bài thu hoạch cá nhân the challenges to the exercise of free commercial rights in vietnam

BO TAI CHINH TRƯỜNG ĐẠI HỌC TÀI CHINH — MARKETING -—-[I#B[--- TRƯỜNG ĐẠI HỌC TÀI CHÍNH - MARKETING BÀI THU HOẠCH CÁ NHÂN MÔN: BUSINESS LAW DE TAI: The challenges to the exercise of

BO TAI CHINH TRƯỜNG ĐẠI HỌC TÀI CHINH — MARKETING

-—-[I#B[ -

TRƯỜNG ĐẠI HỌC TÀI CHÍNH - MARKETING

BÀI THU HOẠCH CÁ NHÂN

MÔN: BUSINESS LAW

DE TAI: The challenges to the exercise of free

commercial rights in Vietnam

(analyze using Vietnamese regulations of property, enterprise, and contract.)

TABLE OF CONTENTS

| IntrodUCtiOn: - cuc non non no n nh In HH BH BE BH HH EM 3

Il Overview of Free Commercial RightS: cuc cuc nan nen 3 II.1 The Concept of Free Commercial RighS: chen nh nho 3 II.2 The Character of Free Commercial RightS: benh Heo 4 II.3 The meaning of Free Commercial RightS: nhe nho 5

Free Commercial Rights in Vietnam: - uc uc nh n nh nu nh nàn hi 5 III.1 Vietnamese regulations on the DFODeFEV: cu nh nhe 5 III.1.1 Overview of property laws in Vietnam: cuc nh nh He 5

III.1.1.a Land LâW: HE kh kế kệ 5 IImmnmsi 09.›i .ốố aa 6

III.1.2 Challenges related to property righŸS: c ch nh He 7 III.2 — Vietnamese regulations on the ent©rprlS€: chen ro 9 III.2.1 Overview of Enterprise laws in Vietnam: cành 9

li nai in ằằa 9

III.2.1.b Investment LâW: cu cú nén Hoành nh ke kko 10

III.2.2 Challenges related to Enterprise rights: c cà cài: 11 II.3 — Vietnamese regulations on ContrACE: cuc nền nhe He 13

III.3.1 Overview of contract laws in Vietnam: che hheo 13 III.3.1.a Civil CO€: Lnnnnnnnnn Tnhh kh EHhh 13 III.3.1.b Commercial LAW: rere ene 14

III.3.2 Challenges related to contract rightS: khoe 14

IV COnCÏUSIOn: cuc HH ni n n ni BH HH HH HT ĐT BH m BÌNH B BI BH 15

V WOrd COUnI: cu no ni n nhi BI n BH BH BE ED B BI HP 17

TA e6 17

I Introduction:

"Free Commercial " is one of the very important human and civil nghts, reflected in many aspects of content Through freedom of business, it is not only a manifestation of a progressive society with freedom, democracy, justice, and civilization, but also a driving force for the development of Vietnam's economy in particular and of the world in general

It shows our state's nature as a "State of the people, by the people, for the people” And to understand the challenges when exercising the right to free trade is essential for businesses and individuals to take full advantage of opportunities from international economic integration These challenges include staying informed and up-to-date with regulations, infrastructure, resource access, and competing effectively in a diverse business environment

II Overview of Free Commercial Rights:

IL1 The Concept of Free Commercial Rights:

There are many definitions of business freedom, and each definition has a certain content, because each author stands on many different points of view when approaching research to give different concepts, but In general, most concepts understand: "Freedom to

do business is the right of citizens to choose the form of economic organization, mdustry, and business scale”

The 2013 Constitution admitted the right to freedom of business as a human right and one of the basic rights of citizens Article 33 of the 2013 Constitution states:

"Everyone has the right to freedom of enterprise in the sectors and trades that are not prohibited by law" Accordingly, everyone has the right to conduct business in any industry or profession freely, provided that those industries and trades are not prohibited

by law This has been concretized and served as the basis for the exercise of citizenship, specifically as follows: Firstly, the mght to freedom of business is carried out by enterprises within the framework of industries and professions not prohibited by law The right to freedom of business is recognized and concretized by Article 7, Enterprise Law

2020 on the nghts of enterprises Second, the State creates favorable conditions for job

creation activities This has been clearly stated in Clause 3, Article 4 of the Labor Code

2019 on the State's policies on labor

Thus, the nght to freedom of business is understood as the business subject, business model, freedom of contract, freedom of competition, assurance of property ownership of the enterprise, etc But this content will be concretized in enterprise law, investment law, commercial law, and many other laws

1.2 The Character of Free Commercial Rights:

Based on the recognition of the 2013 Constitution and the concretization of the Enterprise Law 2020, the right to freedom of business has the following characteristics:

Firstly, business freedom is an integral part of the system of fundamental human rights and freedoms Therefore, people's nght to freedom of business must be considered

as a person's self-worth (Human Rights) that the State must respect, recognize and protect Secondly, the right to freedom of business is formed based on many different factors such as the state regime, economic type, and socio-economic development For each different country, those factors are different, and the level of recognition and protection of the law is also not the same Through, the right to freedom of business also affects these factors as an inevitable constraint

Thirdly, the right to freedom of business is always placed within the legal framework and bound within certain limits This limit is reflected in two aspects: the extent to which the state recognizes the business activities of individuals and organizations and the ability of the law to enforce those regulations

Finally, the nght to business freedom is reflected in the fact that citizens and Juridical Persons can do everything that is not prohibited by law This right represents the relationship between the State and citizens, not the relationship between individuals and Juridical Persons

I3 The meaning of Free Commercial Rights:

Human society is constantly struggling, demanding the expansion and protection of human rights, democratic rights, and concretized as the right to freedom of business The right to freedom of business has shown the importance and close connection with the development of society in general and individuals in particular The State recognizes and ensures the exercise of the night to freedom of business, which is also the respect for human rights (human rights), and civil rights (civil rights) in the economic field As society develops at a higher level, the nght to freedom of business is expanded and protected by law There, people are fully developed, have a prosperous, happy life, have the highest political power, master life, and master society And in addition, the higher the level of economic development, the higher the demand for business activities and profit purposes Because of that, the demand for self-employment rights of the subjects becomes even stronger When every individual in a country has the right to do business, it is natural

to set up many businesses Businesses with goals and development will contribute to the economic development of that country That contributes to the release of the labor force, bringing higher income

HH The Content of Regulations and Challenges to the Exercise of Free Commercial Rights in Vietnam:

IIL1 Vietnamese regulations on the property:

THI II Overview of property laws in Vietnam:

HLILa Land Law:

In Vietnam, land is a finite and valuable resource, so there are several laws and regulations in force to govern the use and ownership of land The Land Law of 2013 1s the primary legislation governing land use in Vietnam The law distinguishes between land ownership and land use rights, with the state retaimimg ownership of all land, and individuals and organizations being granted land use rights

Land use rights can be granted for various periods, including a maximum of 50 years for residential purposes, 70 years for commercial purposes, and 50-70 years for

industrial purposes The granting of land use nghts requires a land use right certificate, which is issued by the local authorities

Land can be acquired through various means, including allocation, lease, or transfer Allocation is the granting of land use nghts by the state to individuals or organizations for a specific purpose, while the lease is the temporary granting of land use rights for a set period The transfer is the permanent transfer of land use nghts from one party to another

Foreigners and foreign organizations can only acquire land use nghts in Vietnam under certain conditions, such as building houses or commercial purposes However, the law places restrictions on the amount of land that can be acquired by foreigners, and they are not allowed to own land outright

The Land Law also regulates land use planning and zoning, with local authorities responsible for creating and implementing land use plans in their respective jurisdictions The law also outlines procedures for land expropriation, compensation, and resettlement in cases where land is needed for public purposes, such as infrastructure projects

11L.1.1.b Civil Code:

The Civil Code of Vietnam, which was last revised in 2015, governs the general principles of property law in Vietnam It defines property as any assets or resources that have value and can be owned by individuals or organizations The code recognizes both tangible and intangible property, including real estate, movable property, intellectual property, and financial assets

One of the key principles of property law in Vietnam is that property mghts are protected by law, and any infringement on those rights can result in legal action The code also recognizes the right to own, use, manage, and dispose of property, with certain restrictions in place to ensure that property is used in a manner that is beneficial to society

as a whole

Under the Civil Code, ownership of property can be acquired through various means, including inheritance, gift, purchase, or other forms of transfer The code also recognizes the concept of co-ownership, where two or more individuals or organizations share ownership of a property

The code also outlines the procedures for registering property rights, which is necessary to ensure that property ownership is recognized by the law Registration is typically done at the local land registration office, and the registration certificate serves as proof of ownership

In cases where property nghts are disputed, the Civil Code provides for various forms of dispute resolution, including negotiation, mediation, and arbitration In cases where legal action is necessary, the courts have jurisdiction to hear property-related disputes

The code also recognizes the right of the state to expropriate private property for public purposes, but only by the law and with just compensation provided to the affected parties Additionally, the code places restrictions on the acquisition of property by foreigners, particularly in sensitive areas such as national security, defense, and border regions

JIE1.2 Challenges related to property rights:

In Vietnam, the challenges related to property rights have been a significant concern for both local and foreign investors These issues are rooted in historical, legal, and procedural complexities that have made property rights a complex topic to navigate Two foreign documents that provide valuable insights into these challenges are the World Bank's "Land Administration Project" report and the United States Agency for International Development (USAID)'s "Property Rights and Resource Governance: Vietnam Country Profile” (USAID, 2013)

The historical context of property rights in Vietnam can be traced back to the post-

1975 period when the government nationalized land and distributed it to farmers under a cooperative system With the economic reforms initiated in the late 1980s, known as the

"Doi Moi” policy, the government gradually began recognizing private land use nights However, these reforms have not fully addressed the challenges related to property nghts,

as land administration remains weak and opaque The World Bank's "Land Administration Project” (Nguyen, 2013) report highlights the need for improved land administration and management, which is crucial for economic development and reducing poverty The report emphasizes that a robust and transparent land administration system is essential for attracting foreign investment, as it ensures legal certainty and reduces the risk of disputes One of the primary challenges related to property rights in Vietnam 1s the inadequacy of the legal framework As mentioned in USAID's "Property Rights and Resource Governance: Vietnam Country Profile", the Land Law of 2013 and other relevant legislation fail to provide a comprehensive and coherent legal basis for land administration The law does not clearly define the rights and responsibilities of land users, which creates uncertainty for investors and property owners Additionally, the law does not provide clear guidance on the compensation and resettlement of people affected

by land acquisition for development projects, which often leads to land disputes and social

unrest

Another challenge related to property rights in Vietnam is the lack of transparency

in the land registration process The World Bank's "Land Administration Project" report reveals that the land registration system is slow and cumbersome and prone to corruption The report suggests that the lack of a modernized and digitized land registration system has led to an inefficient bureaucracy and an increased risk of fraudulent land transactions This situation further discourages foreign investors who rely on secure property rights to make investment decisions

Additionally, Vietnam faces challenges in enforcing property rights, particularly in rural areas where customary land tenure practices often contradict formal land use nghts According to USAID's "Property Rights and Resource Governance: Vietnam Country Profile”, enforcing property rights in rural areas is particularly problematic due to weak governance structures and the lack of resources and capacity to enforce the law This

situation exacerbates land disputes, particularly in areas where agricultural land is being converted for industrial or urban development

Lastly, the issue of land disputes in Vietnam is a significant challenge related to property rights The lack of a clear and transparent legal framework, coupled with weak land administration and enforcement mechanisms, has led to an increasing number of land disputes between the government, private developers, and local communities These disputes not only hinder economic development but also lead to social unrest and human rights violations The World Bank's "Land Administration Project” report and USAID's

"Property Rights and Resource Governance: Vietnam Country Profile” both emphasize the need for comprehensive land policy reforms to address these challenges and promote a more stable and equitable property rights system in Vietnam

I1I.2 Vietnamese regulations on the enterprise:

THI2.I Overview of Enterprise laws in Vietnam:

HL.2.1a, Enterprise Law:

The Enterprise Law of Vietnam was first enacted in 1999 and has undergone several revisions since then, with the latest revision in 2020 The law governs the establishment, operation, and dissolution of enterprises in Vietnam Under the Enterprise Law, enterprises are defined as organizations engaged in business activities for profit The law recognizes several types of enterprises, including limited liability companies, joint- stock companies, partnerships, and sole proprietorships The process of establishing an enterprise in Vietnam typically involves several steps, including registering the enterprise with the Department of Planning and Investment, obtaining a business registration certificate, and completing other administrative procedures such as registering for tax and social insurance

The Enterprise Law also outlines the rights and obligations of enterprises, including the obligation to comply with relevant laws and regulations, maintain proper accounting records, and pay taxes and other fees Enterprises are also entitled to certain rights, such as

the right to own property, enter into contracts, and seek legal remedies for any infringement of their rights

In addition to the general provisions, the Enterprise Law also contains specific provisions related to the governance and management of enterprises For example, it sets out the requirements for the composition and operation of the board of directors or management board of a joint-stock company, as well as the rights and obligations of shareholders The law also sets out provisions related to mergers and acquisitions, with specific procedures and requirements for such transactions Additionally, it regulates the dissolution and bankruptcy of enterprises, with procedures and requirements for liquidation and distribution of assets

The Enterprise Law also recognizes the role of foreign investors in the Vietnamese economy, with provisions related to establishing foreign-invested enterprises and regulating foreign investment activities in Vietnam The law sets out the conditions and procedures for foreign investors to invest in Vietnamese enterprises and the rights and obligations of foreign-invested enterprises

* Prohibited entities from investing or contributing capital to the business: Under the provisions of Clause 3, Article 18 of the Law on Enterprise 2014, organizations and individuals have the right to contribute capital, purchase shares, and purchase capital contributions to joint-stock companies, limited liability companies, and partnerships Following this Law, except for the following cases:

- State agencies and units of the people's armed forces use state assets to contribute capital to enterprises to make private profits for their agencies and units

- Entities who are not allowed to contribute capital to enterprises according to the provisions of the Law on Cadres and Public Employees; Law on Officials; Anti- Corruption Law