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Tìm hiểu về Bộ Luật dân sự năm 2005: Phần 2

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Mời các bạn cùng tham khảo tiếp nội dung Tài liệu Những nội dung cơ bản của Bộ Luật dân sự năm 2005 qua phần 2 sau đây. Luật này có nhiệm vụ bảo vệ quyền, lợi ích hợp pháp của cá nhân, tổ chức, lợi ích của Nhà nước, lợi ích công cộng; bảo đảm sự bình đẳng và an toàn pháp lý trong quan hệ dân sự, góp phần tạo điều kiện đáp ứng nhu cầu vật chất và tinh thần của nhân dân, thúc đẩy sự phát triển kinh tế - xã hội.

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Nội dung Text: Tìm hiểu về Bộ Luật dân sự năm 2005: Phần 2

  1. KEY ISSUES IN THE 2005 CIVIL CODE 345
  2. INTRODUCTION To diíĩíỉeminatc the kcy issucs of cnnctcd important codes a n d taivs. such as the Civil C(XỈc, the Invcstnieỉìt Lcau, the Ixnv on IntcỊỊcctuol Propcrty a n d thc Enterprise Law to the husincss community, Victnamcsc a n d [oreigìi rcodcrs, the Jucliciaỉ Pithlishiniĩ Housc, in ựoordiuation ivith the International Latc Department, the Ministrỵ ofJiisticc, piỉbỉishcs sonw books lìì both Victnanìcsc a n d English to iniroduce thc code a n d loivs s a id ahocc. ỉt is our hopc th at íhc pubtications of the ổudicial Publishing ỉỉouíic Lvill bí' usefuỉ for Ihosc domcsỉic an d [ordgn in dividuals and o rg a m z a tio n s Luho are intercstcd in le aniing ahouí the Victnamesc laivs. Wc,' also hope th a t thcse books ivilỉ contribute to ensuring transparency o f the Vietìiamesc ỉegal system - one o f the rcquirc- ments for this country to hecome a mcmher o f the Worỉd Trade Orga n iza t ion (WTO). We, therefore, have the honor to introduce this book to readcrs! Janiiaiy 2007 TH E JU D IC IA L PƯ BLISHING HOƯSE 317
  3. Partl INTRODUCTION TO THE 2005 CIVIL CODE 349
  4. Part I. Introduction to the 2005 Civìl Code I. sTRllC I URK ()F THK 2005 C I\ IL CODK The 2 0 0 5 Civil Codc comprises o f 36 Chapters, 777 Artỉcỉes ivhivh a re d i v i d c d in to th e fo l l o w i n g 7 Parts: P a r t One: G en eral p ro v ỉsio n s coniprises of 9 C h ap ters Chaptcr /: Tasks and effect of the Civil Code (Articles 1-3) Chapter II: Basic principles (Articles 4-13) Chapter ///: Indivicluaỉs (Articles 14-83) comprises of 5 Sections: Scction 1: Civil law capacity and civil actcapacitv of individu- als (Articles 14-23) Section 2: Personal rights (Articlcs 24-51) Section 3: Place of residence (Articles 52-57) Section 4: G uardianship (Articlcs 58-73) Section 5: Notice of search for persons who are absent from their places of residence, declaration of missing persons and decla- ration of death (Articles 74-83) Chapter rV\ Legal persons (Articles 84-105) comprises of 2 Sections: Section 1: General provisions on legal persons (Articles 84-99) Section 2: Types of legal person (Articles 100-105) C h apter V: Pamily households and cooperative groups (Articles 106-120) comprises of 2 Sections: Section 1: Pamily households (Articles 106-110) Section 2: Cooperative groups (Articles 111-120) Chapter VI: Civil transactions (Articles 121-138) Chapter VII: R epresentation (Articles 139-148) 351
  5. Key issues in the 2005 Civil Code Chaptcr VIII: Time limits (Articles 149-153) Chapter IX: Statute of limitations (Articles 154-162) Part Two: Property and ovvnership rights comprises of 7 Chapters; Chapter X: General provisions (Articles 163-173) Chapter XI: Types of property (Articles 174-181) Chapter XỈI: Contents of ovvnership rights (Articles 182-199) comprises of 3 Sections: Section 1: The right to possession (Articles 182-191) Section 2: The right to use (Articles 192*194) Section 3: The right to disposition (Articles 19Õ-199) Chapter Xlll: Forms of ovvnership (Articles 200-232) compris- es of 6 Sections; Section 1: State ovvnership (Articles 200-207) Section 2: Collective ownership (Articles 208-210) Section 3: Private ovvnership (Articles 211-213) Section 4: Common ownership (Articles 214-226) Section 5: Ovvnership by political organizations, socio-political organizations (Articles 227-229) Seclion 6: Ownership by socio-political-professional organiza- tions, social organizations, socio*professional organizations (Articles 230-232) Chapter x rv: Establishm ent and term ination of ovvnership rights (Articles 233-254) comprises of 2 Sections: Section 1: Establishment of ovvnership rights (Articles 233-247) Section 2: Term ination of ovvnership rights (Articles 248-254) Chapter XV: Protection of ownership rights (Articles 255-261) 352
  6. Part I. Introduction to the 2005 Civíl Code C h a p te r XVI: Other provisions on ovvnership rights (Articles 262-279) Part Three: Civil obligations and civil contracts comprises of 5 Chapters C h a p te r XVII: General provisions (Articles 280-427) compris- es of 7 Sections: Section 1: Civil obligations (Articles 280-282) Section 2: Performance of civil obhgations (Articles 283-301) Section 3: Civil liability (Articỉes 302-308) Section 4: Transfer of the right to demand and transíer of civil obligations (Articles 309-317) Section 5: Security for the performance of civil obligations (Articles 318-373) Section 6: Term ination of civil obligations (Articles 374-387) Section 7: Civil contracts (Articles 388-427) Chapter XVIII: Commonly used civil contracts (Articles 428­ 593) comprises of 13 Sections: Section 1: Contracts for property sale and purchase (Articles 428-462) Section 2: Contracts for property exchange (Articles 463-464) Section 3: Contracts for the donation of property (Articles 465-470) Section 4; Contracts for property loan (Articles 471-479) Section 5: Contracts for property lease (Articles 480-511) Section 6: Contracts for property borrovving (Articles 512-517) Section 7: Service contracts (Articles 518-526) 353
  7. Key issues in the 2005 Civil Code Section 8: Contracts for transportation (Articles 527-Õ46) Section 9: Processing contracts (Articles 547-5Õ8) Section 10: Contracts for the bailmentoí propertv (Articles Õ59-566) Section 11: Insurance contracts (Articles 567-580) Section 12; M andate contracts (Articles 581-589) Section 13: Promise of reward and competition for prizes (Articles Õ90-593) Chapter XỈX: Performance of tasks vvithout m andate (Articles 594-598) Chapter XX: Obligation to return the property possessed, used, benefits enjoyed thereừom vvithout a legal basis (Articles 599-603) Chapter XXI: Liability to compensate for dam age ơutside con- tract (Articles 604-630) comprises of 3 Sections: Section 1: General provisions (Articles 604-607) Section 2: Determination of damage (Articles 608-612) Section 3: Compensation for damage in a num ber of speciric cases (Articles 613-630) Part Four: Inheritance comprises of 3 Chapters Chapter XXII: General provisions (Articles 631-645) Chapter XXIIỈ: Testam entary inheritance (Articles 646-673) Chapter XXIV: Inheritance at law (Articles 674-680) Chapter XXV: Paym ent and division of inheritable estate (Articles 681-687) Part Five: Provisions on the transter o f land use rights com- prises of 8 Chapters Chapter XXVI: General provisions (Articles 688-692) 354
  8. Part I. Introduction to the 2005 Civìl Code Chapter XXVỈI: Contracts for the exchange of land use rights (Articlos 693-696) Chaptcr KXVỈII: Contracts Cor the transĩer of land use rights (Articles 697-702) Chapter XXIX: Contracts for the lease and su b le a se of land use rights (Articles 703-714) Chapter XXX: Contracts for the mortgage of land use rights (Articles 715-721) Chapter XXXI: Contracts for the donation of land use rights (Articles 722-726) Chapter XXXỈI: Contracts for the Capital contribution with laiid use rights (Articles 727-732) Chapter XXXIII: Inheritance of land use rights (Articles 733-735) Part Six: Intellectual property rỉghts and technology transfer comprìses of 3 Chapters Chapter XXXrV: Copyright and related rights (Articles 736-749) Chapter XXXV: Industrial property rights and the rights to plant varieties (Articles 750-753) Chapter XXXVỈ: Technology transíer (Articles 754-757) Part Seven: C ỉvil relations involving toreign elements (Articles 758-777) 355
  9. Key issues in the 2005 Civil Code II. NEW IM HO RTANT PROVISIONS IN THE 2005 C IV IL ( O D K Having a thorough grasp of policy guidelines for the process of drafting, the Drafting Committee has conducted a study on how to comprehensively revise the 1995 Civil Code, to surmount its short- comings and to meet the practical demands. The nevvly enacted Civil Code contains the following new provisions: 1. Scope o f regulation 1.1. Transtér of land use ríghts In a multi*sector market economy, influenced by objective laws of the market, land relations are not only administrative ones between the State and land users, but also economic and civil ones betvveen land users themselves. Land use rights are special prop* erty rights established in land use relations and the transíer of land use rights is a special and conditional transaction. The estab- lishment of real estate market through transactions for the trans- fer of land use rights is an objective and indispensable require- ment in the market economy in order to ensure the right to free- dom of Business and the right to íreedom of residence of all citi- zens. Therefore, the 2005 Civil Code has the same provisions to that in Part Five of the 1995 Civil Code on the transfer of land use rights. However, adhering to the basic principles of civil laws, the 2005 Civil Code only provides for the transfer of land use rights relating to civil rights. Administrative procedures relating to the transíer of land use rights are regulated by the laws on land. Accordingly, the 2005 Civil Code provides for legal bases for establishment of land use rights; forms of, prices for, principles for and effects of the transfer of land use rights; a number of common- ly used contracts for the transfer of land use rights. In addition, the provisions on the transíer of land use rights in the 1995 Civil Code were amended and supplemented to be consistent with the 356
  10. Part I. Introduction to the 2005 Civil Code 2003 Land Law. These amendments and suppỉements are: (i) Provisions on land use rights of legal persons and other sub- jects established upon the land assignment or the land lease or the land use right recognition by the State; (ii) Provisions on contracts for the sub-lease of land use rights (Article 714, the 2005 Civil Code); (iii) Provisions on contracts for the donation of land use rights (Articles 722 to 726, the 2005 Civil Code); (iv) Provisions on contracts for Capital contribution with the value of land use rights (Articles 727 to 733, the 2005 Civil Code); and (v) Provisions on the handling of mortgaged land use rights in coníormity with the nature of civil relations and to respect the vvill of parties. 1.2. Intelloctuat property ríghts and tochnoỉogy transtor Intellectual property rights and technology transĩer are extremely important matters for the scx^io-economic development of the country, especially in the trend of international integration and for the development of a knovvledge-based economy at present. In the past, the provisions on intellectual property rights and tech- nology transíer in Part Six of the 1995 Civil Code created legal bases for the protection of intellectual property rights and the íacilitation of technology transfer in practice. To spring from the vievvpoint that intellectual property rights (including personal and property rights) and technology transíer are basic civil rights of subjects in civil relations but are speciĩic issues, thereĩore, the 2005 Civil Code only provides for a number of civil principles of ĩntellectual property rights and technology transíer, other issues of intellectual property rights and technolo- 357
  11. Key issues in the 2005 C ivil Code gy transfer are provided for in the Law on Intellectual Propertv and the Law on Technology Transfer. In adđition, the comprehension of concept ''intellectuaỉ proper- ty rights'" in the 2005 Civil Code has been Nvidening compared to that in the 1995 Civil Code. At the same time, the 200Õ Civil Code concretizes a number of subjects of intellectual property rights provided for in the 1995 Civil Code as “other subjects as provided for by the law”. These concretized subjects are satellite signals car- rying coded programs, semi-conductor integrated circuit layout designs, business secrets, trademarks, trade names, geographical indications and plant vaheties. Therefore, subjects of intellectual property rights protected by our country’s laws are basically *'suf- ficienC compared to the requirements in international agreements on intellectual property. 1.3. Houses Houses are a special property and different from other proper- ty in terms of property value and the procedure for establishment of ownership rights, establishment of rights and obligations of par- ties to civil transactions relating to houses etc. The 1995 Civil Code provided in a relatively detailed manner for contracts for the sale and purchase of houses (Articles 443-450) and contracts for the lease of houses (Articles 489-502). In order to reflect the prac- tice of civil transactions and to ensure the uniĩormity in the legal system, the 2005 Civil Code also provides for general issues of transactions relating to houses such as forms of transactions, rights and obligations of parties to transactions etc. Other speciTic issues are provided by the laws on houses. 2. Subjects of civil legal relations Reílecting special characteristics of the current socio-econom- ic development in our country, the 2005 Civil Code continues to 358
  12. Part I. Introduction to the 2005 Civil Code identiĩy cooperative groups and family households together with individuals and legal persons as subjects of civil legal relations. Kamily households and cooperative groups have been operating as self-control economic establishments in many fields, especially in tho fields of agriculture, íorestry and Tishery, making positive con- tributions to the countrv’s development. Their operations have also been provided for in some special legal documents. At the same time, in order to clearly deĩine rights, obligations and legal liabilities of the above subjects, especially of íamily households in civil transactions, to ensure the healthy develop- ment of civil transactions as well as to íacilitate civil transactions betvveen ĩamily households, cooperative groups and other subjects, the 2005 Civil Code contains a number of amended and supple- mented provisions on common property of íamily households and on the possession, use and disposition of common property of fam- ily households in a more detail, íuller and stricter manner. Thereby, the Code provides for common property of family house- holds in Article 108. The 2005 Civil Code also amends former legal provisions on the possession, use and disposition of common property of family households in a stricter manner. 3. Civil registration Legal provisions on civil registration are bases for managing people in the society and protecting interests of the society and of each individual. Civil registration is the certiíication by the State competent authorities of events such as birth, death, marriage, divorce, guarciianship, adoption, change of íamily and given names, change of nationality, determination of ethnicity and so on in accordance with the laws on civil registration. A majority of provisions in Section 4, Chapter I I I of the 1995 359
  13. Key issues in the 2005 Civil Code Civil Code governed administrative relations between individuals and the State administrative agencies (civil registration agencies) in the process of civil registration. Thereíore, in order to make a clear distinction between different branches of law, the 2005 Civil Code has no provision on civil registration which relates to administrative procedures and retains provisions on personal rights such as the right to registration of birth and death, the right to change íamily and given names, the right to adoption etc. Such provisions are in Section 2 of Chapter III 'Tersonal rights" in the 2005 Civil Code. 4. A num ber o f personal rights Personal rights are civil rights inherent to each individual, which cannot be transferred to others (unless otherwise provided for by law). The recognition of personal rights of individuals in the 2005 Civil Code is importantly meaningful in order to guide in details the citizens’ basic rights prescribed in the Constitution. It manifests the respect and protection of legitimate rights and inter- ests of people in the society. Bearing it in mind, the 2005 Civil Code retains and amends/supplements provisions on personal rights in the 1995 Civil Code to make them more practical (including 22 specific per- sonal rights). At the same time, to meet new requirements in the current situation, the 2005 Civil Code has a new provision on the right to donation of body organs (Article 33), the right to donation of corpses, body organs after death (Article 34), the right to receive body organs (Article 35), the right to re-determination of gender (Article 36). However, these are new matters, needing more time to see how they work in reality. Therefore, the 2005 Civil Code pro- vides for them only in principle to reaíTirm personal rights of indi- viduals but details of these rights shall be provided for in special legal documents, as follows: 360
  14. Part I. Introduction to the 2005 Cívil Code 4.1. The rỉght to donation otcorpses and body organs The right to donation of corpses, body organs is personal right of individuals, maniíesting their self-determination of body organs or corpses after their death. This right, if done in reality in a right m a n n e r , is p r o fo u n d ly h u m a n ita r ia n a n d m e a n in g fu l, c o n trib u t- in g to the development o f S c ien ce and m e d ic in e in Service of human beings. Hence, in order to create legal basis for the per- formance of rights by individuals as vvell as to settle disputes aris- en, it is necessary to prescribe the right to donation of corpses, body organs in the Civil Code. In the 2005 Civil Code, the right to donation of corpses and body organs is provided for in Articles 33 and 34 in two cases: when an individual is alive and after his or her death, The dona- t i o n a n d u s e o f b o d y organs o r c o r p s e s m u s t c o m p l y w i t h t h e prO ' visions of law. 4.2. The ríght to receive body organs In order to ensure the interaction in relations between persons who donate and persons who receive body organs, together with the right to donation of body organs, the 2005 Civil Code has been added a provision on the right to receive such organs as a person- al right in Article 35. 4.3. The ríght to re-determination otgender Re-determination of gender is a matter vvhich occurred in real- ity, thereíore it should be recognized in the Civil Code as a person- al right of individuals and serve as legal basis for special legal doc- uments on this matter. Hence, the 2005 Civil Code provides that individuals have the right to re-determmation of gender in cases where his/her gender is affected vvith inborn defects or has not been properly shaped, vvhich needs medical intervention to clearly determine the gender. 361
  15. Key issues in the 2005 Cỉvỉl Code Along with the recognition of the right to re-cletermination of gonder, Paragraph 1 of Article 27 of tho 200Õ Civil Code also rec- ognizes the right to change family and given names in this case in order to ensure the exercise of this personal right in reality. 5. Forms of ovvnership Forms of ownership are external reflection of the ovvnership regime’s content. Each form of ovvnership shall inAuence different- ly the process of production, distribution and circulation. P^urthermore, legal provisions on the possession, use and disposi- tion of property in each forin of ownership are different. Therefore, the distinction of different forms of ovvnership in civil law is neces- sary and important. The summation of implementation of the 1995 Civil Code shovvs that provisions on many íorms of ownership in the 1995 Civil Code are generally suitable, reAecting the characteristics of each specific form of ovvnership in Vietnam. Thereíore. the 2005 Civil Code basically retains the 1995 Civil Code’s provisions on forms of ownership with some appropriate amendments and sup- plements. On the basis of three ownership regimes recognized bv the Constitution, the 2005 Civil Code provides for the following six [orms of oivnership'. (i) State ownership (replacing the form of ovvnership by the entire peopỉe in the 1995 Civil Code in order to more clearly define the subject’s responsibilities in the management, use and disỊX)si- tion of property under the regime of ONvnership by the entire people); (ii) Collective ovvnership; (iii) Private O N v n e r s h ip ; (iv) Common ovvnership; (v) Ovvnership by political or socio-political organizations; 362
  16. Part I. Introduction to the 2005 Civil Codc (vi) Ownership by socio-politicnl-professional organizations, social organizations or socio-professional organizations. With respect to the form of mixod ovvnership, the 199Õ Civil Codo provided that the possession, uso and disposition of proper- tieíi of mixed ovvnership shall be carried out in accordance with the provisions on common ownershÌỊ). Therc*fore, the 2005 Civil Code atĩiends tlìis provision in the direction that the form of mixed own- ership vvas incorporated into the form of common ownership. 6. The rig h t to reclaim movable property not subject to ovvner- ship right registration, movabte property subject to ownership right registration and im m ovable property from bona fíde possessors To reclaim property is an important legal capacity of the ovvn- crs and legal possessors in order to protect their legal rights to ovvnership or possession. In practice, hovvever, the transfer of property betvveen the subjects of civil relations is very complicat- ed, Therefore, legai provisions on the right of the ovvners and iegal possessors to reclaim their property must reflect special character- istics of civil relations in order to be íeasible. According to Article 264 of the 1995 Civil Code, the ovvners and legal possessors have the right to reclaim property from pos- sessors, users or persons who enjoy benefits from such property vvithout legal basis. The exceptions are in cases where possessors or persons enjoying property bữnefits vvithout legal basis are bona fide and they have possessed such properties continuously and publicly for at least 10 years with rcspect to movable property and 30 years vvith respect to immovable property. In order to protect ovvnership rights of owners and stabilize civil relations, the 200Õ Civil Code contains new provisions on the right to reclaim property from bona ndo possessors in Articles 257 and 258. 363
  17. Kcy issues in the 2005 C lvil Code The purposes of these two new Articles are designed to protect the first owner of property and to take into account some special cases in the establishment of ovvnership rights of a third bona ĩide person. They aim at stabilizing civil relations and limiting poten- tial disputes betNveen the Tirst owner and subsequent owners e s t a b l i s h e d b y j u d g m e n t s of c o u r t s o r d e c i s i o n s of c o m p e t e n t S t a t e agencies or by auctions. 7. Measures to secure the pertormance of civil obligations Security for the períormance of civil obligations is preventive measures agreed upon by parties in civil relation in order tx5 secure the perĩormance of civil obligations and at the same time to pre- vent and overcome negative consequences caused by non-perform- ance or improper performance of obligations. The agreement on security measures shall secure the liability to períorm obligations of obligors or liabilities arisen out of contract of both parties. Therefore, legal provisions on sGcurity have a lot of impact on the civil transactions in reality and are very important provisions of the Civil Code. According to the 1995 Civil Code, measures to secure the per- ĩormance of civil obligations included pledge of property, mortgage of property, deposit, and deposit via bank. security deposit for lease of movable property, guaranty and penalties. The 2005 Civil Code takes off the measure of penalties, and separates the meas- ure of guaranty in the 1995 Civil Code into the measure of proper- ty guaranty and the measure of pledge of trust. Moreover, the measures to secure the performance of civil obligations provided for in the 1995 Civil Code have been changed by the 2005 Civil Code to make them more practical in the new situation. According to the 1995 Civil Code, the distinction betvveen pledge and mortgage of property depended on whether this proper- ty was movable or immovable. If the secured property was a mov- 364
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