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. Cuốn sách sau đây trình bày những những nội dung cơ bản của Luật thương mại năm 2005. Sách gồm 2 phần, sau đây là phần 2.
KEYISSUES IN THE 2005 COMMERCIAL LAW 221 ỈỶ' '■ l u V Í Í - I 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 foreign readers, the dudiciaỉ Pubỉishing House, ỉn coordination 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 foreỉgn 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 Partl INTRODUCTION TO THE 2005 COMMERCIAL LAW 225 * ,í '-'1^ ■ -í ••■ V Part I Introductìon to the 2005 Commercial Law I STRUCTURE 0F THE 2005 COMMERCIAL LAW The 2005 Commercial Law comprises Chapters withị 324 Articỉes (the 1997 Commercial Law comprised Chapters with 264 Articles), of which 96 and 149 Articles of the 1997 Commercial Law were repealed and amended respectively and 143 articles were supplemented to form the new Law The structure of the new Law is as foliows; Chapter I: General Provisions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 Concept of commercial activities and governing scope of the 2005 Commercial Law The 2005 Commercial Law avoids muddled defmitions 227 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 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 conducting commerce-related activities The widening of the concept of commercial activities in Article 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 addition, 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 notfor-profit activities chooses to apply the Law - With regard to territorial scope, the 2005 Commercial 228 Part I Introductỉon to the 2005 Commercíal Law Law provides not only for principles and standards of commercial 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 stipulates 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 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 of the 2005 Commercial Law), which include both Vietnamese traders and ĩoreign traders conducting commercial activities 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 in Article 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 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 activities in the market Business registration by traders shall be carried out in accordance with legal provisions on business 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 domestic investors and foreign investors; maniíesting unnecessary protection by the State for domestic enterprises; and somehow distorting competition environment For the purposes of creating an equal investment environment and encouraging flows of foreign investment, Section in Chapter I of the 2005 Commercial Law deĩines forms of, and rights to, conducting commercial activities by 230 Part II The 2005 Commercial Law A rticle 307, R eia tỉo n sh ỉp betiveen rem edy o f fỉn es a n d rem edy o f d a m a g es Where the parties not agree upon Tines for breaches, the aggrieved party shall only be entitled to claim damages, unless othervvise provided for by this Law VVhere the parties agree upon Tines for breaches, the aggTÌeved partv shall be entitled to apply both remedies of Tines and damages, unless otherwise provided for by this Law Article 308 Suspensỉon o f p erỊorm an ce o f tracts Except for cases of liability oxemption specified in Article 294 of this Lavv, suspension of performance of a contract means a remedy vvhoroby a party temporarily ceases the perĩormance of Its contractual obligations in one of the following cases: ưpon commission of a breaching act \vhich serves as a condition for the suspension of períormance of the contract as agreed upon by the parties; ưpon a substantial breach of contractual obligations by a party A rticle 309, L e g a l co n seq u en ces o f su sp en sỉon o f p erỊo rm a n c e o f co n tra cts Contracts which are suspended from performance are still in full force and effective Aggrieved parties are entitled to claim damages 437 Key issues in the 2005 Commercial Law according to the provisions of this Law A rticle 310 S to p p a g e o f p e r fo r m a n c e o f co n tra cts Except for cases of liability exemption specified in Article 294 of this Law, stoppage of perĩormance of a contract means a remedy vvhereby a party terminates the performance of its contractual obligations in one of the following cases: ưpon commission of a breaching act which serves as a condition for stoppage of the perĩormance of the contract as agreed upon by the parties; ưpon a substantial breach of contractual obligations by a party A rticle 311 L eg a l seq u en ces o f sto p p a g e o f p e r fo r m a n c e o f co n tra cts VVhere a contract is stopped from performance, it shall be terminated from the date when one party receives the notice on stoppage The parties shall not have to further períorm their contractual obligations A party that has performed its contractual obligations may request the other party to pay or perform its reciprocal obligations The aggrieved party may claim damages according to the provisions of this Law A rticle 312 C a n celỉa tỉo n o f tracts Cancellation of a contract includes cancellation of 438 Part II The 2005 Commercỉal Lavv part of a contract or cancellation of the entire contract Cancellation of the entire contract means the complete annulment of the performance of all contractual obligations for the entire contract Cancellation of part of a contract means the annulment of the perĩormance of some contractual obligations vvhile other parts of the contract are still valid Except for cases of liability exemption specified in Article 294 of this Law, the remedy of cancellation of contracts shall be applied in the following cases: a/ ưpon commission of a breaching act vvhich serves as a condition for the cancellation of the contract as agreed upon by the parties; b/ ưpon a substantial breach of contractual obligations by a party Article 313 C an cellation o f tracts in cuse o f delivery o f g o o d s orp ro v isio n o f services in installm ents Where there is an agreement on delivery of goods or provision of services in installments, if one party fails to perform its obligation for the delivery of goods or provision of services and such failure constitutes a substantial breach in that time of delivery of goods or provision of services, the other party shall have the right to declare the cancellation of the contract for such delivery of goods or provision of services 439 Key issues in the 2005 Commerciat Law VVhere the failure of a party to períorm its obligation for a delivery of goods or a provision of services serves as the basis for the other party to conclude that a substantial breach of the contract shall happen in subsequent deliveries of goods or provisions of services, the aggrieved party shall have the right to declare the cancellation of the contract for subsequent deliveries of goods or provisions of services, provided that such party must exercise that right within a reasonable period of time Where a party has declared the cancellation of a contract for a single delivery of goods or provision of services, such party shall still have the right to declare the cancellation of the contract for a delivery of goods or provision of services that has been conducted or will be conducted subsequently if the interrelation betvveen the deliveries of goods makes the delivered goods or provided services unable to be used for the purposes intended by the parties at the time they enter into the contract A rticle 314 L eg a l sequ en ces o f c a n c eỉỉa tỉo n o f tra cts Except for cases speciried in Articie 313 of this Law, following the cancellation of a contract, such contract shall be invalid from the time it is entered into, and the parties shall not have to continue períorming their contractual obligations, except for their agreements on their post-cancellation rights and obligations and resolution of disputes 440 Part II The 2005 Commercial Law The parties shall have the right to claim benefits brought about by their performance of their contractual obligations Where both parties have indemnity obligations, their obligations must be performed concurrently VVhere it is impossible to make the indemnity with benefits vvhich one party has enjoyed, the obliged party must make the indemnity in cash Aggrieved parties are entitled to claim damages according to the provisions of this Law A rticle 315 N otiỊication o f su sp en sỉon o f p er- (o rm a n c e o f contractSy s to p p a g e o f p e rỊo r m a n c e o f c o n tra c ts o r c a n c e lla tio n o f co n tra c ts A party t h a t suspends the períormance of a contract, stops the performance of a contract or cancels a contract must immediately notiíy the other party of such suspension, stoppage or cancellation Where a íailure to so causes a loss to the other party, the party that suspends the períormance of the contract, stops the perĩormance of the contract or cancels the contract must pay damages A rticle 316 R ig h t to c la im dam ages ivhen other rem ed ies h a v e been a p p lỉe d A party shall not lose its right to claim damages for the loss caused by a contract breach by the other party when other remedies have been applied 441 Key issues in the 2005 Commercial Law Section RESOLUTION 0F COMMERCIAL DISPUTES A rticle 317 F orm s o f resolu tỉon o f d isp u tes Negotiations between the parties Conciliation between the parties by a body, organization or individual selected by the parties to act as the conciliation mediator Resolution'by the Arbitration or the Court Procedures for resolution of commercial disputes by arbitration or a court shall comply with procedures applicable to arbitrations or courts provided for by law A rticle 318 T im e lim it fo r lo d g in g co m p la in ts Except for cases specified at Point e, Clause 1, Article 237 of this Law, the time limit for lodging complaints shall be agreed upon by the parties, where there is no such agreement, the time limit for lodging complaints shall be provided for as follows: a/ Three months from the date of delivery of goods for complaints about quantity of goods; b/ Six months from the date of delivery of goods for complaints about quality of goods Where goods are under vvarranty, the time limit for lodging complaints shall be three months írom the expiry of the warranty period: 442 Part II The 2005 Commercial Law c/ Nine months from the date on which the breaching party shall have to fulfil its contractual obligations; or in the case of a vvarranty, from the expiry of the vvarranty period, for complaints about other violations Article 319 S tatu te o f lim ita tio n s fo r ỉn ỉtia tỉn g la u su ỉts The statutG of limitations for lawsuits applicable to commercial disputes shall be two years from the moment when the legitimate rights and interests are inĩringed upon, except for cases specified at Point f, Clause 1, Article 237 of this Law C h a p ter V III HANDLING O F VIOLATIONS O F COM M ERCIAL LAW A rticle 320, Acts o f v io la tio n o f c o m m e r c ỉa l law Acts of violation of commercial lavv include: a/ Violating provisions on business registration; business licenses of traders; establishment and operation of representative offices and branches of Vietnamese traders and foreign traders; b/ Violating provisions on domestically traded goods and services, and exported or imported goods and services; temporary import for re-export, temporary export for re443 Key issues in the 2005 Commercial Law import; transfer through border-gates; transit; c/ Violating provisions on taxes, invoices, documents, accounting books and reports; d/ Violating provisions on prices of goods and services; e/ Violating provisions on labeling of domestically circulated goods and exports and imports; f/ Smuggling, trading in goods illegally imported, counterfeit goods or raw materials and materials for production of counterfeit goods, or conducting illegal business; g/ Violating provisions on quality of domestically traded goods and services, and exported or imported goods and services; h/ Deírauding and deceiving customers in the purchase and sale of goods or the provision of services; i/ Violating provisions on protection of interests of customers; j/ Violating provisions on intellectual property rights to domestically traded goods and services; and exported 01' imported goods and services; k/ Violating provisions on origin of goods; 1/ Other violations in commercial activities according to the provisions of law The Government shall speciív acts of violation of 444 Part II The 2005 Commercial Law commercial law provided for in Clause of this Article A rticle 321 F orm s o f handlỉng o f v io la tio n s o f c o m m erc ia l lau) Depending on the nature seriousness and conse* quences of violations, violating organizations and individuals shall be handled in One of the following forms: a/ Sanctions according to the provisions of law on handling of administrative violations; b/ Where an act of violation involves elements sufficient to constitute a crime, the violator shall be examined for penal liability according to the provisions of law \Vhere an act of violation causes harm to the interests of the State or legitimate rights and interests of organizations and/or individuals, compensation must be paid according to the provisions of law A rticle 322 S a n ctỉo n ỉn g o f a d m ỉn ỉstra tỉv e vỉola- tỉons ỉn c o m m e r c ia l a ctiv itỉes The Government shall specify the sanctioning of administrative violations in commercial activities C h a p ter IX IM PLEM EN TATIO N PROVISIONS A rticle 323 Im p ỉem en ta tio n e ffe c t This Law takes effect on January 1, 2006 445 Key issues ỉn the 2005 Commercial Law This Law replaces the Commercial Law of May 10, 1997 Article 324 D eta ỉled p r o v isỉo n s a n d im p lem en ta- tion g u ỉd a n ce The Government shall detail and guide the implementation of this Law This Law iuas passed on Ju n e 14, 2005, hy the Xỉth National Assembly o f the Sociaỉist Repuhlỉc o f Vietnam at ỉts 7th scssion CHAIRMAN O F T H E NATIONAL A SSE M B L Y N guyen Van An 446 MỤC LỤC Trang Lời g ỉớ ỉ th iệu P h ầ n th ứ n h ất GIỚ I TH IỆU LUẬT THƯƠNG MẠI NĂM 2005 « « I Bô cục Luật thương mại nảm 2005 II Nội dung Luật thương mại năm 200Õ 9 P h ầ n th ứ h a i TON VN LUT THNG MI NM 2005 ô 31 447 CONTENTS Page In trod u ction 223 P a rt ỉ INTRODƯCTION TO THE 2005 COMMERCIAL LAW 22Õ I Structure of the 2005 Commercial Law 227 II Key issues in the 2005 Commercial Law 227 P a rt II THE 2005 COMMERCIAL LAW 448 249 GHI CHÉP BỔ SUNG/NOTES 449 GHI CHÉP BỔ SUNG/NOTES 450 GHI CHÉP BỔ SUNG/NOTES 451 ... A pril 20 07 THE JƯDICIAL PƯBLISHING HOƯSE 22 3 Partl INTRODUCTION TO THE 20 05 COMMERCIAL LAW 22 5 * ,í '-'1^ ■ -í ••■ V Part I Introductìon to the 20 05 Commercial Law I STRUCTURE 0F THE 20 05 COMMERCIAL... (Article 29 4 and Article 29 5 of the 20 05 Commercial Law); - Cancellation of contracts (Article 3 12 of the 20 05 Commercial Law) These provisions are more detailed with 24 6 Part I Introduction to the 20 05... ISSUES IN THE 20 05 COMMERCIAL ư^w Concept of commercial activities and governing scope of the 20 05 Commercial Law The 20 05 Commercial Law avoids muddled defmitions 22 7 Key issues in the 20 05 Commercial