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Tìm hiểu về Luật thương mại năm 2005: Phần 2

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Luật thương mại năm 2005 đã thừa nhận những hình thức mới của thương nhân nước ngoài khi hoạt động thương mại tại Việt Nam. Ngoài hai hình thức trên, Luật Thương mại năm 2005 đã quy định bổ sung hai loại hình doanh nghiệp thương mại có vốn đầu tư nước ngoài bao gồm: doanh nghiệp liên doanh, doanh nghiệp 100% vốn của nước ngoài. Tài liệu sau đây trình bày những những nội dung cơ bản của Luật thương mại năm 2005. Tài liệu gồm 2 phần, sau đây là phần 2.

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Nội dung Text: Tìm hiểu về Luật thương mại năm 2005: Phần 2

  1. KEYISSUES IN THE 2005 COMMERCIAL LAW 221
  2. ỈỶ' '■ l u V Í Í - I
  3. INTRODUCTION To díssemínate the main contents ofenacted important codes and ỉaws, such as the Civiỉ Code, the Lũw on ỉnvestment, the Law Intellectual Property and the Law on Enterprise to the business community, Vietnamese and for- eign readers, the dudiciaỉ Pubỉishing House, ỉn coordina- tion ivith the Internationaỉ Law Department, the Minỉstry o f ổustice, publishes some books in hoth Vietnamese and English to introduce the code and ỉaws said above. ỉt ís our hope that the publications o f the dudỉciaỉ Publishing House will be useful for those domestic and for- eỉgn individuals and organỉzations who are ỉnterested in ỉearning about the Vietnamese laws. We aỉso hope that these books will contribute to ensuring transparency o f the Vietnamese legal system • one o f the requỉrements for this country to become a m ember o f the World Trade Organization (WTO). I We, therefore, have the honor to introduce this book to readersĩ A pril 2007 THE JƯDICIAL PƯBLISHING HOƯSE 223
  4. Partl INTRODUCTION TO THE 2005 COMMERCIAL LAW 225
  5. * .■ -í ••■ V ,í '-'1^
  6. Part I. Introductìon to the 2005 Commercial Law I. STRUCTURE 0F THE 2005 COMMERCIAL LAW The 2005 Commercial Law comprises 9 Chapters withị 324 Articỉes (the 1997 Commercial Law comprised 6 Chapters with 264 Articles), of which 96 and 149 Articles of the 1997 Commercial Law were repealed and amended respectively and 143 articles were supplemented to form the new Law. The structure of the new Law is as foliows; Chapter I: General Provisions Chapter II: Sale and Purchase of Goods Chapter III: Supply of Services Chapter rV: Commercial Promotion Chapter V: Commercial Intermediary Activities Chapter VI: Some Other speciĩic Commercial activities Chapter VII: Commercial Remedies and Commercial Dispute Resolution Chapter VUI: Handling of Commercial Law Violations Chapter IX: Implementation Provisions II. KEY ISSUES IN THE 2005 COMMERCIAL ư^w 1. Concept of commercial activities and governing scope of the 2005 Commercial Law The 2005 Commercial Law avoids muddled defmitions 227
  7. Key issues in the 2005 Commercial Law of commercial activities, commercial acts and traders as contained in the 1997 Commercial Law. In addition, the 2005 Commercial Law does not list commercial activities as the 1997 Law did. The new Law deĩines commercial activities as actỉưities for the purpose o f generating profits, including: sale a n d purchase o f goods, supply o f servỉces, inưestment, com m ercial prom otion an d other actỉvities for the profit purpose. Article 2 of the 200Õ Commercial Law provides that subjects of application of the Law inclưde traders and other organizations and individuals conducting commerce-related activities. Therefore, the concept of commerciaì activities in the new Law is broader than that in the 1997 Law. It includes not only commercial activities of traders but also other activities for profit purposes of organizations and individuals who are not traders but con- ducting commerce-related activities. The widening of the concept of commercial activities in Article 1 of the 2005 Commercial Law helps widen the coưerage o f the Laiv as follows: . - The 2005 Commercial Law does not cover the m atter oĩ''legaỉ status o f traders'*. As a result, there is no separate section providing for traders like the 1997 Law. In addi- tion, the 2005 Commercial Law also governs activities not for profit purposes conducted by a party in its transactions with traders in cases where the party conducting such not- for-profit activities chooses to apply the Law. - With regard to territorial scope, the 2005 Commercial 228
  8. Part I. Introductỉon to the 2005 Commercíal Law Law provides not only for principles and standards of com- mercial activities conducted in the territory of the Socialist Republic of Vietnam, but also for commercial activities con* ducted outside the territory of the Socialist Republic of Vietnam in cases vvhere the involved parties agree to apply the Law, or where a foreign law or a treaty to which the Socialist Republic of Vietnam is a contracting party stipu- lates the application of the Law. Such vvidening of the governing scope reAexes the features of commercial relations, especially those relating to ĩoreign trade conducted by traders of different nationalities in different territories. 2. Concept of traders and subjects of application Subjects of application of the Commercial Law are defined as traders conducting commercial actívities in the territory o f the Sociaỉist Republíc o f Víetnam (Article 2 of the 2005 Commercial Law), which include both Vietnamese traders and ĩoreign traders conducting commercial activi- ties in the territory of Vietnam. The 2005 Commercial Law shall apply to subjects who are not traders in cases vvhere those subjects choose to apply the Law. Clause 1 in Article 6 of the 2005 Commercial Law defines traders as '"lawfully established economic organita- tions and individuaỉs that conduct commerciaỉ actỉvỉtíes in an independent and reguỉar manner, and have business regỉstrations'\ This derinition clearly confirms the inde* pendence betvveen concept of traders and its legal forms. 229
  9. Key issues in the 2005 Commercial Law Any legal form such as business registerred individuals, limited liability companies, joint stcxĩk companies, private enterprises, partnerships, State companies, co-operatives, shall become traders when conducting commercial activi- ties in the market. Business registration by traders shall be carried out in accordance with legal provisions on busi- ness registration. Poreign traders conducting commerciaỉ actỉuitỉes in the territory o f the Sociaỉỉst Repubỉic ofV ietnam In the process of International economic integration, the openning of Vietnam’s market for foreign traders to have access to is a natural trend. Previously, pursuant to the 1997 Commercial Law and the Law on Poreign Investment in Vietnam, íoreign invested enterprises established in Vietnam were entitled to invest in machines, production lines and conducting business in Vietnam but were not entitled to conducting commercial activities in a regular manner. It partly limited the flows of foreign investment, creating unequality between domes- tic investors and foreign investors; maniíesting unneces- sary protection by the State for domestic enterprises; and somehow distorting competition environment. For the purposes of creating an equal investment envi- ronment and encouraging flows of foreign investment, Section 3 in Chapter I of the 2005 Commercial Law deĩines forms of, and rights to, conducting commercial activities by 230
  10. Part I. Introduction to the 2005 Commercial Law foreign traders in Vietnam. It is an important new point creating equal and favorable conditions for foreign traders conducting commercial activities in Vietnam. The 2005 Commercial Law also clearly provides for competence to license foreign traders to conduct commer- cial activities in Vietnam. The Planning and Investment Ministry shall be responsible for managing the issuance of licences to foreign traders investing in Vietnam in accor- dance with Vietnamese legal provisions on íoreign invest- ment. The Trade Ministry shall be responsible before the Government for managing the issuance of licences to set up Vietnam-based representative offices of íoreign traders; or licenses to set up branches, joint-venture enterprises or enterprises with 100% foreign Capital in Vietnam in cases vvhere such traders are specialized in conducting activities of goods purchase and sale or other activities directly related to goods purchase and sale. Hovvever, vvhere a specialized law contains specific provisions on the competence of ministries or ministerial-level agencies, which are respon- sible before the Government for managing the issuance of licences to foreign traders for conducting commercial activities in Vietnam (for example, the Law on Insurance Business, and the Law on Credit Organizations and so on), the provisions of such specialized law shall apply. This pro- vision on competence to license foreign traders is in accor- dance with the current legal system of Vietnam. 231
  11. Key issues in the 2005 Commercial Law 3. Sale and purchase of goods Pursuant to the 2005 Commercial Law, goods include aỉl types o f movables, including those to be formed in the future and things attached to ỉand. This concept of goods has been widened in comparison to that in the 1997 Commercial Law. This provision is also consistent with the 2005 Civil Code which considers properties to be formed in the íuture as one type of goods. 3.1 GeneraỊ provỉsions on sale and purchase otgoods The 2005 Commercial Law provides for domestic sale and purchase of goods and international sale and purchase of goods. Although the concept of goods is too broad as men- tioned above, Article 25 of the Law supplements provisions on goods subject tx) restrictions to trade, goods subject to conditions to trade. Accordingly, traders must satisfy con- ditions provided for by relevant laws when conducting busi- ness in such goods. In addition, the 2005 Commercial Law has new provisions on application of urgent measures with regard to gcx)ds domestically circulated. According to these provisions, legally and domestically circulated goods may be subject to the application of one or all of urgent measures as compulsory withdrawal from circulation, ban from circulation, suspension from circulation, conditional circu- lation, or compulsory circulation permission in cases where 232
  12. Part I. Introduction to the 2005 Commercial Law such goods constitute sources or transmitters of various epidemics and diseases; or in cases where an emergency circumstance occurs. These provisions are for the State management over the market to ensure that the right to írecdom of conducting business bv traders does not harm legitimate interests of consumers and the public order. With regard to internatíonal sale and purchase o f goods, the 2005 Commercial Law reaffirms the right to export and/or import any type of goods by traders, except for goods subject to prohibition to export and/or import. On the basis of socio-economic conditions in each period, the Government shall speciíy the lists of goods banned from import and/or export. With regard to goods to be imported or exported under licences of competent State management agencies, procedures for granting such licences must be in a transparent manner in accordance with the WTO Agreement on Import Licensing Procedures. In the 200Õ Commercial Law, many new pro\àsions have been supplemented in comparison with the 1997 Commercial Law as follows: - The 1997 Commercial Law provided for contracts for sale and purchase of goods signed with ĩoreign traders and identified such type of contracts by nationalities of those traders. The 2005 Commercial Law does not use the con- cept of contracts for sale and purchase of goods with ĩoreign traders but provides for International sale and purchase of goods (Article 27) and theroby widenning the scope of such contracts; 233
  13. Key íssues in the 2005 Commercỉal Law - The 2005 Cotnmercial Law newly provides for appli- cation of urgent measures to activities of International sale and purchase of goods (Article 31). In addition, the 2005 Commercial Law also supple- ments nevv provisions on import and/or export activities such as labelling of goods and rules of origin of goods, serving as legal bases for the Government guiding such provisions in detail for the effective implementation in practice. 3.2. Rights and obỉigations of parties to a contract for sale and purchase of goods The 2005 Commercial Law provides for rights and obligations of parties to a contract for sale and purchase of goods in detail on the basis of inheriting provisions on sale and purchase of goods in the 1997 Commercial Law, making reĩerence to the 1980 Vienna Convention of International Sales of Goods and international practices of sale and purchase of goods. It helps make the Law s provi- sions on sale and purchase of goods most suitable to Vietnam’s practical conditions as follows: With regard to oblỉgations o f sellers, the Law supple- ments some provisions on delivery of goods in cases where there is no agreement or an unclear agreement on place of delivery (Article 35), time limit for delivery (Article 37), obligation of the seller in cases where goods are subject to measures of security for performance of civil obligations 234
  14. Part I. Introduction tỡ the 2005 Commercial Law (Article 48), obligation to assure intellectual property rights over goods (Article 46), and requirement of notifica- tion (Article 47). With regard to pass ofrisks and pass ofownershỉp, the Law supplements provisions on pass of risks such as: pass of risks in cases where there is a Tixed place of delivery of goods (Article 57); pass of risks in cases where there is no fixed place of delivery of goods (Article 58); pass of risks in cases where goods are handed over to a bailee that is not a carrier (Article 59); pass of risks in case of sale and pur- chase of goods in transportation (Article 60); and pass of risks in other cases (Article 61). With regard to obỉỉgations o f buyers, the Law amends and supplements provisions on place of payment (Article 54); time limit for payment in cases where there is no agreement betvveen parties (Article 55); obligation to receive goods (Article 56); and performance of other suit- able obligations by the buyer to ensure legitimate interests of the seller. It is an important change based on the prin- ciple of ''ỉogicalitỷ'- the basic principle to identiíy obliga- tions of parties to a commercial transaction. The practice of commercial activities shows that parties to a contract do not alvvays agree in detail on time limit for delivery, place of delivery, price, time limit for payment, place of payment. All these issues were mandatory to be contained in a con- tract as provided for in the 1997 Commercial Law. In cases 235
  15. Key ỉssues in the 2005 Commercial Law where parties to a contract have had no agreement or had an unclear agreement on time limit for delivery of goods, the law should provide for such cases in a manner that creates íavorable conditions for parties to perform the con- tract. Provisions on pass of risks from the seller to the buyer in each speciĩic case of delivery of goods in the 2005 Commercial Law are consistent vvith the principles in the 1980 Vienna Convention of International Sales of Goods. 4. The Goods Exchange, and sale and purchase of goods through the Goods Exchange The Goods Exchange is not an organization that is to buy and/or sell goods itself but is a place for buyers, sellers, brokers or go-betweens to have chance to meet, to make buy- ing or selling orders for goods, to form transactions among themselves. Through the Goods Exchange, buyers and sellers have more favorable conditions in meeting, exchanging, bargaining or forming transactions. Transactions through the Goods Exchange are basically forward ones. It means in these transactions, time of delivery of goods is a point of time in the future, not the point of time of transaction, Through forward transactions, buyers and sellers are able to carry out measures of security in terms of price, decreasing risks of price íluctuation in the market. The National Assembly decided that the Commercial Law only provides for basic principles of the Goods 236
  16. Part I. Introduction to the 2005 Commercial Law Exchange and sale and purchase of goods through the Goods Exchange. In the 200Õ Commercial Law, the Goods íixchange and sale and purchase of goods through the Goods Exchange are provided for in Section 3 of Chapter II (Articles 63-73). These provisions focus on regulating tvvo major issues, namely (i) organization and performance of the Goods Exchange and (ii) transactions of gcx)ds through the Goods Exchange. With regard to the Goods Exchange, the 2005 Commercial Law provides that the Goods Exchange has the íunctions of providing the material - technical condi* tions necessary for transactions of purchasing or selling goods; running trading operations; and listing specific prices formed at the Goods Exchange at each specific time. The conditions for the establishment of the Goods Exchange, the povvers and tasks of the Goods Exchange, and the approval of the operation charter of the Goods Exchange shall be provided for by the Government. Goods traded at the Goods Exchange shall be those promulgated by the Trade Minister. Staff members of the Goods Exchange shall not be allovved to conduct brokerage for or purchase or sale of goods through the Goods Exchange. The 2005 Commercial Law preliminarily provides for traders who act as brokers at the Goods Exchange. Brokers for purchase and sale of goods through the Goods 237
  17. Key íssues in the 2005 Commercial Law Exchange shall be aỉloNved to conduct only activities of bro- kerage for purchase and sale of goods through the Goods Exchange and must not be a party to a contract for pur- chase and sale of goods through the Goods Exchange. 'With regard to sale and purchase o f goods through the Goods Exchange, pursuant to Article 63 of the 2005 Commercial Law, it means commercial activities vvhereby the parties agree to purchase and sell a defined quantity of goods of a defmed 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. The sale and purchase of goods through the Goods Exchange shall be perỉormed under the form of contract for sale and purchase of goods. Contracts for sale and pur- chase of goods through the Goods Exchange include for- vvard contracts and option contracts. Option contracts include call option contracts and put option contracts. Article 65 and Articie 66 of the 2005 Commercial Law provide for in detail rights and obligations of parties to a forwaj:d contract; and rights and obligations of parties to an option contract. In order to ensure the stable períormance of the Goods Exchange, and to prevent activities distorting the market, the 2005 Commercial Law provides that parties involved 238
  18. Part I. Introductỉon to the 2005 Commercial Law in the purchase and sale of goods through the Goods Exchange must not commit fraudulences or deceits about volumes of goods in forward or option contracts, which are transacted or may be transacted, and íraudulences and deceits about real prices of goods in forward or option con- tracts; not supplying false information on transactions, the market or prices of goods purchased or sold through the Gcx)ds Exchange; and not applying illegal measures to cause disorder of the goods market at the Goods Exchange. In addition, the 2005 Commercial Law allovvs the Trade Minister to interfere in the Goods Exchange in emergency cases where the disorder of the goods market occurs, making transactions through the Goods Exchange unable to accurately reílect the goods supply and demand relation. In such cases, the Trade Minister shall be entitled to apply one of the measures such as temporarily suspending transactions through the Goods Exchange; limiting transactions within a price bracket or a specific quantity of goods; changing the schedule of transactions; or adjusting the operation charter of the Goods Exchange. In order to create legal bases for Vietnamese traders to have a better access to import and export markets, the Law also provides that: **Vietnames€ traders are entitled to conduct purchase and sale ofgoods through overseas Goods Exchanges'\ Conditions and modalities to participate in such Goods Exchanges shall be provided for by the Government. 239
  19. Key ỉssues ỉn the 2005 Commercial Law 5. Supply of services Together with the vvidening of concept of commercial activities to cover any activity to generate profit, including supply of services, the 2005 Commercial Law embodies a separate section on supply of services in Chapter III. It is a new Chapter supplemented to the 2005 Commercial Law in order to create legal framework for trade in services. This Chapter is divided into two sections, namely "'General provisỉon o f activities o f supply o f servỉces'' and "'Rights and obligations o f parties to a contract for supply ofservices\ Like provisions on trade in goods, the 2005 Commercial Law only provides for general issues relating to activities of supply of services. The 2005 Commercial Law cannot provide in detail for all types of services but only for a legal framework on trade in services. All services must comply with legal provisions of relevant specialized laws first. Framework provisions on rights and obligations of parties to a contract for supply of services have been sup- plemented. These provisions shall become legal framework for all types of contracts for supply of services in commer- cial activities. It helps create uniformity in Vietnam s legal system and cover all types of services contracts that vvere not provided for before. 240
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