as an heir under the will
no longer exists at the time of commencement of the inheritance, only that part
of the will which relates to the individual, body or organization no longer
existing shall be legally ineffective.
3. A will shall not be legally
effective if the estate left to the heirs no longer exists at the time of
commencement of the inheritance. If only part of the estate left to the heirs
remains, only that part of the will which relates to such part of the estate
shall be legally effective.
4. Where a will contains provisions
which are unlawful but such provisions do not affect the effectiveness of the
remainder of the will, only such provisions shall be legally ineffective.
5. Where a person leaves behind
more than one will with respect to certain property, only the most recent of
such wills shall be legally effective.
Article 644.
Heirs notwithstanding contents of wills
1. Where a testator does not grant
any of the following persons an inheritance, or grants any such person an inheritance
which is less than two-thirds of the share that person would have received if
the estate had been distributed according to law, such person shall be entitled
to a share of the estate equivalent to two-thirds of the share that he or she
would have received if the estate had been distributed in accordance with law:
a) Children who are minors, father,
mother, wife or husband of the testator;
b) Children who are adults but who
are incapable of working.
2. Clause 1 of this Article shall
not apply to persons who have disclaimed their inheritance as prescribed in
Article 620 or person who are not entitled to inherit as prescribed in Clause 1
Article 621 of this Code.
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1. Where a testator designates part
of his or her estate for worship purposes, such part of the estate shall not be
distributed among the heirs and shall be delivered to the person appointed in
the will to manage for worship purposes. If such appointee fails to implement
strictly the will or the agreement of the heirs, the heirs have the right to
appoint another person to manage for worship purposes.
Where the testator fails to appoint
a person to manage that part of his or her estate which is designated for
worship purposes, the heirs shall appoint a person to manage such part of the
estate.
Where all heirs under a will have
died, that part of the estate which is designated for worship purposes shall
belong to the person managing that part of the estate for worship purposes
provided that he or she is an heir at law.
2. Where the entire estate of the
deceased is insufficient to satisfy all property obligations of the deceased,
no part of the estate may be designated for worship purposes.
Article 646.
Testamentary gifts
1. A testator may designate part of
his or her estate as a testamentary gift to another person. The testamentary
gift must be expressly stated in the will.
2. The grantee of the testamentary
gift must be alive at the time of commencement of the inheritance or he/she
must bear and alive after the time of commencement of the inheritance he/she
must be conceived before the death of the estate leaver. If the grantee of the
testamentary gift is not a natural person, it must exist at the time of
commencement of the inheritance.
3. The grantee of a gift shall not
be required to fulfill property obligations with respect to that part of the
estate granted as a gift, unless the whole estate is insufficient to satisfy
all property obligations of the grantor, in which case the part of the estate
granted as a gift shall also be applied towards satisfying the remainder of the
obligations of the grantor.
Article 647.
Announcement of wills
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2. Where a testator has appointed a
person to announce the will, such person shall announce the will. If the
testator fails to appoint a person or has appointed a person but the appointee
refuses to announce the will, the heirs shall agree on the appointment of a
person to announce the will.
3. After the time of commencement
of an inheritance, the person announcing the will must send copies of the will
to all persons with an interest in the contents of the will.
4. A recipient of a copy of a will
has the right to verify the copy against the original.
5. Where a will has been prepared
in a foreign language, it must be translated into Vietnamese and notarized.
Article 648.
Interpretation of contents of wills
Where the contents of a will are
unclear and may be interpreted in different ways, the person announcing the
will and the heirs must interpret jointly the contents of the will based on the
true wishes of the deceased, taking into consideration the relationship of the
deceased with the heirs under the will. If such persons fail to agree on the
interpretation of the contents of the will, they have the right to request a
court for settlement.
Where part of the contents of a
will is not able to be interpreted but the remainder of the will is not
affected, only that part which is not able to be interpreted shall not be
legally effective.
Chapter
XXIII
INHERITANCE AT LAW
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Inheritance at law means
inheritance in accordance with the order of priority of inheritance and the
conditions and procedures of inheritance provided by law.
Article 650.
Cases of inheritance at law
1. Inheritance at law shall apply
in the following cases:
a) There is no will;
b) The will is unlawful;
c) All heirs under the will died
prior to or at the same time as the testator dying, or the bodies or
organizations which are entitled to inherit under the will no longer exist at
the time of commencement of the inheritance;
d) The persons appointed as heirs
under the will do not have the right to inherit or disclaimed the right to
inherit.
2. Inheritance at law shall also
apply to the following parts of an estate:
a) Parts of an estate in respect of
which no disposition has been made in the will;
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c) Parts of an estate related to
heirs under the will not having the right to inherit, having disclaimed the
right to inherit, or having died prior to or at the same time as the testator
dying; and parts of an estate related to bodies or organizations entitled to
inherit under the will but no longer existing at the time of commencement of
the inheritance.
Article 651.
Heirs at law
1. Heirs at law are categorized in
the following order of priority:
a) The first level of heirs
comprises: spouses, biological parents, adoptive parents, offspring and adopted
children of the deceased;
b) The second level of heirs
comprises: grandparents and siblings of the deceased; and biological
grandchildren of the deceased;
c) The third level of heirs
comprises: biological great-grandparents of the deceased, biological uncles and
aunts of the deceased and biological nephews and nieces of the deceased.
2. Heirs at the same level shall be
entitled to equal shares of the estate.
3. Heirs at a lower level shall be
entitled to inherit where there are no heirs at a higher level because such
heirs have died, or because they are not entitled to inherit, have been
deprived of the right to inherit or have disclaimed the right to inherit.
Article 652.
Succeeding heirs
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Article 653.
Inheritance relations between adopted children and their adoptive parents and
biological parents
An adopted child and his or her
adoptive parents may inherit each other's estates and may also inherit in
accordance with articles 651 and 652 of this Code.
Article 654. Inheritance
relations between stepchildren and their stepparents
If a stepchild and his or her
stepparents care for and support each other as though they were biologically
related, they may inherit each other's estates and may also inherit in
accordance with articles 652 and 653 of this Code.
Article 655.
Inheritance where wives and husbands have divided multiple ownership property,
have applied for divorce or have remarried
1. Where a wife and husband have
divided their multiple ownership property while they are still married and one
of them subsequently dies, the surviving spouse shall still be entitled to
inherit the estate of the deceased.
2. Where a wife and husband have
applied for but not yet obtained a legally effective divorce pursuant to a
judgment or decision of a court, or they have obtained such a divorce but the
judgment or decision of the court is not yet effective, and one of them dies,
the surviving spouse shall, nevertheless, be entitled to inherit the estate of
the deceased.
3. A person who is the wife or
husband of the deceased at the time when his or her spouse dies shall be
entitled to inherit the estate of the deceased even if that person subsequently
remarries.
Chapter XXIV
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Article 656.
Meeting of heirs
1. After being notified of the
commencement of an inheritance, or after a will has been announced, the heirs
may meet to agree on the following matters:
a) If the testator has failed to
appoint an administrator of the estate or a distributor of the estate, or has
not determined the powers and obligations of such persons, the appointment of
such persons and the determination of their powers and obligations, as the case
may be;
b) Method of distributing the
estate.
2. All agreements by the heirs must
be made in writing.
Article 657.
Distributors of estates
1. A distributor of an estate may
also be the administrator of the estate appointed in the will or by agreement
of the heirs.
2. A distributor of an estate must
distribute it strictly in accordance with the will or the agreement of the
heirs at law.
3. A distributor of the estate may
receive remuneration if so allowed by the testator in the will or if so agreed
by the heirs.
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Property obligations and expenses
related to an inheritance shall be paid in the following order of priority:
1. Reasonable funeral expenses in
accordance with customary practice;
2. Outstanding support payments;
3. Expenditures on preservation of
estate;
4. Allowances for dependants of the
deceased;
5. Wages;
6. Monetary compensation for any
damage;
7. Taxes and other liabilities owed
to the State;
8. Other liabilities owed to other
natural persons or juridical persons;
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10. Other expenses.
Article 659.
Distribution of estates in accordance with wills
1. An estate shall be distributed
in accordance with the wishes of the testator. If the will fails to specify the
share of each heir, the estate shall be divided equally between the persons
named in the will, unless otherwise agreed.
2. Where a will provides for the
distribution in kind of an estate, each of the heirs shall be entitled to
receive his or her share in kind, plus the benefits and income derived
therefrom, or must bear the depreciation in value of such share in kind up to the
time when the estate is distributed. If the property which is the subject of a
share in kind has been destroyed due to the fault of another person, the heir
has the right to demand compensation for damage.
3. Where a will provides for the
distribution of an estate according to certain proportions of the total value
of the estate, such proportions shall be calculated on the basis of the value
of the estate at the time of distribution.
Article 660.
Distribution of estates in accordance with law
1. If, at the time of distribution,
an heir has been conceived but not yet born, a part of the estate equal to the
share of another heir at the same level of heirs shall be set aside for the
unborn heir. If the heir is born alive, he or she shall inherit such part of the
estate. If the heir does not survive his or her birth, the other heirs at the
same level of heirs shall be entitled to his or her share.
2. The heirs have the right to
demand the estate to be distributed in kind. If the estate is not able to be
equally distributed in kind, the heirs may agree that the property shall be
valued and may agree on which heirs shall be entitled to receive which
particular items of property. Failing such agreement, the assets in kind shall
be sold for distribution.
Article 661.
Limited distribution of estates
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If there is a request to distribute
an estate but such distribution will seriously and adversely affect the life of
the remaining wife or husband and family, such spouse has the right to request
a court to fix the share of the estate to which other heirs are entitled but not
to allow distribution of the estate during a certain period of time. Such
period shall not exceed three years from the date of commencement of
inheritance. When such period fixed by the court has expired or such remaining
spouse has remarried, the other heirs have the right to request the court to
permit distribution of the estate.
Article 662.
Distribution of estates where new heir or where right of heir to inherit has
been disallowed
1. Where a new heir appears after
an estate has been distributed, the estate shall not be re-distributed in kind
but the heirs which have received [a share of] the estate must pay the new heir
a sum equivalent to the share of the estate of such [new heir] at the time of
distribution of the estate in proportion to the [respective] share of the
estate already received [by each heir], unless otherwise agreed.
2. Where the right of an heir to
inherit is disallowed after an estate has been distributed, such heir must
return the inheritance or pay to the other heirs a sum equivalent to the value
of the inheritance received at the time of distribution of the estate, unless
otherwise agreed.
PART FIVE
CIVIL RELATIONS INVOLVING FOREIGN ELEMENTS
Chapter XXV
GENERAL PROVISIONS
Article 663.
Scope
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If any regulation of law providing
for applied law to civil relations involving foreign elements complies with
Article 664 through Article 671 of this Code, it shall prevail; if it does not
comply with those Articles, Part Five of this Code shall prevail.
2. Civil relation involving a
foreign element means any of the following civil relations:
a) There is at least one of the
participating parties is a foreign natural person or juridical person;
b) The participating parties are
Vietnamese natural persons or juridical persons but the basis for the
establishment, modification or termination of such relation arose in a foreign
country;
c) The participating parties are
Vietnamese natural persons or juridical persons but the subject matter of such
civil relation is located in a foreign country.
Article 664.
Determination of law applying to civil relations involving foreign elements
1. The international agreements to
which the Socialist Republic of Vietnam is a signatory or Vietnamese law shall
apply to civil relations involving foreign elements.
2. In case the international
agreements to which the Socialist Republic of Vietnam is a signatory or a
Vietnamese law stipulates that contracting parties have the right to select applied
law, the law applied to civil relations involving foreign elements shall be
determined according to the selection of the contracting parties.
3. If it fails to determine the
applied law as prescribed in Clause 1 and Clause 2 of this Article, the applied
law is the law of the country that closely associates with the civil relations
involving foreign elements.
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1. In case an international treaty
to which the Socialist Republic of Vietnam is a signatory contains regulations
on rights and obligations of contracting participants in the civil relations
involving foreign elements, such international treaty shall prevail.
2. In case an international treaty
to which the Socialist Republic of Vietnam is a signatory contains provisions
different from those in this Code and other laws in terms of applied law on
civil relations involving foreign elements, such international treaty shall
prevail.
Article 666.
Application of international customary practices
Contracting parties may select
international customary practices in the case prescribed in Clause 2 Article
664 of this Code. If the application of such international customary practices
is contrary to the basic principles of the laws of the Socialist Republic of
Vietnam, Vietnamese laws shall prevail.
Article 667.
Application of foreign laws
Where foreign law applies to a
civil relation with different interpretations, the application must follow the
interpretation of the competent authority in that country.
Article 668.
Scope of the law to be referred to
1. The law to be referred to
include regulations on determination of applied law and regulations on rights
and obligations of participants in civil relations, other than the case
prescribed in Clause 4 of this Article.
2. Where the Vietnamese law is
referred to, regulations of Vietnamese law on rights and obligations of
participants of a civil relation shall apply.
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4. With respect to regulations on
Clause 2 Article 664 of this Code, the law selected by the contracting parties
shall include rights and obligations of participants of the civil relation, and
not include regulations on applied law.
Article 669.
Application of law of countries having multiple legal systems
If the law of a country having
multiple legal systems is referred to, the applied law shall be determined according
to the rules prescribed by such country's law.
Article 670.
Non-application of foreign laws
1. The foreign law, notwithstanding
being referred to, shall not apply in any of the following cases:
a) The consequences of its
application are not inconsistent with the fundamental principles of the law of
the Socialist Republic of Vietnam;
b) The contents of foreign law are
not identifiable regardless of the adoption of necessary measures prescribed by
procedural law.
2. In case the foreign law is not
applied as prescribed in Clause 1 of this Article, Vietnamese law shall apply.
Article 671.
Prescriptive periods
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Chapter XXVI
THE LAW APPLIED TO NATURAL PERSONS AND JURIDICAL
PERSONS
Article 672.
Bases for choice of law applicable to stateless persons and to foreigners with
multiple foreign nationalities
1. Where the law referred to is the
law of a country of which a foreigner is a citizen but he/she is a stateless
person, the applied law shall be the law of the country of residence of such
person at the time when the civil relations involving foreign elements were
established. If that person has multiple residences or his residence is
unidentifiable at the time of establishing the civil relation involving foreign
elements, the applied law shall be the law of the country with which such
person closely associates.
2. Where the law referred to is the
law of a country of which a foreigner is a citizen but he/she has multiple
foreign nationalities, the applied law shall be the law of which he/she holds
nationality and where he/she resided at the time when the civil relations
involving foreign elements were established. If that person has multiple
residences or his residence is unidentifiable or his/her residence is different
from the country of which he/she holds nationality at the time when the civil
relations involving foreign elements were established, the applied law shall be
the law of the country with which such person closely associates.
Where the law referred to is the
law of a country of which a foreigner is a citizen but he/she has multiple
foreign nationalities, including Vietnamese nationality, the applied law shall
be Vietnamese law.
Article 673.
Legal personality of natural persons
1. Legal personality of a natural
person shall be determined according to the law of the country of which he/she
holds nationality.
2. A foreigner in Vietnam shall
have legal personality in the same manner as a Vietnamese citizen, unless
otherwise provided by the law of Vietnam.
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1. Legal capacity of a natural
person shall be determined according to the law of the country of which he/she
holds nationality, other than the case prescribed in Clause 2 of this Article.
2. Where a foreigner establishes or
performs civil transactions in Vietnam, his/her legal capacity shall be
determined in accordance with the law of Vietnam.
3. The determination of a legally
incapacitated person, a person with limited cognition or behavior control or a
person with limited legal capacity in Vietnam shall be in accordance with the
law of Vietnam.
Article 675.
Determination of persons disappeared or died
1. A determination that a person
has disappeared or died must comply with the law of the country of which such
person held nationality at the point of time prior to the last information
about such disappearance or death, except for the case prescribed in Clause 2
of this Article.
2. The determination of a
disappeared or dead person in Vietnam shall be in accordance with the law of
Vietnam.
Article 676.
Juridical persons
1. The nationality of a juridical
person shall be determined according to the law of the country in which such
juridical person was established.
2. Legal personality, name, legal
representatives, organization, restructuring, dissolution of a juridical
person; relations between a juridical person and its members; responsibilities
of a juridical person and its members pertaining to its obligations shall be
determined in accordance with the law of the country of which such juridical
person holds nationality, other than the case prescribed in Clause 3 of this
Article.
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Chapter
XXVII
THE LAW APPLIED TO PROPERTY RELATIONS AND PERSONAL
RELATIONS
Article 677.
Classification of property
The classification between moveable
and immoveable property shall be made in accordance with the laws of the
country in which such property is located.
Article 678.
Ownership rights and other property-related rights
1. The establishment, exercise,
operation and termination of ownership rights and other property-related rights
shall be determined in accordance with the laws of the country in which the
property is located, except in the cases provided in Clause 2 of this Article.
2. Ownership rights with respect to
moveable property in transit shall be determined in accordance with the law of
the country of destination, unless otherwise agreed.
Article 679.
Intellectual property rights
The intellectual property rights
shall be determined in accordance with the laws of the country in which the
objects of the intellectual property rights are required to be protected.
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1. Inheritance must comply with the
law of the country of which the person who bequeathed the assets held
nationality prior to his or her death.
2. The right to inherit immoveable
property must comply with the law of the country where such immoveable property
is located.
Article 681.
Wills
1. The capacity to create a will,
and to alter or rescind a will, must comply with the law of the country of
which the testator is a citizen.
2. The form of a will must comply
with the law of the country in the place where the will is created. The form of
a will shall be also recognized in Vietnam if it complies with the laws of any
of the following countries:
a) The country in which the
testator resides at the time when the will is created or the testator dies;
b) The country of which the
testator holds nationality at the time when the will is created or the testator
dies;
c) The country where the inheritance
being immovable property is located.
Article 682.
Guardianship
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Article 683.
Contracts
1. Contracting parties in a
contract may agree to select the applied law for the contract, other than
regulations of Clauses 4, 5 and 6 of this Article. In case the contracting
parties fail to agree the applied law, the law of the country with which such
contract closely associates shall apply.
2. The laws of any of the following
countries shall be treated as the law of the country with which such contract
closely associates:
a) The law of the country where the
seller being natural person resides or the seller being juridical person is
established in terms of sale contracts;
b) The law of the country where the
provider being natural person resides or the provider being juridical person is
established in terms of service contracts;
c) The law of the country where the
transferee being natural person resides or the seller being juridical person is
established in terms of contracts of transferring rights to use or intellectual
property rights;
d) The law of the country where
employees frequently perform do jobs in terms of labor contracts. If an
employee frequently does jobs in multiple countries or the country in which the
employee frequently does his/her job is unidentifiable, the law of the country
with which his/her labor contract closely associates shall be the law of the
country where the employer being natural person resides or the employer being
juridical person is established.
dd) The law of the country where
consumers resides in terms of consume contract.
3. If there is evident that the law
of a country other than the country prescribed in Clause 2 of this Article
associates with the contract more closely than the latter, the law of the
former country shall prevail.
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5. If the applied law selected by
contracting parties in a labor contract or a consume contract affects adversely
minimum interests of employees or consumers as prescribed in the law of
Vietnam, the law of Vietnam shall prevail.
6. Contracting parties in a
contract may agree to change the applied law provided that such change does not
affect adversely lawful rights and interests of a third party before changing,
otherwise agreed by the third party.
7. Form of a contract shall be
determined in accordance with the law applied to such type of contract. In case
where the form of a contract does not comply with the form of the law applied
to such contract but it comply with the form of the law of the country where
the contract is entered into or the law of Vietnam, such form of contract shall
be recognized in Vietnam.
Article 684.
Unilateral acts
The law applied to unilateral acts
of a person shall be determined in accordance with the law of the country of
residence with regard to natural person or the law of the country of
establishment with regard to juridical person.
Article 685.
Obligation to refund property possessed, used or derived unlawfully
The obligation to refund property
possessed, used or derived unlawfully shall be determined according to the law
of the country where the property is possessed, used or derived unlawfully.
Article 686.
Performance of acts without authorization
Contracting parties may agree to
select the law applied to the performance of acts without authorization. If the
contracting parties fail to agree to select the applied law, the law of the
country where the acts without authorization are performed shall prevail.
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1. Contracting parties may agree to
select the law applied to the compensation for non-contractual damage, except
for the case prescribed in Clause 2 of this Article. If the contracting parties
fail to agree to select the applied law, the law of the country where the
consequences of such acts arise shall prevail.
2. Where the party causing damage
and the aggrieved party being natural persons have residence or being juridical
person place of establishment in the same country, the law of such country
shall prevail.
PART SIX
IMPLEMENTATION
Article 688.
Transitional regulations
1. With respect to civil
transactions established before the effective date of this Code, the law shall
be implemented as follows:
a) The parties of non-performed
civil transactions whose contents and forms are different from this Code shall
keep complying with regulations of the Civil Code No. 33/2005/QH11 and
legislative documents on guidelines for the Civil Code No. 33/2005/QH11, unless
the parties agree to amend the contents or forms of the transactions in
accordance with this Code.
a) The parties of being-performed
civil transactions whose contents and forms are different from this Code shall
keep complying with regulations of the Civil Code No. 33/2005/QH11 and
legislative documents on guidelines for the Civil Code No. 33/2005/QH11;
b) The parties of non-performed or
being-performed civil transactions whose contents and forms are conformable to
this Code shall comply with regulations of this Code;
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d) Prescriptive periods shall
comply with this Code.
2. This Code shall not apply to a
case settled by a court in accordance with law on civil before the effective
date of such Code for the purpose of appeal under cassation procedures.
Article 689.
Effect
This Code comes into force from
January 1, 2017.
The Civil Code No. 33/2005/QH11
shall be annulled from the effective date of this Code.
This Code is passed by the 13th
National Assembly of Socialist Republic of Vietnam during the 10th session on
November 24, 2015.
PRESIDENT
OF NATIONAL ASSEMBLY
Nguyen Sinh Hung
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