Abtract of doctoral dissertation of jurisprudence: The law on the enterprises' righr to equal treatment in Vietnam

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Abtract of doctoral dissertation of jurisprudence: "The law on the enterprises' righr to equal treatment in Vietnam" aimed to form scientific foundation for the improvement of the legal framework to promote enterprises’ right to equal treatment in Vietnam.

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1 2 ministry of education &training ministry of justice ha noi university ®o thi kim tien the law on the enterprises' righr to equal treatment in vietnam Speciality : Economic Law Code : 62 38 01 07 ABTRACT OF DOCTORAL DISSERTATION OF JURISPRUDENCE Ha noi - 2014
3 4 The dissertation is completed at Hanoi Law University Supervisor: Assoc. Prof. Dr. Duong Dang Hue THE AUTHOR'S PUBLISHED WORKS RELEVANT TO THE DISSERTATION Reviewer 1: Prof. Dr. Nguyen Thi Mo 1. Do Thi Kim Tien (2011), "To make to leading role of the state sector more transparent to promote economic growth", State Management,, (184), Pp. 42-46. Reviewer 2: Assoc. Prof. Dr. Nguyen Minh Man 2. Do Thi Kim Tien (2013), " Major issues of equality among enterprises", Inspectorate, (9), Pp. 17-19. 3. Do Thi Kim Tien (2013), "Building equal market economic Reviewer3: Dr. Dong Ngoc Ba institution in consistence with the leading role of the state sector", Legislative Research, 12(244), Pp. 7-12, 29. 4. Do Thi Kim Tien (2013), " Reality and causes of inequality among Viettnamese businesses", People's Court, (18),Pp. 10-14. The thesis is protected at the Council level thesis dot 5. Do Thi Kim Tien (2013), "Improving the legislation to ensure School, meeting at Hanoi Law University. equality among Vietnamese enterprises, ", Magazine of The last hours, days, months, 2014. Democracy & Law, (258), Pp. 39-43. Thesis can be found at the National Library and the Library of Hanoi Law University
5 6 INTRODUCTION 2. Research object and scope - Research object: The system of legislations and enforcement of laws 1. Research rationale on enterprises’ right to equal treatment in Vietnam. Most countries opt for the model of market economy to take advantage - Research scope: of the law of competition as an engine for economic development. The + Thorough research into the legal framework of Vietnam, and full and precondition for smooth operation of the law of competition is to ensure objective assessment of applicable legislations on enterprises’ right to equal free and equal competition among business entities, including enterprises, treatment in Vietnam. to facilitate business operation on their own capacity and remove ailing + Research into enterprises covered by the Law on Enterprises 2005, enterprises as a way to make the economy healthier for better exclusive of other types of businesses (cooperatives or individual businesses...) development. Therefore, an environment for equal competition is both a + Research into enterprises’ right to equal treatment from stages of principle and a universal value in a market economy. An unresolved business establishment and operation to dissolution, including: (i) equality in problem in the development of socialist - oriented market economy in both terms of business registration; (ii) equality in business operation; (iii) theoretical and practical terms is how to promote the leading role the state equality in business dissolution and bankruptcy. sector while ensuring equal competition among state-owned enterprises 3. Research objectives and missions (SOEs) and non – state businesses ad how to address the ailing operation of The dissertation is aimed to form scientific foundation for the SOEs. In addition, thorough integration into the international market by improvement of the legal framework to promote enterprises’ right to equal Vietnam requires it to comply with the inherent market laws as well as treatment in Vietnam. The dissertation assumes the following tasks: treaties to which it has subscribed. - Analyzing and clarifying theoretical issues on enterprises’ right to Since the VI Party Congress, the Party has paid adequate attention to equal treatment, the significance for ensuring enterprises’ right to equal treatment. Assessing the extent to which the law has effects on ensuring enterprises’ right to equal treatment in different sectors. This guideline has enterprises’ right to equal treatment and elements that govern enterprises’ been institutionalized by the 1992 Constitution and laws. Contrary to the right to equal treatment. State goals, however, far from being relieved, inequality among enterprises - Reviewing the entire legal system of Vietnam and conducting tends to worsen. This problem becomes widespread and occurs in a variety objective assessment of the strengths and weaknesses of legislations relevant of complicated forms and in all a stages: market entry, business operation, to enterprises’ right to equal treatment. and dissolution, which has blocked investment and reduced economic growth. - Collecting data and information on the enforcement of laws relevant to In response to economic requirements and international commitments, enterprises’ right to equal treatment in Vietnam to form a basis to assess the research into the legal framework and assessment of law enforcement are strengths and weaknesses and finding out the underlying causes and effects required to find out the causes and recommend solutions to enterprises’ right of inequality among enterprises. to equal treatment. This research assumes both theoretical and practical - Raising comprehensive solutions to the improvement of legislations significance. Therefore, the topic “Improving legislations to promote on enterprises’ right to equal treatment and institutional improvement to enterprises’ right to equal treatment in Vietnam” is selected for the dissertation. ensure enterprises’ right to equal treatment in Vietnam.
7 8 4. Theoretical basis and scientific hypothesis - Intended research findings: The dissertation clarifies and distinguishes 4.1. Theoretical basis enterprises’ right to equal treatment in legal terms from that in practical terms. The research is conducted into improving legislations to promote Research questions 3 enterprises’ right to equal treatment in Vietnam by referring to Marxist – - Why does equality among enterprises signify? Why should enterprises’ Leninist dialectical materialism and Ho Chi Minh’s ideology as well as the right to equal treatment be ensured? Party’s guidelines and State laws on justice, equality, rule - of - law, market - Research hypothesis: Freedom in business operation, competition and economy, Government to Business relation, ownership and sectors. In addition, equality among enterprises are market principles, enabling the full operation the dissertation also refers to theories and views held by foreign and domestic of the law of competition to generate an engine for economic development. economists, politicians and legalists as well as other countries’ laws on economic - Intended research findings: Demonstrating the relation between regime, market economy system, and Government to Business relation. ensuring enterprises’ right to equal treatment and the improvement of market 4.2. Research questions, scientific hypothesis and intended research institution, fair competition. Assessing the significance for ensuring findings enterprises’ right to equal treatment. Research questions 1 Research questions 4 - What is equality and equality among enterprises? - Does inequality exist among different enterprises in Vietnam? - Research hypothesis: Is equality among enterprises confused with - Research hypothesis: Inequality exists among different enterprises in equality among economic sectors. Vietnam. It generates negative socio - economic consequences. - Intended research findings: The dissertation will clarify the nature of - Intended research findings: In the dissertation, review and assessment equality among enterprises. Accordingly, equality among enterprises must of the legal system and law enforcement will be conducted with aims to satisfy two conditions concurrently: (i) to ensure the proportionate demonstrate the existence of inequality among enterprises in Vietnam. contribution and remuneration by businesses, violation and liability; and (ii) Research questions 5 equal legal treatment without exception to all enterprises operating in the - What cause inequality among enterprises in Vietnam? same conditions. - Research hypothesis: There exists discriminatory treatment to Research questions 2 enterprises by legislations as well as violation of laws relevant to enterprises’ - What is enterprises’ right to equal treatment? right to equal treatment. - Research hypothesis: In the market economy, there exist a multitude - Intended research findings: Identifying regulations that induce of business entities, including enterprises. For viable operation, market inequality among enterprises and the causes of inequality among enterprises. players, including enterprises, should be treated equally by the law in the Research questions 6 transaction with partners and the State (i.e. enjoying equal terms and equal - What solutions can help ensure enterprises’ right to equal treatment in Vietnam? standards in borrowing loans, treatment, tax liabilities…) Therefore, equality - Research hypothesis: Improving the legal framework providing for among enterprises is an inherent characteristics and requirement by the enterprises’ right to equal treatment and ensuring law enforcement on that market economy. matter to enable enterprises to operate in an equal environment.
9 10 - Intended research findings: (i) Proposal for elimination of legislations accommodate to the context of Vietnam in the course of integration and of discriminatory nature; revising ambiguous or poorly articulated development. regulations; enabling transparency of policies that offer preferential 7. Theoretical and practical significance treatment, exemption or investment restraints; improving regulations as Researching findings has helped clarify the theoretical aspect of applied to SOEs; and (ii) improving institutions on the agency in charge; jurisprudence on enterprises’ right to equal treatment. enhancing the capacity, service ethics, and corporate culture; transforming Facts and scientific reasoning will demonstrate arguments which are the attitude towards law observance and enforcement of laws relevant to raised in the research. In addition, the dissertation will serve as a helpful enterprises’ right to equal treatment in Vietnam. reference document for researchers, trainers and policy makers to help 5. Methodology and research method respond to requirements by the economy and international integration. On the basis of dialectical materialism and historical materialism and 8. Research structure employing the approach to motion and development of the market economy The dissertation is structured into 4 chapters made up of 15 sections in in the new context, the dissertation has adopted methods of synthesis and analysis, comparative method, statistical method with focus on system addition to the introduction, conclusion and references. method in order to learn and combine publicized research findings by organizations and researchers. The dissertation also conducts in – depth RESEARCH CONTENTS interview made available through face – to – face meetings with researchers for consultation for new ideas and facts. Chapter 1 6. Contributions and scientific significance LITERATURE REVIEW The dissertation contributes following findings: Chapter 1 is aimed for review and assessment of relevant international Firstly, the dissertation has clarified the nature of equality among and domestic research works to further find out and resolve remaining enterprises and enterprises’ right to equal treatment. At the same time, it has problems. Towards that end, the dissertation has adopted an approach to clarified how to ensure enterprises’ right to equal treatment in harmony with study issues in groups, sort them into order: theory, reality and solutions to other preferential or discouraging treatment policies on business and investment. the improvement of the legal framework relevant to enterprises’ right to Secondly, the dissertation has come up to a comprehensive outlook by equal treatment. raising the concept and identifying the significance for ensuring enterprises’ 1.1. Theoretical research on enterprises’ right to equal treatment right to equal treatment. It has assessed elements that govern enterprises’ right to equal treatment. In this section, two issues are mentioned: Thirdly, the dissertation has stated the shortcomings of the existing legal First, research in the concept of equality, equality among businesses framework relevant to enterprises’ right to equal treatment and major causes and the right to equality by businesses for inequality among enterprises in Vietnam. Enterprises’ right to equal treatment has not been the direct research Fourthly, the dissertation has raised overall solutions to improve object. However, some research works mentioned the concept of social applicable legislations by learning and domesticating foreign policies to equality which is used for reference in the dissertation. Typical research
11 12 works include: On the Social Contract b J.J. Rousseau published by Research in the inequality among enterprises arising from law enforcement Publishing House of Social – Political Theory in 2004; Capitalist and International and domestic analysis has been made on the inequality Proletarian Conception of Freedom and Equality translated by To Hong among enterprises. Colloquium discussion “Inadequacies and requirements Quan in 1946; Doctoral dissertation by Vu Anh Tuan on the legal effects on for development and state management of enterprises regardless of ensuring social justice, and Textbook on Economic Law (2003) by the Law economic sector” by Dr. Nguyen Minh Phong in the seminar on University of Hanoi. "Renovation of state management over enterprises regardless of ownership” Secondly, research works relevant to the legal effects on ensuring argues that there exists bias in terms of economic sectors and bias against the enterprises’ right to equal treatment private sector. In this seminar, in his speech “Renovation of state No research works have been reported to mention the role of the law on management and enabling an environment for equal competition among ensuring enterprises’ right to equal treatment. However, the role of the law enterprises” Dr. Nguyen Ke Tuan raises comments as follows “In the has been analyzed in theoretical terms in the Textbook of State and Law market economy, enabling an facilitative environment for equal competition (2003) by the Law University. Author Vu Anh Tuan refers to the role of the among businesses of different economic sectors is regarded as one of top law in general to analyze the law on ensuring social equality. priorities of the state in economic management”. However, in reality the 1.2. Research in the reality of existing legislations and law state treats enterprises of different sectors differently. In addition, the enforcement on enterprises’ right to equal treatment research "Renovation of state management over businesses of various types In this section, two issues are mentioned: in Vietnam regardless of economic sector” by Dr. Tran Tien Cuong as well Research in the reality of existing legislations on enterprises’ right to as other international research works have mentioned the inequality among equal treatment enterprises. Such international research works include "The Private Sector in Many research works have been conducted into existing legislations Development "; "From State To Market: A Survey of Empirical Studies on providing for various aspects relevant to enterprises’ right to equal Privatization " by Will L. Meggison and Jeffry M. Netter,… treatment: “Comments on the Law on Enterprises (unified)” by Assoc. Prof. 1.3. Research works that provide solutions to ensuring enterprises’ Dr. Nguyen Nhu Phat; "Investment Law 2005 – Some adequacies” by MA. right to equal treatment Dao Trung Kien; colloquium speech “Assessment of land policies and recommendations on calling for foreign investment in the current time” by To various extents, many research works have assessed the nature, Dr. Pham Tuan Khai; "Improvement of legislations on partnerships in scope and severity of inequality among enterprises and raised solutions to Vietnam” by Dr. Vu Dang Hai Yen,.. All research works share the same idea addressing certain aspects of enterprises’ right to equal treatment. Typical by Dr. Nguyen Chi Thanh raised in the book Business Environment – works include: colloquium discussion by Dr. Nguyen Minh Phong; Thematic Theoretical and practical issues, arguing that “Although the legal topic "Renovation of state management over các enterprises regardless of framework to establish an environment for equal competition has been set economic sector” by Dr. Tran Tien Cuong; “Beyond individual success up, the enforcement in reality still contains unresolved problems. State stories: Promoting entrepreneurship though institutional reform"; monopoly and special privileges afforded to SOEs have all distorted the "Competition, Corporate Governance, and Regulation in Central Asia'' by playing field of enterprises". Harry G. Broadman; "Corporate Governance of Public Enterprises in
13 14 Transitional Economies" by Dominiquer Pannier and other relevant Secondly, relevant research works are limited to mentioning certain documents originated from OECD such as: "OECD Corporate Governance aspects of inequality among enterprises without providing a comprehensive Working Papers, No. 1", on the issue of "Competitive Neutrality and State- view to reflect true nature of inequality among enterprises. Owned Enterprises: Challenges and Policy Options ", by Capobianco, A. Thirdly, relevant research works tend to reflect the reality without and H. Christiansen,… finding out the underlying causes of inequality among enterprises and causes 1.4. General assessment of research works relevant to the for the existence of discriminatory legislations. dissertation issues Fourthly, relevant research works have not mentioned the effects 1.4.1. Resolved issues to be learnt by the author caused by inequality among enterprises on the economy and society as a First, there exist various forms of inequality among enterprises in way to recognize the significance for ensuring enterprises’ right to equal Vietnam and in the world. treatment. Secondly, many factors are blamed for the inequality among enterprises, Fifthly, no research works have clarified the nature, concept, including an underlying cause, i.e. discriminatory legislations on enterprises characteristics and assessment criteria of equality among enterprises and and law enforcement officers not abiding by the law. enterprises’ right to equal treatment. Thirdly, ensuring enterprises’ right to equal treatment is a principle of Sixthly, no research works have raised directions and comprehensive the market economy. solutions to ensuring enterprises’ right to equal treatment. Fourthly, in many cases state intervention into the market with aims to 1.4.3. Issues to be further addressed by the dissertation address market failure may result in inequality among enterprises. - The dissertation will clarify the nature of equality and enterprises’ Fifthly, SOE reform should be promoted to eliminate preferential right to equal treatment to form a basis to assess the significance for ensuring treatment and privileges afforded to SOEs. There should be relevant enterprises’ right to equal treatment; mechanism to control monopoly enterprises. - The dissertation will provide research and assessment of legal effects Sixthly, there exists a relation between corruption and discriminatory treatment on enterprises in many countries, including Vietnam. on ensuring enterprises’ right to equal treatment and elements that govern enterprises’ right to equal treatment; Seventhly, priority and exemption, in certain cases, may be afforded to enterprises entrusted with operation of services of national interests. - The dissertation will provide research and assessment of the reality of 1.4.2. Unresolved issues by relevant research works the existing legal system and law enforcement relevant to enterprises’ right to equal treatment in Vietnam, identify causes and effects of inequality First, most aforesaid research works are limited to addressing the among enterprises in Vietnam; inequality between SOEs and private enterprises, between domestic and FDI enterprises. They fail to address the inequality among various types of - The dissertation will provide research and solutions to the business entities. There exists inequality among enterprises under the same improvement of the legal system relevant to enterprises’ right to equal ownership or between domestic enterprises or FDI enterprises. treatment in Vietnam.
15 16 Chapter 2 Equality: Social entities are treated on equal terms without exception. THEORY ON ENTERPRISES’ RIGHT TO EQUAL TREATMENT That means all entities, in the same condition and context, are subject to the same rights and obligations. By contrast, in different condition and context, Chapter 2 is aimed to address the general theoretical issue of the right to they are treated differently in accordance with the principle of equality by businesses. Towards that end, the chapter is focused on the proportionality between right and obligation, without discrimination. following matters: Given such analysis, equality is a concept that refers to social relations 2.1. Concept of equality among businesses assuming following characteristics: In this section, the dissertation is focused on three issues: First, equality expresses the proportionality between rights and obligations. 2.1.1. Concept of equality Secondly, equality requires equal treatment to all entities that are under There exist different concepts of the emergence and rationale for the the same condition, without exception. existence of equality. The dissertation makes an approach to equality in Thirdly, equality is a concept with relativity nature (it reflects social different perspectives: political, linguistic and sociological, whereby forming conceptions in particular stages, measuring the rights and obligations in general statements. social relations. It is not an absolute concept). Influenced by different socio-economic conditions, researchers have 2.1.2. Concept of equality among enterprises different views on the causes for the emergence and rationale for the The term equality among enterprises is defined to be limited to the existence of social inequality and equality. However, their views are getting business circle, not to include (cover) other social entities. Equality among improved towards further clarification of issue of social equality. enterprises is not exactly the same as equality in certain business operations. Equality and justice are not exactly the same. Equality is a broader Instead, it is the equality throughout the life cycle of an enterprise, i.e. equality in concept and encompasses justice. Social justice is a precondition for social business registration, business operation and dissolution or bankruptcy. equality. In terms of meaning, social justice means corresponding status and In terms of content, equality among enterprises does not mean that all role, not equal positions or proportional correlation between rights and enterprises are subject to the same rights and obligations in any conditions obligations. Meanwhile social equality both ensures the proportionality but that in the same conditions they are treated the same. In the context between rights and obligations and equal treatment among different entities. where different entities contribute at different levels and have different To clarify the nature of equality, it is necessary to subject this concept to effects on the society, equality among enterprises means proportionality systematic analysis. In terms of content, the concept of equality is developed between rights and obligations. Therefore, equality among enterprises is from the concepts of evenness and justice in the following level: interpreted as all businesses, in the same condition, being subject to the Evenness: Social entities are subject to even interests and obligations in same rights and obligations. mathematical terms (absolute evenness). Equality among enterprises is identified with two criteria as follows: Justice: Social entities are treated relevantly. This relevancy means First, proportionality between rights and obligations afforded to enterprises. proportionality between social obligations, i.e contribution to the society, Secondly, non-exemptibility. Any businesses enjoying the same and interests, i.e. benefit from the society. condition are subject to the same rights and obligations.
17 18 2.1.3. Characteristics of equality among enterprises social and economic terms, enabling enterprises’ right to equal treatment Like social equality, equality among enterprises denotes a social will: (i) help form a healthy competition environment; (ii) facilitate conception and governed by certain socio-economic conditions. Therefore, enterprises autonomy; (iii) promote economic development and (iv) help equality among enterprises is characterized as: (i) not being the same as enterprises’ capacity be truly assessed by the society. equality in business, (ii) universality (equality at any time, anywhere, and in 2.4. The role of the law on equality among enterprises any relation); and (iii) relativity nature. 2.4.1. Concept of the law on equality among enterprises 2.2. Concept of enterprises’ right to equal treatment The law on equality among enterprises in Vietnam does not exist as an Characterized by the operation for profit, enterprises should be independent institution but is present in many legislations. subjected to healthy competition in accordance with the market law. Fair The law on equality among enterprises is the combination of competition induces enterprises to rely on their own capacity to run business. legislations that regulate enterprises’ operation in accordance with the Business operation has multiplying effects: not only on the enterprise itself principle of equal right and obligation among all enterprises. Contribution but also on other entities. The state benefits from profitable business is proportional to benefit and violation is proportional to liability. operation by taxes. Laborers benefit by being employed. Consumers benefit in that their demands are met with high quality and cheap commodities and Contents of the law on equality among enterprises include: services. Therefore, in a society where enterprises are operating, other social - Regulations on the principle for ensuring the right to equal treatment entities advocate enterprises’ right to equal treatment to serve their own among enterprises; interests. However, public opinions only can not bring about equality for - Regulations on the scope in which the right to equal treatment among enterprises at anytime, anywhere. Therefore, enterprises’ right to equal enterprises is ensured: equality is ensure throughout the process of treatment should be recognized and protected by the state and laws. Once establishment, operation (after establishment) and dissolution, bankruptcy recognized, enterprises have the right to operate in accordance with the law and withdrawal from the market; and request their rights to be respected by other social entities. - Regulations on equal sanctions on violating enterprises (the same Components of enterprises’ right to equal treatment: Enterprises’ right sanction is imposed on the same violation without prejudice against private to equal treatment is judged and recognized by the society and the State by enterprises or in favor of SOEs); means of law. Enterprises’ right to equal treatment includes following components: (i) Equality in business registration (in terms of procedure, - Regulations on equal measures that can be used by enterprises to condition, time…); (ii) Equality in business operation: access to capital, protect their own legitimate right and interest (court, arbitration, solicitor or land, natural resources, labor, contract settlement, and dispute settlement; self defense); (iii) Equality in the dissolution and bankruptcy: procedure, condition, time… In addition, the law on equality among enterprises includes regulations 2.3. Significance of enterprises’ right to equal treatment that settle common requirements for ensuring the right to equal treatment Enabling the right to equal treatment is essential for enterprises to among enterprises as well as justice in economic development and support operate in accordance with the law of free business and fair competition. In to SMEs,…
19 20 2.4.2. Legal effects on ensuring enterprises’ right to equal treatment Chapter 3 The role of the law in ensuring enterprises’ right to equal treatment is EXISTING LEGAL FRAMEWORK AND LAW ENFORCEMENT seen from two perspectives: Law as a tool to recognize enterprises’ right to RELEVANT TO ENTERPRISES’ RIGHT TO EQUAL TREATMENT equal treatment and as a tool to provide for means to ensure enterprises’ IN VIETNAM right to equal treatment. 2.5. Factors that govern the legal system and law enforcement Chapter 3 is focused on the analysis and assessment of applicable relevant to enterprises’ right to equal treatment legislations and law enforcement relevant to enterprises’ right to equal treatment in Vietnam, whereby detecting problems as well as causes and Whether enterprises’ right to equal treatment is exercisable or not rests effects of inequality among enterprises. with many factors. However, identifying factors that govern the legal system and law enforcement relevant to enterprises’ right to equal treatment will act 3.1. Existing legal framework relevant to enterprises’ right to equal as a basis to analyze the reality and find out causes, whereby realistic treatment in Vietnam solutions can be raised. The dissertation reviews the legal system of Vietnam providing for 2.5.1. Factors that govern the legal system relevant to enterprises’ enterprises’ right to equal treatment from the VI Party Congress. right to equal treatment Legislations governing enterprises’ right to equal treatment in Vietnam include: Constitution (1992) and revised Constitution in 2013, Law on Development of legislations on enterprises’ right to equal treatment is Enterprises (1999), Competition Law (2004), Law on Enterprises (2005), governed by both objective and subjective factors. Major factors that govern Investment Law (2005), Commerce law (2005), Bankruptcy Law (2004), enterprises’ right to equal treatment include: (i) Characteristics of the specialized laws and by-laws. Upon general review of the legal system, the economy; (ii) Economic development level; (iii) The level of international dissertation assesses existing legislations on enterprises’ right to equal integration and (iv) The qualifications of businesspeople. treatment from two perspectives: strengths and weaknesses. 2.5.2. Factors that govern law enforcement relevant to enterprises’ right to equal treatment 3.1.1. Strengths of existing legislations on enterprises’ right to equal treatment Law enforcement is human activity. How legislations on enterprises’ right to equal treatment are enforced rests with factors that can govern the In this section, the dissertation restates the Party’s guidelines on behavior of executive agencies (enterprises, management agencies, developing the market economy and creating an equal competition enterprises association…). Major factors that govern law enforcement environment among business entities. These guidelines have been relevant to enterprises’ right to equal treatment include (i) Capacity of public institutionalized by the State. Noteworthy strengths of the legal system are officials in charge of state management; (ii) Service ethics acquired by expressed in the following terms: public officials in charge of state management; (iii) Sense of responsibility + Existing legislations provide for basic principles of enterprises’ right by enterprises in upholding enterprises’ right to equal treatment and (iv) to equal treatment. Participation by organizations, individuals and the society in safeguarding + Existing legislations provide for basic components of enterprises’ enterprises’ right to equal treatment. right to equal treatment.
21 22 + Existing legislations provide for priorities and exemption in lines with 3.3. Causes for inequality among enterprises in Vietnam principles of equality among enterprises. Analysis of the legal framework and law enforcement relevant to 3.1.2. Weaknesses of existing legislations on enterprises’ right to enterprises’ right to equal treatment has revealed many causes for inequality equal treatment among enterprises. However, underlying causes include: In addition to strengths, the existing legal system still contains some weaknesses: + Existing legislations have not fully reflected enterprises’ right to equal + Legislations give inconsistent provisions for enterprises’ right to treatment equal treatment. + Public officials have not acquired proper capacity and service ethics + Legislations on enterprises’ right to equal treatment have not been to be able to ensure enterprises’ right to equal treatment. compatible with the reality of economic development. + Corporate culture has not been formed. + Legislations on enterprises’ right to equal treatment have not been + Poor coordination among management agencies and between transparent. individuals, mass organizations and management agencies to ensure + Legislations on enterprises’ right to equal treatment have not been enterprises’ right to equal treatment. aligned with international commitment. 3.4. Effects of inequality among enterprises 3.2. Law enforcement relevant to enterprises’ right to equal Inequality among enterprises manifests a negative phenomenon of the treatment economy and has socio-economic effects to different extents. Assessment of To ensure impartial assessment of law enforcement relevant to the effects of inequality among enterprises may vary according to different research objectives. The dissertation will assess the effects of inequality enterprises’ right to equal treatment, the dissertation has raised both among enterprises on the enterprises and economy as well as external strengths and weaknesses in this respect. relations of Vietnam. 3.2.1. Strengths in law enforcement relevant to enterprises’ right to 3.4.1. Effects on the enterprises equal treatment In an unequal competition environment, some enterprises win while Research findings show that all types of enterprise have benefited from others lose. In the long run, however, they will all be faced with business registration, market surveillance, competition management, and disadvantages. For prioritized or subsidized enterprises (mainly SOEs), they investigation, prosecution and trial by judicial organs. will become more reliant on the state and less self-autonomous, less 3.2.2. Weaknesses in law enforcement relevant to enterprises’ right to innovative and less competitive. When a legally operating enterprise is not equal treatment enabled to compete in a healthy way, it will become corruptible, ready to In addition to strengths, law enforcement relevant to enterprises’ right to give bribe to lobby for policies conducive for it. equal treatment still contains many weaknesses in many aspects: 3.4.2. Effects on the economy + Violation of enterprises’ right to equal treatment tends to worsen. In an unequal competition environment, the economy is distorted, + Violation of enterprises’ right to equal treatment tends to become exposing itself to high risk. Unequal competition environment may hinder more diverse in form. capital attraction and retard economic development.
23 24 3.4.3. Effects on external relations To make this right a universal principle, the dissertation recommends With respect to external relations, countries that nurture an unequal amendment to Article 8 of the Law on Enterprises to include following competition environment and discriminatory policies will be called to account provision: Enterprises are equal before the law. once they are subject to anti-dumping examination. At the same time, + Make priority policies as applied to enterprises more transparent. business inequality may stain the country’s image in foreign investors’ eyes. Priority or restraint policies adopted by a state may vary according to their strategies and targets of socio-economic development. These policies Chapter 4 may be developed to respond to the need for economic stimulus or economic SOLUTIONS TO IMPROVING ENTERPRISES’ RIGHT TO EQUAL restructuring. However, priority and restraint measures must be closely TREATMENT IN VIETNAM associated with certain fields or areas, and aimed to address pressing demand of the economy (economic stimulus). In other words, priorities or restraints Together with business freedom, ensured equality among enterprises is should not be imposed on particular enterprises to conflict with enterprises’ a precondition for a healthy competition environment. Therefore, it is right to equal treatment and the law of competition. necessary to develop and improve the legal framework relevant to 4.1.2. Improving legislations on SOEs to ensure enterprises’ right to enterprises’ right to equal treatment to respond to economic requirements equal treatment and international integration. Chapter 4 is aimed to address two basic issues: SOE is a profit-making entity set up by and working for the state, First, to further clarify the contents of enterprises’ right to equal treatment; subject to state management. Inequality between SOEs and other types of Secondly, to improve the institutions to ensure enterprises’ right to enterprise is caused by privileges afforded by the state to SOEs. Therefore, equal treatment; the role of macro state regulation should be distinguished from ownership. In 4.1. To further clarify the contents of enterprises’ right to equal addition, ownership of SOEs should be restructured by means of corporatization. treatment Some monopolistic SOEs should be subjected to strict price control. To further improve the legal framework relevant to enterprises’ right to 4.1.3. Eliminating legislations of discriminatory nature to enterprises equal treatment in Vietnam towards: revising incomplete legislations and Given the existing weakness in applicable legislations, the improvement restraints on enterprises’ right to equal treatment, eliminating legislation of of the legal framework relevant to enterprises’ right to equal treatment discriminatory nature to enterprises. To do this, the law must be developed: should: (i) eliminate registration procedures of discriminatory nature; (ii) (i) to reflect the nature of equality among enterprises and enterprises’ right to revise some regulations on access to resources (land, capital…), contract equal treatment ; (ii) set clear limit to priorities and exemptions; (iii) clearly signature, dispute settlement, tax policies and (iii) revise regulations on define monopoly and renovate SOE management mechanisms in lines with dissolution and bankruptcy. the principles of equal competition. 4.2. Improving the institutions to ensure enterprises’ right to equal 4.1.1. The law must reflect the nature of enterprises’ right to equal treatment treatment + Revising legislations to define the nature and concept of enterprises’ Weaknesses of the management apparatus and managers, poor right to equal treatment in a clearer manner. coordination and distribution in management, and lenient sanctions can
25 26 render the enforcement of relevant laws ineffective. Therefore, in addition to 4.2.4. Promoting the combat against corruption law improvement, complete solutions are needed to improve managerial Corruption that causes investment distortion in enterprises can result agencies and strengthen managers’ capacity and service ethics. These actions from various sources. Public officials commit corrupt acts by taking bribe or should be carried out in combination with strict sanctions against violation soliciting for money while enterprises induce corruption by giving bribe. of enterprises’ right to equal treatment. Enterprises give bribe for various reasons: to avoid harassment, to settle 4.2.1. Improving the apparatus in charge of management and problems, to lobby for policies conducive to them, or to evade the liability. protection of enterprises’ right to equal treatment In both cases, the enterprise is blamed for corrupting public officials by There exist many agencies to govern enterprises’ right to equal giving them incentives to become corrupt. Therefore, the combat against treatment. However, three of them are faced with weaknesses and need corruption should start with having enterprises’ behavior changed. First of improving to be able to undertake the mission of management and control all, such corporate culture should be built so that enterprises say no to over enterprises: (i) Business registration agency; (ii) Competition corruption. At the same time, actions should be taken to influence the management agency and (iii) Market surveillance agency. audience prone to corruption by means of education and communication about service ethics. Moreover, public officials should be held accountable. 4.2.2. Strengthening the capacity and service ethics for public officials Indirect measures such as involving the entire society in the combat against in charge of enterprise management and market surveillance corruption are needed. Strengthening the capacity and service ethics is necessary for all activities of state management. However, to deal with sentimental decision CONCLUSION making that prioritizes SOEs and discriminates against private enterprises, it is necessary to further clarify the nature and significance of enterprises’ right Competition is essence of the market economy, acting to boost the to equal treatment so that managers will take into account enterprises’ right productivity of enterprises and the economy. The rationale for competition is to equal treatment when making decision. that all business entities are entitled to free operation and equality. However, 4.2.3. Providing for strict sanctions against violation of enterprises’ the state neither always acquires full awareness of the significance for equal right to equal treatment competition nor is always capable of formulating a legal framework to Lenient sanctions and lax laws will give rise to illegal acts such as protect enterprises’ right to equal treatment. During the course of developing smuggling, corruption, bribery, counterfeit production, limited competition… In a socialist - oriented market economy in Vietnam, the state has afforded that context, strict sanctions are needed to exert the full deterrent effects on SOEs too many priorities and subsidies in form of access to capital, land and enterprises, associations and state management agencies. These sanctions natural resources and used them as a tool for macro economic regulation. should be specified against particular acts such as illegal trading, bribery, Other problems such as discrimination in favor of domestic businesses and corruption… The enforceability and effectiveness of laws should be taken against FDI enterprises, counterfeit trading, smuggling, bribery and into account in the formulation of legislations. Provisions that have corruption to lobby, have given rise to severe inequality among enterprises. discouraging effects on complaining and denunciation should be avoided and This is in contravention of the law of competition and results in both replaced by the encouraging ones. theoretical and practical problems in the formulation and improvement of the
27 28 socialist - oriented market economy in Vietnam. In addition, inequality among complicated form. Having analyzed the realities and stated causes for enterprises in Vietnam has given rise to WTO and TPP members’ concern. inequality among enterprises, the dissertation comes up to effects of Therefore, the dissertation improving legislations to promote enterprises’ right inequality on enterprises, the economy and external relations, whereby to equal treatment in Vietnam is focused on addressing theoretical issues and proposing recommendations. assessing the existing legal framework and the enforcement of laws relevant Recommendations for the improvement of the legal framework relevant to enterprises’ right to equal treatment. It is aimed to raise solutions as a to enterprises’ right to equal treatment are categorized into two sets: response to demands by the market and economy. First, improving the legislations relevant to enterprises’ right to equal treatment; The dissertation has raised basic theoretical issues on equality, equality Secondly, improving the institutions to ensure enterprises’ right to equal among enterprises and enterprises’ right to equal treatment. On that basis, treatment. the dissertation has clarified the nature and significance for ensuring Accordingly, the first set of solutions (improving the legislations enterprises’ right to equal treatment as well as the role of the law and other relevant to enterprises’ right to equal treatment) requires resolution of three factors that govern enterprises’ right to equal treatment. issues: (i) to amend regulations to further clarify the nature of enterprises’ By referring to criteria of equality among enterprises and enterprises’ right to equal treatment; (ii) to renew the policies as applied to SOEs and right to equal treatment as developed in chapter 2 and chapter 3, the (iii) to eliminate discriminatory regulations as applied to enterprises. The dissertation has made research into the existing legal system and the second set of solutions (improving the institutions to ensure enterprises’ enforcement of laws relevant to enterprises’ right to equal treatment in right to equal treatment) is focused on the improvement of the management Vietnam. In this chapter, strengths and weaknesses in relevant laws have apparatus, strengthening the capacity and service ethics for public enterprise been found to have effects on enterprises’ right to equal treatment in managers and market surveillance officials, strictly handling acts violating Vietnam. With regard to strengths, the legislations have recognized basic enterprises’ right to equal treatment, and promoting the combat against principles and contents of enterprises’ right to equal treatment and provided corruption to ensure enterprises’ right to equal treatment. for priorities and exemptions in lines with the principle of equality among enterprises. With regard to weaknesses, the legislations have been rendered Ensuring enterprises’ right to equal treatment assumes significance over the inconsistent, conflicting, less transparent and outdated by the reality and improvement of the market economy. It is because enterprises are the main requirements for integration and development. With respect to law market players. Improved legislations relevant to enterprises’ right to equal enforcement, management agencies have afforded all types of enterprise treatment will help form an environment for equal competition among most facilitative registration procedures and strictly handled smuggling and market players, including individual businesses and other business entities. counterfeit trading… Particularly, acts violating economic disciplines, However, this issue has not been addressed adequately to ensure the equality mainly illegal trading and bribery, have been punished strictly. However, among business entities in case of bankruptcy. Accordingly, bankrupt there exist some weaknesses in the enforcement of laws relevant to enterprises are regulated by the Bankruptcy Law relevant to debt payment enterprises’ right to equal treatment : rising corruption cases relevant to while individual businesses are not. Is this discrimination justifiable or bribery for privileges, illegal trading, copyright violation… On the other whether not equality among business entities should be subjected to further hand, violation of enterprises’ right to equal treatment exists in diverse and research are the questions to be answered in future study.