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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
20/2006/ND-CP
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Hanoi,
February 20, 2006,
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DECREE
DETAILING THE PROVISIONS OF THE COMMERCIAL
LAW ON PROVISION OF COMMERCIAL ASSESSMENT SERVICES
THE GOVERNMENT
Pursuant to the
December 25, 2001 Law on Organization of the Government;
Pursuant to the June 14, 2005 Commercial Law;
At the proposal of the Trade Minister,
DECREES:
Chapter
I
GENERAL
PROVISIONS
Article
1.- Governing scope
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Article
2.- Subjects of application
This Decree applies to
traders providing commercial assessment services which are established under
Vietnamese law.
Article
3.- Principles for provision of commercial assessment services
1. Commercial
assessment services shall be provided under an agreement between involved
parties or at the request of any of parties to a contract relating to goods or
services which need to be assessed; or at the request of individuals,
organizations or state agencies.
2. Commercial
assessment services shall be provided on the principle of independence,
objectivity, scientificity and accuracy.
3. It is prohibited to
provide commercial assessment services in cases where such services are related
to interests of assessing enterprises and assessors.
Article
4.- Competence to perform state management of provision of commercial
assessment services
1. The Trade Ministry
shall be answerable to the Government for unifying the state management of the
provision of commercial assessment services with the following specific
management contents:
a/ Promulgating
according to its competence or proposing the Government to promulgate, amend or
supplement legal documents concerning provision of commercial assessment
services;
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c/ Directly inspecting
and examining activities of providing commercial assessment services when
deeming it necessary;
d/ Building an
information system for unified management of registration of professional
stamps of traders providing commercial assessment services;
e/ Settling complaints
and denunciations and handling acts of violating the provisions of law on
provision of commercial assessment services according to its competence.
2. Ministries,
ministerial-level agencies and Government-attached agencies shall, within the
ambit of their powers, perform the state management over provision of
commercial assessment services.
3. Provincial/municipal
People's Committees of localities where traders have made their business
registration shall guide the registration of professional stamps of traders
providing commercial assessment services according to the provisions of this
Decree.
Article
5.- Provision of commercial assessment services by foreign traders
1. Foreign traders that
establish enterprises for providing commercial assessment services under the
law on foreign investment in Vietnam and in compliance with the provisions of
treaties to which Vietnam is a contracting party shall be permitted to conduct
the assessment and issue assessment certificates according to their business
lines stated in their business registration certificates or papers of
equivalent validity according to current provisions of law.
2. The provision of
commercial assessment services under authorization of foreign traders
stipulated in Article 267 of the Commercial Law shall comply with the
provisions of Section 3, Chapter II of this Decree.
Chapter
II
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Section
1. ASSESSORS
Article
6.- Accreditation of assessors
1. Traders (directors
of enterprises) providing commercial assessment services shall issue decisions
on accreditation of assessors who fully satisfy the criteria specified in
Article 259 of the Commercial Law and take responsibility before law for their
decisions.
2. Only persons having
been accredited under decisions as assessors of traders providing commercial
assessment services shall be permitted to conduct assessing activities assigned
by such traders.
Article
7.- Rights and obligations of assessors
When conducting
assessing activities assigned by traders providing commercial assessment
services, assessors shall have the following rights and obligations:
1. To conduct
assigned assessment jobs independently and to be obliged to refuse to conduct
the assessment which is related to their own interests.
2. To conduct the
assessment in an honest, objective, scientific, timely and accurate manner and
in compliance with reasonable requirements agreed upon with the
assessment-requesting parties.
3. To request supply of
necessary information and documents related to the assessment jobs assigned to
them.
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5. To honestly reflect
assessment results in assessment certificates and sign such certificates.
6. To be responsible
for keeping confidential information and documents relating to assessment
results at the request of clients.
7. To be held
responsible before law and traders providing assessment services for the
accuracy of assessment services.
Section
2. PROFESSIONAL STAMPS IN ASSESSMENT CERTIFICATES
Article
8.- Signatures and professional stamps
1. Signatures in an
assessment certificate are stipulated as follows:
a/ The signature of the
authorized representative of the trader providing commercial assessment
services shall be put on the bottom right of the assessment certificate;
b/ The signature of the
assessor shall be put on the bottom left of the assessment certificate;
2. The professional
stamp in an assessment certificate shall have a rectangular shape of 6 cm in
length and 2 cm in width. On the upper part of the stamp face is the phrase
"on behalf of the company," while the lower part bears the emblem (if
any) and the name of the trader providing commercial assessment services.
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4. Alt professional
stamps shall use blue ink.
Article
9.- Registration of professional stamps
1. Provincial/municipal
Trade Services (Trade and Tourism Services) of localities where traders
providing assessment services have registered their business shall have to open
separate registers for registration of professional stamps for use in assessment
certificates by traders providing commercial assessment services.
2. Traders providing
commercial assessment services shall pay a fee upon registration of their
professional stamps; the fee rates and the regime of fee management and use
shall comply with the Finance Ministry's guidance.
Article
10.- Dossiers for registration of professional stamps
1. A dossier for
registration of the professional stamp of a trader providing commercial
assessment services comprises:
a/ An application for
registration of professional stamp, made according to a form set by the Trade
Ministry;
b/ A notarized copy of
the business registration certificate or the investment license (for traders
operating under the law on investment in Vietnam);
c/ The specimen of the
professional stamp for use in assessment certificates intended to be registered
by the trader.
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Article
11.- Time limit for making replies to dossiers for registration of
professional stamps
1. Within 10 working
days after receiving complete dossiers of application for registration of
professional stamps specified in Clause 1, Article 10 of this Decree,
provincial/municipal Trade Services (Trade and Tourism Services) of localities
where traders have registered their business shall have to register
professional stamps for use in assessment certificates of traders in their
professional stamp registers and notify such in writing to traders.
2. Where they refuse to
register professional stamps, provincial/municipal Trade Services (Trade and
Tourism Services) shall, within 10 working days after receiving complete
dossiers, have to reply in writing and clearly state reasons for refusal.
Article
12.- Deletion of registration of professional stamps
1. Registration of
professional stamps shall be deleted from professional stamp registers by
agencies in charge of registration of professional stamps in the following
cases:
a/ Traders providing
commercial assessment services terminate their business operation or change to
other business lines;
b/ Traders have their
business registration certificates or investment licenses withdrawn;
c/ Traders or their
authorized representatives commit serious illegal acts in assessing activities.
2. Where the
registration of their professional stamps is deleted, traders providing
commercial assessment services shall have to return such professional stamps to
the agency in charge of registration of professional stamps.
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Section
3. MANDATE OF ASSESSMENT
Article
13.- Assessment mandate contracts
Assessment mandate
contracts must be established in writing or any other form of equivalent legal
validity according to the provisions of law.
Article
14.- Assessment certificates in case of mandate of assessment
In an assessment
certificate issued by a mandated trader, the words "issued under mandate of
(name of the mandating trader)" must be clearly inscribed and the
professional stamp of the mandated trader must be affixed according to the
provisions of Article 8 of this Decree.
Article
15.- Sub-mandate
1. A mandated party
shall only be allowed to sub-mandate a third party if it is so consented to by
the mandating party or provided for by law.
2. A sub-mandate
contract must be in a form consistent with the form of the original mandate
contract.
3. The sub-mandate must
not go beyond the scope of the original mandate.
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1. Assessment-mandating
parties shall have the following rights:
a/ To request mandated
parties to strictly observe agreements in assessment mandate contracts;
b/ To request mandated
parties to fully notify the performance of jobs under mandate contracts;
c/ To claim damages
where mandated parties breach their obligations specified in Clause 2, Article
17 of this Decree.
2. Assessment-mandating
parties shall have the following obligations:
a/ To supply necessary
information and documents to fulfill the assessment requirements;
b/ To be responsible
for assessment results to assessment-requesting parties;
c/ To pay service
charges and other expenses as agreed upon in assessment mandate contracts;
d/ To fulfill their
financial obligations according to the provisions of Vietnamese law.
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1. Parties mandated to
conduct assessment shall have the following rights:
a/ To request
assessment-mandating parties to supply necessary information and documents in
service of assessment under assessment mandate contracts;
b/ To hire domestic and
foreign assessment experts to perform assessment services; to temporarily
import for re-export technical means to perform assessment operations;
c/ To receive service
charges and other payments as agreed upon in assessment mandate contracts.
2. Parties mandated to
conduct assessment shall have the following obligations:
a/ To perform jobs under
assessment mandate contracts and report to mandating parties on the performance
of such jobs;
b/ To preserve
documents and means assigned to them for performance of mandated jobs;
c/ To keep confidential
information they have acquired in the course of performing mandated jobs;
d/ To pay compensations
for damage caused by breaches of obligations specified at Points a, b and c of
this Clause;
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Article
18.- Assessment at the request of state agencies
1. When having requests
for assessment, state agencies or organizations shall select (in writing)
traders providing commercial assessment services, which fully satisfy the
conditions and criteria specified in the Commercial Law and are suitable with
specific assessment requirements, to realize their assessment requests.
2. State agencies or
organizations which request assessment shall have to pay assessment charges to
traders providing commercial assessment services as agreed upon between the two
parties and based on the market price at the time of requesting assessment.
Section
4. HANDLING OF VIOLATIONS OF LAW IN PROVISION OF COMMERCIAL ASSESSMENT SERVICES
Article
19.- Illegal acts in provision of commercial assessment services
1. Traders providing
commercial assessment services and assessors that commit the following illegal
acts shall, depending on the nature and seriousness of their violations, be
administratively sanctioned or examined for penal liability according to the
provisions of law:
a/ Providing assessment
services without fully satisfying the conditions required by law;
b/ Providing assessment
services outside the registered business lines in their business registration
certificates or investment licenses;
c/ Accrediting
assessors who have not yet satisfied the criteria specified in Article 259 of
the Commercial Law;
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e/ Performing the
assessment which is related to their own interests and assessors' interests;
f/ Failing to abide by
requests of competent state agencies which conduct inspection or examination
according to the provisions of law;
g/ Providing assessment
services for foreign traders without contracts for mandate for provision of
such assessment services;
h/ Violating other
provisions of this Decree.
2. Where traders
providing commercial assessment services or assessors commit violations,
causing material damage to relevant organizations or individuals, they shall,
apart from being handled for administrative, civil or penal liability, have to
pay compensations for damage according to the provisions of law.
Article
20.- Competence and procedures for handling violations
Competence and
procedures for handling acts of violation specified in Article 19 of this
Decree shall comply with current provisions of law.
Chapter
III
IMPLEMENTATION
PROVISIONS
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1. This Decree takes
effect 15 days after its publication in "CONG BAO."
2. This Decree replaces
the Government's Decree No. 20/1999/ND-CP of April 12, 1999, on commercial
provision of goods assessment services.
3. All previous
stipulations on provision of commercial assessment services which are contrary
to the provisions of this Decree are hereby annulled.
Article
22.- Transitional provisions
Within three months
after the effective date of this Decree, traders that have provided commercial
assessment services before such date shall have to register their professional
stamps according to the provisions of this Decree.
Article
23.- Organization of implementation
Ministers, heads of
ministerial-level agencies, heads of Government-attached agencies and
presidents of provincial/municipal People's Committees shall have to implement
this Decree.
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