COMMERCIAL LAW 36/2005/QH11
Date 14 month 06 year 2005
Pursuant
to Article 103 and Article 106 of the 1992 Constitution of the Socialist
Republic of Vietnam, which was amended and supplemented under Resolution No.
51/2001/QH10 of 25 December, 2001, of the X th National Assembly, the 10 th
session;
This
Law provides for commercial activities.
Chapter I. GENERAL PROVISIONS
Article 1. Governing scope
1.
Commercial activities conducted in the territory of the Socialist Republic of
Vietnam.
2.
Commercial activities conducted outside the territory of the Socialist Republic
of Vietnam in cases where the involved parties agree to this Law for
application, or where a foreign law or a treaty to which the Socialist Republic
of Vietnam is a contracting party stipulates the application of this Law.
3.
Activities not for profit purposes conducted by a party in its transactions
with traders in the territory of the Socialist Republic of Vietnam in cases
where the party conducting such not-for-profit activities chooses to apply this
Law.
Article 2. Subjects of application
1.
Traders conducting commercial activities as provided for in Article 1 of this
Law.
2.
Other organizations and individuals conducting commerce-related activities.
3.
Basing itself on the principles provided for by this Law, the Government shall
specify the application of this Law to individuals who independently and regularly
conduct commercial activities without having to make business registration.
Article 3. Interpretation of terms
In
this Law, the following terms shall be construed as follows:
1. Commercial activities mean activities for the
purpose of generating profits, including: sale and purchase of goods, provision
of services, investment, commercial promotion and other activities for the
profit purpose.
2. Goods include:
a/
All types of movables, including those to be formed in the future;
b/
Things attached to land;
3. Custom in commercial activities means a code of
conduct that has an explicit meaning, is established and repeated time and
again for a long period of time between and implicitly recognized by involved
parties in order identify their respective rights and obligations in commercial
contracts.
4. Commercial practice means a custom that is widely
recognized in commercial activities in an area, a region or a commercial
domain, has an explicit meaning, and is recognized by involved parties in order
to identify their respective rights and obligations in commercial activities.
5. Data message means information created, sent,
received and stored in electronic media.
6. Vietnam-based representative office of a foreign trader means
a dependent unit of the foreign trader, which is established under the
provisions of Vietnamese law to conduct market survey and a number of
commercial promotion activities permitted by Vietnamese law.
7. Vietnam-based branch of a foreign trader means a
dependent unit of the foreign trader, which is established and conducts
commercial activities in Vietnam under the provisions of Vietnamese law or
treaties to which the Socialist Republic of Vietnam is a contracting party.
8. Purchase and sale of goods mean commercial
activities whereby the seller is obliged to deliver goods, transfer ownership
of goods to the purchaser and receive payment; the purchaser is obliged to pay
to the seller and receive goods and the ownership thereof as agreed.
9. Provision of services means commercial activities
whereby a party (hereinafter referred to as the service provider) is obliged to
provide a service to another party and receive payment; the service-using party
(hereinafter referred to as the customer) is obliged to pay to the service
provider and use the service as agreed.
10. Commercial promotion means activities of promoting
and seeking opportunities for the purchase or sale of goods and provision of
services, including sale promotion, commercial advertisement, display and
exhibition of goods and services, and trade fairs and exhibitions.
11. Commercial intermediary activities mean activities
carried out by a trader to effect commercial transactions for one or several
identified traders, including representation for traders, commercial brokerage,
goods sale or purchase entrustment, and commercial agency.
12. Contractual breach means the failure of a party to
perform, to fully or properly perform its obligations according to the
agreement between the involved parties or the provisions of this Law.
13. Substantial breach means a contractual breach by a
party, which causes damage to the other party to an extent that the other party
cannot achieve the purpose of the entry into the contract.
14. Origin of goods means a country or a territory
where all the goods are turned out or where the last stage of substantial
processing of goods is performed in cases where many countries or territories
join in the process of producing such goods.
15. Forms of validity equivalent to documents include
telegraph, telex, facsimile, data message and other forms provided for by law.
Article 4. Application of the Commercial
Law and relevant laws
1.
Commercial activities must comply with the Commercial Law and relevant laws.
2.
Particular commercial activities provided for in other laws shall comply with
the provisions of such laws.
3.
Commercial activities which are not provided for in the Commercial Law and
other laws shall comply with the provisions of the Civil Code.
Article 5. Application of treaties, foreign laws and international
commercial practices
1.
Where a treaty to which Vietnam is a contracting party stipulates the
application of foreign laws or international commercial practices, or contain
provisions different from those of this Law, the provisions of such treaty
shall apply.
2.
Parties to commercial transactions involving foreign elements may agree to
apply foreign laws or international commercial practices if such foreign laws
or international commercial practices are not contrary to the fundamental
principles of the Vietnamese law.
Article 6. Traders
1.
Traders include lawfully established economic organizations and individuals
that conduct commercial activities in an independent and regular manner and
have business registrations.
2.
Traders are entitled to conduct commercial activities in occupations and
sectors, in geographical areas, in forms and by modes which are not banned by
law.
3.
The right of traders to conduct lawful commercial activities is protected by
the State.
4.
The State exercises for a definite time its monopoly over commercial activities
in respect to a number of goods and services or in a number of geographical
areas in order to ensure the national interests. The Government shall specify
the lists of goods, services and geographical areas subject to the State
monopoly.
Article 7. Obligation of traders to register business
Traders
are obliged to register their business according to the provisions of law.
Where traders have not yet registered their business, they are still held
responsible for all of their activities according to the provisions of this Law
and other provisions of law.
Article 8. Agencies in charge of state
management over commercial activities
1.
The Government performs the unified state management over commercial
activities.
2.
The Trade Ministry is answerable to the Government for performing the state
management over activities of goods sale and purchase and specific commercial
activities provided for in this Law.
3.
Ministries and ministerial-level agencies shall, within the scope of their
respective tasks and powers, have to perform the state management over
commercial activities in their assigned domains.
4.
People's Committees at all levels perform the state management over commercial
activities in their respective localities according to the decentralization by
the Government.
Article 9. Commercial associations
1.
Commercial associations are established to protect the legitimate rights and
interests of traders, mobilize traders to take part in commercial development,
and disseminate and propagate the provisions of law on commerce.
2.
Commercial associations are organized and operate according to the provisions
of law on associations.
Section 2.
FUNDAMENTAL PRINCIPLES IN COMMERCIAL ACTIVITIES
Article 10. Principle of traders' equality before law in commercial
activities
Traders
of all economic sectors are equal before law in commercial activities.
Article 11. Principle of freedom and freewill to agreement in commercial
activities
1.
Parties have the rights of freedom to reach agreements not in contravention of
the provisions of law, fine traditions and customs and social ethics in order
to establish their rights and obligations in commercial activities. The State
respects and protects such rights.
2.
In commercial activities, the parties shall act on their own freewill, and
neither party is allowed to impose its own will on, to force, intimidate or
obstruct, the other party.
Article 12. Principle of application of customs in commercial activities
pre-established between parties
Except
otherwise agreed, the parties shall be regarded as automatically applying
customs in commercial activities pre-established between them which they have
already known or ought to know, provided that such customs are not contrary to
the provisions of law.
Article 13. Principle of application of practices in commercial
activities
Where
it is neither provided for by law nor agreed by the parties, and there exist no
customs pre-established between them, commercial practices shall be applied
provided that such practices are not contrary to the principles provided for in
this Law and the Civil Code.
Article 14. Principle of protection of legitimate interests of consumers
1.
Traders conducting commercial activities are obliged to provide consumers with
sufficient and truthful information on goods and/or services they trade in or
provide and take responsibility for the accuracy of such information.
2.
Traders conducting commercial activities must be responsible for the quality
and lawfulness of goods and/or services they trade in or provide.
Article 15. Principle of recognition of legal validity of data messages
in commercial activities
In
commercial activities, data messages which satisfy all technical conditions and
standards provided for by law shall be recognized legally valid as documents.
Section 3.
FOREIGN TRADERS CONDUCTING COMMERCIAL ACTIVITIES IN VIETNAM
Article 16. Foreign traders conducting commercial activities in Vietnam
1.
Foreign traders mean traders established and making their business registrations
according to the provisions of foreign laws or recognized by foreign laws.
2.
Foreign traders are entitled to set up their representative offices or branches
in Vietnam; to establish in Vietnam foreign-invested enterprises in the forms
provided for by Vietnamese law.
3.
Vietnam-based representative offices and branches of foreign traders have the
rights and obligations specified by Vietnamese law. Foreign traders shall be
held responsible before Vietnamese law for all activities of their Vietnam-based
representative offices and branches.
4.
Foreign-invested enterprises established in Vietnam by foreign traders
according to the provisions of Vietnamese law or international treaties to
which the Socialist Republic of Vietnam is a contracting party shall be
regarded as Vietnamese traders.
Article 17. Rights of representative offices
1.
To operate for the purposes, within the scope and duration stipulated in their
establishment licenses.
2.
To rent offices, rent and purchase equipment and facilities necessary for their
operations.
3.
To recruit Vietnamese and expatriate employees to work for them according to
the provisions of Vietnamese law.
4.
To open accounts in foreign currencies or foreign currency-based Vietnam dong
at banks licensed to operate in Vietnam, and to be allowed to use those
accounts solely for their operations.
5.
To have seals bearing their names according to the provisions of Vietnamese
law.
6.
To have other rights as defined by law.
Article 18. Obligations of representative offices
1.
Not to directly conduct profit-generating activities in Vietnam.
2.
To conduct commercial promotion activities within the scope permitted by this
Law.
3.
Not to enter into contracts, not to amend or supplement contracts already
entered into by foreign traders, except where chief representatives obtain
valid letters of authorization from foreign traders or other cases specified in
Clauses 2, 3 and 4, Article 17 of this Law.
4.
To pay taxes, fees and charges, and fulfil other financial obligations provided
for by Vietnamese law.
5.
To report on their operations according to Vietnamese law.
6.
To have other obligations as defined by Vietnamese law.
Article 19. Rights of branches
1.
To rent offices, rent and purchase equipment and facilities necessary for their
operations.
2.
To recruit Vietnamese and expatriate employees to work for them according to
Vietnamese law.
3.
To enter into contracts in Vietnam in compliance with their operation contents
specified in their establishment licenses and the provisions of this Law.
4.
To open Vietnam dong accounts and foreign-currency accounts at banks licensed
to operate in Vietnam.
5.
To transfer profits overseas according to the provisions of Vietnamese law.
6.
To have seals bearing their own names according to the provisions of Vietnamese
law.
7.
To conduct activities of goods purchase and sale and other commercial
activities in compliance with their establishment licenses according to the
provisions of Vietnamese law and treaties to which the Socialist Republic of
Vietnam is a contracting party.
8.
To have other rights provided for by law.
Article 20. Obligations of branches
1.
To observe the accounting regime provided for by Vietnamese law; in cases where
it is necessary to apply another commonly used accounting system, the approval
by the Finance Ministry of the Socialist Republic of Vietnam is required.
2.
To report on their operations according to the provisions of Vietnamese law.
3.
To have other obligations provided for by law.
Article 21. Rights and obligations of foreign-invested enterprises
Rights
and obligations of foreign invested enterprises shall be determined according
to the provisions of Vietnamese law or treaties to which the Socialist Republic
of Vietnam is a contracting party.
Article 22. Competence to license foreign traders to conduct commercial
activities in Vietnam
1.
The Government shall uniformly manage the licensing of commercial activities of
foreign traders in Vietnam.
2.
The Planning and Investment Ministry shall be answerable to the Government for
managing the issuance of licences to foreign traders investing in Vietnam
according to the provisions of Vietnamese law.
3.
The Trade Ministry shall be answerable to the Government for managing the
issuance of licences to set up Vietnam-based representative offices of foreign
traders; or licenses to set up branches, joint-venture enterprises or
enterprises with 100% foreign capital in Vietnam in cases where such traders
are specialized in conducting activities of goods purchase and sale or other
activities directly related to goods purchase and sale in compliance with
Vietnamese law and treaties to which the Socialist Republic of Vietnam is a
contracting party.
4.
Where a specialized law contains specific provisions on the competence of
ministries or ministerial-level agencies, which are responsible before the
Government for managing the issuance of licences to foreign traders for
conducting commercial activities in Vietnam, the provisions of such specialized
law shall apply.
Article 23. Termination of operations in Vietnam of foreign traders
1. Foreign traders shall terminate their operations
in Vietnam in the following cases:
a/
Upon expiration of the operation duration stipulated in their licenses;
b/
At the request of traders, which is approved by competent state management
agencies;
c/
Under decisions of competent state management agencies as a sanction against
their violations of law and their licenses;
d/
Where traders are declared bankrupt;
e/
Where foreign traders terminate their operations according to foreign laws, for
representative offices, branches or foreign parties to business cooperation
contracts with Vietnamese parties;
f/
Other cases provided for by law.
2.
Before terminating their operations in Vietnam, foreign traders are obliged to
pay debts and fulfill other obligations toward the State, concerned
organizations and individuals in Vietnam.
Chapter II PURCHASE AND SALE OF GOODS
Section 1.
GENERAL PROVISIONS ON ACTIVITIES OF PURCHASE AND SALE OF GOODS
Article 24. Form of contracts for purchase and sale of goods
1.
Contracts for sale and purchase of goods may be expressed in verbal or written
form or established by specific acts.
2.
For types of contracts for purchase and sale of goods, which, as provided for
by law, must be made in writing, such provisions must be complied with.
Article 25. Goods banned from business, goods subject to business
restrictions and goods subject to conditional business
1.
On the basis of socio-economic conditions of each period and international
treaties to which the Socialist Republic of Vietnam is a contracting party, the
Government shall specify the lists of goods banned from business, goods subject
to business restrictions, and goods subject to conditional business and the
conditions for trading in such goods.
2.
For goods subject to business restrictions and goods subject to conditional
business, the purchase and sale thereof shall be effected only when goods and
the goods purchasing and selling parties fully meet the conditions provided for
by law.
Article 26. Application of urgent measures with respect to domestically
circulated goods
1.
Goods legally and domestically circulated may be subject to the application of
one or all of such measures as compulsory withdrawal from circulation, circulation
ban, circulation suspension, conditional circulation, or compulsory circulation
permission in the following cases:
a/
Where such goods constitute sources or transmitters of various epidemics and
diseases;
b/
Where an emergency circumstance occurs.
2.
Specific conditions, order, procedures and competence for announcing the
application of urgent measures to domestically circulated goods shall comply
with the provisions of law.
Article 27. International purchase and sale of goods
1.
International purchase and sale of goods shall be conducted in form of export,
import, temporary import for re-export, temporary export for re-import and
transfer through border-gates.
2.
International purchase and sale of goods shall be conducted on the basis of
written contracts or other forms of equal legal validity.
Article 28. Export and import of goods
1.
Export of goods means the bringing of goods out of the territory of the
Socialist Republic of Vietnam or into special zones in the Vietnamese
territory, which are regarded as exclusive customs zones according to the
provisions of law.
2.
Import of goods means the bringing of goods into the territory of the Socialist
Republic of Vietnam from foreign countries or special zones in the Vietnamese
territory, which are regarded as exclusive customs zones according to the
provisions of law.
3.
On the basis of socio-economic conditions in each period and treaties to which
the Socialist Republic of Vietnam is a contracting party, the Government shall
specify the lists of goods banned from import and/or export, goods to be
imported or exported under permits of competent state management agencies, and
the procedures for granting permits.
Article 29. Temporary import for re-export and temporary export for
re-import of goods
1.
Temporary import of goods for re-export means the bringing of goods into
Vietnam from foreign countries or special zones locating in the Vietnamese
territory, which are regarded as exclusive customs zones according to the
provisions of law, with the completion of the procedures for importing such
goods into Vietnam, then procedures for exporting the same goods out of
Vietnam.
2.
Temporary export of goods for re-import means the bringing of goods overseas or
into special zones in the Vietnamese territory which are regarded as exclusive
customs zones according to the provisions of law, with the completion of
procedures for exporting such goods out of Vietnam, then procedures for
importing the same goods back into Vietnam.
3.
The Government shall specify activities of temporary import
for re-export and temporary export for re-import of goods.
Article 30. Transfer of goods through border-gates
1.
Transfer of goods through border-gates means the purchase of goods from a
country or territory for sale to another country or territory outside the
Vietnamese territory without carrying out the procedures for importing such
goods into Vietnam and the procedures for exporting such goods out of Vietnam.
2.
Transfer of goods through border-gates shall be conducted in the following
forms:
a/
Goods are transported directly from the exporting country to the importing
country without going through Vietnamese border-gates;
b/
Goods are transported from the exporting country to the importing country
through Vietnamese border-gates without carrying out the procedures for
importing them into Vietnam and the procedures for exporting them out of
Vietnam;
c/
Goods are transported from the exporting country to the importing country
through Vietnamese border-gates and brought into bonded warehouses or areas for
transshipment of goods at Vietnamese ports without carrying out the procedures
for importing them into Vietnam and the procedures for exporting them out of
Vietnam.
3.
The Government shall provide for in detail activities of transfer of goods
through border-gates.
Article 31. Application of urgent measures to activities of
international purchase and sale of goods
Where
it is necessary to protect the national security or other national interests in
compliance with Vietnamese law and treaties to which the Socialist Republic of
Vietnam is a contracting party, the Prime Minister shall decide on the
application of urgent measures to activities of international purchase and sale
of goods.
Article 32. Labels for domestically circulated, exported and imported
goods
1.
Goods labels mean writings, prints, drawings or photos of texts, pictures or
images, which are stuck, printed, affixed, molded, carved or engraved directly
on goods or their commercial packing or other materials which are attached to
the goods or their packing.
2.
All goods that are domestically circulated, imported and exported must have
their labels, except for some cases specified by law.
3.
Contents which must be inscribed in goods labels and the labeling of goods
shall comply with regulations of the Government.
Article 33. Certificates of origin of goods and rules of origin of goods
1.
Export goods and import goods must have certificates of origin in the following
cases:
a/
Goods are eligible for tax or other preferences;
b/
It is so provided for by Vietnamese laws or treaties to which the Socialist
Republic of Vietnam is a contracting party.
2.
The Government shall provide in detail for the rules of origin for exports and
imports.
Section 2.
RIGHTS AND OBLIGATIONS OF PARTIES TO CONTRACTS FOR PURCHASE AND SALE OF GOODS
Article 34. Delivery of goods and goods-related documents
1.
The seller must deliver goods and relevant documents, as agreed in contracts on
quantity, quality, packing and preservation modes and other contractual terms.
2.
In cases where there is no specific agreement, the seller is obliged to deliver
goods and relevant documents according to the provisions of this Law.
Article 35. Place of delivery of goods
1.
The seller is obliged to deliver goods at the agreed place.
2.
In cases where there is no agreement on place of goods delivery, such a place
shall be specified as follows:
a/
In cases where goods are things attached to land, the seller must deliver goods
at the place where such goods exist;
b/
In cases where the contract contains a provision on goods transportation, the
seller is obliged to deliver goods to the first carrier;
c/
In cases where the contract contains no provision on goods transportation, and
at the time the contract is entered into, the parties know the location of the
goods storage, the place of goods loading or the place of goods manufacture,
the seller shall have to deliver the goods at such place;
d/
In other cases, the seller shall have to deliver goods at his/her place of
business, or his/her place of residence identified at the time the purchase and
sale contract is entered into in cases he/she has no place of business.
Article 36. Responsibilities upon delivery of goods where carriers are
involved
1.
Where goods are handed over to the carrier without being identified with
specific signs or marks on them, accompanied with transportation documents or
otherwise, the seller must notify the purchaser of the handover of goods to the
carrier and clearly identify names and method of recognizing transported goods.
2.
Where the seller is obliged to arrange the goods transportation, the seller
shall have to enter into necessary contracts for the transportation of goods to
the destination by means of transportation suitable to specific circumstances
and under normal conditions for such modes of transportation.
3.
Where the seller is not obliged to purchase insurance for the goods in the
course of transportation and if requested by the purchaser, the seller must
supply to the purchaser all necessary information on the goods and the
transportation thereof to enable the purchaser to purchase insurance for the
goods.
Article 37. Time limit for delivery of goods
1.
The seller must deliver goods at the time already agreed upon in the contract;
2.
Where only the time limit for delivery of goods is agreed upon without a
specific time for delivery of goods, the seller may deliver goods at any time
within such time limit and must notify the purchaser of the delivery in
advance;
3.
Where there is no agreement on the time limit for delivery of goods, the seller
must deliver goods within a reasonable time limit after the contract is entered
into.
Article 38. Delivery of goods before the agreed time
Where
the seller delivers goods earlier than the agreed time, the purchaser may
receive or reject the goods, unless otherwise agreed upon by the parties.
Article 39. Goods which are not appropriate to contracts
1.
Where it is not specified in the contract, goods shall be considered not
appropriate to the contract when they fall into one of the following cases:
a/
They are not suitable to common use purposes of goods of the same type;
b/
They are not suitable to any specific purpose that has been notified by the
purchaser to the seller or the seller should have known at the time the
contract is entered into;
c/
Their quality is not the same as the quality of the samples previously handed
over by the seller to the purchaser;
d/
They are not preserved or packaged by a method common to such goods, or not
preserved by proper preserving methods in cases where no common preserving
method is available.
2.
The purchaser may reject the goods if such goods are not appropriate to the
contract according to the provisions of Clause 1 of this Article.
Article 40. Liability for goods which are not appropriate to contracts
Unless
otherwise agreed upon by the parties, the liability for goods which are not
appropriate to contracts is provided for as follows:
1.
The seller shall not be liable for any defect of the goods if the purchaser, at
the time the contract is entered into, knew or should have known such defect;
2.
Except for the case specified in Clause 1 of this Article, within the time
limit for lodging complaint provided for in this Law, the seller shall be
liable for any defect of the goods which already exists before the time of
passing the risk to the purchaser despite the fact that such defect may be
discovered after passing the risks.
3.
The seller shall be liable for defects of goods occurring after the pass of
risks if such defects are attributable to contract breaches by the seller.
Article 41. Remedies in case of delivery of goods in insufficient
quantity or delivery of goods not appropriate to contracts
1.
Unless otherwise agreed, and where the contract only provides for a time limit
for delivery of goods and does not determine a specific time for delivery of
goods, and the seller delivers goods before the expiration of such time limit
but in insufficient quantity or goods not appropriate to the contract, the seller may still deliver the
deficit quantity of goods or provide substitute goods which are appropriate to
the contract or remedy the inappropriateness of the goods within the remaining
duration.
2.
Where the seller, when applying the remedies provided for in Clause 1 of this
Article, causes disadvantages or unreasonable costs to the purchaser, the
purchaser shall have the right to request the seller to deal with such
disadvantages or bear such costs.
Article 42. Delivery of goods-related documents
1.
Where there is an agreement on the delivery of documents, the seller is obliged
to deliver all goods-related documents to the purchaser within the time limit,
at the place and by mode already agreed.
2.
Where there is no agreement on the time limit and place for delivery of
goods-related documents to the purchaser, the seller must deliver such
documents to the purchaser within a reasonable time limit and at a convenient
place so that the purchaser can receive the goods.
3.
Where the seller has delivered goods-related documents before the agreed time,
the seller can still rectify errors of such documents within the remaining
duration of the time limit.
4.
When the seller, when rectifying errors mentioned in Clause 3 of this Article,
causes disadvantages or unreasonable costs to the purchaser, the purchaser
shall have the right to request the seller to deal with such disadvantages or
bear such costs.
Article 43. Delivery of goods in excessive quantity
1.
Where the seller delivers goods in excessive quantity, the purchaser may reject
or accept such excessive quantity of goods.
2.
Where the purchaser accepts the excessive quantity of goods, the purchaser must
pay for that quantity at the price agreed in the contract unless otherwise
agreed upon by the parties.
Article 44. Pre-delivery examination of goods
1.
Where it is agreed by the parties that the purchaser or the purchaser's
representative shall examine the goods before the delivery, the seller must
ensure that the purchaser or the purchaser's representative shall be given
conditions for conducting such examination.
2.
Except where it is otherwise agreed, the purchaser or the purchaser's
representative in the cases mentioned in Clause 1 of this Article must examine
the goods within the shortest period of time allowed by practical circumstances.
Where the contract provides for the transportation of goods, the examination of
goods may be postponed until the goods are transported to the destination.
3.
Where the purchaser or the purchaser's representative does not conduct the
examination of goods before the delivery of goods as agreed, the seller may
deliver the goods according to the contract.
4.
The seller shall not be liable for defects of goods which the purchaser or the
purchaser's representative has known or should have known but failed to notify
them to the seller within a reasonable time limit after the examination of
goods.
5.
The seller shall be liable for defects of goods already examined by the
purchaser or the purchaser's representative if the defects of the goods cannot
be detected in the course of examination through common measures and the seller
knew or should have known such defects but failed to notify them to the
purchaser.
Article 45. Obligation to assure the ownership right over goods
The
seller must assure that:
1.
The ownership right of the purchaser over goods sold is not disputed by any
third party;
2.
The goods are lawful;
3.
The handover of the goods is lawful.
Article 46. Obligation to assure intellectual property rights over goods
1.
The seller must not sell goods infringing upon intellectual property rights.
The seller shall be held responsible for any dispute related intellectual
property rights over goods sold.
2.
Where the purchaser requests the seller to observe technical drawings, designs,
formulas or specifications furnished by the purchaser, the purchaser shall be
liable for complaints related to infringements of intellectual property rights
which arise from the fact that the seller has complied with the request of the
purchaser.
Article 47. Notification requirements
1.
The seller shall lose the right to invoke the provisions of Clause 2, Article
46 of this Law when failing to promptly notify the purchaser of a third party's
complaint about the delivered goods after the seller knew or should have known
such complaint, except for cases where the purchaser knew or should have known
a third party's complaint.
2.
The purchaser shall lose the right to invoke the provisions of Article 45 and
Clause 1, Article 46 of this Law when failing to promptly notify the seller of
a third party's complaint about the delivered goods after the purchaser knew or
should have known such complaint, except for cases where the purchaser knew or
should have known a third party's complaint.
Article 48. Obligation of the seller in cases where goods are subject to
measures of security for performance of civil obligations
Where
the goods sold are subject to measures of security for performance of civil
obligations, the seller must notify the purchaser of
such security measures and must obtain the consent of the security beneficiary
regarding the sale of such goods.
Article 49. Obligation to provide warranty for goods
1.
Where goods are purchased and sold under warranty, the seller shall have to
provide warranty for such goods according to the agreed contents and duration.
2.
The seller must fulfill the warranty obligation as soon as the practical
situation permits.
3.
The seller must bear all warranty expenses unless otherwise agreed.
Article 50. Payment
1.
The purchaser is obliged to pay for goods and receive goods as agreed upon.
2.
The purchaser must comply with the payment modes and make the payment according
to the agreed order and procedures and the provisions of law.
3.
The purchaser shall still have to pay for goods in cases where goods are lost
or damaged after the time the risk is passed from the seller to the purchaser,
except for cases where the loss or damage is caused due to the fault of the
seller.
Article 51. Suspension of payment for goods
Unless
otherwise agreed, the suspension of payment for goods is provided for as
follows:
1.
The purchaser that has proofs of deceit of the seller shall have the right to
suspend the payment.
2.
The purchaser that has proofs that the goods are subject to a dispute shall
have the right to suspend the payment until the said dispute is settled.
3.
The purchaser that has proofs that the seller has delivered goods which do not
conform with the contract shall have the right to suspend the payment until the
seller remedy such inconformity.
4.
If the proofs produced by the purchaser for the cases of payment suspension
mentioned in Clauses 2 and 3 of this Article are unfounded, thus causing damage
to the seller, the purchaser must pay compensations for such damage and be
subject to other penalties provided for in this Law.
Article 52. Determination of prices
Where
there is neither agreement on goods price or on the price-determining method
nor other price indexes, the goods price shall be determined according to the
price of such type of goods under similar conditions on mode of goods delivery,
time of goods purchase and sale, geographical market, payment mode and other
conditions which affect the prices.
Article 53. Pricing by weight
Unless
otherwise agreed, if the goods price is determined according to the weight of
the goods, such weight must be net weight.
Article 54. Place of payment
Where
there is no agreement on specific place of payment, the purchaser must pay to
the seller at one of the following places:
1.
The seller's place of business, which is identified at the time of entering
into the contract; or the seller's place of residence where the seller has no
place of business.
2.
The place where the goods or documents are delivered, if the payment is made
concurrently with the delivery of goods or documents.
Article 55. Time limit for payment
Unless
otherwise agreed, the time limit for payment is provided for as follows:
1.
The purchaser must make payment to the seller at the time the seller delivers
the goods or the goods-related documents.
2.
The purchaser is not obliged to make payment until the goods examination can be
completed in cases where an agreement is reached according to the provisions of
Article 44 of this Law.
Article 56. Receipt of goods
The
purchaser is obliged to receive the goods as agreed upon and do appropriate
things to help the seller deliver the goods.
Article 57. Pass of risks in cases where there is a fixed place of
delivery of goods
Unless
otherwise agreed, if the seller is obliged to deliver the goods to the
purchaser at a particular place, the risk of goods loss or damage shall be
passed to the purchaser as soon as the goods are delivered to the purchaser or
the person authorized by the purchaser to receive the goods at such place, even
in cases where the seller is authorized to retain the documents which establish
the ownership rights over the goods.
Article 58. Pass of risks in cases where there is no fixed place of
delivery of goods
Unless
otherwise agreed, if the contract contains provisions on the goods
transportation and the seller is not obliged to deliver the goods at a given
place, the risk of goods loss or damage shall be passed to the purchaser as
soon as the goods are delivered to the first carrier.
Article 59. Pass of risks in cases where goods are handed over to a
bailee that is not a carrier
Unless
otherwise agreed, if the goods are being kept by a bailee that is not a
carrier, the risks of goods loss or damage shall be passed to the purchaser in
one of the following cases:
1.
Upon receipt by the purchaser of documents of title to the goods;
2.
Upon the confirmation by the bailee of the purchaser's right to possession of
the goods.
Article 60. Pass of risks in case of purchase and sale of goods in
transportation
Unless
otherwise agreed, if the subject matter of the contract is goods in
transportation, the risk of goods loss or damage shall be passed to the
purchaser as from the time the contract is entered into.
Article 61. Pass of risks in other cases
Unless
otherwise agreed, the pass of risks in other cases is provided for as follows:
1.
For cases not specified in Articles 57, 58, 59 and 60 of this Law, the risk of
goods loss or damage is to be passed to the purchaser as from the time the
goods fall under the purchaser's right of disposal and the purchaser breaches
the contract by rejecting the goods.
2.
Risk of goods loss or damage is not to be passed to the purchaser if the goods
are neither clearly identified by their signs, codes or bills of
transportation, nor notified to the purchaser, nor identified by any means.
Article 62. Time of transferring ownership of goods
Unless
otherwise provided for by law or agreed upon by the parties, ownership of goods
shall be passed from the seller to the purchaser as from the time of handover
of the goods.
Section 3. PURCHASE
AND SALE OF GOODS THROUGH THE GOODS EXCHANGE
Article 63. Purchase and sale of goods though the Goods Exchange
1.
Purchase and sale of goods through the Goods Exchange mean commercial
activities whereby the parties agree to purchase and sell a defined quantity of
goods of a defined type through the Goods Exchange under the standards of the
Goods Exchange, at a price agreed upon at the time the contract is entered
into, and with the time of goods delivery determined to be a specific point of
time in the future.
2.
The Government shall specify activities of purchase and sale of goods through
the Goods Exchange.
Article 64. Contracts for purchase and sale of goods through the Goods
Exchange
1.
Contracts for purchase and sale of goods through the Goods Exchange include
forward contracts and option contracts.
2.
Forward contract means an agreement whereby the seller undertakes to deliver
and the purchaser undertakes to receive the goods at a specific point of time
in the future under the contract.
3.
Call option or put option contract means an agreement whereby the purchaser has
the right to purchase or sell a specific goods at a pre-fixed price level
(hereinafter called executed price) and must pay a certain sum of money to buy
this right (hereinafter called option money). The option purchaser may opt to
effect or not to effect such purchase or sale of goods.
Article 65. Rights and obligations of parties to forward contracts
1.
Where the seller delivers the goods under the contract, the purchaser is obliged
to receive the goods and pay for them.
2.
Where the parties agree that the purchaser may make cash payment and reject the
goods, the purchaser shall have to pay to the seller a sum of money equal to
the difference between the price agreed upon in the contract and the market
price announced by the Goods Exchange at the time the contract is performed.
3.
Where the parties agree that the purchaser may make cash payment and refuse to
deliver the goods, the seller shall have to pay to the purchaser a sum of money
equal to the difference between the market price announced by the Goods
Exchange at the time the contract is performed and the price agreed upon in the
contract.
Article 66. Rights and obligations of
parties to option contracts
1.
The call option or put option purchaser shall have to pay for option purchase
in order to become call option or put option holder. The sum of money to be
paid for option purchase shall be agreed upon by the parties.
2.
The call option holder has the right to purchase but is not obliged to purchase
goods ascertained in the contract. Where the call option holder decides to
perform the contract, the seller shall be obliged to sell goods to the call
option holder. The seller that has no goods to deliver shall have to pay to the
call option holder a sum of money equal to the difference between the price
agreed upon in the contract and the market price announced by the Goods
Exchange at the time the contract is performed.
3.
The put option holder has the right to sell but is not obliged to sell goods
ascertained in the contract. Where the put option holder decides to perform the
contract, the purchaser shall be obliged to purchase goods from the put option
holder. Where the purchaser does not purchase goods, it shall have to pay to the
put option holder a sum of money equal to the difference between the market
price announced by the Goods Exchange at the time the contract is performed and
the price agreed upon in the contract.
4.
Where the call option or put option holder decides not to perform the contract
within the valid duration of the contract, the contract shall automatically be
invalidated.
Article
67.- The
Goods Exchange
1.
The Goods Exchange has the following functions:
a/
Providing the material - technical conditions necessary for transactions of
purchasing or selling goods;
b/
Running trading operations;
c/
Listing specific prices formed at the Goods Exchange at each specific time.
2.
The Government shall specify the conditions for the establishment of the Goods
Exchange, the powers and tasks of the Goods Exchange, and the approval of the
operation charter of the Goods Exchange.
Article 68. Goods traded at the Goods Exchange
The
list of goods traded at the Goods Exchange shall be promulgated by the Trade
Minister.
Article 69. Brokers for purchase and sale
of goods through the Goods Exchange
1.
Brokers for purchase and sale of goods through the Goods Exchange shall be
allowed to operate at the Goods Exchange only when they fully satisfy the
conditions provided for by law. The Government shall specify the conditions for
operation of brokers for the purchase and sale of goods through the Goods
Exchange.
2.
Brokers for purchase and sale of goods through the Goods Exchange shall be
allowed to conduct only activities of brokerage for purchase and sale of goods
through the Goods Exchange and must not be a party to a contract for purchase
and sale of goods through the Goods Exchange.
3.
Brokers for purchase and sale of goods through the Goods Exchange shall be
obliged to deposit money at the Goods Exchange to secure the performance of
their obligations arising in the course of goods purchase and sale brokerage
activities. The deposit level shall be set by the Goods Exchange.
Article 70. Prohibited acts of brokers for
purchase and sale of goods through the Goods Exchange
1.
Enticing customers to enter into contracts by promising to compensate the whole
or part of loss incurred or to guarantee profits for them.
2.
Offering or conducting brokerage for goods without entering into contracts with
customers.
3.
Using sham prices or other fraudulent measures in the course of brokerage.
4.
Refusing or unreasonably delaying the brokerage for contracts in accordance
with contents agreed upon with customers.
5.
Other prohibited acts specified in Clause 2, Article 71 of this Law.
Article 71. Prohibited acts in activities of purchase and sale of goods
through the Goods Exchange
1.
Staff members of the Goods Exchange shall not be allowed to conduct the
brokerage for, purchase or sale of goods through the Goods Exchange.
2.
Parties involved in the purchase and sale of goods through the Goods Exchange
must not conduct the following acts:
a/
Committing fraudulences or deceits about volumes of goods in forward or option
contracts which are transacted or may be transacted, and fraudulences and
deceits about real prices of goods in forward or option contracts;
b/
Supplying false information on transactions, the market or prices of goods
purchased or sold through the Goods Exchange;
c/
Applying illegal measures to cause disorder of the goods market at the Goods
Exchange;
d/
Committing other prohibited acts provided for by law.
Article 72. Application of management measures in emergency cases
1.
Emergency cases mean circumstances where the disorder of the goods market
occurs, making transactions through the Goods Exchange unable to accurately
reflect the goods supply and demand relation.
2.
In emergency cases, the Trade Minister shall be entitled to apply the following
measures:
a/
Temporarily suspending transactions through the Goods Exchange;
b/
Limiting transactions within a price bracket or a specific quantity of goods;
c/
Changing the schedule of transactions;
d/
Adjusting the operation charter of the Goods Exchange;
e/
Other necessary measures as provided for by the Government.
Article 73. Right to conduct the purchase and sale of goods through
overseas Goods Exchanges
Vietnamese
traders are entitled to conduct purchase and sale of goods through overseas
Goods Exchanges according to regulations of the Government.
Chapter III. PROVISION OF SERVICES
Section 1.
GENERAL PROVISIONS ON ACTIVITIES OF PROVISION OF SERVICES
Article 74. Forms of service contracts
1.
A service contract shall be expressed in verbal or written form or established
with specific acts.
2.
For those types of service contract which are required by law to be made in
writing, such requirement must be abided by.
Article 75. Rights of traders to provide and use services
1.
Unless otherwise provided for by law or treaties to which the Socialist
Republic of Vietnam is a contracting party, traders shall have the following
rights to provide services:
a/
To provide services to residents in Vietnam for use in the Vietnamese
territory;
b/
To provide services to non-residents in Vietnam for use in the Vietnamese
territory;
c/
To provide services to residents in Vietnam for use in foreign territories;
d/
To provide services to non-residents in Vietnam for use in foreign territories.
2.
Unless otherwise provided for by law or treaties to which the Socialist
Republic of Vietnam is a contracting party, traders shall have the following
rights to use services:
a/
To use services provided in the Vietnamese territory by residents in Vietnam;
b/
To use services provided in the Vietnamese territory by non-residents in
Vietnam;
c/
To use services provided in foreign territories by residents in Vietnam;
d/
To use services provided in foreign territories by non-residents in Vietnam.
3.
The Government shall specify the residents and non-residents that are subject
to the implementation of tax and import-export management policies toward
various types of services.
Article
76.- Services
banned from business, services subject to business restrictions and services
subject to conditional business
1.
On the basis of socio-economic conditions in each period and treaties to which
the Socialist Republic of Vietnam is a contracting party, the Government shall
specify the lists of services banned from business, services subject to
business restrictions and services subject to conditional business as well as
the conditions for providing such services.
2.
Services subject to business restrictions and services subject to conditional
business shall be provided only when these services and parties involved in the
provision thereof fully satisfy the conditions defined by law.
Article 77. Application of urgent measures to activities of providing or
using services
Where
it is necessary to protect the national security and other national interests
in compliance with the Vietnamese law and treaties to which the Socialist
Republic of Vietnam is a contracting party, the Prime Minister shall decide on
application of urgent measures to activities of providing or using services,
including temporary ban on the provision or use of one or several types of
service or other urgent measures to one or several particular markets for a
definite time period.
Section 2.
RIGHTS AND OBLIGATIONS OF PARTIES TO SERVICE CONTRACTS
Article 78. Obligations of the service providers
Unless
otherwise agreed, the service provider shall have the following obligations:
1.
To provide services and fully perform related jobs in accordance with
agreements and the provisions of this Law;
2.
To preserve and hand back to their customers documents and means supplied to
them for the service provision after the completion thereof;
3.
To promptly notify to their customers in cases where information and documents
are insufficient and means are inadequate for completion of the service
provision;
4.
To keep secret information they know in the course of service provision if so
agreed upon by the parties or provided for by law.
Article 79. Obligations of the service providers according to
performance result
Unless
otherwise agreed, if the nature of the type of service to be provided requires
a service provider to achieve a certain result, the service provider must
conduct the service provision with a result appropriate with the terms and
purpose of the contract. Where the contract does not specify the standards of
result to be achieved, the service provider must conduct the service provision
with a result compliant with the common standards applicable to such type of
service.
Article 80. Obligations of the service providers to make the best effort
Unless
otherwise agreed, if the nature of the type of service to be provided requires
a service provider to make the best effort to achieve a desired result, the
service provider shall perform the obligation of service provision with the
best effort and the highest capacity.
Article 81. Cooperation among service providers
Where
under a contractual agreement or on the basis of practical circumstances, a
service is jointly performed by many service providers or performed by a
service provider in cooperation with other service providers, each of the said
service providers shall have the following obligations:
1.
To exchange and communicate to each other information on the performance
progress and its demands related to the service provision, at the same time to
provide services at a proper time and by an appropriate mode so as not to
impede operations of other service providers;
2.
To carry out any necessary cooperation with other service providers.
Article 82. Time limit for completion of services
1.
Service providers must complete their services within the time limits already
agreed upon in contracts.
2.
Where there is no agreement on the time limits for completing services, service
providers shall have to complete their services within a reasonable time limit
on the basis of taking into account all conditions and circumstances which
service providers knew at the time the contracts were entered into, including
any specific needs of customers regarding such time limit for service
completion.
3.
Where a service can be completed only when the customer or another service
provider satisfies certain conditions, the provider of such service is not
obliged to complete his/her service until those conditions are satisfied.
Article 83. Customers' requests for changes during the provision of
services
1.
During the provision of services, service providers must satisfy all reasonable
requests of their customers for changes during the provision of services.
2.
Unless otherwise agreed, customers must bear reasonable expenses for the
satisfaction of their requests for changes.
Article 84. Continued provision of services after the expiration of the
time limit for completing the provision of services
If
services, after the expiration of the time limit for completing the provision
thereof, are not yet completed, and if customers have no objection, service
providers shall have to continue providing the agreed services and compensate
for damage, if any.
Article 85. Obligations of customers
Unless
otherwise agreed, customers shall have the following obligations:
1.
To pay charges for provision of services as agreed upon in contracts;
2.
To provide in a timely manner plans, instructions and other details so that the
provision of services can be made without any delay or interruption;
3.
To cooperate with service providers in all other matters necessary for the
proper provision of services;
4.
Where a service is performed jointly by many service providers or by a provider
in coordination with other service providers, customers shall be obliged to
coordinate operations of these service providers so as not to impede the work
of any service provider.
Article 86. Service charge rate
Where
there is no agreement on service charge rate, no agreement on methods of
determining service charge rate, and also there is not any indication to service
charge rate, the service charge rate shall be determined according to the
charge rate of the same type of service under similar conditions on mode of
provision, time of provision, geographical market, mode of payment and other
conditions which can affect the service charge rate.
Article 87. Time limit for payment
Where
there is no agreement and there exist no customs pre-established between the
parties concerning payment for services, the time limit for payment shall be
the time when the provision of services is completed.
Chapter IV. COMMERCIAL PROMOTION
Section 1. SALE
PROMOTION
Article 88. Sale promotion
1.
Sale promotion means activities of commercial promotion conducted by traders to
promote the purchase and sale of goods or the provision of services by offering
certain benefits to customers.
2.
Traders conducting sale promotion are those falling into one of the following
cases:
a/
Traders directly conduct sale promotion for goods and/or services that they
trade in;
b/
Traders engaged in providing sale promotion services conduct sale promotion for
goods and/or services of other traders under an agreement with the latter.
Article 89. Provision of sale promotion service
Provision
of sale promotion services means commercial activities whereby a trader
conducts sale promotion for goods and/or services of other traders on a
contractual basis.
Article 90. Sale promotion service contracts
Sale
promotion service contracts must be made in writing or in other forms of equal
legal validity.
Article 91. Rights of traders to conduct sale promotion
1.
Vietnamese traders, branches of Vietnamese traders, and Vietnam-based branches
of foreign traders shall have the right to conduct sale promotion themselves or
to hire traders engaged in provision of sale promotion services to do so.
2.
Representative offices of traders shall not be allowed to conduct sale
promotion themselves or to hire other traders to conduct sale promotion in
Vietnam for the traders that they are representing.
Article 92. Forms of sale promotion
1.
Giving samples of goods or providing samples of services to customers for trial
use free of charge.
2.
Presenting goods as gifts or providing free-of-charge services to customers.
3.
Selling goods or providing services at prices lower than goods sale prices or
service provision charge rates previously applied during the period of sale
promotion already registered or announced. In case of goods or services subject
to the State management over their prices, the sale promotion in this form
shall comply with regulations of the Government.
4.
Selling goods or providing services together with coupons that allow customers
to enjoy one or several benefits.
5.
Selling goods or providing services together with prize-contest entrance
tickets to customers, for purpose of selecting prize winners according to the
rules and prizes already announced.
6.
Selling goods or providing services together with opportunities for customers
to participate in games of chance, the participation in which comes after the
purchase of goods or services and the winning of prizes depends on the luck of
participants according to the rules and prizes already announced.
7.
Organizing programs for frequent customers whereby gifts are presented to
customers on the basis of the quantities or values of goods purchased or
services used by such customers and expressed in forms of customers' cards,
coupons acknowledging the purchase of goods or services, or other forms.
8.
Organizing cultural, artistic or entertainment programs or other events for customers
for the purpose of sale promotion.
9.
Other forms of sale promotion if approved by the State management agency in
charge of commerce.
Article
93.- Sale
promotion goods and services
1.
Sale promotion goods and services mean goods and services use by traders to
promote their sale and provision in various forms of sale promotion.
2.
Sale promotion goods and services must be those traded lawfully.
Article 94. Goods and services used for sale promotion, sale promotion
discount rates
1.
Goods and services used for sale promotion mean those given as gifts or prizes
or provided free of charge by traders to customers.
2.
Goods and services used by traders for sale promotion may be goods and services
they are trading in or other goods and services.
3.
Goods and services used for sale promotion must be those traded lawfully.
4.
The Government shall specify the maximum value of goods and services used for
sale promotion, and the maximum discount rate for sale promotion goods and
services, which traders can apply in their sale promotion activities.
Article 95. Rights of traders conducting sale promotion
1.
To choose the form, time and venue for sale promotion, goods and services to be
used for sale promotion.
2.
To define specific benefits which customers shall be entitled to enjoy
according to Clause 4, Article 94 of this Law.
3.
To hire traders engaged in the business of providing sale promotion services to
conduct sale promotion for them.
4.
To organize the application of the sale promotion forms specified in Article 92
of this Law.
Article 96. Obligations of traders conducting sale promotion
1.
To fully comply with the order and procedures provided for by law for
conducting sale promotion in various forms.
2.
To publicly notify all information on sale promotion activities to customers
according to Article 97 of this Law.
3.
To strictly adhere to the sale promotion program already announced, and to
fulfill their commitments with customers.
4.
With regard to the forms of sale promotion specified in Clause 6, Article 92 of
this Law, traders must set aside and remit 50% of the value of the prizes
already announced into the state budget in cases where there is no
prize-winner.
The
Trade Minister shall provide for specific forms of sale promotion under prize
programs which must comply with this provision.
5.
To comply with agreements in sale promotion service contracts if traders
conducting sale promotion are those providing sale promotion services.
Article 97. Information that must be publicly notified
1.
For all forms of sale promotion specified in Article 92 of this Law, traders
conducting sale promotion must publicly notify the following information:
a/
Names of sale promotion activities;
b/
Sale prices or charge rates of sale promotion goods or services and related costs
for delivery of sale promotion goods or services to customers;
c/
Names, addresses and telephone numbers of traders conducting the sale
promotion;
d/
Sale promotion duration, the starting date and ending date and area of sale
promotion activities;
e/
Where benefits of the participation in sale promotion depend on specific
conditions, notices must clearly state that such sale promotion activities are
conditional and specific conditions.
2.
Apart from the information defined in Clause 1 of this Article, traders shall
also publicly notify the following sale promotion-related information:
a/
Sale prices of goods or charge rates of services given as gifts to customers,
for the form of sale promotion mentioned in Clause 2, Article 92 of this Law;
b/
Absolute value or discount percentage of normal prices of goods, or normal
charge rates of services before the sale promotion duration, for the form of
sale promotion specified in Clause 3, Article 92 of this Law;
c/
Monetary values or specific benefits of coupons which customers are entitled to
enjoy; places of sale of goods or provision of services as well as types of
goods or services which customers may receive from coupons, for the form of
sale promotion specified in Clause 4, Article 92 of this Law;
d/
Types of prize and value of each prize; rules for participation in sale
promotion programs, method of selecting prize-winners, for the form of sale
promotion specified in Clauses 5 and 6, Article 92 of this Law;
e/
Expenses which must be borne by customers, for the form of sale promotion
specified in Clauses 7 and 8, Article 92 of this Law.
Article 98. Modes of notification
1.
The notification of sale promotion for goods according to the provisions of
Article 97 of this Law shall be made by one of the following modes:
a/
At places where goods are sold and where goods are displayed for sale;
b/
On goods or their packing;
c/
In any other forms which must be attached to goods when such goods are sold.
2.
The notification of sale promotion for services according to the provisions of
Article 97 of this Law shall be made by one of the following modes:
a/
At places where services are provided;
b/
In any other forms which must be provided together with services when such
services are provided.
Article 99. Keeping secret information on sale promotion programs and
details
Where
sale promotion programs must be approved by competent state agencies, such
agencies must keep secret the sale promotion programs and details provided by
traders until such programs are approved by competent state agencies.
Article 100. Prohibited acts in sale promotion activities
1.
Conducting sale promotion for goods and services banned from business; goods
and services subject to business restrictions; goods not yet permitted for
circulation; and services not yet permitted for provision;
2.
Using, for sale promotion purpose, goods and services which are banned from
business; goods and services subject to business restrictions; goods not yet
permitted for circulation; and services not yet permitted for provision;
3.
Conducting sale promotion for alcohol and beer, or using alcohol and beer for
sale promotion targeted at under-18 people;
4.
Conducting sale promotion for, or using cigarette or alcohol of an alcoholic
volume of 30o or higher for sale promotion in any form;
5.
Conducting untruthful or misleading sale promotion for goods and services so as
to deceive customers;
6.
Conducting sale promotion for selling inferior-quality goods, causing harms to
the environment, human health and other public interests;
7.
Conducting sale promotion at schools, hospitals or offices of state agencies,
political organizations, socio-political organizations and people's armed
forces units;
8.
Promising to present gifts or prizes but failing to do so or doing it improperly;
9.
Conducting sale promotion for purpose of unfair competition;
10.
Conducting sale promotion with the value of sale promotion goods and/or
services exceeding the maximum limit or the maximum discount rate of sale
promotion goods and services mentioned in Clause 4, Article 94 of this Law.
Article 101. Registration for sale promotion activities with, and
notification of sale promotion results to, the State management agency in
charge of commerce
1.
Before conducting sale promotion activities, traders must register them with
the state management agency in charge of commerce, and after such sale
promotion activities are completed, report sale promotion results to such
agency.
2.
The Government shall provide for in detail the registration of sale promotion
activities with, and the notification of results of such activities to, the
state management agency in charge of commerce.
Section 2.
COMMERCIAL ADVERTISING
Article 102. Commercial advertising
Commercial
advertising means commercial promotion activities of traders aimed at
introducing to customers their goods and service business activities.
Article 103. Right to commercial advertising
1.
Vietnamese traders, branches of Vietnamese traders and branches of foreign
traders licensed to conduct commercial activities in Vietnam shall have the
right to advertise their goods and/or service business activities or to hire
traders providing advertising services to do so for them.
2.
Representative offices of traders must not directly conduct commercial
advertising activities. When being authorized by traders, representative
offices may sign contracts with traders providing commercial advertising
services to advertise for the traders they are representing.
3.
Foreign traders who wish to commercially advertise their goods and/or service
business activities in Vietnam shall have to hire Vietnamese traders engaged in
business of providing commercial advertising services to do so.
Article 104. Provision of commercial
advertising services
Provision
of commercial advertising services means commercial activities of traders aimed
at conducting commercial advertisement for other traders.
Article 105. Commercial advertising products
Commercial
advertising products consist of information in images, actions, sounds, voices,
scripts, symbols, colors and lights containing commercial advertising details.
Article 106. Means of commercial advertising
1.
Means of commercial advertising are instruments used for introducing commercial
advertising products.
2.
Means of commercial advertising include:
a/
The mass media;
b/
Means of communications;
c/
Publications of all kinds;
d/
All kinds of boards, signs, banners, panels, posters, fixed objects or means of
transportation and other movable objects;
e/
Other means of commercial advertising.
Article 107. Use of means of commercial advertising
1.
The use of means of commercial advertising specified in Article 106 of this Law
must comply with the regulations of the competent state management body.
2.
The use of means of commercial advertising must satisfy the following
requirements:
a/
Being in compliance with the provisions of law on press, publishing,
information, programs on cultural or sport activities, trade fairs and
exhibitions;
b/
Being in compliance with the regulations on locations of advertisement, causing
no adverse impact on the landscape, environment, traffic order and safety, and
social safety;
c/
Being in accordance with the intensity, time volume and timing prescribed for
each type of mass media.
Article 108. Protection of intellectual property rights over commercial
advertising products
Traders
shall have the right to register for protection of their intellectual property
rights over commercial advertising products according to the provisions of law.
Article 109. Prohibited commercial advertisements
1.
Advertisements which reveal state secrets, are detrimental to the national
independence, sovereignty and security, and social order and safety.
2.
Advertisements that use advertising products or means of advertisement which
are contrary to the historic, cultural and ethical traditions and the fine
customs and practices of Vietnam and in contravention of law.
3.
Advertisements for goods and services which are banned or restricted from
business or banned from advertisement by the State.
4.
Advertisements for cigarette and alcohol with an alcoholic volume of 30o or
higher and products and goods not yet permitted for circulation or services not
yet permitted for provision in the Vietnamese market at the time of
advertising.
5.
Commercial advertisements which can be taken advantage of to cause harms to
interests of the State, organizations and/or individuals.
6.
Advertisements using the method of comparing a trader's goods and service
production and business activities with goods and service production and
business activities of the same kind of other traders.
7.
Advertisements containing untruthful information on any of the following
contents: quantity, quality, price, utility, design, origin, category, packing,
service mode and warranty duration of goods or services.
8.
Advertisements for a trader's business activities by using advertising products
which infringe upon intellectual property rights; using images of other
organizations or individuals for advertising purpose without the consent of
such organizations or individuals.
9.
Advertisements for the purpose of unfair competition according to the
provisions of law.
Article
110.- Commercial
advertising service contracts
Commercial
advertising service contracts must be made in writing or in other forms of
equivalent legal validity.
Article 111. Rights of commercial advertising hirers
Unless
otherwise agreed, commercial advertising hirers shall have the following
rights:
1.
To select commercial advertising distributors, forms, contents, means, scope
and duration;
2.
To inspect and supervise the performance of commercial advertising service
contracts.
Article 112. Obligations of commercial
advertising hirers
Unless
otherwise agreed, commercial advertising hirers shall have the following
obligations:
1.
To supply commercial advertising service providers with truthful and accurate
information on goods and commercial service business activities, and to be
responsible for such information;
2.
To pay commercial advertising service charges and other reasonable costs.
Article 113. Rights of commercial advertising service providers
Unless
otherwise agreed, commercial advertising service providers shall have the
following rights:
1.
To request commercial advertising hirers to supply truthful and accurate information
according to agreements in contracts;
2.
To receive commercial advertising service charges and other reasonable costs.
Article 114. Obligations of commercial
advertising service providers
Unless
otherwise agreed, commercial advertising service providers shall have the
following obligations:
1.
To comply with service hirers' choice of commercial advertising distributors,
forms, contents, means, scope and duration;
2.
To organize truthful and accurate advertisement for goods or commercial service
business activities according to information supplied by advertising hirers;
3.
To perform other obligations agreed upon in commercial advertising service
contracts.
Article 115. Commercial advertising distributors
Commercial
advertising distributors are persons who directly distribute commercial
advertising products.
Article 116. Obligations of commercial advertising distributors
Commercial
advertising distributors shall have the following obligations:
1.
To comply with the provisions of Article 107 of this Law on the use of means of
commercial advertising;
2.
To perform advertising distribution contracts already entered into with
advertising distribution hirers;
3.
To perform other obligations provided for by law.
Section 3.
DISPLAY AND INTRODUCTION OF GOODS AND SERVICES
Article 117. Display and introduction of goods and services
Display
and introduction of goods and services mean commercial promotion activities of
traders that use goods and/or services and documents thereon to introduce such
goods and/or services to customers.
Article 118. Right to display and introduce goods and services
1.
Vietnamese traders, branches of Vietnamese traders and Vietnam-based branches
of foreign traders shall have the right to display and introduce goods and/or
services; to select appropriate forms of display and introduction; to organize
by themselves or hire traders providing goods/service display and introduction
services to display and introduce their goods and/or services.
2.
Representative offices of traders shall not be allowed to directly display and
introduce goods and/or services of traders they are representing, except for
displays and introductions at their offices. When being authorized by traders,
representative offices shall have the right to enter into contracts with
traders providing goods/service display and introduction services for the
display and introduction of goods and/or services of traders they are
representing.
3.
Foreign traders not yet licensed to conduct commercial activities in Vietnam
and wishing to display and introduce their goods and/or services in Vietnam
must hire Vietnamese traders providing goods/service display and introduction
services to do so.
Article 119. Provision of goods/service display and introduction services
Provision
of goods/service display and introduction services means commercial activities
whereby a trader provides goods/service display and introduction services to
other traders.
Article 120. Forms of display and introduction of goods and services
1.
Opening showrooms for displaying and introducing goods and/or services.
2.
Displaying and introducing goods and/or services at trade centers or in
entertainment, sport, cultural or artistic activities.
3.
Organizing conferences and seminars involving the display and introduction of
goods and/or services.
4.
Displaying and introducing goods and/or services online and in other forms
specified by law.
Article 121. Conditions for displayed and introduced goods and/or
services
1.
Displayed and introduced goods and/or services must be those which are legally
traded in the market.
2.
Displayed and introduced goods and/or services must comply with the provisions
of law on goods quality and goods labeling.
Article 122. Conditions for goods imported into Vietnam for display and
introduction
Goods
imported into Vietnam for display and introduction must, apart from the
conditions defined in Article 121 of this Law, also satisfy the following
conditions:
1.
Being goods permitted for import into Vietnam;
2.
Goods which are temporarily imported for display and introduction must be
re-exported after the end of such display and introduction within six months as
from the date of temporary import; past this time limit, the procedures for
time limit prolongation must be carried out at the customs offices where the
temporary import has been made;
3.
Goods temporarily imported for display and introduction which are sold in
Vietnam shall comply with the provisions of Vietnamese law on import goods.
Article 123. Cases where display and introduction of goods and/or
services are prohibited
1.
The organization of display and introduction of goods and/or services, or the
use of forms and means of goods and/or service display and introduction, which
are detrimental to national security, social order and safety, landscape,
environment and human health;
2.
Display and introduction of goods and/or services or use of forms and means of
display and introduction, which are contrary to the historic, cultural and
ethical traditions and fine customs of Vietnam;
3.
Display and introduction of goods and/or services, which reveal state secrets;
4.
Display and introduction of goods of other traders for comparison with one's
own goods, except where the goods for comparison are counterfeit goods or goods
infringing upon intellectual property rights according to the provisions of
law;
5.
Display and introduction of goods samples which are inconsistent with goods
being traded in terms of quality, price, utility, design, category, packing,
warranty duration and other quality standards in order to deceive customers.
Article 124. Contracts for provision of goods and/or service display and
introduction services
Contracts
for provision of goods and/or service display and introduction services must be
made in writing or in other forms of equivalent legal validity.
Article 125. Rights of goods and/or service display and introduction
service hirers
Unless
otherwise agreed, goods and/or service display and introduction service hirers
shall have the following rights:
1.
To request goods and/or service display and introduction service providers to
fulfill agreements in contracts;
2.
To inspect and supervise the performance of goods and/or service display and
introduction service contracts.
Article 126. Obligations of goods and/or service display and introduction
service hirers
Unless
otherwise agreed, goods and/or service display and introduction service hirers
shall have the following obligations:
1.
To supply all goods and/or services to be displayed and introduced, or means to
service providers as agreed upon in contracts;
2.
To supply information on goods and/or services to be displayed and introduced
and take responsibility for such information;
3.
To pay service charges and other reasonable expenses.
Article 127. Rights of goods and/or service display and introduction
service providers
Unless
otherwise agreed, goods and/or service display and introduction service
providers shall have the following rights:
1.
To request service hirers to supply goods and/or services to be displayed and
introduced within time limits agreed upon in contracts;
2.
To request service hirers to supply information on goods and/or services to be
displayed and introduced and other necessary means as agreed upon in contracts;
3.
To receive service charges and other reasonable expenses.
Article 128. Obligations of goods and/or service display and introduction
service providers
Unless
otherwise agreed, goods and/or service display and introduction service
providers shall have the following obligations:
1.
To display and introduce goods and/or services as agreed upon in contracts;
2.
To preserve displayed and introduced goods, documents and means supplied to
them during the performance of contracts; and upon the completion of the goods
and/or service display and introduction, to return all displayed and introduced
goods, documents and means to service hirers;
3.
To conduct the goods and/or service display and introduction according to
contents agreed with service hirers.
Section 4.
TRADE FAIRS AND EXHIBITIONS
Article 129. Trade fairs and exhibitions
Trade
fairs and exhibitions mean commercial promotion activities conducted in a
concentrated manner at particular locations and for given periods of time for
traders to display and introduce their goods and/or services for the purpose of
promoting them and seeking opportunities for entering into contracts for sale
and purchase of goods or service contracts.
Article 130. Provision of trade fair and exhibition services
1.
Provision of trade fair and exhibition services means commercial activities
whereby traders dealing in these services provide services of organizing or
participating in trade fairs and exhibitions to other traders for receiving
trade fair and exhibition organization service charges.
2.
Trade fair and exhibition organization service contracts must be made in
writing or in other forms of equivalent legal validity.
Article 131. Rights to organize or
participate in trade fairs and exhibitions
1.
Vietnamese traders, branches of Vietnamese traders, Vietnam-based branches of
foreign traders shall have the right to directly organize or participate in
trade fairs and exhibitions for goods and/or services they trade in or hire
traders providing trade fair and exhibition services to do so.
2.
Representative offices of traders shall not be allowed to directly organize or
participate in trade fairs and exhibitions. When being authorized by traders,
representative offices shall have the right to sign contracts with traders
providing trade fair and exhibition services to do so for the traders they are
representing.
3.
Foreign traders shall have the right to directly participate or hire Vietnamese
traders providing trade fair and exhibition services to participate, on their
behalf, in trade fairs and exhibitions in Vietnam. Where they wish to organize
trade fairs and exhibitions in Vietnam, foreign traders must hire Vietnamese
traders providing trade fair and exhibition services to do so.
Article 132. Organization of trade fairs and exhibitions in Vietnam
1.
Trade fairs and exhibitions organized in Vietnam must be registered with and
certified in writing by the state management agencies in charge of commerce of
the provinces or centrally-run cities where such trade fairs and exhibitions
are to be organized.
2.
The Government shall specify the order, procedures, contents of registration
and certification of the organization of trade fairs and exhibitions in Vietnam
provided for in Clause 1 of this Article.
Article 133. Organization of and participation in overseas trade fairs
and exhibitions
1.
Traders not providing trade fair and exhibition services, when directly
organizing or participating in overseas trade fairs and exhibitions for goods
and/or services they trade in, must comply with the regulations on export of
goods.
2.
Traders providing trade fair and exhibition services, when arranging for other
traders to participate in overseas trade fairs and exhibitions, must register
such with the Ministry of Trade.
3.
Traders that have not yet registered their business of providing trade fair and
exhibition services shall not be allowed to arrange for other traders to
participate in overseas trade fairs and exhibitions.
4.
The Government shall specify the order, procedures and contents of registration
for organization of, and participation in, overseas trade fairs and exhibitions
provided for in Clauses 1 and 2 of this Article.
Article
134.- Goods
and/or services displayed and introduced at trade fairs and exhibitions in
Vietnam
1.
Goods and/or services which are not permitted for participation in trade fairs
and exhibitions include:
a/
Goods and/or services banned from business, subject to business restrictions,
or not yet permitted for circulation according to the provisions of law;
b/
Goods and/or services provided by overseas traders and banned from import
according to the provisions of law;
c/
Counterfeit goods and goods infringing upon intellectual property rights,
except where they are displayed and introduced for comparison with genuine
ones.
2.
Apart from the provisions of this Law on trade fairs and exhibitions, goods
and/or services subject to specialized management must also comply with
regulations on specialized management of such goods and/or services.
3.
Goods temporarily imported for participation in trade fairs or exhibitions in
Vietnam must be re-exported within thirty days after the end of such trade
fairs or exhibitions.
4.
The temporary import for re-export of goods for participation in trade fairs or
exhibitions in Vietnam must comply with the provisions of customs law and other
relevant provisions of law.
Article 135. Goods and/or services participating in overseas trade fairs
and exhibitions
1.
All types of goods and services shall be permitted to participate in overseas
trade fairs and exhibitions, except for those banned from export according to
the provisions of law.
2.
Goods and/or services banned from export shall only be permitted for
participation in overseas trade fairs and exhibitions when so approved by the
Prime Minister.
3.
The time limit for temporary export of goods for participation in overseas
trade fairs and exhibitions shall be one year from the date such goods are
temporarily exported. If past that time limit, the goods are not re-imported
yet, such goods shall be subject to taxes and other financial obligations as
provided for by Vietnamese law.
4.
The temporary export for re-import of goods for participation in overseas trade
fairs and exhibitions must comply with the provisions of customs law and other
relevant provisions of law.
Article 136. Sale, presentation of goods as gifts and provision of
services at trade fairs and exhibitions in Vietnam
1.
Goods and services displayed and introduced at trade fairs and exhibitions in
Vietnam are permitted to be sold, presented as gifts or provided at such trade
fairs and exhibitions; for imported goods, registration thereof must be made
with customs offices, except for the cases specified in Clause 2 of this
Article.
2.
Goods which are imported under permits of competent state agencies shall be
sold or presented as gifts only after written approvals of such competent state
agencies are obtained.
3.
The sale and presentation of goods as gifts at trade fairs and exhibitions
mentioned in Clause 2, Article 134 o this Law must comply with regulations on
specialized import management of such goods.
4.
Goods sold or presented as gifts, and services provided at trade fairs and
exhibitions in Vietnam shall be subject to taxes and other financial
obligations as provided for by law.
Article 137. Sale, presentation of Vietnamese goods as gifts and
provision of Vietnamese services participating in overseas trade fairs and
exhibitions
1.
Vietnamese goods and services participating in overseas trade fairs and
exhibitions are permitted to be sold, presented as gifts or provided at such
trade fairs and exhibitions, except the cases defined in Clauses 2 and 3 of
this Article.
2.
The sale and presentation as gifts of goods, which are banned from export but
have been temporarily exported for participation in overseas trade fairs and
exhibitions, shall be made only after the Prime Minister's approval is
obtained.
3.
Goods exported under permits of competent state agencies shall be sold or
presented as gifts only after written approvals of such competent state
agencies are obtained.
4.
Vietnamese goods and/or services participating in overseas trade fairs and
exhibitions and being sold, presented as gifts or provided overseas shall be
subject to taxes and other financial obligations as provided for by law.
Article 138. Rights and obligations of organizations and individuals
participating in trade fairs and exhibitions in Vietnam.
1.
To exercise rights and perform obligations as agreed upon with traders
organizing trade fairs and exhibitions.
2.
To sell, present goods as gifts and provide services displayed and introduced
at trade fairs and exhibitions according to the provisions of law.
3.
To temporarily import and re-export goods and documents on goods and/or
services for display at trade fairs and exhibitions.
4.
To comply with regulations on organization of trade fairs and exhibitions in
Vietnam.
Article 139. Rights and obligations of traders organizing or
participating in overseas trade fairs and exhibitions
1.
To temporarily export and re-import goods and documents on goods and/or
services for display and introduction at trade fairs or exhibitions.
2.
To comply with regulations on organization of, and participation in, overseas
trade fairs and exhibitions.
3.
To sell and present as gifts goods displayed and introduced at overseas trade
fairs and exhibitions; and to pay taxes and fulfill other financial obligations
as provided for by Vietnamese law.
Article 140. Rights and obligations of traders providing trade fair and
exhibition services
1.
To post up topics and durations of trade fairs and exhibitions at places where
such trade fairs and exhibitions are to be organized before their opening
dates.
2.
To request service hirers to supply goods for participation in trade fairs and
exhibitions within time limits agreed upon in contracts.
3.
To request service hirers to supply information on goods and/or services for
participation in trade fairs and exhibitions and other necessary means as
agreed upon in contracts;
4.
To receive service charges and other reasonable expenses;
5.
To organize trade fairs and exhibitions as agreed upon in contracts.
Chapter V. INTERMEDIARY ACTIVITIES IN COMMERCE
Section 1.
REPRESENTATION OF TRADERS
Article 141. Representation of traders
1.
Representation of traders means an activity whereby a trader (referred to as
representative) is authorized by another trader (referred to as nominator) to
conduct commercial activities in the name and under the instructions of the
latter for remuneration.
2.
Where a trader nominates his/her/its personnel to act as his/her/its representative,
the provisions of the Civil Code shall apply.
Article 142. Contracts for representation of traders
Contracts
for representation of traders must be made in writing or in other forms of
equivalent legal validity.
Article
143. Scope
of representation
Parties
may agree that the representative may conduct part or all of commercial
activities within the scope of operation of the nominator.
Article
144. Duration
of representation of traders
1.
The duration of representation is agreed upon by the parties.
2.
Where no agreement is reached, the duration of representation shall expire when
the nominator notifies the representative of the termination of the
representation contract, or the representative notifies the nominator of the
termination of the contract.
3.
Unless otherwise agreed, if the nominator unilaterally notifies the termination
of the representation contract according to Clause 2 of this Article, the
representative may request the nominator to pay an amount of remuneration for
the signing by the nominator of contracts with customers with whom the
representative has negotiated and to pay other remunerations which the
representative would otherwise have been entitled to.
4.
Where the duration of representation expires according to Clause 2 of this
Article at the request of the representative, the representative shall forfeit
the right to remuneration for transactions which he/she/it would otherwise have
been entitled to unless otherwise agreed upon by the parties.
Article 145. Obligations of representatives
Unless
otherwise agreed, a representative shall have the following obligations:
1.
To conduct commercial activities in the name and for the interest of the
nominator;
2.
To notify the nominator of opportunities and results of performance of
authorized commercial activities;
3.
To follow instructions of the nominator if such instructions do not violate the
provisions of law;
4.
To refrain from conducting commercial activities in his/her/its own name or in
the name of a third party within the scope of representation;
5.
To refrain from disclosing or supplying to other people secrets related to
commercial activities of the nominator during the period of representation and
within two years after the termination of the representation contract;
6.
To preserve assets and documents assigned for performing activities of
representation.
Article 146. Obligations of nominators
Unless
otherwise agreed, a nominator shall have the following obligations:
1.
To notify the representative immediately of the signing of contracts negotiated
by the representative, the performance of contracts entered into by the
representative, and the acceptance or non-acceptance of activities conducted by
the representative outside the scope of representation;
2.
To supply assets, documents and information necessary for the representative to
perform activities of representation;
3.
To pay remuneration and other reasonable expenses to the representative;
4.
To notify promptly the representative of the impossibility of entering into or
performing the contract within the scope of representation.
Article 147. Right to enjoy representation remuneration
1.
Representatives shall enjoy remunerations for contracts entered into within the
scope of representation. The right to enjoy remunerations arises from the time
agreed upon by the parties in representation contracts.
2.
Where it is not agreed upon, the remuneration rate for the representative shall
be determined according to Article 86 of this Law.
Article 148. Payment of incurred expenses
Unless
otherwise agreed, representatives shall have the right to claim the payment of
reasonable expenses incurred for the performance of representation activities.
Article 149. Lien
Unless
otherwise agreed, representatives shall have lien over assets and documents
assigned to them to secure the payment of remunerations and expenses which are
due.
Section 2.
COMMERCIAL BROKERAGE
Article 150. Commercial brokerage
Commercial
brokerage means a commercial activity whereby a trader acts as an intermediary
(referred to as broker) between parties selling and purchasing goods or
providing commercial services (referred to as principals) in the course of
negotiations and entering into contracts for sale and purchase of goods or
provision of services and shall be entitled to a remuneration under a brokerage
contract.
Article 151. Obligations of commercial brokers
Unless
otherwise agreed, a commercial broker shall have the following obligations:
1.
To preserve samples of goods and documents assigned for the performance of
brokerage activities, and to return them to the principals after the completion
of brokerage;
2.
Not to disclose or supply information to the detriment of the interests of the
principals;
3.
To be responsible for the legal status, but not for the solvency, of the
principals;
4.
Not to take part in the performance of contracts between the principals, except
where so authorized by the principals.
Article 152. Obligations of principals
Unless
otherwise agreed, a principal shall have the following obligations:
1.
To supply information, documents, necessary means related to goods and
services;
2.
To pay brokerage remuneration and other reasonable expenses to the broker.
Article 153. The right to enjoy brokerage remuneration
1.
Unless otherwise agreed, the right to enjoy brokerage remuneration arises from
the time the principals enter into contracts.
2.
Where there is no agreement, brokerage remuneration rates shall be determined
according to the provisions of Article 86 of this Law.
Article 154. Payment of expenses incurred in relation to brokerage
Unless
otherwise agreed, principals must pay all reasonable expenses incurred in
relation to brokerage to brokers, even where the brokerage does not bring about
any results for principals.
Section 3. SALE
AND PURCHASE OF GOODS BY MANDATED DEALERS
Article
155. Purchase
and sale of goods by mandated dealers
Purchase
and sale of goods by mandated dealers mean commercial activities whereby the
mandatory conducts the purchase and sale of goods in his/her/its own name under
terms agreed upon with the mandator and is entitled to receive mandate
commission.
Article 156. Mandatories
A
mandatory for purchase and sale of goods is a trader dealing in goods which are
consistent with the mandated goods and conducting the purchase and sale of
goods under terms agreed upon with the mandator.
Article 157. Mandators
A
mandator of purchase and sale of goods may, or may not, be a trader that
authorizes a mandatory to conduct the purchase and sale of goods at his/her/its
request and pays a commission.
Article 158. Mandated goods
All
goods which are lawfully circulated may become the subject matter of a mandated
sale and purchase.
Article 159. Mandate contracts
Mandate
contracts for purchase and sale of goods must be made in writing or in other
forms of equivalent legal validity.
Article 160. Sub-mandate to a third party
A
mandatory shall not be allowed to sub-mandate a third party to perform the
signed mandate contract for purchase and sale of goods, except where it is so
approved in writing by the mandator.
Article 161. Multilateral mandate
A
mandatory may accept the mandate for purchase and sale of goods from different
mandators.
Article 162. Rights of mandators
Unless
otherwise agreed, mandators shall have the following rights:
1.
To request mandatories to supply adequate information on the performance of
mandate contracts;
2.
Not to bear responsibility in cases where mandatories commit law violations,
except for cases specified in Clause 4, Article 163 of this Law.
Article 163. Obligations of mandators
Unless
otherwise agreed, mandators shall have the following obligations:
1.
To provide information, documents and means necessary for the performance of
mandate contracts;
2.
To pay mandate commissions and other reasonable expenses to mandatories;
3.
To hand over money and goods as agreed upon;
4.
To bear joint responsibility in cases where mandatories commit law violations
which are attributable to acts of mandators or intentional law-breaking acts of
the parties.
Article 164. Rights of mandatories
Unless
otherwise agreed, mandatories shall have the following rights:
1.
To request mandators to provide information and documents necessary for the
performance of mandate contracts;
2.
To receive mandate commissions;
3.
Not to bear responsibility for goods handed over to mandators strictly under
agreement.
Article
165. Obligations
of mandatories
Unless
otherwise agreed, mandatories shall have the following obligations:
1.
To conduct the purchase and sale of goods as agreed upon;
2.
To notify mandators of matters related to the performance of mandate contracts;
3.
To follow instructions of mandators as agreed upon;
4.
To preserve assets and documents assigned to them for the performance of
mandate contracts;
5.
To keep secret information related to the performance of mandate contracts;
6.
To hand over money and goods as agreed upon;
7.
To bear joint responsibility for law violation acts of mandators, in cases
where such law violation acts are partially attributable to their own faults
Section 4.
COMMERCIAL AGENCY
Article 166. Commercial agency
Commercial
agency means a commercial activity whereby the principal and the agent agree
that the agent, in its own name, sells or purchases goods for the principal or
provides services of the principal to customers for remuneration.
Article 167. Principals and agents
1.
Principals are traders that deliver goods to agents for sale or provide money
to agents for purchase of goods, or traders that authorize the provision of
services to service-providing agents.
2.
Agents are traders that receive goods to act as sale agents or receive money to
act as purchase agents or accepts the authorization to provide services.
Article 168. Agency contracts
Agency
contracts must be made in writing or in other forms of equivalent legal
validity.
Article 169. Forms of agency
1.
Off-take agency is a form of agency whereby the agent definitely sells or
purchases a specific quantity of goods or provides a full service for the
principal.
2.
Exclusive agency is a form of agency whereby a sole agent is authorized by the
principal to sell or purchase one or more goods items or to provide one or more
types of services within a given geographical area.
3.
General goods sale or purchase or service provision agency is a form of agency
whereby an agent organizes a network of sub-agents to sell or purchase goods,
or provide services for the principal.
The
general agent represents the network of sub-agents. Sub-agents operate under
the management and in the name of the general agent.
4.
Other forms of agency agreed upon by the parties.
Article 170. Ownership right in commercial agency
The
principal is the owner of goods or money delivered to the agent(s).
Article 171. Agency remuneration
1.
Unless otherwise agreed, agency remuneration shall be paid to agents in the
form of commission or price margin.
2.
Where principals fix goods purchase or sale prices or service charge rates,
agents shall enjoy commissions calculated in percentage of such goods purchase
or sale prices or service charge rates.
3.
Where principals do not fix goods purchase or sale prices or service charge
rates but fix only agency prices, agents shall enjoy price margins. Price
margin is determined to be the difference between goods purchase or sale price
or service charge rate and the price fixed by the principals for the agent.
4.
Where the parties do not agree upon the agency remuneration level, the
remuneration level shall be calculated as follows:
a/
The actual remuneration level which has been previously paid by/to parties;
b/
Where Point a of this Clause cannot apply, the agency remuneration level shall
be the average remuneration level applicable to the same type of goods or
service paid by the principal to other agents;
c/
Where Points a and b of this Clause cannot apply, the agency remuneration level
shall be the ordinary remuneration level applicable to the same type of goods
or service in the market.
Article 172. Rights of principals
Unless
otherwise agreed, principals shall have the following rights:
1.
To fix prices of goods purchased or sold or charge rates of services provided
to customers under agency;
2.
To fix agency prices;
3.
To request agents to take security measures as provided for by law;
4.
To request agents to make payments or deliver goods under agency contracts;
5.
To inspect and supervise the performance of contracts by agents;
Article 173. Obligations of principals
Unless
otherwise agreed, principals shall have the following obligations:
1.
To guide, supply information to, and facilitate, agents to perform agency
contracts;
2.
To bear responsibility for quality of goods of goods sale or purchase agents,
and quality of services of service-providing agents;
3.
To pay remuneration and other reasonable expenses to agents;
4.
To return to agents their assets used as security (if any) upon the termination
of agency contracts;
5.
To bear joint responsibility for law violation acts of agents if such law
violation acts are partly attributable to their faults.
Article 174. Rights of agents
Unless
otherwise agreed by the parties, agents shall have the following rights:
1.
To enter into agency contracts with one or more principals, except for cases
specified in Clause 7, Article 175 of this Law;
2.
To request principals to deliver goods or money under agency contracts; to take
back assets used as security (if any) upon the termination of agency contracts;
3.
To request principals to guide, supply information and create other related
conditions for the
performance
of agency contracts;
4.
To decide on goods sale prices or service charge rates for customers, for
off-take agents;
5.
To enjoy remunerations and other lawful rights and interests brought about by
agency activities.
Article 175. Obligations of agents
Unless
otherwise agreed, agents shall have the following obligations:
1.
To purchase or sell goods or provide services to customers at prices or charge
rates fixed by principals;
2.
To comply strictly with agreements on handover and receipt of money and goods
with principals;
3.
To take security measures for performance of civil obligations as provided for
by law;
4.
To pay to principals any proceeds of the sale of goods, for sale agents; to
deliver purchased goods to principals, for purchase agents; or to pay service
charges to principals, for service-providing agents;
5.
To preserve goods after the receipt thereof, for sale agents, or prior to the
delivery thereof, for purchase agents; to bear joint responsibility for quality
of goods of purchase or sale agents or quality of services of service-providing
agents in cases where they are at fault;
6.
To submit to inspection and supervision by principals, and to report to
principals on their agency activities;
7.
Where it is specified by law that an agent shall be allowed to enter into an agency
contract with a principal for a certain type of goods or service, such
provision of law must be complied with.
Article 176. Payment in agency activities
Unless
otherwise agreed, payments for goods, payment of service charges and payment of
agency remunerations shall be made in installments after agents complete the
purchase or sale of a specific quantity of goods or the provision of a specific
volume of services.
Article 177. Duration of agency
1.
Unless otherwise agreed, the duration of agency shall expire only after a
reasonable period of time which must be at least 60 days after either party to
the agency contract notifies the other party of the termination of such agency
contract.
2.
Unless otherwise agreed, if the principal notifies the termination of the
agency contract according to the provisions of Clause 1 of this Article, the
agent shall have the right to request the principal to pay a compensation for
the period of time during which it has acted as an agent for such principal.
The
value of such compensation shall be an average one-month's agency remuneration
for each year the agent has acted as an agent for the principal. Where the
duration of agency is less than one year, such compensation shall be equal to
an average one-month's agency remuneration during the agency term.
3.
Where an agency contract is terminated at the request of the agent, the agent
shall not have the right to request the principal to pay compensation for the
period of time during which it has acted as an agent for the principal.
Chapter VI. SOME OTHER SPECIFIC COMMERCIAL ACTIVITIES
Section 1.
COMMERCIAL PROCESSING
Article 178. Commercial processing
Commercial
processing means a commercial activity whereby a processor uses part or whole
of raw materials and materials supplied by the processee to perform one or
several stages of the production process at the latter's request in order to
receive remuneration.
Article 179. Processing contracts
Processing
contracts must be made in writing or in other forms of equivalent legal
validity.
Article 180. Goods for processing
1.
Goods of all types can be processed, except for goods banned from business.
2.
In case of processing of goods for foreign traders for overseas consumption,
goods banned from business, goods banned from export or import may be processed
if so permitted by competent state agencies.
Article 181. Rights and obligations of processees
1.
To hand over part or whole of raw materials and materials for processing in
accordance with processing contracts or transfer money for purchase of
materials with agreed quantities, quality and at agreed prices;
2.
To take back all processed products, leased or lent machinery and equipment,
raw materials, auxiliary materials, supplies and discarded materials after the
liquidation of processing contracts, unless otherwise agreed.
3.
To sell, destroy, donate or give as gifts on the spot processed products,
leased or lent machinery and equipments, raw materials, auxiliary materials,
redundant supplies, faulty products and discarded materials according to
agreements and provisions of law.
4.
To send their representatives to examine and supervise processing activities at
processing places, to assign experts to guide production technology and inspect
quality of processed products according to agreements in processing contracts.
5.
To be responsible for the legality of the intellectual property rights over
processed goods, raw materials, materials, machinery and equipment for
processing handed over to processors.
Article 182. Rights and obligations of processors
1.
To supply a part or whole of raw materials and materials for processing as
agreed upon with processees in terms of quantities, quality, technical
standards and prices.
2.
To receive processing remunerations and other reasonable expenses.
3.
In case of processing for foreign organizations and individuals, to be entitled
to export on spot processed products; leased or borrowed machinery and
equipment, raw materials, materials, redundant supplies, faulty products and
discarded materials under the authorization of processees.
4.
In case of processing for foreign organizations and individuals, to be exempt
from import tax on machinery, equipment, raw materials, auxiliary materials and
supplies, that are temporarily imported for the performance of processing
contracts according to the provisions of tax law.
5.
To be responsible for the legality of goods processing activities in cases
where goods being processed are those banned from business, export or import.
Article 183. Processing remuneration
1.
Processors may receive processing remunerations paid in cash or in processed
products, or machinery and equipment used for the processing.
2.
In case of processing for foreign organizations and individuals, if processors
receive processing remunerations in processed products, machinery and equipment
used for processing, regulations on import of such products, machinery and
equipment must be complied with.
Article 184. Technology transfer in goods processing with foreign
organizations and individuals.
Technology
transfer in goods processing with foreign organizations and individuals shall
be carried out in accordance with agreements in processing contracts and the
provisions of Vietnamese law on technology transfer.
Section 2.
AUCTION OF GOODS
Article 185. Auction of goods
1.
Auction of goods means a commercial activity whereby sellers themselves conduct
or hire auction organizers to conduct public sale of goods to select purchasers
that offer the highest prices.
2.
Auctions of goods shall be performed by either of the following two modes:
a/
Upward bidding mode, which is an auctioning mode whereby the person who offers
the highest price as compared with the reserve price shall have the right to
purchase the auctioned goods;
b/
Downward bidding mode, which is an auctioning mode whereby the person who first
accepts the reserve price or the lower price next to the reserve price shall
have the right to purchase the auctioned goods.
Article 186. Auction organizers, goods sellers
1.
Auction organizers are traders that register the business of providing
auctioning services or sell their own goods in cases where goods sellers
conduct auctions by themselves.
2.
Goods sellers are owners of such goods or persons mandated by goods owners to
sell goods or persons entitled to sell goods of others according to the
provisions of law.
Article 187. Auction participants, auctioneers
1.
Auction participants are organizations and individuals that register to
participate in auctions.
2.
Auctioneers are auction organizers or persons authorized by auction organizers
to run auctions.
Article 188. Auctioning principles
The
auction of goods in commerce must be conducted on the principles of publicity,
honesty and assurance of legitimate rights and interests of auction participants.
Article 189. Rights of auction organizers
Unless
otherwise agreed, auction organizers shall have the following rights:
1.
To request goods sellers to provide fully, accurately and promptly necessary
information on auctioned goods, to create conditions for auction organizers or
auction participants to examine auctioned goods and hand over auctioned goods
to goods purchasers in cases where auction organizers are not goods sellers;
2.
To determine reserve prices in cases where auction organizers are sellers of
auctioned goods or persons authorized by goods sellers;
3.
To organize auctions;
4.
To request goods purchasers to make payments;
5.
To receive auction service charges paid by goods sellers according to the
provisions of Article 211 of this Law.
Article 190. Obligations of auction organizers
1.
To organize auctions of goods in compliance with the principles and procedures
provided for by law and by auction modes agreed upon with goods sellers.
2.
To notify and post up in a public, full and accurate manner necessary
information on auctioned goods.
3.
To preserve auctioned goods when they are entrusted by sellers for
safe-keeping.
4.
To display goods, goods samples or documents introducing goods for auction
participants to consider.
5.
To compile documents on auctions of goods and send them to goods sellers and
purchasers and relevant parties according to the provisions of Article 203 of
this Law.
6.
To deliver auctioned goods to purchasers according to contracts for provision
of goods auctioning services.
7.
To carry out the procedures for transferring ownership rights over auctioned
goods which are subject to the ownership registration as provided for by law,
unless otherwise agreed with goods sellers.
8.
To pay to goods sellers proceeds from the sale of goods, including differences
collected from persons that withdraw their offered prices defined in Clause 3,
Article 204 of this Law or return unsold goods to goods sellers according to
agreements. In case of no agreement, to pay money to goods seller within three
working days after receiving money from goods purchasers, or to return the
goods immediately within a reasonable time after auctions;
Article 191. Rights of goods sellers that are not auction organizers
Unless
otherwise agreed, goods sellers shall have the following rights :
1.
To receive money amounts for auctioned goods and differences collected in cases
specified in Clause 3, Article 204 of this Law or receive goods back in case of
unsuccessful auctions;
2.
To supervise the organization of auctions of goods.
Article 192. Obligations of goods sellers that are not
auction organizers
Unless
otherwise agreed, goods sellers shall have the following obligations:
1.
To deliver goods to auction organizers, create conditions for auction organizers
and auction participants to examine goods, and supply in a full, accurate and
timely manner necessary information on auctioned goods;
2.
To pay auction organizing service charges according to Article 211 of this Law.
Article 193. Goods auction-organizing service contracts
1.
Goods auction organizing service contracts must be made in writing or in other
forms of equivalent legal validity.
2.
In cases where auctioned goods are objects of pledges or mortgages, goods
auction organizing service contracts must be approved by pledgees or
mortgagees, and sellers shall have to notify auction participants of the
pledged or mortgaged goods.
3.
If the auction is agreed upon in pledge or mortgage contracts but pledgors or
mortgagors are absent without plausible reasons or refuse to enter into goods
auction organizing service contracts, such contracts shall be entered into
between pledgees or mortgagees and auction organizers.
Article 194. Determination of reserve prices
1.
Goods sellers must determine reserve prices. In cases where auction organizers
are authorized to determine reserve prices, goods sellers must be notified
thereof before auctions are posted up.
2.
In cases where auctioned goods are objects of pledges or mortgages, pledgees or
mortgagees must reach agreements with pledgors or mortgagors on the
determination of reserve prices.
3.
If the auction is agreed upon in pledge or mortgage contracts but pledgors or
mortgagors are absent without plausible reasons or refuse to enter into goods
auction organizing service contracts, the reserve prices shall be determined by
pledgees or mortgagees.
Article 195. Notification to persons with rights and obligations related
to goods being objects of mortgage or pledge
In
cases where goods are objects of pledge or mortgage, auction organizers,
simultaneously with posting up goods auctions, must notify persons with related
rights and obligations within seven working days before such goods are
auctioned according to the provisions of Article 197 of this Law.
Article
196. Time
limit for notification and posting up of goods auctions
1.
Within seven working days before a goods auction is held, the auction organizer
must post up the auction at the auction venue, the place of goods display and
his/her/its head office according to the provisions of Article 197 of this Law.
2.
In cases where auction organizers are also goods sellers, the time limit for
posting up auctions shall be decided by goods sellers themselves.
Article 197. Contents of goods auction notification and posting up
A
notice and post-up of a goods auction must have all the following contents:
1.
The date and venue of auction;
2.
The name and address of the auction organizer;
3.
The name and address of the goods seller;
4.
The list of goods, their quantities and quality;
5.
The reserve prices;
6.
Necessary information on the goods;
7.
The place and time for displaying the goods;
8.
The place and time for consulting the goods files;
9.
The place and time for registering the purchase of goods.
Article 198. Persons not allowed to participate in auctions
1.
Persons who do not have civil act capacity, lose civil act capacity, or have
restricted civil act capacity under the provisions of the Civil Code, or
persons who, at the time of auction, are unable to cognize or control their
acts;
2.
Persons working in auctioning organizations; their parents, spouses and
children;
3.
Persons who have personally conducted the assessment of to be-auctioned goods;
their parents, spouses and children;
4.
Persons who do not have the right to purchase auctioned goods as provided for
by law.
Article 199. Registration for participation in auctions
1.
Auction organizers may request persons who wish to participate in auctions to
register for the auction participation before such auctions take place.
2.
Auction organizers may request persons who wish to participate in auctions to
make token payments which must not exceed 2% of the reserve prices of auctioned
goods.
3.
Where persons participating in auctions purchase auctioned goods, their token
payments shall be cleared against the purchase prices; if they cannot purchase
auctioned goods, their token payments shall be refunded to them right after
auctions are completed.
4.
Where persons who register for participation in auctions have made token
payments but later failed to participate in auctions, auction organizers shall
be entitled to retain such token payments.
Article 200. Display of auctioned goods
Goods,
goods samples, documents introducing goods and other necessary information on
such goods must be displayed at places announced since the posting up.
Article 201. Conducting of auctions
An
auction shall be conducted in the following order:
1.
The auctioneer makes a roll call of registered participants in the goods
auction;
2.
The auctioneer presents each auctioned goods item, repeats their reserve
prices, answer questions of the auction participants, and ask them to offer
bids;
3.
As for the upward bidding mode, the auctioneer must clearly and accurately
repeat the latest offered price which is higher than the price offered by the
previous bidder for at least three times with an interval of at least thirty
seconds. The auctioneer shall announce the winning bidder to purchase the
auctioned goods only if after repeating for three times the price offered by
such person, no one offers a higher price;
4.
As for the downward bidding mode, the auctioneer must clearly and accurately
repeat every reduced price level below the reserve price for at least three
times with an interval of at least thirty seconds. The auctioneer shall
announce immediately the person who first accepts the reserve price or any
reduced price level below the reserve price to have the right to purchase the
auctioned goods.
5.
In cases where many persons concurrently offer the last price as for the upward
bidding mode, or the first price as for the downward bidding mode, the
auctioneer shall have to organize a lot drawing among such persons and announce
the person who has drawn the winning lot as the purchaser of auctioned goods.
6.
The auctioneer shall have to prepare a document on goods auction right at the
auction venue, even when the auction is unsuccessful. The auction document must
clearly state the auction result and be signed by the auctioneer, the purchaser
and two witnesses from among the auction participants. For auctioned goods
which must be notarized by the State Notary according to the provisions of law,
the auction document must also be notarized.
Article 202. Unsuccessful auctions
An
auction shall be considered unsuccessful in the following cases:
1.
There is no auction participant or no bid price is offered;
2.
The highest price offered is lower than the reserve price, for the upward
bidding mode.
Article 203. Goods auction documents
1.
Goods auction documents are documents certifying the goods purchase and sale. A
goods auction document must have the following contents:
a/
The name and address of the auction organizer;
b/
The name and address of the auctioneer;
c/
The name and address of the goods seller;
d/
The name and address of the goods purchaser;
e/
The time and venue of the auction;
f/
The auctioned goods;
g/
The price at which the goods were sold;
h/
The names and addresses of two witnesses.
2.
Auction documents must be sent to goods sellers, goods purchasers and related
parties.
3.
In case of unsuccessful auctions, auction documents must clearly state that the
auctions were unsuccessful and have the contents specified at Points a, b, c,
e, f and h, Clause 1 of this Article.
Article
204. Withdrawal
of offered prices
1.
In case of an auction by the upward bidding mode, if the person offering the
highest price immediately withdraws his/her bid, the auction shall still
continue, starting again from the preceding offered price. In case of an
auction by the downward bidding mode, if the person who first accepts the price
immediately withdraws the accepted price, the auction shall still continue,
starting again from the preceding accepted price.
2.
The person who withdraws his/her offered price or withdraws his/her acceptance
of the price shall not be allowed to further participate in the auction.
3.
Where the auctioned goods are sold at a price lower than the withdrawn price
which is previously offered for the upward bidding mode, or accepted for the
downward bidding mode, the bid withdrawer shall have to pay the price
difference to the auction organizer. Where the goods are sold at a higher
price, the bid withdrawer shall not be entitled to such a difference.
4.
In case of an unsuccessful auction, the bid withdrawer shall have to bear
expenses for the auction and not be refunded his/her token payment.
Article 205. Refusal to purchase
1.
Unless otherwise agreed, after auctions are declared to be complete, purchasers
shall be held liable. If purchasers refuse to purchase goods, they must obtain
consents of goods sellers and bear all costs related to the organization of
auctions.
2.
In cases where purchasers of auctioned goods have paid token payments but
refuse to purchase such goods, they shall not be refunded such token payments.
Such token payments shall belong to goods sellers.
Article 206. Registration of ownership right
1.
Auction documents shall serve as basis for the transfer of the ownership right
over auctioned goods, which must be registered according to the provisions of
law.
2.
On the basis of goods auction documents and other valid papers, competent state
agencies shall have to register the goods ownership rights for goods purchasers
according to the provisions of law.
3.
Sellers and auction organizers are obliged to carry out procedures for
transferring goods ownership rights to goods purchasers. Expenses for carrying
out procedures for such transfer shall be deducted from proceeds from goods
sale, unless otherwise agreed.
Article 207. Time of payment for goods purchase
Time
of payment for goods purchase shall be agreed upon by auction organizers and
auctioned goods purchasers. If no agreement is reached, the time of payment for
goods purchase shall be the time provided for in Article 55 of this Law.
Article 208. Place of payment for goods purchase
Place
of payment for goods purchase shall be agreed upon by auction organizers and
goods purchasers. If no agreement is reached, the place of payment shall be the
places of business of auction organizers.
Article 209. Time limit for delivery of auctioned goods
Unless
otherwise agreed upon by auction organizers and goods purchasers, the time
limit for delivery of auctioned goods is provided for as follows:
1.
For goods over which the ownership right is not required to be registered,
auction organizers must deliver goods to their purchasers immediately after
auction documents are made;
2.
For goods over which the ownership rights have been registered, auction
organizers must immediately carry out procedures for transferring the ownership
rights and deliver goods to their purchasers immediately after the procedures
for ownership right transfer are completed.
Article 210. Place of delivery of auctioned goods
1.
Where goods are things attached to land, the place of delivery thereof is the
place where such goods are located.
2.
Where goods are movables, the place of delivery thereof is the place where the
auction is organized, unless otherwise agreed upon by auction organizers and
goods purchasers.
Article 211. Goods auction service charges
Where
there is no agreement on goods auction service charges, such charges shall be
determined as follows:
1.
In case of successful auctions, auction service charges shall be determined
according to Article 86 of this Law;
2.
In case of unsuccessful auctions, goods sellers must pay a charge equal to 50%
of the charge rate provided for in Clause 1 of this Article.
Article 212. Expenses related to auctions of goods
Unless
otherwise agreed upon between goods sellers and auction organizers, expenses
related to auctions of goods shall be determined as follows:
1.
Goods sellers shall bear the expenses for transportation of goods to the agreed
places and the expenses for preservation of goods in cases where they do not
deliver the goods to auction organizers for preservation;
2.
Auction organizers shall bear the expenses for preservation of goods delivered
to them, the expenses for posting up, notification and organization of auctions
and other related expenses.
Article 213. Responsibilities for auctioned goods untrue to notified or
posted up ones
1.
Within the time limit provided for in Article 318 of this Law, goods purchasers
may return the goods to auction organizers and request compensations for damage
if the auctioned goods are untrue to notified or posted up ones.
2.
Where the auction organizer defined in Clause 1 of this Article is not the
seller and the untruthful notified or posted up contents are attributable to
the fault of the seller, the auction organizer shall have the right to return
the goods and claim damages from the seller.
Section 3.
BIDDING FOR GOODS OR SERVICES
Article 214. Bidding for goods or services
1.
Bidding for goods or services means a commercial activity whereby a party
purchases goods or services through bidding (referred to as bid solicitor) in
order to select, among traders participating in the bidding (referred to as
bidders), a trader that satisfies the requirements set forth by the bid
solicitor and is selected to enter into and perform a contract (referred to as
bid winner).
2.
The provisions on bidding in this Law shall not apply to bidding for public
procurement according to the provisions of law.
Article 215. Forms of bidding
1.
Bidding for goods or services shall be conducted in either of the following two
forms:
a/
Open bidding which is a form of bidding whereby the bid solicitor does not
limit the number of bidders;
b/
Restricted bidding which is a form of bidding whereby the bid solicitor invites
only a limited number of bidders to participate in the bidding.
2.
The selection of the form of open bidding or restricted bidding shall be
decided by bid solicitors.
Article 216. Modes of bidding
1.
Modes of bidding include bidding with one bid dossier bag and bidding with two
dossier bags. Bid solicitors shall have the right to select the mode of bidding
and must notify such in advance to bidders.
2.
In case of bidding by mode of one dossier bag, a bidder shall submit its bid
dossier consisting of technical and financial proposals in one dossier bag
according to the requirements in the tendering dossier and the opening of bids
shall be effected only once.
3.
In case of bidding by mode of two dossier bags, a bidder shall submit its bid
dossier consisting of technical and financial proposals in two separate dossier
bags submitted simultaneously, and the opening of bids shall be effected twice.
The dossier on technical proposals shall be opened first.
Article 217. Pre-qualification of bidders
Bid
solicitors may organize the pre-qualification of bidders in order to select
those bidders that are capable of satisfying the conditions set forth by bid
solicitors.
Article 218. Tendering dossiers
1.
A tendering dossier comprises:
a/
Tendering notice;
b/
Requirements related to goods or services subject to bidding;
c/
Methods of evaluation, comparison, grading and selection of bidders;
d/
Other instructions related to bidding.
2.
Expenses for supply of documents provided to bidders shall be stipulated by bid
solicitors.
Article 219. Tendering notice
1.
A tendering notice comprises the following principal contents:
a/
Name and address of the bid solicitor;
b/
Brief description of bidding contents;
c/
Time limit, place and procedures for receipt of tendering dossiers;
d/
Time limit, place and procedures for submission of bid dossiers;
e/
Instructions for reading tendering dossiers.
2.
Bid solicitors shall have to notify on the mass media in case of open bidding
or send notices on invitation to register for bidding participation to
qualified bidders in case of restricted bidding.
Article 220. Instructions to bidders
Bid
solicitors shall have to provide bidders with instructions on the tendering
conditions, procedures to be applied in the bidding process, and to answer
questions of bidders.
Article 221. Management of bid dossiers
Bid
solicitors shall have to manage bid dossiers.
Article 222. Bid bonds
1.
Bid bonds shall be made in the form of bid deposit, collateral or guarantee.
2.
Bid solicitors may request bidders to make bid deposits, bid collaterals or
provide bid guarantees when submitting their bid dossiers. The percentage of a
bid deposit or collateral shall be set out by bid solicitor but must not exceed
3% of the total estimated value of goods or services subject to bidding.
3.
Bid solicitors shall stipulate the mode and conditions for making deposits,
collaterals or providing bid guarantees. In case of bid deposits or
collaterals, such deposits or collaterals shall be returned to unsuccessful
bidders within seven working days from the date the bidding results are
announced.
4.
Bidders shall not be allowed to receive back their bid deposits or collaterals
in cases where they withdraw bid dossiers after the expiration of the time
limit for submitting bid dossiers (referred to as "bidding closure"),
fail to enter into contracts or refuse to perform contracts in cases where they
are bid winners.
5.
Guarantors for bidders are obliged to guarantee bids for the guaranteed within
the value equal to deposits or collaterals.
Article 223. Confidentiality of bidding information
1.
Bid solicitors must keep confidential bid dossiers.
2.
Organizations and individuals involved in the organization of bidding and in
the evaluation and selection of bids must keep confidential information
relevant to the bidding.
Article 224. Bid opening
1.
Bid opening is the opening of bid dossiers at a fixed time or in cases where
there is no prefixed time, the time of bid opening shall be the time immediately
after the bidding closure.
2.
All bid dossiers submitted on time must be opened publicly by bid solicitors.
Bidders shall be entitled to attend the bid opening.
3.
Bid dossiers which are not submitted on time shall be rejected and returned to
bidders unopened.
Article 225. Consideration of bid dossiers upon bid opening
1.
Bid solicitors consider the validity of bid dossiers.
2.
Bid solicitors may request bidders to clarify unclear contents in their bid
dossiers. Requests and clarification of bid dossiers must be made in writing.
Article 226. Minutes of bid opening
1.
Upon bid opening, the bid solicitor and bidders that are present shall have to
sign the minutes of bid opening.
2.
A minutes of bid opening must have the following contents:
a/
Name of goods or service subject to bidding;
b/
Date, time and place of the bid opening;
c/
Names and addresses of the bid solicitor and bidders;
d/
Bidding prices of bidders;
e/
Written amendments or supplements and relevant contents, if any.
Article 227. Evaluation and comparison of bid dossiers
1.
Bid dossiers shall be evaluated and compared according to each criterion for an
overall evaluation.
The
criteria for evaluation of bid dossiers shall be provided for by bid
solicitors.
2.
The criteria mentioned in Clause 1 of this Article shall be evaluated by the
score-giving method or other methods determined prior to the bid opening.
Article 228. Amendment of bid dossiers
1.
Bidders are not allowed to amend their bid dossiers after the bid opening.
2.
In the course of evaluation and comparison of bid dossiers, bid solicitors may
request bidders to clarify matters related to their bid dossiers. Requests of
solicitors and replies of bidders must be made in writing.
3.
Where bid solicitors amend some contents in tendering dossiers, they must send
such amendments in writing to all bidders at least ten days before the deadline
for submitting bid dossiers so that bidders have enough time to finalize their
bid dossiers.
Article
229.- Classification
and selection of bidders
1.
On the basis of the result of the evaluation of bid dossiers, bid solicitors
shall have to classify and select bidders according to the method already
determined.
2.
Where many bidders obtain equal scores and equally satisfy criteria to win the
bidding, the bid solicitor shall have the right to select winning bidder.
Article 230. Notification of bidding results and entry into contracts
1.
Immediately after bidding results are available, bid solicitors shall have to
notify them to bidders.
2.
Bid solicitors shall finalize and enter into contracts with bid winners on the
following bases:
a/
Bidding results;
b/
Requirements stated in tendering dossiers;
c/
Contents in bid dossiers.
Article 231. Contract performance security
1.
Involved parties may agree that bid winners should make deposits or collaterals
or be provided with guarantees to secure the performance of contracts. Money
amount to be deposited or used as a collateral shall be set by bid solicitors
but must not exceed 10% of the contract value.
2.
Contract performance security measures shall be effective up to the time of
completion of contractual obligations by bid winners.
3.
Unless otherwise agreed, bid winners shall receive back deposits or collaterals
as security for the performance of contracts upon the liquidation of such
contracts. Bid winners shall not be entitled to receive back deposits or
collaterals as security for the performance of contracts if they refuse to
perform such contracts after they are entered into.
4.
After paying deposits or making collaterals to secure the contract performance,
bid winners shall have their bid deposits or collaterals refunded.
Article 232. Reorganization of bidding
A
bidding shall be reorganized in one of the following cases:
1.
Where there is a violation of the regulations on bidding;
2.
Where all bidders fail to satisfy the bidding requirements.
Section 4.
LOGISTIC SERVICES
Article 233. Logistic services
Logistic
services are commercial activities whereby traders organize the performance of
one or many jobs including reception, transportation, warehousing, yard storage
of cargoes, completion of customs procedures and other formalities and
paperwork, provision of consultancy to customers, services of packaging,
marking, delivery of goods, or other services related to goods according to
agreements with customers in order to enjoy service charges.
Article 234. Conditions for logistic service provision
1.
Traders providing logistic services are enterprises fully satisfying the
conditions for logistic service business provided for by law.
2.
The Government shall specify logistic service business conditions.
Article 235. Rights and obligations of
traders providing logistic services
1.
Unless otherwise agreed, traders providing logistic services shall have the
following rights and obligations:
a/
To enjoy service charges and other reasonable expenses;
b/
To depart from instructions of customers during the performance of contracts
for plausible reasons and in the interests of customers, provided that customers
must be notified thereof immediately;
c/
To notify such customers immediately for further instructions in cases where
instructions of customers cannot be followed in part or in whole;
d/
To perform their obligations within a reasonable period of time if there is no
agreement on specific time limit for performance of their obligations to
customers.
2.
In the course of transportations of goods, traders providing logistic services
must comply with the provisions of law and transportation practices.
Article 236. Rights and obligations of
customers
Unless
otherwise agreed, customers shall have the following rights and obligations:
1.
To guide, inspect and supervise the performance of contracts;
2.
To provide sufficient instructions to traders providing logistic services;
3.
To provide sufficient, detailed and accurate information on the goods to
traders providing logistic services;
4.
To pack and mark the goods according to contracts for purchase and sale of
goods, except where there is an agreement that traders providing logistic
services shall undertake to do such job;
5.
To compensate for damage caused to, and pay reasonable costs incurred by,
traders providing logistic services if such traders have strictly complied with
customers' instructions or if the customers are at fault;
6.
To pay traders providing logistic services all amounts due.
Article 237. Liability exemption for traders
providing logistic services
1.
Apart from the cases of liability exemption specified in Article 294 of this
Law, traders providing logistic services shall not be liable for the goods loss
caused in the following cases:
a/
The loss is caused by faults of customers or their authorized persons;
b/
The loss is caused by traders that have strictly followed the instructions of
their customers or persons authorized by customers;
c/
The loss is attributed to defects of the goods;
d/
The loss occurs in cases of liability exemption according to law and
transportation practices, if traders providing logistic services organize
transportation;
e/
Trader providing logistic services are not notified of complaints within
fourteen days from the date they deliver goods to recipients;
f/
After being complained against, traders providing logistic services are not
notified of lawsuits against them being instituted at arbitrations or courts
within nine months from the date of delivery of goods.
2.
Traders providing logistic services shall not be liable for the loss of profits
which their customers would have earned, for any services delayed or provided
at wrong addresses, for which they are not at fault.
Article 238. Limitation to liability
1.
Unless otherwise agreed, the full liability of traders providing logistic
services shall not exceed the limitation of liability for the full loss of the
goods.
2.
The Government shall provide in detail for the limitation of liability of
traders providing logistic services in compliance with provisions of law and
international practices.
3.
Traders providing logistic services shall not enjoy the limitation of liability
for damage compensation if persons with related rights and benefits prove that
the loss, damage or delayed delivery of goods is caused by deliberate actions
or inactions of traders providing logistic services with the intention to cause
such loss, damage or delayed delivery or their actions or inactions are known
to be risky who were also aware of such loss, damage, or delay would certainly
occur.
Article 239. The right to withhold and dispose of goods
1.
Traders providing logistic services shall be entitled to withhold a certain
quantity of goods and related documents in order to claim payment of due debts
by customers but shall have to notify promptly customers thereof in writing.
2.
After forty five days from the date of notification of the withholding of goods
or their related documents, if customers fail to pay debts, traders providing
logistic services shall be entitled to dispose of such goods or documents
according to provisions of law. Where there are indications of deterioration of
goods, traders providing logistic services shall have the right to dispose of
the goods immediately after any debt of customers becomes due.
3.
Before disposing of goods, traders providing logistic services must immediately
notify their customers of such disposal.
4. All
expenses for the withholding and disposal of goods shall be borne by customers.
5.
Traders providing logistic services shall be entitled to use proceeds from the
disposal of goods to pay for debts owed to them by their customers and related
expenses. If the proceeds from the disposal of goods exceed the value of debts,
the difference must be returned to customers. From that point of time, traders
providing logistic services shall no longer be responsible for the goods or
documents already disposed of.
Article 240. Obligations of traders providing logistic services when
withholding goods
When
the right to dispose of goods provided for in Article 239 of this Law is not
yet exercised, traders providing logistic services and withholding goods shall
have the following obligations:
1.
To preserve and keep the goods;
2.
Not to use goods without consent of the parties whose goods are withheld;
3.
To return goods where the conditions for withholding and disposal of goods
provided for in Article 239 of this Law no longer exist;
4.
To pay damages to the parties whose goods are withheld if they cause loss or
damage to withheld goods.
Section 5.
TRANSIT OF GOODS THROUGH THE VIETNAMESE TERRITORY; AND GOODS TRANSIT SERVICES
Article 241. Transit of goods
Transit
of goods means the transportation of goods owned by foreign organizations or
individuals through the Vietnamese territory, including transshipment, portage,
warehousing, shipment separation or alteration of modes of transportation or
other jobs performed in the course of transit.
Article 242. Right to transit goods
1.
All goods owned by foreign organizations and individuals are allowed to be
transited through the Vietnamese territory and subject only to customs
clearance at import border-gates and export border-gates according to the
provisions of law, except for the following cases:
a/
Goods are weapons, ammunitions, explosive materials and other type of highly
dangerous goods, unless they are permitted by the Prime Minister;
b/
Goods are banned from business, export or import, which shall be allowed to be
transited through the Vietnamese territory only when so permitted by the Trade
Minister.
2.
Goods in transit when being exported from, and means of transport carrying
goods in transit when leaving, the Vietnamese territory must be the goods or
means of transport which have previously entered the Vietnamese territory.
3.
Foreign organizations or individuals that wish to transit their goods through
the Vietnamese territory must hire Vietnamese traders providing transit
services to do so, except for cases mentioned in Clause 4 of this Article.
4.
The transit of goods through the Vietnamese territory by foreign organizations
and individuals themselves or by hired foreign traders must comply with
treaties to which the Socialist Republic of Vietnam is a contracting party and
the provisions of Vietnamese law on exit, entry and transport.
Article 243. Routes for transit
1.
Goods shall only be transited through international border-gates and on certain
routes in the Vietnamese territory.
2.
On the basis of treaties to which the Socialist Republic of Vietnam is a
contracting party, the Transport Minister shall specify routes on which the
transportation of goods in transit is allowed.
3.
In the course of transit, any change of routes on which the transportation of
goods in transit is allowed must be consented by the Transport Minister.
Article 244. Transit by airways
Transit
by airways shall be carried out in accordance with treaties on aviation to
which
the Socialist Republic of Vietnam is a contracting party.
Article 245. Supervision of goods in transit
Goods
in transit through the Vietnamese territory shall be subject to the supervision
by Vietnamese customs authorities throughout the course of transit.
Article 246. Transit duration
1.
The maximum duration of transit through the Vietnamese territory shall be
thirty days from the date of completion of customs procedures at import
border-gates, except where goods are warehoused in Vietnam or damaged or lost
in the course of transit.
2.
Where goods are warehoused in Vietnam or damaged or lost in duration of transit
and require more time for warehousing, remedying such damage or loss, the
transit duration may be prolonged according to the amount of time required for
such jobs and with approval of customs authorities where transit procedures are
carried out; in cases where goods are transited under permits of the Trade
Minister, approval of the Trade Minister is required.
3.
During the period of warehousing or remedying damage and loss mentioned in
Clause 2 of this Article, transit goods and means of transport carrying transit
goods must still be subject to supervision by Vietnamese customs authorities.
Article 247. Goods in transit consumed in Vietnam
1.
Goods in transit defined at Points a and b, Clause 1, Article 242 of this Law
shall not be permitted for consumption in Vietnam
2.
Except for cases mentioned in Clause 1 of this Article, goods in transit shall
be permitted for consumption in Vietnam only when it is so approved in writing
by the Trade Minister.
3.
The consumption of transit goods in Vietnam must comply with the provisions of
Vietnamese law on import of goods, taxes, charges, fees and other financial
obligations.
Article 248. Prohibited acts during transit
1.
To pay transit remunerations in transit goods.
2.
To illegally consume goods in transit or means of transport carrying goods in
transit.
Article 249. Goods transit services
Goods
transit services mean commercial activities whereby traders carry out the transit
of goods under the ownership of foreign organizations or individuals through
the Vietnamese territory for remunerations.
Article 250. Conditions for providing transit services
Traders
providing transit services must be enterprises with registrations of business
of providing transportation services or logistic services according to Article
234 of this Law.
Article 251. Transit service contracts
Transit
service contracts must be made in writing or in other forms of equivalent legal
validity.
Article 252. Rights and obligations of transit service hirers
1.
Unless otherwise agreed, transit service hirers shall have the following
rights:
a/
To request transit service providers to receive goods at import border-gates at
the agreed time;
b/
To request transit service providers to promptly notify the conditions of goods
in the course of transit through the Vietnamese territory;
c/
To request transit service providers to carry out all necessary procedures to
limit damage or loss of goods in transit in the course of transit through the
Vietnamese territory.
2.
Unless otherwise agreed, transit service hirers shall have the following
obligations:
a/
To deliver goods to import border-gates of Vietnam on time as agreed;
b/
To supply transit service providers with sufficient information on the goods;
c/
To supply sufficient documents necessary for transit service providers to carry
out procedures for import or transportation in the Vietnamese territory and the
export procedures;
d/
To pay transit remunerations and other reasonable expenses to transit service
providers.
Article 253. Rights and obligations of transit service providers
Unless
otherwise agreed, transit service providers shall have the following rights:
a/
To request transit service hirers to deliver goods to import border-gates of
Vietnam on time as agreed;
b/
To request transit service hirers to supply sufficient necessary information on
the goods;
c/
To request transit service hirers to supply sufficient necessary documents for
carrying out procedures for import and transportation in the Vietnamese
territory and export procedures;
d/
To receive transit remunerations and other reasonable expenses.
2.
Unless otherwise agreed, transit service providers shall have the following
obligations:
a/
To receive the goods at import border-gates at the agreed time;
b/
To carry out procedures to import and export the goods in transit into and out
of the Vietnamese territory;
c/
To be responsible for goods in transit in the course of transit through the
Vietnamese territory;
d/
To perform necessary jobs to minimize loss and/or damage to the goods in
transit in the course of transit through the Vietnamese territory;
e/
To pay assorted fees and charges and other financial obligations applicable to
goods in transit as provided for by Vietnamese law;
f/
To cooperate with competent state agencies of Vietnam in dealing with matters
related to the goods in transit.
Section 6. ASSESSMENT SERVICES
Article 254. Assessment services
Assessment
services are commercial activities whereby traders perform necessary jobs to
determine actual conditions of goods, results of the provision of services and
other contents at the request of customers.
Article 255. Contents of assessment
Assessment
comprises one or a number of contents regarding the quantity, quality, packing,
value of goods, origin of goods, losses, safety, hygienic and quarantine
standards, results of the provision of services, method of providing services
and other contents at the request of customers.
Article 256. Traders providing commercial assessment services
Only
traders that satisfy all the conditions provided for by law and are granted
business registration certificates for provision of commercial assessment
services shall be allowed to provide assessment services and issue assessment
certificates.
Article 257. Conditions for providing commercial assessment services
Traders
providing commercial assessment services must fully satisfy the following
conditions:
1.
Being enterprises established according to the provisions of law;
2.
Having assessors who have all the qualifications specified in Article 259 of
this Law;
3.
Being capable of carrying out procedures and methods for assessing goods or
services under the provisions of law, the international standards or which are
commonlly applied by countries in assessment of such goods or services.
Article 258. Scope of providing commercial assessment services
Traders
providing commercial assessment services shall be allowed to provide assessment
services in domains of assessment only when they fully satisfy the conditions
provided for in Clauses 2 and 3, Article 257 of this Law.
Article 259. Criteria of assessors
1.
An assessor must fully satisfy the following criteria:
a/
Possessing a university or college degree suitable to the requirements of the
domain of assessment;
b/
Having a professional certificate for the assessment domain in cases where such
professional certificate is required by law;
c/
Having worked for at least three years in the domain of assessment of goods or
services.
2.
Basing themselves on the criteria specified in Clause 1 of this Article,
directors of enterprises providing commercial assessment services shall
recognize assessors and be responsible before law for their decisions.
Article 260. Assessment certificates
1.
Assessment certificates are documents determining the actual conditions of
goods and services according to the assessment contents required by customers.
2.
Assessment certificates must be signed by competent representatives of enterprises
providing commercial assessment services, have signatures and full names of
assessors, and be affixed with professional seals already registered with
competent agencies.
3.
Assessment certificates shall only be valid for those contents already assessed.
4.
Traders providing assessment services shall be responsible for accuracy of
results and conclusions in assessment certificates.
Article 261. Legal validity of assessment certificates with respect to
assessment requesters
Assessment
certificates shall be legally binding on assessment requesters in cases where
they cannot prove that assessment results are non-objective, untruthful or
obtained with technical or professional errors.
Article 262. Legal validity of assessment certificates with respect to contractual
parties
1.
Where contracting parties agree on the use of an assessment certificate issued
by a particular trader providing assessment services, such assessment
certificate shall be legally binding on all the parties if they cannot prove
that the assessment results are non-objective, untruthful or obtained with
technical or professional errors.
2.
Where contractual parties do not agree on the use of an assessment certificate
issued by a particular trader providing assessment services, such assessment
certificate shall only be binding on the party requesting the assessment
according to Article 261 of this Law. The other contractual party shall have
the right to request re-assessment.
3.
If a re-assessment certificate is inconsistent with the original assessment
certificate:
a/
Where the trader providing assessment services and issuing the original
assessment certificate accepts the results stated in the re-assessment
certificate, such results shall be legally binding on all the parties;
b/
Where the trader providing assessment services and issuing the original
assessment certificate does not accept the results stated in the re-assessment
certificate, the parties shall agree to select another trader providing
assessment services to perform the re-assessment for the second time. The
results of the second-time re-assessment shall be legally binding on all the
parties.
Article 263. Rights and obligations of traders providing assessment
services
1.
Traders providing assessment services shall have the following rights:
a/
To request customers to supply in a sufficient, accurate and timely manner
necessary documents for performance of assessment services;
b/
To receive assessment service charges and other reasonable expenses.
2.
Traders providing assessment services shall have the following obligations:
a/
To observe the standards and other relevant provisions of law on assessment
services;
b/
To perform the assessment in an honest, objective, independent, timely manner
and according to the assessment procedures and methods;
c/
To issue assessment certificates;
d/
To pay violation fines and/or damages according to the provisions of Article
266 of this Law.
Article 264. Rights of customers
Unless
otherwise agreed, customers shall have the following rights:
1.
To request traders providing assessment services to perform the assessment
according to the agreed contents;
2.
To request re-assessment if they have sound reasons to believe that traders
providing assessment services fail to properly satisfy their requirements or
perform the assessment in an untruthful and non-objective manner or with
technical and professional errors;
3.
To request payment of fines or damages according to the provisions of Article
266 of this Law.
Article 265. Obligations of customers
Unless
otherwise agreed, customers shall have the following obligations:
1.
To supply in a sufficient, accurate and timely manner necessary documents to
traders providing assessment services when so requested;
2.
To pay assessment service charges and other reasonable expenses.
Article 266. Fines and damages in case of incorrect assessment results
1.
Where traders providing assessment services issue assessment certificates
showing incorrect results caused by their unintentional faults, they must pay
fines therefor to customers. The fine level shall be agreed upon by the parties
but must not exceed ten times the assessment service charge.
2.
Where traders providing assessment services issue assessment certificates
showing incorrect results caused by their intentional faults, they must pay
compensations for damage caused to customers that directly request the
assessment.
3.
Customers are obliged to prove that assessment results are incorrect and
traders providing assessment services are at fault.
Article 267. Authorized assessment
Where
foreign traders providing assessment services are hired to perform assessment
while having no license to operate in Vietnam, such traders may authorize
traders providing assessment services which have been licensed to operate in
Vietnam to provide assessment services but must still be held responsible for
the assessment results.
Article 268. Assessment at the request of state agencies
1.
Traders providing assessment services which fully satisfy the conditions and
criteria suitable with assessment requirements shall have to perform assessment
at the request of state agencies.
2.
State agencies which request the assessment shall have to pay assessment
remunerations to traders providing assessment services according to agreements
between the two parties on the basis of market prices.
Section 7. LEASE OF GOODS
Article 269. Lease of goods
Lease
of goods means commercial activities whereby one party transfers the right to
possess and use goods (referred to as lessor) to another party (referred to as
lessee) for a certain duration to enjoy rentals.
Article 270. Rights and obligations of lessors
Unless
otherwise agreed, lessors shall have the following rights and obligations:
1.
To deliver leased goods to lessees as agreed upon in lease contracts;
2.
To ensure that the right of lessees to possess and use leased goods is not
disputed by a concerned third party in the lease duration;
3.
To ensure that leased goods are suitable to the use purposes of lessees as
agreed upon by the parties;
4.
To maintain and repair leased goods within a reasonable duration. Where the
maintenance and repair of leased goods cause harms to the use of such goods by
lessees, lessors shall have to reduce rent rates or prolong lease duration
corresponding to the time of maintenance and repair;
5.
To receive rentals according to agreements or provisions of law;
6.
To take back leased goods upon the expiration of the lease duration.
Article 271. Rights and obligations of lessees
Unless
otherwise agreed, lessees shall have the following rights and obligations:
1.
To possess and use leased goods according to lease contracts and the provisions
of law. Where there is no specific agreement on the manner in which leased
goods should be used, such leased goods shall be used in a manner appropriate
to their nature;
2.
To maintain and preserve leased goods in the lease duration and return such
goods to lessors upon the expiration of the lease duration;
3.
To request lessors to perform the maintenance and repair of goods. If lessors
fail to perform such obligation within a reasonable period of time, lessees may
perform the maintenance and repair of leased goods and lessors shall bear all
reasonable expenses for such maintenance and repair;
4.
To pay rentals as agreed or according to the provisions of law;
5.
Not to sell or sub-lease the leased goods.
Article 272. Repair or alteration of original status of leased goods
1.
Lessees must not repair or alter the original status of leased goods if not so
consented by lessors.
2.
Where lessees perform the repair or alter the original status of the leased
goods without lessors' consents, lessors shall have the right to request
lessees to restore the original status of the leased goods or claim damages.
Article 273. Liability for loss occurring in the lease duration
1.
Unless otherwise agreed, lessors shall bear loss of leased goods occurring in
the lease duration if lessees are not at fault in causing such loss.
2.
In cases mentioned in Clause 1 of this Article, lessors shall have to repair
leased goods within a reasonable duration to ensure the achievement of use
purposes of lessees.
Article 274. Pass of risks incurred to leased goods
Where
the parties agree on the pass of risk to the lessee but the point of time of
passing risks is not determined, that point of time shall be determined as
follows:
1.
In cases where the lease contract involves the transportation of goods:
a/
If the contract does not require the leased goods to be delivered at a
designated place, risks shall be passed to the lessee when the leased goods are
delivered to the first carrier;
b/
If the contract requires the leased goods to be delivered at a designated
place, risks shall be passed to the lessee or the person authorized by the
lessee to receive the goods at such place;
2.
In cases where the leased goods are received by a bailee other than a carrier
for delivery, risks shall be passed to the lessee as soon as the bailee
acknowledge the lessee's right to possess the leased goods;
3.
In other cases not mentioned in Clauses 1 and 2 of this Article, risks shall be
passed to the lessee upon the receipt of the leased goods by the lessee.
Article 275. Leased goods inappropriate to contracts
Where
there is no specific agreement, goods shall be deemed inappropriate to contracts
when such goods fall into one of the following cases:
1.
They are suitable to common utility of goods of the same type;
2.
They are not suitable to specific purposes which the lessee has informed the
lessor or the lessor should have known at the time the contract was entered
into;
3.
Their quality is not the same as goods samples handed over by the lessor to the
lessee.
Article 276. Rejection of goods
1.
The lessor shall give the lessee a reasonable time after the receipt of goods
for inspection thereof.
2.
The lessee may reject the goods in the following cases:
a/
The lessor does not give conditions and a reasonable time to the lessee for
inspecting the goods;
b/
When inspecting the goods, the lessee discovers that the goods are
inappropriate to the contract.
Article 277. Rectification or replacement of leased goods inappropriate
to contracts
1.
Where the lessee rejects leased goods inappropriate to the contract, if the
time limit for delivery of goods has not yet expired, the lessor may promptly
notify the lessee of the rectification or replacement of the goods and then
perform such rectification or replacement of goods within the remaining
duration.
2.
Where the lessor, when performing the rectification mentioned in Clause 1 of
this Article, causes inconvenience or unreasonable expenses to be borne by the
lessee, the lessee shall have the right to request the lessor to remedy such
inconvenience or pay such unreasonable expenses.
Article 278. Acceptance of leased goods
1.
The lessee shall be deemed having accepted the leased goods after being given a
reasonable opportunity to inspect the leased goods and taking one of the
following acts:
a/
Not rejecting the leased goods;
b/
Certifying the appropriateness of the leased goods to agreements in the contract;
c/
Confirming the acceptance of the goods despite their inappropriateness to
agreements in the contract.
2.
If the lessee discovers the inappropriateness of the leased goods to the
contract after accepting such goods and such inappropriateness is detectable
through a reasonable inspection before the acceptance, the lessee shall not be
entitled to rely on such inappropriateness as an excuse for returning the
goods.
Article 279. Withdrawal of acceptance
1.
Lessees may withdraw their acceptance of part or whole of the leased goods if
the inappropriateness of such leased goods may render them unable to achieve
the objectives of the entry into of contracts and falls into one of the
following cases:
a/
Lessors fail to make reasonable rectification according to Article 277 of this
Law;
b/
Lessees fail to detect the inappropriateness of the goods due to lessors'
guarantee.
2.
The withdrawal of acceptance must be made within a reasonable period of time,
which must not exceed three months as from the date lessees accept the goods.
Article 280. Responsibility for defects of leased goods
Unless
otherwise agreed, responsibility for defects of leased goods is provided for as
follows:
1.
In the lease duration, lessors shall be responsible for any defects of leased
goods which already exist at the time of delivery of such goods to lessees,
except for cases mentioned in Clauses 2 and 3 of this Article;
2.
Lessors shall not be responsible for any defects of leased goods which already
exist prior to the entry into of contracts and which lessees knew or should
have known;
3.
Lessors shall not be responsible for any defects of leased goods which are
detected after lessees have accepted the leased goods and which would have been
detected by lessees through reasonable inspections before accepting the goods.
4.
Lessors shall be responsible for any defects of leased goods appearing after
the time of passing risks due to lessors' breaches of their committed
obligations.
Article 281. Sub-lease
1.
Lessees shall be entitled to sub-lease goods only when they obtain consents of
lessors. Lessees shall be responsible for sub-leased goods, unless they
otherwise agree with lessors.
2.
Where lessees sub-lease leased goods without consents of lessors, lessors may
revoke lease contracts. Sub-lessees shall have to return the goods to lessors
immediately.
Article 282. Benefits arising in the lease duration
Unless
otherwise agreed, all benefits arising from leased goods in the lease duration
shall belong to lessees.
Article 283. Change of ownership in the lease duration
Any
change of ownership over leased goods shall not affect the validity of lease
contracts.
Section 8. COMMERCIAL FRANCHISE
Article 284. Commercial franchise
Commercial
franchise means a commercial activity whereby franchisors permit and require
franchisees to undertake by themselves to purchase or sell goods or provide
services on the following conditions:
1.
The purchase or sale of goods or provision of services shall be conducted in
accordance with methods of business organization prescribed by franchisors and
associated with the franchisors' trademarks, trade names, business knows-how,
business slogans, business logos and advertisements.
2.
Franchisors shall be entitled to supervise and assist franchisees in conducting
their business activities.
Article 285. Commercial franchise contracts
Commercial
franchise contracts must be made in writing or in other forms of equivalent
legal validity.
Article 286. Rights of franchisors
Unless
otherwise agreed, franchisors shall have the following rights:
1.
To receive franchise sums.
2.
To organize advertising for the commercial franchise system and the commercial
franchise network.
3.
To conduct periodical or extraordinary inspections of activities of franchisees
in order to ensure the uniformity of the commercial franchise system and the
stability of quality of goods and services.
Article 287. Obligations of franchisors
Unless
otherwise agreed, franchisors shall have the following obligations:
1.
To supply documents guiding the commercial franchise system to franchisees;
2.
To provide initial training and regular technical assistance to franchisees for
managing the latter's activities in accordance with the commercial franchise
system;
3.
To design and arrange places of sale of goods or provision of services at the
expenses of franchisees;
4.
To guarantee the intellectual property rights over objects stated in franchise
contracts;
5.
To equally treat all franchisees in the commercial franchise system.
Article 288. Rights of franchisees
Unless
otherwise agreed, franchisees shall have the following rights:
1.
To request franchisors to provide fully technical assistance related to the
commercial franchise system;
2.
To request franchisors to equally treat all franchisees in the commercial
franchise system.
Article 289. Obligations of franchisees
Unless
otherwise agreed, franchisees shall have the following obligations:
1.
To pay franchise sums and other amounts under commercial franchise contracts;
2.
To invest adequate material facilities, financial sources and human resources
to take over business rights and know-how transferred by franchisors;
3.
To submit to the control, supervision and instruction by franchisors; to comply
with all requirements set forth by franchisors on designing and arrangement of
places of sale of goods or provision of services;
4.
To keep secret the franchised business know-how even after the expiration or
termination of commercial franchise contracts;
5.
To stop using trademarks, trade names, business slogans, logos and other intellectual
property rights (if any) or systems of franchisors upon the expiration or
termination of commercial franchise contracts;
6.
To manage their activities in accordance with the commercial franchise system;
7.
Not to sub-franchise without permissions of franchisors.
Article 290. Sub-franchise to a third party
1.
A franchisee shall be entitled to sub-franchise to a third party (referred to
as sub-franchisee) if it is so consented by the franchisor.
2.
Sub-franchisees shall have the rights and obligations of franchisees provided
for in Articles 288 and 289 of this Law.
Article 291. Registration of commercial franchises
1.
Before granting commercial franchises, intended franchisors must register them
with the Trade Ministry.
2.
The Government shall specify the conditions for conducting business under
commercial franchise and the order and procedures for registering commercial
franchises.
Chapter VII. COMMERCIAL REMEDIES AND RESOLUTION OF COMMERCIAL
DISPUTES
Section 1.
COMMERCIAL REMEDIES
Article 292. Types of commercial remedies
1.
Specific performance of contracts.
2.
Fines for breaches.
3.
Forcible payment of damages.
4.
Suspension of performance of contracts.
5.
Stoppage of performance of contracts.
6.
Cancellation of contracts.
7.
Other remedies agreed upon by involved parties which are not contrary to the
fundamental principles of Vietnamese law, treaties to which the Socialist
Republic of Vietnam is a contracting party and international commercial
practices.
Article 293. Application of commercial remedies against insubstantial
breaches
Unless
otherwise agreed, aggrieved parties are not entitled to apply the remedy of
suspension of performance of contracts, stoppage of performance of contracts or
cancellation of contracts against insubstantial breaches.
Article 294. Cases of exemption from liability for breaching acts
1.
A party that breaches a contract shall be exempted from liability in the
following cases:
a/
A case of liability exemption agreed upon by the parties occurs;
b/
A force majeure event occurs;
c/
A breach by one party is entirely attributable to the other party's fault;
d/
A breach is committed by one party as a result of the execution of a decision
of a competent state management agency which the party cannot know, at the time
the contract is entered into.
2.
The contract-breaching party shall bear the burden of proof of cases of
liability exemption.
Article 295. Notification and certification of cases of liability
exemption
1.
The party must promptly notify in writing the other party of cases of liability
exemption and possible consequences thereof.
2.
When a case of liability exemption no longer exists, the contract-breaching
party must promptly notify such to the other party. The breaching party must
pay damages if it fails to notify or notifies the other party not in a prompt
manner.
3.
Breaching parties are obliged to prove their cases of liability exemption to
aggrieved parties.
Article 296. Extension of time limit for performance of contracts, or
refusal to perform contracts in force majeure circumstances
1.
In a force majeure circumstance, the parties may agree
to extend the time limit for performing their respective contractual
obligations. If the parties do not agree or cannot agree upon such extension,
the time limit for performing contractual obligations shall be extended for a
period of time equal to the time length of such force
majeure circumstance plus a reasonable period of time for
remedying consequences, but not exceeding:
a/
Five months for goods or services for which the agreed time limit for their
delivery or provision does not exceed twelve months from the date the contract
is entered into;
b/
Eight months for goods or services for which the agreed time limit for their
delivery or provision exceeds twelve months from the date the contract is
entered into.
2.
Beyond the time limits specified in Clause 1 of this Article, the parties may
refuse to perform the contract and neither party is entitled to request the
other party to pay damages.
3.
Where a party refuses to perform a contract, it must, within ten days from the
expiry date of the time limit specified in Clause 1 of this Article, notify the
other party thereof before the latter begins to perform its contractual
obligations.
4.
The extension of the time limit for performing contractual obligations
mentioned in Clause 1 of this Article does not apply to contracts for purchase
and sale of goods or contracts for provision of services with fixed time limit
for goods delivery or service completion.
Article 297. Specific performance of contracts
1.
Specific performance of a contract means a remedy whereby the aggrieved party
requests the breaching party to properly perform the contract or apply other
measures to cause the contract to be performed and the breaching party shall
have to bear any costs incurred.
2.
Where the breaching party fails to deliver goods in full or provide services in
accordance with the contract, it shall have to deliver goods in full or provide
services in accordance with the contract. Where the breaching party delivers
goods or provides services of inferior quality, it shall have to rectify
defects of the goods or shortcomings of the services or to deliver other goods
as substitutes or provide services in accordance with the contract. The
breaching party must not use money or goods or services of other types as
substitutes unless so consented by the aggrieved party.
3.
Where the breaching party fails to comply with Clause 2 of this Article, the
aggrieved party may purchase goods or receive services of correct type as
stated in the contract from another seller or provider for substitution and the
breaching party must bear the price difference and relevant expenses, if any;
or may rectify defects of the goods or shortcomings of the services by itself,
and the breaching party must pay actual and reasonable expenses for the
rectification.
4.
The aggrieved party shall have to receive goods or services and make payments
therefor if the breaching party has fulfilled all obligations according to Clause
2 of this Article.
5.
Where the breaching party is the purchaser, the seller may request the
purchaser to pay for and receive goods or fulfill other obligations stipulated
in the contract and provided for in this Law.
Article 298. Extension of time limit for performance of obligations
In
case of specific performance of a contract, the aggrieved party may extend the
time limit for a reasonable period for the breaching party to perform its
contractual obligations.
Article 299. Relationship between the remedy of specific performance of
contracts and other remedies
1.
Unless otherwise agreed, during the period of application of specific
performance of a contract, the aggrieved party may claim for damages and fines
to be paid but must not apply other remedies.
2.
If the breaching party fails to carry out the remedy of specific performance of
a contract within the time limit set by the aggrieved party, the aggrieved
party may apply other remedies in order to protect its legitimate rights.
Article 300. Fine for breach
Fine
for breach means a remedy whereby the aggrieved party requests the breaching
party to pay an amount of fine for its breach of a contract, if so agreed in
the contract, except for cases of liability exemption specified in Article 294
of this Law.
Article 301. Fine level
The
fine level for a breach of a contractual obligation or the aggregate fine level
for more than one breach shall be agreed upon in the contract by the parties
but must not exceed 8% of the value of the breached contractual obligation
portion, except for cases specified in Article 266 of this Law.
Article 302. Damages
1.
Damages means a remedy whereby the breaching party pays compensation for the
loss caused by a contract-breaching act to the aggrieved party.
2.
The value of damages covers the value of the material and direct loss suffered
by the aggrieved party due to the breach of the breaching party and the direct
profit which the aggrieved party would have earned if such breach had not been
committed.
Article 303. Grounds for liability to pay damages
Except
for cases of liability exemption specified in Article 294 of this Law,
liability to pay damages shall arise upon existence of all of the following
elements:
1.
Breach of the contract;
2.
Material loss;
3.
Act of breaching the contract is the direct cause of the loss.
Article 304. Burden of proof of loss
The
party claiming damages shall bear the burden of proof of the loss, the extent
of the loss caused by the act of breach, and direct profit amount which the
aggrieved party would have earned if the breach had not been committed.
Article 305. Obligations to mitigate loss
The
party claiming damages must apply appropriate measures to mitigate the loss
caused by a contract breach, including the loss of direct profit which it would
have earned. If the party claiming damages fails to do so, the breaching party
may request a rebate of the value of damages to the extent of the loss that
would have been mitigated.
Article 306. Right to claim interest on delayed payment
Where
a contract-breaching party delays making payment for goods or payment of
service charges and other reasonable fees, the aggrieved party may claim an
interest on such delayed payment at the average interest rate applicable to
overdue debts in the market at the time of payment for the delayed period,
unless otherwise agreed or provided for by law.
Article 307. Relationship between remedy of fines and remedy of damages
1.
Where the parties do not agree upon fines for breaches, the aggrieved party shall only be entitled to claim damages,
unless otherwise provided for by this Law.
2.
Where the parties agree upon fines for breaches, the aggrieved party shall be entitled to apply both remedies of fines
and damages, unless otherwise provided for by this Law.
Article 308. Suspension of performance of contracts
Except
for cases of liability exemption specified in Article 294 of this Law,
suspension of performance of a contract means a remedy whereby a party
temporarily ceases the performance of its contractual obligations in one of the
following cases:
1.
Upon commission of a breaching act which serves as a condition for the
suspension of performance of the contract as agreed upon by the parties;
2.
Upon a substantial breach of contractual obligations by a party.
Article 309. Legal consequences of suspension of performance of contracts
1.
Contracts which are suspended from performance are still in full force and
effective.
2.
Aggrieved parties are entitled to claim damages according to the provisions of
this Law.
Article 310. Stoppage of performance of contracts
Except
for cases of liability exemption specified in Article 294 of this Law, stoppage
of performance of a contract means a remedy whereby a party terminates the
performance of its contractual obligations in one of the following cases:
1.
Upon commission of a breaching act which serves as a condition for stoppage of
the performance of the contract as agreed upon by the parties;
2.
Upon a substantial breach of contractual obligations by a party.
Article 311. Legal consequences of stoppage of performance of contracts
1.
Where a contract is stopped from performance, it shall be terminated from the
date when one party receives the notice on stoppage. The parties shall not have
to further perform their contractual obligations. A party that has performed
its contractual obligations may request the other party to pay or perform its
reciprocal obligations.
2.
The aggrieved party may claim damages according to the provisions of this Law.
Article 312. Cancellation of contracts
1.
Cancellation of a contract includes cancellation of part of a contract or
cancellation of the entire contract.
2.
Cancellation of the entire contract means the complete annulment of the
performance of all contractual obligations for the entire contract.
3.
Cancellation of part of a contract means the annulment of the performance of
some contractual obligations while other parts of the contract are still valid.
4.
Except for cases of liability exemption specified in Article 294 of this Law,
the remedy of cancellation of contracts shall be applied in the following
cases:
a/
Upon commission of a breaching act which serves as a condition for the
cancellation of the contract as agreed upon by the parties;
b/
Upon a substantial breach of contractual obligations by a party.
Article 313. Cancellation of contracts in case of delivery of goods or
provision of services in installments
1.
Where there is an agreement on delivery of goods or provision of services in
installments, if one party fails to perform its obligation for the delivery of
goods or provision of services and such failure constitutes a substantial
breach in that time of delivery of goods or provision of services, the other
party shall have the right to declare the cancellation of the contract for such
delivery of goods or provision of services.
2.
Where the failure of a party to perform its obligation for a delivery of goods
or a provision of services serves as the basis for the other party to conclude
that a substantial breach of the contract shall happen in subsequent deliveries
of goods or provisions of services, the aggrieved party shall have the right to
declare the cancellation of the contract for subsequent deliveries of goods or
provisions of services, provided that such party must exercise that right
within a reasonable period of time.
3.
Where a party has declared the cancellation of a contract for a single delivery
of goods or provision of services, such party shall still have the right to
declare the cancellation of the contract for a delivery of goods or provision
of services that has been conducted or will be conducted subsequently if the
interrelation between the deliveries of goods makes the delivered goods or
provided services unable to be used for the purposes intended by the parties at
the time they enter into the contract.
Article 314. Legal consequences of cancellation of contracts
1.
Except for cases specified in Article 313 of this Law, following the
cancellation of a contract, such contract shall be invalid from the time it is
entered into, and the parties shall not have to continue performing their
contractual obligations, except for their agreements on their post-cancellation
rights and obligations and resolution of disputes.
2.
The parties shall have the right to claim benefits brought about by their
performance of their contractual obligations. Where both parties have indemnity
obligations, their obligations must be performed concurrently. Where it is
impossible to make the indemnity with benefits which one party has enjoyed, the
obliged party must make the indemnity in cash.
3.
Aggrieved parties are entitled to claim damages according to the provisions of
this Law.
Article 315. Notification of suspension of performance of contracts,
stoppage of performance of contracts or cancellation of contracts
A
party that suspends the performance of a contract, stops the performance of a
contract or cancels a contract must immediately notify the other party of such
suspension, stoppage or cancellation. Where a failure to do so causes a loss to
the other party, the party that suspends the performance of the contract, stops
the performance of the contract or cancels the contract must pay damages.
Article 316. Right to claim damages when other remedies have been applied
A
party shall not lose its right to claim damages for the loss caused by a
contract breach by the other party when other remedies have been applied.
Section 2.
RESOLUTION OF COMMERCIAL DISPUTES
Article 317. Forms of resolution of disputes
1.
Negotiations between the parties.
2.
Conciliation between the parties by a body, organization or individual selected
by the parties to act as the conciliation mediator.
3.
Resolution by the Arbitration or the Court.
Procedures
for resolution of commercial disputes by arbitration or a court shall comply
with procedures applicable to arbitrations or courts provided for by law.
Article 318. Time limit for lodging complaints
Except
for cases specified at Point e, Clause 1, Article 237 of this Law, the time
limit for lodging complaints shall be agreed upon by the parties, where there
is no such agreement, the time limit for lodging complaints shall be provided
for as follows:
a/
Three months from the date of delivery of goods for complaints about quantity
of goods;
b/
Six months from the date of delivery of goods for complaints about quality of
goods. Where goods are under warranty, the time limit for lodging complaints
shall be three months from the expiry of the warranty period;
c/
Nine months from the date on which the breaching party shall have to fulfil its
contractual obligations; or in the case of a warranty, from the expiry of the
warranty period, for complaints about other violations.
Article
319.- Statute
of limitations for initiating lawsuits
The
statute of limitations for lawsuits applicable to commercial disputes shall be
two years from the moment when the legitimate rights and interests are
infringed upon, except for cases specified at Point f, Clause 1, Article 237 of
this Law.
Chapter VIII. HANDLING OF VIOLATIONS OF COMMERCIAL LAW
Article 320. Acts of violation of commercial law
1.
Acts of violation of commercial law include:
a/
Violating provisions on business registration; business licenses of traders;
establishment and operation of representative offices and branches of Vietnamese
traders and foreign traders;
b/
Violating provisions on domestically traded goods and services, and exported or
imported goods and services; temporary import for re-export, temporary export
for re-import; transfer through border-gates; transit;
c/
Violating provisions on taxes, invoices, documents, accounting books and
reports;
d/
Violating provisions on prices of goods and services;
e/
Violating provisions on labeling of domestically circulated goods and exports
and imports;
f/
Smuggling, trading in goods illegally imported, counterfeit goods or raw
materials and materials for production of counterfeit goods, or conducting
illegal business;
g/
Violating provisions on quality of domestically traded goods and services, and
exported or imported goods and services;
h/
Defrauding and deceiving customers in the purchase and sale of goods or the
provision of services;
i/
Violating provisions on protection of interests of customers;
j/
Violating provisions on intellectual property rights to domestically traded goods
and services; and exported or imported goods and services;
k/
Violating provisions on origin of goods;
l/
Other violations in commercial activities according to the provisions of law.
2.
The Government shall specify acts of violation of commercial law provided for
in Clause 1 of this Article.
Article 321. Forms of handling of violations of commercial law
1.
Depending on the nature, seriousness and consequences of violations, violating
organizations and individuals shall be handled in one of the following forms:
a/
Sanctions according to the provisions of law on handling of administrative
violations;
b/
Where an act of violation involves all elements constituting a crime, the
violator shall be examined for penal liability according to the provisions of law.
2.
Where an act of violation causes harm to the interests of the State or
legitimate rights and interests of organizations and/or individuals,
compensation must be paid according to the provisions of law.
Article
322. Sanctioning
of administrative violations in commercial activities
The
Government shall specify the sanctioning of administrative violations in
commercial activities.
Chapter IX. IMPLEMENTATION PROVISIONS
Article
323. Implementation
effect
This
Law takes effect on January 1, 2006.
This
Law replaces the Commercial Law of May 10, 1997.
Article 324. Detailed provisions and implementation guidance
The
Government shall detail and guide the implementation of this Law.
This Law was passed on June 14,
2005, by the XIth National Assembly of the Socialist Republic of Vietnam at its
7th session.