TÓM TẮT NHỮNG ĐIỂM MỚI CỦA LUẬN ÁN Về mặt lý luận, luận án có những đóng góp cơ bản sau: Thứ nhất, luận án xây dựng khái niệm, đặc điểm pháp lý về hoạt động môi giới thương mại điện tử. Chính nền tảng công nghệ đã tạo ra nhiều vấn đề pháp lý đặc trưng, cần được điều chỉnh mà hệ thống pháp luật hiện hành vẫn còn trống. Luận án chỉ ra những vấn đề pháp lý phát sinh trong quá trình quản lý đối với hoạt động môi giới thương mại điện tử. Thứ hai, luận án làm rõ khái niệm, đặc điểm pháp lý “Pháp luật về hoạt động môi giới thương mại điện tử”. Luận án đưa ra cấu trúc hình thức và cấu trúc nội dung của pháp luật về hoạt động môi giới thương mại điện tử. Về mặt thực tiễn, luận án đã có những đóng góp cơ bản sau: Thứ nhất, luận án chỉ ra những bất cập của pháp luật hiện hành về hoạt động môi giới thương mại điện tử tại Việt Nam về các nhóm nội dung: Quy định về chủ thể của hoạt động môi giới thương mại điện tử; Quy định về hợp đồng môi giới thương mại điện tử; Quyền và nghĩa vụ của các bên trong quan hệ pháp luật môi giới thương mại điện tử; Quản lý nhà nước trong lĩnh vực môi giới thương mại điện tử. Thứ hai, luận án đã nghiên cứu, đề xuất hoàn thiện pháp luật về hoạt động môi giới thương mại điện tử theo phương hướng bổ sung trong hệ thống văn bản pháp luật về thương mại điện tử. Những kiến nghị, giải pháp mang tính khả thi nhằm hoàn thiện pháp luật, nâng cao hiệu quả áp dụng, phù hợp với bối cảnh thực tiễn hiện nay.
MINISTRY OF EDUCATION MINISTRY OF JUSTICE AND TRAINING HANOI LAW UNIVERSITY NGUYEN NGOC ANH LAWS ON ELECTRONIC COMMERCE BROKERAGE ACTIVITIES Major: Economic Law Law: 38 01 07 SUMMARY OF DOCTORAL THESIS ON LAW Ha Noi- 2022 The thesis is completed at HANOI LAW UNIVERSITY Scientific Instructors Dr NGUYEN THI DUNG Dr DOAN TRUNG KIEN Reviewer 1: Reviewer 2: Reviewer 3: The thesis is defended in front of the doctoral thesis grading committee at the university level, meeting in Hanoi Law University on … 2022 The thesis is archived at: National Library Hanoi Law University Library INTRODUCTION The urgency of the topic research In Vietnam, until 2006, E-Commerce activities were first amended by legislations including Law on E-Transactions, Commercial Law 2005, the 2005 Civil Code, Decree 57/2006/ND-CP dated June 2006 on Ecommerce With its profound effect and outstanding characteristics, Ecommerce grows in a quick and multifaceted way, a part of which is the growth in E-commerce Brokerage activities In the market, Commerce Brokerage emerges in new forms conducted via electronic devices and through data messages, which are referred to as E-commerce Brokerage activities Being more convenient, quick, and borderless, E-commerce Brokerage service has changed radically in the way it used to work E-commerce Brokerage activities happen as follows: On the Internet, E-Commerce intermediaries design applications or websites to create an online market for sellers and buyers to connect, and then profit from their service as middlemen To increase competitiveness, E-commerce brokers often charge sellers with no fees for displaying their product/service on the platform Instead, the fees will be calculated on the basis of successful transactions The technological features (online markets, interface…) serve as a ground for the dependency of all parties involved and influence their commercial behavior As for the sellers/service providers and buyers, they can only find each other and establish, conduct, change or end their commercial activities via the technological platform of the intermediaries As for the brokers, the values created by E-Commerce Brokerage are different from the traditional brokerage activities via technology They not only execute their brokerage activities via technological devices but also via their own technological platforms Having done some secondary research, the researcher notices a few shortcomings as follows: First, the theories on E-Commerce Brokerage have not been established E-Commerce Brokerage activities are still intrinsically inconsistent Although they carry the characteristics of both Commerce Brokerage and E-Commerce, simply combining two definitions might not be the best way to recognize all the legal characteristics of ECommerce Brokerage Therefore, a need for an in-depth examination of the legal nature of E-Commerce Brokerage arises There has not been any prior research to distinguish between the legal nature of E-Commerce Brokerage activities and traditional commercial brokerage activities Distinguishing these commercial activities will be useful in guiding the formulation and improvement of the law as well as the process of applying the law into practice Second, the current legal situation still has many shortcomings For the time being, the legal system on e-commerce brokerage activities mainly regulates two aspects: the law governing commercial intermediary activities in general and commercial brokerage in particular; and the law governing e-commerce activities However, as the two legal systems above regulate e-commerce brokerage activities at the same time, overlapping and conflicting are inevitable, yet regulations to resolve such situations are lacking Third, the purchase and sale of goods and provision of services through the form of E-Commerce brokerage in Vietnam bring many benefits to the parties involved, but there is a lack of research in order to have a legal basis for adjusting this activity in practice In Report No 442/BC-CP dated October 1, 2020, in section II.9.2.1, part B also noted: “Practice shows that there are E-Commerce operation models that not belong to both models that are regulated in Decree No 52/2013/ND-CP (some models are just intermediaries that help buyers search for goods and services after accessing other websites and receive commissions for each successful transaction)… It is necessary to have legal regulations to regulate the above models to ensure the adjustment of a healthy ECommerce model, to protect the interests of consumers and to avoid tax revenue loss with profits generated” Obviously, this is a commercial activity with many advantages that brings various benefits and is in line with modern shopping trends In the future, various types of E-Commerce Brokerage services are predicted to develop in a variety of forms, vibrant in content and economically efficient As the legal consciousness is behind social reality, a new activity arising will lead to arguments and different views It is, therefore, necessary to study new activities and to perfect the governing law At the general level, we need a general, basic and directional worldview so that we can create a legal basis in time to regulate actual activities Both the theoretical aspect and the legal status of E-Commerce Brokerage activities have not been studied; therefore, it is necessary to set out a legal study on E-Commerce brokerage activities Purpose and Mission of research The purpose of the thesis is to study the legal basis of E-Commerce Brokerage Activities in order to perfect the law governing E-Commerce Brokerage activities To accomplish the abovementioned research purpose, the thesis focuses on the following research missions: - Providing an overview of the research situation related to the thesis topic - Clarifying theoretical issues and legal theories on E-Commerce Brokerage activities - Analysing regulations on E-Commerce Brokerage activities and the current situation of law enforcement on E-Commerce Brokerage activities - Examine the experience of establishing and enforcing the law in countries with developed E-Commerce Brokerage activities - Research the requirements and specific solutions to improve the law on E-Commerce Brokerage Object and scope of research 3.1 Research objects The research objects of the thesis include the legal contents related to E-Commerce Brokerage activities; the practice of promulgating and enforcing the law on E-Commerce Brokerage activities in Vietnam; the experience of countries in perfecting the law governing E-Commerce Brokerage activities 3.2 Research scope In terms of content, the thesis limits the scope of research on legal issues related to E-Commerce Brokerage as a commercial activity ECommerce Brokerage in the field of financial services, banking, credit, insurance, lottery; buying, selling and exchanging money, gold, foreign currencies and other means of payment; betting or gambling services; realease and distribution services of digital products, radio and television services are not within the research scope of the thesis The recommendations to improve the law presented in the thesis are also consistent with the adjustment method, scope of adjustment and adjusting mechanism of the law in the field of Commerce In terms of space, the thesis studies the E-Commerce Brokerage activities in the retail market in Vietnam The retail market is the segment where E-Commerce Brokerage activities were born, developed strongly, and tend to continue its expansion in the future Retail is understood as the direct sale of goods and services to consumers who use the goods/service for the needs of individuals and households, not for business (resale); it does not include consumption for production; Retailing is the final stage in the circulation of products to consumers1 Research methodology In the research process, the thesis expects to use the following methods: analysis, synthesis, commentary, interpretation, comparative law, statistics, and so on to clarify each specific content, in order to achieve the missions proposed The thesis also uses general research methods New contributions of the thesis Theoretically, the thesis has the following contributions: Firstly, based on the value of published scientific research results, the thesis develops a theoretical system of E-Commerce Brokerage activities with new contents including the affirmation that E-Commerce Brokerage activities are commercial brokerage activities carried out on a technology basis It is the technology background that has created various typical legal problems that need to be adjusted, yet the current legal system is still unable to address such issues The thesis builds the legal concept of E-Commerce Brokerage activities Although there have been domestic and foreign studies referring to the concept of E-Commerce Brokerage, no comprehensive study on the legal concept has been done The thesis compares the legal characteristics between E-Commerce Brokerage activities and traditional commercial brokerage activities and thereby pointing out the legal issues arising in the management process of ECommerce Brokerage activities Secondly, the thesis affirms that the State management of ECommerce Brokerage activities is necessary The thesis clarifies the legal concept of E-Commerce Brokerage activities and presents the formal Pham Hong Tu (2012), Phát triển thị trường bán lẻ hàng tiêu dùng nông thôn Việt Nam (Development of the retail market of consumer goods in rural Vietnam), Ph.D thesis, Institute of Trade Research, page 10 structure and content structure of the law on this activity with reference to countries in the world and Vietnam The thesis also points out the advantages and disadvantages in regulating legal relations In terms of practice, the thesis has made the following contributions: Firstly, the thesis pinpoints the shortcomings of the current law in regulating E-Commerce Brokerage activities in Vietnam through assessing the legal status on legal issues such as Regulations about the subjects of E-Commerce Brokerage activities; Regulations about ECommerce Brokerage contracts; Rights and Obligations of parties in ECommerce Brokerage; and State management in E-Commerce Brokerage Thereby, the thesis confirms the necessity to perfect the legal regulations on E-Commerce Brokerage activities Secondly, through the theoretical study of E-Commerce Brokerage activities and the legal experience of some countries in identifying ECommerce Brokerage activities, regarding the socioeconomic conditions of Vietnam today, the thesis has researched and proposed to improve the law on E-Commerce Brokerage activities on the basis of amending the legislation system about E-Commerce The recommendations and solutions are feasible not only in terms of perfecting the law but also improving the effectiveness of application, in line with the current practical context The outline of the thesis In addition to the introduction, conclusion, and the list of references, the thesis includes the following parts: The overview of research status related to the thesis topic Chapter 1: Theoretical issues on E-Commerce Brokerage activities and the law on E-Commerce Brokerage activities Chapter 2: Legal situation of E-Commerce Brokerage in Vietnam Chapter 3: Solutions to complete the law on E-Commerce Brokerage THE OVERVIEW OF RESEARCH STATUS RELATED TO THE THESIS TOPIC Research situation on E-Commerce Brokerage activities and the law on E-Commerce Brokerage activities 1.1 Works that study E-Commerce Brokerage activities First, the work identifying commercial brokerage activities: monograph “Pháp luật điều chỉnh hoạt động trung gian thương mại Việt Nam”2 [Law regulating commercial intermediary activities in Vietnam] Second, the works of identifying E-Commerce Brokerage activities: “Bài giảng Thương mại điện tử”3[E-Commerce lecture], the article “An electronic broker for business – to – business electronic commerce on the internet”4, the article “Business – to – Business Electronic Commerce”5 Third, research works identifying new-style E-Commerce activities with signs of E-Commerce brokers: Master’s Thesis in Law “Một số vấn đề pháp lý hoạt động mua hàng theo nhóm”6[Some legal issues on purchasing activities in group], the scientific report at the Seminar “Thảo luận sách quản lý hoạt động kinh doanh dịch vụ thương mại điện tử xuyên biên giới”7[Policy discussion on the management of crossborder E-Commerce services business] Dr Nguyen Thi Van Anh (2009), Pháp luật điều chỉnh hoạt động trung gian thương mại Việt Nam, Labor and Social Publisher, Hanoi Posts and Telecommunications Institute of Technology, Faculty of Business Administration (2013), Bài giảng Thương mại điện tử (Lecture on E-commerce), Hanoi Martin Bichler, Arie Segev, Carrie Beam (1998), “An Electronic Broker for Business – to – Business electronic commerce on the internet”, International Journal of Cooperative Information Systems, Vol.07, No.04, http: http://lcm.csa.iisc.ernet.in/ecomm01/segev.pdf accessed on July 18, 2016 David Lucking – Reiley and Daniel F.Spulber (2001), “Business – to – Business Electronic Commerce”, Journal of Economic Perspectives Vol.15, No.1 (Winter, 2001) Nguyen Ngoc Anh (2013), Một số vấn đề pháp lý hoạt động mua hàng theo nhóm, Master's Thesis in Law, Hanoi Law University Dr Vo Tri Hao (2016), Bản chất pháp lý mơ hình kinh doanh Uber, Seminar “Thảo luận sách quản lý hoạt động kinh doanh dịch vụ thương mại điện tử xuyên biên giới” of The Central Institute for Economic Management of Vietnam, Hanoi, October 26, 2016 1.2 Works that study legal theory about E-Commerce Brokerage activities There has not been any research directly addressing the issue of the legal theory on E-Commerce Brokerage activities The Ph.D candidate has only found works with research results that are closely related to this issue: monograph “Pháp luật điều chỉnh hoạt động trung gian thương mại Việt Nam” [Law regulating commercial intermediary activities in Vietnam]; Master's thesis in Law “Một số vấn đề pháp lý hoạt động mua hàng theo nhóm” [Some legal issues on purchasing activities in groups] 1.3 Works that assess the legal situation on E-Commerce Brokerage activities First, the research works assessing the legal status of E-Commerce Brokerage activities in Vietnam: the article “Một số vấn đề kinh tế chia sẻ” [Some issues about the sharing economy] on the website of the Central Economic Committee8, the report “Quản lý thuế hoạt động thương mại điện tử xuyên biên giới”9 [Tax administration for crossborder E-Commerce activities], Vietnam E-Commerce Report 2014, Vietnam E-Commerce Report 2015 Second, research studies assessing the legal status of E-Commerce Brokerage activities in Vietnam and in some other countries: the report “Quản lý thuế hoạt động thương mại điện tử xuyên biên giới” [Tax administration for cross-border E-Commerce activities], the Department of General Economy - Central Economic Commission (2016), Một số vấn đề kinh tế chia sẻ, The Central Economic Commission, https://tinhtetrunguong.vn/fi/web/ guest/thong-tin-constructionde?p_p_id=101&p_p_lifecycle=0&p_p_state=pop_up&p_p_mode=view&p_p_col_id=column1&p_p_col_count=1&_101_struts_action=%2Fasset_publisher%2Fview_content&=2Fview_content&Id101_ass et economy-sharing-sharing-economy- accessed on July 18 , 2016 Ms Nguyen Thi Cuc, Former Deputy Director General, General Department of Taxation, Chairwoman of Tax Advisory Association (2016), Quản lý thuế hoạt động thương mại điện tử xuyên biên giới, Seminar “Thảo luận sách quản lý hoạt động kinh doanh dịch vụ thương mại điện tử xuyên biên giới” of The Central Institute for Economic Management of Vietnam, accessed on October 26 , 2016 12 The thesis is based on the following research hypotheses: - E-Commerce Brokerage activities carry the general nature of commercial brokerage activities However, such activities being implemented through a technology platform has created distinct legal characteristics and new legal problems - The current regulations in the management of E-Commerce Brokerage activities are still inadequate - Suggestions to improve the law governing E-Commerce Brokerage activities are proposed in the direction of mainly amending the legal system on E-Commerce CHAPTER THEORETICAL ISSUES ON E-COMMERCE BROKERAGE ACTIVITIES AND THE LAW ON E-COMMERCE BROKERAGE ACTIVITIES 1.1 Theoretical issues on E-Commerce Brokerage activities 1.1.1 The birth and development of E-Commerce Brokerage activities In December 1998, Amazon's online shopping festival reached more than billion USD in revenue, while AOL reached 1.2 billion in 10 weeks12 This is considered an impressive start for the development of ECommerce Brokerage activities Early forms of E-Commerce Brokerage appeared such as websites where buyers and sellers met, gold-selling sites, aggregator catalogs, online auction floors In Vietnam, it was not until 2003 that the Ministry of Trade published the first “Report on Vietnam's E-Commerce” The report states that by 2003, “We have already begun and are quite fast in the first stage of the 12 See also: Posts and Telecommunications Institute of Technology, Faculty of Business Administration (2013), Bài giảng Thương mại điện tử (Lecture on E-commerce), Hanoi, page 68 13 13 New Silk Road!” It can be considered the time when E-Commerce Brokerage activities have conditions to develop in Vietnam As new forms of brokerage activities appear, confusion about the identification of their legal nature arises for state management agencies 1.1.2 Concept of E-Commerce Brokerage activities E-Commerce Brokerage is a commercial brokerage activity, whereby a trader, via a digital platform they own, acts as an intermediary (referred to as an E-Commerce Broker) for other parties in the market in the purchase and sale of goods and properties or provision of services, in exchange for profit according to E-Commerce Brokerage contracts ECommerce brokers and customers are not present at the same time when brokerage services are provided The process of sending, receiving, processing, and transmitting data entirely by electronic means is provided on each individual request In particular, the E-Commerce broker does not play a decisive role in determining, implementing, changing, or terminating the relationship of buying and selling goods or assets and providing services between the parties 1.1.3 Legal characteristics of E-Commerce Brokerage activities 1.1.3.1 Firstly, there are three parties involved in the commerce brokerage activities: the seller, the buyer, and the E-Commerce broker Commercial brokerage activities involve three parties: the provider of assets, goods and services (the seller); the entity that buys assets, goods and services (the buyer), and the intermediary who acts as an intermediary between the seller and the buyer (the E-Commerce broker) The E-Commerce Brokerage relationship is established between the seller, the buyer, and the E-Commerce broker The relationship of buying 13 Ministry of Trade, Department of Information Technology and E-commerce (9/2003), Hiện trạng ứng dụng thương mại điện tử Việt Nam (Current status of E-Commerce applications in Vietnam), Hanoi, page 14 and selling goods, assets, and providing services is established between the seller and the buyer 1.1.3.2 Second, the cross-border nature of E-Commerce Brokerage activities In E-Commerce Brokerage activities, the buyer, the seller, and the broker can be in any country or territory They not meet directly but in a virtual space - a unified market where there is no territorial boundary 1.1.3.3 Third, the independence in the E-Commerce Brokerage relationship between the brokered parties and the broker The independence between the E-Commerce broker and the brokered party must be clearly shown and different from the labor relationship The independence between the E-Commerce broker and the E-Commerce broker should be realized in a dynamic and flexible state 1.1.3.4 Fourth, the legal basis for forming relationships between subjects related to E-Commerce Brokerage activities includes ECommerce Brokerage contracts, and contracts for the sale of assets, goods, and service provision a) E-Commerce Brokerage contract First, an E-Commerce Brokerage contract is formed between the seller and the E-Commerce broker Second, an E-Commerce Brokerage contract is signed between the ECommerce broker and the customers Third, the conditions for the E-Commerce brokerage contract subjects b) Contract of sale of property, goods, and provision of services between the seller - the buyer The object of the contract is property and goods allowed in circulation, and services permitted to be performed in accordance with the law Depending on the type of E-Commerce Brokerage activity, there are 15 different conditions that give rise to the contract of sale and purchase of products, goods, and provision of services 1.1.3.5 Fifth, the technology platform governs the form and manner of E-Commerce Brokerage activities It is the new technology platform that is the key factor determining the participation role of an E-Commerce broker The technology platform creates a distinctive feature and also sets out a separate management method of E-Commerce Brokerage activities compared to traditional commercial brokerage activities 1.1.4 Classification of E-Commerce Brokerage activities 1.1.4.1 Based on the mode of operation, E-Commerce brokers are divided into two groups: (1) E-Commerce brokers merely act as brokers for buyers and sellers to buy and sell products, goods, and services on its electronic platform; (2) The E-Commerce brokers conduct brokerage activities with its own unique solution 1.1.4.2 Based on the group of goods and services being brokered, ECommerce brokers are divided into two groups: (1) Brokers who help sellers to provide goods, assets, and services in free circulation; (2) Brokers who provide conditional business goods and services 1.1.5 Comparing E-Commerce Brokerage activities with traditional commercial brokerage activities 1.1.5.1 Similarities between E-Commerce Brokerage activities and traditional commercial brokerage activities E-Commerce Brokerage activities are commercial brokerage activities and have all common characteristics of commercial brokerage activities Similarities: subject, work content, purpose 1.1.5.2 The difference between E-Commerce Brokerage activities and traditional commercial brokerage activities 16 The differences between the two activities above are the legal relationship formed between the broker and the parties, transaction methods, integration, and conditions for the subjects 1.1.6 The role of E-Commerce Brokerage activities The thesis analyzes the role of E-Commerce Brokerage activities for customers; enterprises; organizations and individuals providing goods, properties and services; as well as the society 1.2 Theoretical issues on the Law on E-Commerce Brokerage activities 1.2.1 Legal concept and legal characteristics of E-Commerce Brokerage activities 1.2.1.1 Legal concepts of E-Commerce Brokerage activities The law on E-Commerce Brokerage activities is a system of general rules of conduct set or recognized by the State and guaranteed to be implemented to regulate social relations that arise when an E-Commerce broker carries out activities for buyers and sellers to meet and connect for commercial transactions These social relationships are established, implemented, changed, and terminated through electronic means and the technology platform of the E-Commerce broker 1.2.1.2 Characteristics of the law on E-Commerce Brokerage activities First, the regulatory content of the law on E-Commerce Brokerage activities is associated with the characteristic elements of subjects, means, and space Second, the law on E-Commerce Brokerage activities is often outdated quickly compared to the actual development of E-Commerce Brokerage activities Third, the law on E-Commerce Brokerage activities includes legal norms and general rules of conduct of parties recognized by the State (regulations on E-Commerce Brokerage exchanges) 17 Fourth, the law on E-Commerce Brokerage activities must balance between the goals of social management and the development of the integrated digital economy 1.2.2 Legal structure governing E-Commerce Brokerage activities 1.2.2.1 The international legal structure governs E-Commerce Brokerage activities Currently, laws from various countries regulate E-Commerce Brokerage activities through the legal system governing traditional commercial brokerage activities and the legal system governing ECommerce activities The law on commercial brokerage activities includes the following main groups of rules: The typical regulations of the form of the commercial brokerage; The regulations governing the contractual relationship between the brokers and the parties; The regulations regulating the obligations of the brokered parties and the broker to a third party 1.2.2.2 Vietnamese legal structure regulating E-Commerce Brokerage activities Firstly, in terms of formal structure: The law governing E-Commerce Brokerage activities focuses mainly on the customs, precedents, contracts, and legal documents invoked in activities of interpreting and applying the law Secondly, in terms of content structure: The law on E-Commerce Brokerage includes certain groups of basic regulations as follows: Subjects of an E-Commerce Brokerage contract; E-Commerce Brokerage contract; Rights and obligations of parties in ECommerce Brokerage activities; State management of E-Commerce Brokerage CHAPTER 18 LEGAL SITUATION OF E-COMMERCE BROKERAGE ACTIVITIES IN VIETNAM 2.1 Regulations on subjects of E-Commerce Brokerage activities 2.1.1 E-Commerce broker An E-commerce broker must be a trader established in accordance with the law Through researching and understanding the provisions of Vietnamese law, the Ph.D candidate has some evaluations, specifically: First, a certain "disparity" exists in the identification of E-Commerce Brokerage activities between legal documents on E-Commerce and legal documents on commercial law Second, there are difficulties in managing E-Commerce Brokerage activities that have foreign elements Third, difficulties arise in managing foreign investment activities in ECommerce Brokerage service businesses in Vietnam Fourth, there are issues with regulations on tax collection, electronic tax management, and electronic payment for E-Commerce brokers being foreign investors 2.1.2 E-Commerce brokered parties The legal provisions are still contradictory when it comes to the mandatory condition of being a businessman for the brokered party With regards to regulations on the brokered parties in E-Commerce, the Ph.D candidate has the following assessments: Firstly, it is necessary to review the regulations on transaction conditions between the broker and the brokered in E-Commerce Brokerage activities Secondly, there exist certain difficulties in state management of the brokered party (the seller) 2.2 Regulations on E-Commerce Brokerage contracts 2.2.1 Form of E-Commerce Brokerage contracts An E-Commerce Brokerage contract may be entered into in one of the following ways: The first way, an E-Commerce Brokerage contract with the same content as a traditional brokerage contract is uploaded to electronic means for signing The second way , the E-Commerce 19 Brokerage contract is concluded via email The third way, the brokerage contract is entered into entirely by electronic means 2.2.2 Signing and performing E-Commerce Brokerage contracts 2.2.2.1 Principles of signing and performing e -commerce brokerage contracts Firstly, the parties have the right to agree on the use of electronic means in the conclusion and performance of the contract Second, the conclusion and performance of an E-Commerce brokerage contract must comply with the provisions of the Law on Electronic Transactions, the Commercial Law, and Decree 52/2013/NDCP Third, the parties have the right to agree on technical requirements, authentication, and conditions to ensure integrity and confidentiality related to the electronic contract 2.2.2.2 Proposing to enter into an E-Commerce Brokerage contract The thesis has analyzed the following contents: The time to send a proposal for entering into an E-Commerce Brokerage contract; The time to receive a proposal for entering into an E-Commerce Brokerage contract; The place of sending and receiving the request for the conclusion of an E-Commerce Brokerage contract 2.2.2.3 Accept the offer to enter into and conclude an E-Commerce Brokerage contract There is an asymmetry in the name and content of chapter of Decree No 52/2013/ND-CP 2.2.3 Termination of E-Commerce Brokerage contract The termination of the E-Commerce Brokerage contract is based on Article 428 of the 2015 Civil Code 2.3 Rights and obligations of the parties in the legal relationship of E-Commerce Brokerage 20 An E-Commerce Brokerage contract is a bilateral contract, the rights of one party and the corresponding obligations of the other party Therefore, the thesis only focuses on studying the obligations of the subjects Corresponding to those obligations are the rights of the remaining subjects 2.3.1 General basic obligations of the parties in an E-Commerce Brokerage contract 2.3.1.1 Group of basic obligations of an E-Commerce broker The E-Commerce broker needs to perform the same obligations as a traditional commercial broker and as an E-Commerce service provider 2.3.1.2 Group of basic obligations of an E-Commerce broker The E-Commerce brokered party needs to perform the same obligations as a traditional commercial brokered The obligation of the seller who is an E-Commerce brokered is the obligation of the seller on the E-Commerce website 2.3.2 Some typical obligations of an E-Commerce broker 2.3.2.1 Obligations to brokered goods and services In general, the obligations of an E-Commerce broker are relatively uniformly regulated by the E-Commerce law However, there are still some disadvantages as follows: First, the ethics of businesses and individuals are not high Second, many E-Commerce brokers have relaxed the review of profiles of platform participants Third, there is no clear and uniform boundary between the ECommerce law and the advertising law on information about goods and services to be provided Fourth, legal documents directly regulating the obligations of ECommerce brokers (Circular No 47/2014/TT-BCT in specific) are 21 proving to be outdated compared to the update of the law (the Law on Investment 2020 in specific) 2.3.2.2 Obligations about the scope of work of an E-Commerce broker Firstly, the Vietnamese legal system has had initial regulations on the scope of E-Commerce Brokerage work in the auto transport industry, but there are no specific regulations on the scope of E-Commerce in general Second, the lack of specific regulations on the scope of E-Commerce brokers leads to the fact that there are still acts of taking advantage of ECommerce Brokerage activities to business in an illegal multi-level manner Third, there are changes in the development and completion of legal documents showing that E-Commerce brokers have a wider brokerage scope than traditional commercial brokers 2.3.2.3 Obligation to keep the information confidential, safe, and secured in E-Commerce Brokerage transactions First, the regulations on the protection of personal information are specified in detail in legal documents Second, the practice of enforcing information security, safety, and security in E-Commerce Brokerage activities 2.3.2.4 The obligation to issue a mechanism to support the settlement of arising disputes In Vietnam, online dispute resolution is only available in the operating regulations of each separate E-Commerce Brokerage platform There is no consensus so it is often neither thorough nor effective, and the commitment is not high 2.4 State management of E-Commerce Brokerage The Ministry of Industry and Trade is responsible to the Government for performing the state management of E-Commerce Specifically, the Department of E-Commerce and Digital Economy is an organization 22 under the Ministry of Industry and Trade, performing the function of advising and assisting the Minister of Industry and Trade in state management and law enforcement in the field of E-Commerce and digital economic activities; organizing and managing public service activities in the field and scope of the Department’s management, according to the provisions of law and decentralization and authorization of the Minister CHAPTER SOLUTIONS TO COMPLETE THE LAW ON E-COMMERCE 3.1 The context of completing the law on E-Commerce Brokerage activities The context of perfecting the law on E-Commerce Brokerage activities: (1) First, brokerage activities are developing in reality, inevitably posing a need for new legal relations that need to be legally perfect for timely adjustment; (2) Second, the inadequacy in law enforcement of E-Commerce brokers requires further research and improvement of the law; (3) Third, perfecting the law on E-Commerce Brokerage set out from international activities 3.2 Requirements for perfecting the law on E-Commerce Brokerage activities Requirements to improve the law on E-Commerce Brokerage activities: (1) First, it is necessary to clarify and unify the adjustment method and mechanism for law on E-Commerce Brokerage activities (2) Second, the regulation of the E-Commerce Brokerage law must be derived from the fundamental viewpoints and principles of the traditional commercial brokerage law; (3) Third, the regulation of E-Commerce Brokerage law must ensure safety in E-Commerce Brokerage; (4) Fourth, to regulate the law on E-Commerce Brokerage must ensure the legitimacy in E-Commerce Brokerage; (5) Fifth, regulating the law on E-Commerce Brokerage must ensure transparency in E-Commerce 23 Brokerage; (6) Sixth, the E-Commerce Brokerage regulation must protect the interests of consumers in the E-Commerce Brokerage; (7) Seventh, the regulation of the E-Commerce Brokerage law must be consistent with the labor law 3.3 Some specific recommendations to improve the law on ECommerce Brokerage 3.3.1 Recommendation to develop the concept of an E-Commerce Brokerage to unify this activity 3.3.1.1 The law on E-Commerce should provide an overview of legal signs to identify E-Commerce Brokerage activities The author proposes to develop the concept of E-Commerce Brokerage and to have consistency between the provisions of labor law and the law of E-Commerce to identify E-Commerce Brokerage activities 3.3.1.2 On the basis of additional recommendations to identify ECommerce Brokerage activities, the author recommends that the ECommerce decree should amend and supplement forms of E-Commerce Brokerage activities Forms of E-Commerce Brokerage activities include: (1) ECommerce trading platform (E-Commerce Brokerage platform), which has different specific forms; (2) Websites and applications that connect sellers and buyers with useful solutions (online auctions, group purchases, ) 3.3.2 Recommendations related to regulations on E-Commerce broker subjects Specific solutions: (1) The subject of an E-Commerce broker needs to satisfy the condition of being a trader; (2) Recommendations on the management of foreign investment activities in enterprises that provide E-Commerce Brokerage services in Vietnam; (3) Solutions to improve 24 the legal compliance activities of E-Commerce broker subjects that are foreign traders and organizations; (4) Tax administration activities for ECommerce brokers being foreign traders 3.3.3 Recommendations related to regulations on E-Commerce brokered subjects Specific solutions: (1) Proposing for consistency between the 2005 Commercial Law and Decree No 52/2013/ND-CP on the conditions of the E-Commerce broker - not required to be a trader; (2) Reviewing the regulation that the transaction between the brokered seller and the brokered buyer must be a commercial activity; (3) Continuing to add regulations in the state management of the brokered party (the seller) who is an entity with a nationality or head office in a foreign country 3.3.4 Recommendations related to specific obligations of subjects in ECommerce Brokerage Specific recommendations include: (i) Promulgating a document to annul Decree No 59/2006/ND-CP; (ii) Prescribing that the E-Commerce broker is obliged to act on behalf of the E-Commerce brokered is necessary, but the scope of these cases should be clearly defined; (iii) Obligating to keep the information confidential, safe and secure in ECommerce Brokerage transactions; (iv) Obligating to issue a mechanism to support the settlement of arising disputes 3.3.5 Recommendations on law enforcement in E-Commerce Brokerage activities Specific recommendations: (1) Adding more staff to receive and process documents, handle complaints and denunciations on the ECommerce management portal system; (2) Strengthening the number of officials involved in the inspection and examination in E-Commerce and in terms of quantity and qualifications 25 CONCLUSION Chapter build the conceptand developed 05 legal characteristics of E-Commerce Brokerage activities, classified E-Commerce Brokerage activities and compared such activities with traditional brokerage activities In addition, chapter develops the legal concept of ECommerce Brokerage and analyzes 04 characteristics of the law on ECommerce Brokerage activities The thesis also analyzes the legal structure governing E-Commerce Brokerage activities Chapter also presents the legal systems of the US, Australia and China governing ECommerce Brokerage activities Chapter analyzes the content of current legal regulations on ECommerce Brokerage activities, making assessments about the existing shortcomings in the process of law enforcement on E-Commerce Brokerage 04 groups of content are: Current status of regulations on subjects of E-Commerce Brokerage activities; Current status of regulations on E-Commerce Brokerage contracts; Current status of regulations on rights and obligations of parties in E-Commerce Brokerage contract; Some specific contents of state management of ECommerce Brokerage Chapter outlines 07 requirements for perfecting the law on ECommerce Brokerage A number of specific recommendations were made, divided into groups, namely: Group of recommendations to develop the concept of E-Commerce Brokerage to unify identification of this activity; Group of recommendations related to regulations on subjects of E-Commerce brokers; Group of recommendations related to regulations on subjects eligible for E-Commerce Brokerage; Group of recommendations related to specific obligations of subjects in ECommerce Brokerage activities; Group of recommendations on law enforcement in E-Commerce Brokerage activities 26 AUTHOR’S DISCLOSED RESEARCH RELATED TO THESIS TOPIC Nguyen Ngoc Anh (2016), “Cơ sở pháp lý cho Uber taxi hoạt động Việt Nam” [Legal basis for Uber taxi to operate in Vietnam], Jurisprudence Journal No 6(193) – 2016 Nguyen Ngoc Anh (2017), “Một số vấn đề pháp lý môi giới thương mại điện tử xu hướng “kinh tế chia sẻ”” [Some legal issues on E-Commerce Brokerage in the trend of "sharing economy], Democracy and Law Review No (302) – 2017 Sự tương thích pháp luật Việt Nam với cam kết thương mại điện tử khuôn khổ CPTPP (2019) [The compatibility of Vietnamese law with commitments on E-Commerce within the framework of CPTPP], Proceedings of the School-level scientific conference "CPTPP - commitment and implementation" dated October 4, 2019 Nguyen Ngoc Anh (2019) “Nhận diện chất pháp lý hoạt động môi giới thương mại điện tử” [Identifying the legal nature of E-Commerce Brokerage activities], Jurisprudence Journal special issue "Economic law in the context of current international integration" October 2019 Nguyen Ngoc Anh (2020), “Hợp đồng thương mại điện tử” [ECommerce contracts], Pháp luật Hợp đồng thương mại Đầu tư - Những vấn đề pháp lý [Law on Contracts in Trade and Investment - Basic legal issues], National Political Publishing House ... of Taxation, Chairwoman of Tax Advisory Association (2016), Quản lý thuế hoạt động thương mại điện tử xuyên biên giới, Seminar “Thảo luận sách quản lý hoạt động kinh doanh dịch vụ thương mại điện. .. Brokerage Monograph ? ?Pháp luật điều chỉnh hoạt động trung gian thương mại Việt Nam” [Law regulating commercial intermediary activities in Vietnam], “Bài giảng thương mại điện tử? ?? [Lecture on e-commerce],... sách – Pháp luật – Phát triển – Nhìn nhận qua mơ hình kinh doanh Taxi Uber”11 [Policy - Law - Development - Perspective from Uber Taxi business model], “Quản lý thuế hoạt động thương mại điện tử