THÔNG TIN TÀI LIỆU
VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES DO THI THU HANG ENSURING THE FREEDOM TO CONDUCT A BUSINESS IN ACCORDANCE WITH VIETNAMESE LAW Major: Economic Law Code: 9.38.01.07 SUMMARY INFORMATION OF DOCTORAL THESIS Hanoi - 2020 The thesis was completed in GRADUATE ACADEMY OF SOCIAL SCIENCES Scientific Supervisors: Ph D Ho Ngoc Hien Ph D Dang Vu Han Reviewer 1: Reviewer 2: Reviewer 3: The thesis will be defended in front of the Academy's Thesis Evaluation Committee Place: Doctoral thesis defense room - Meeting room House , Graduate Academy of Social Sciences Time: at ……… time, date …… month …… year ……….… The thesis can be found at: - National Library - Library of Graduate Academy of Social Sciences OPENING The urgency of the thesis The freedom to conduct a business has comprehensive meaning in economic, political, legal and social factors The economic value of this right is manifested through the creation of material values for society and is a driving force for socio-economic development In terms of politics, the freedom to conduct a business is an expression of the regime of freedom, democracy and equality From a legal perspective, freedom to conduct a business is a cross-cutting principle in the process of building and perfecting the law Business management is a natural human need, which changes through certain periods Therefore, when building and organizing the implementation of the law, the State must properly perceive, promptly capture, record and ensure the freedom to conduct a business of business entities When they fully meet the conditions as prescribed by law, no one has the right to obstruct their freedom to conduct a business Besides, the freedom to conduct a business brings great social value, is an important basis for releasing labor force and creating many jobs for society With the above meanings, the freedom to conduct a business is always respected and implemented by countries In Vietnam, according to the Business Environment Report of World Bank, Vietnam's startup index increased from 125th in 2014 to 104th out of 190 economies ranked in 2019 ; the number of procedures to be performed is reduced from 10 to 9; the time for the procedure was reduced from 34 days to 19 days Regulations on the protection of investors and shareholders continuously promoted, from position 169 in 2013 to position 117 in 2014 and position 89 in 2019 [108] The number of newly established enterprises in 2019 increased in both quantity, registered capital and number of employees compared to 2018 Inside, the number of newly established enterprises in 2019 reached a record of 138.1 thousand newly registered enterprises with a total the registered capital is over 1,730.2 trillion dong and the total number of registered employees is 1,254.4 thousand employees, up 5.2% in the number of enterprises, up 17.1% in the registered capital and 13.3% in the number of employees Compared with the last year; the average registered capital of a newly established enterprise is 12.5 billion dong, up 11.2% over the previous year On the other hand, there are 39.4 thousand enterprises returning to operation, an increase of 15.9% compared to 2018, bringing the total number of newly established enterprises and enterprises back to operation in 2019 to 177.5 thousand enterprises, on average there are nearly 14.8 thousand new businesses established and returned to operation each month [119] In addition to the above positive aspects, the assurance of the rights of the business entity is still limited, there are many violations of the law related to the rights of the business entity, there are still many unfavorable barriers to exercising the rights of business entities such as: the order and procedures for entering the market and withdrawing from the market are still cumbersome and complicated; business conditions are still barriers preventing business entities from entering the market; awareness of some officials and civil servants in performing their tasks is limited, not fully being aware of the significance and importance of the freedom to conduct a business, causing many troubles for business entities in the process of joining market, business activities in the market and withdrawal from the market; access to resources to help ensure the freedom to conduct a business is still difficult, affecting the enjoyment, performance of the rights and interests of business entities In addition, the business entity is the subject of State management and due to the negative impact of the market economy, the business entity's interests are at risk of being infringed upon by the other business entities in society Therefore, ensuring the freedom to conduct a business is an objective and urgent requirement In order to ensure the rights of business entities, the State has promulgated laws to provide for the content of securing the freedom to conduct a business, completing the legal framework of the mechanism of free enterprise to ensure the rights of business entities are performed in practice In fact, step by step removing barriers, hindering rights to freedom of enterprising, creating an equal and open legal environment for business entities to develop Resolution 48-NQ / TW dated 24/5/2005 of the Ministry of Politics on the Strategy for building and perfecting the legal system of Vietnam to 2010, with an orientation to 2020 has identified: “Completing the protection mechanism of freedom to conduct a business according to the principle that citizens can everything that the law does not prohibit” The 2013 Constitution has inherited and brought into play the preeminence of the previous Constitutions, continued to prioritize the promotion of the human factor, more deeply expressed the viewpoint of protecting, respecting human rights, and ensuring to better perform the basic rights and obligations of citizens, more fully establish business credit institutions and the mechanism to ensure the freedom to conduct a business, with the regulation that "people have freedom to conduct a business in the industries that are not prohibited by law" (Article 33) " On the basis of the 2013 Constitution, many legal documents have been amended, supplemented or newly issued, including the fundamental laws that institutionalize the principles of free enterprise such as Civil Code 2015, Enterprise Law 2014, Investment Law 2014 marked outstanding successes in the legislative aspect in securing freedom to conduct a business However, there are still gaps between the legal provisions in the Constitution, the law and the practice of respecting and ensuring the freedom to conduct a business still have gaps, making the business entity not fully promote the potentials and strengths in business activities Specifically, the provisions on the contents to ensure the freedom to conduct a business are still overlapping, contradictory, unreasonable, the provisions on measures to ensure the freedom to conduct a business have not really been promoted efficiently in practice On the other hand, in the context of extensive international integration and the impacts from the Industrial Revolution 4.0 has posed many challenges for business entities in applying technology to optimize the process of business management and methods, developing economic models applied technology, and at the same time requiring the State to promptly adapt and adjust arising problems in order to best ensure the legal rights and interests of business entities in the safe and efficient business environemt Ensuring the freedom to conduct a business of individuals and enterprises is an important factor for the economic development of the country Therefore, continuing to study the issue of "Ensuring the freedom to conduct a business in accordance with Vietnamese Law" is necessary, in order to contribute to systematizing and deepening the theoretical and practical basis to ensure rights to free enterprise in Vietnam nowadays The research results aim to propose comprehensive and specific solutions to perfect the law and improve efficiency in ensuring the freedom to conduct a business in Vietnam in the current period Research purposes and missions 2.1 Research purposes The purpose of the thesis research is to clarify theoretical issues on ensuring freedom to conduct a business and law on ensuring the freedom of conducting a business; assessing the situation law and practice of implementing laws on ensuring the freedom to conduct a business Based on this, the thesis proposed orientations and solutions to perfect the law and improve the efficiency of ensuring the freedom to conduct a business in Vietnam 2.2 Research missions To achieve the above purpose, the thesis determines to perform the following tasks: Firstly, clarifying the theoretical issues about securing the freedom to conduct a business and the law on ensuring the freedom to conduct a business such as: The concept and characteristics of the freedom to conduct a business; the concept, characteristics of ensuring the freedom to conduct a business; the conditions to ensure the freedom to conduct a business, the meaning of ensuring the freedom to conduct a business; analyzing the concept, characteristics and content of the law on securing the freedom to conduct a business Secondly, analyzing and evaluating the current situation of Vietnamese laws on ensuring the freedom to conduct a business and practical implementation; point out the results as well as the limited problems and the causes of the existence as a basis for solution to complete Third, on the basis of theory and practice, the research gives directions and recommends specific solutions to improve the law on securing the freedom to conduct a business and enhence the efficiency of securing the freedom to conduct a business in Vietnam Research subject and scope 3.1 Research subjects The object of the study is the theoretical issues about ensuring the freedom to conduct a business; the system of provisions of Vietnamese law on ensuring the freedom to conduct a business and practical implementation of securing the freedom to conduct a business in Vietnam in recent years 3.2 Research scope In terms of content, ensuring the freedom to conduct a business according to law is a very wide issue, studied at many international, regional and national levels In the scope of research, the thesis only researches to ensure the freedom to conduct a business according to law at the national level On a national scale, the law on ensuring the freedom to conduct a business has very wide content, including provisions on the content of securing the freedom to conduct a business and the provisions of the measures to ensure the freedom to conduct a business In terms of content of ensuring the freedom to conduct a business, there are some authors who have studied in depth in this aspect, so the postgraduate student will choose to study some basic rights and the structure of guaranteed rights according to the process of the business owner since entering the market, business activities in the market and withdrawal from the market As for securing the freedom to conduct a business in the course of business operations in the market, many powers of business entities are guaranteed, but within the research scope, the postgraduate student will focus on analyzing some basic rights of the business This includes assuring freedom of ownership of property, ensuring freedom of contract, and securing freedom of competition In the scope of space and time, the dissertation mainly studies data on the current situation of ensuring the freedom to conduct a business in the whole country, from the time the Constitution 2013 was promulgated to December 2019 to evaluate the advantages and limitations of the current law on securing the freedom to conduct a business and the practice of securing the freedom to conduct a business in Vietnam From there, the author proposes recommendations and solutions to improve the law on securing the freedom to conduct a business and enhance the efficiency of securing the freedom to conduct a business in Vietnam today Methodology and research methods The thesis is done on the basis of applying the method of dialectical materialism, historical materialism of Marxist-Leninist, the views of the Party and State on the freedom to conduct a business and ensuring the freedom to conduct a business in innovation career To clarify the problem to be researched, the thesis not only bases on the general methodology as mentioned above, but also uses specific research methods such as: systematic method, statistical method, analytical method , synthesizing and comparative jurisprudence to approach and clarify the theoretical and practical issues of implementing regulations on ensuring the freedom to conduct a business in accordance with Vietnamese law New contributions to the thesis science The thesis is a scientific research that focuses on in-depth research on ensuring the freedom of conducting a business in accordance with Vietnamese law Therefore, compared with the research works published previously, the thesis has new contributions to science as follows: Firstly, on the basis of researching the previous scientific works on freedom of conducting a business and ensuring the freedom of conducting a business, the dissertation continues to develop and further improve the theoretical basis of securing the freedom of conducting a business as analyzing the explanation the concept, characteristics, conditions to ensure freedom of conducting a business, the meaning of securing the freedom of conducting a business and the concept, characteristics, content of the law on securing the freedom of conducting a business Secondly, the dissertation analyzes and evaluates the current situation of legal decision and the practice of implementing current Vietnamese law on securing the freedom of conducting a business, outlining the advantages of the law on guarantee of freedom of conducting a business, at the same time pointing out inadequacies, limitations and causes in the provisions of the current law as well as practical implementation of ensuring the freedom of conducting a business Thirdly, the thesis outlines the orientations and solutions to amend and supplement a number of limitations in current legal decisions on ensuring the freedom of conducting a business in order to meet the requirements of securing the freedom of conducting a business and improve the efficiency of ensuring the freedom to conduct a business in Vietnam today 6 Theoretical and practical significance of the thesis - Theoretical significance: The research results of the dissertation contribute to supplementing useful documents on theoretical issues about securing the freedom to conduct a business and the law on securing the business freedom, contributing more fully to the awareness process of concepts and characteristics of ensuring the freedom to conduct a business, the conditions to ensure the freedom to conduct a business; the meaning of securing the freedom to conduct a business and the concept, characteristics, and content of the law on securing the freedom to conduct a business, is the basis for building, completing and enforcing the guarantee of the freedom to conduct a business according to the law in Vietnam - Practical significance: The research results of the thesis will provide references for lawmakers in the process of building and completing legal decisions on guarantee of the freedom to conduct a business in Vietnam At the same time, the thesis is a useful reference for research, teaching and learning in research institutions, law training institutions and for those who are interested in the this matter The structure of the thesis In addition to the introduction, conclusion, list of references, the thesis is expected to have the following structure: Chapter 1: Overview of research situation and research theoretical basis Chapter 2: Theoretical issues on ensuring the freedom to conduct a business and the law on ensuring the the freedom to conduct a business Chapter 3: Current situation of ensuring the freedom to conduct a business according to present Vietnamese laws and in practice Chapter 4: Orientation and solutions to perfect the law, improve the efficiency of ensuring the freedom to conduct a business in Vietnam Chapter OVERVIEW OF RESEARCH SITUATION AND RESEARCH THEORETICIAL BASIS 1.1 Overview of research situation Through reviewing outstanding works related to the research topic, we can see the results achieved by the research activity, specifically as follows: Firstly, on the theory of ensuring the freedom to conduct a business and the law on ensuring the freedom to conduct a business - Some studies on ensuring human rights in general have deeply analyzed the theory of guarantee mechanism of human rights in general, so the author will continue to inherit to continue researching and analyzing more deeply the theoretical issues about ensuring the freedom to conduct a business - The research results are complementary, abundantly respondent to theoretical knowledge, specifically: Scholars have the consensus which was based on the theoretical foundation of Marxism-Leninism on the State and Laws, research theories and bases on the Constitution and legal documents to implement the Constitution to clarify theoretical issues about securing the freedom to conduct a business in different aspects - The content of the freedom to conduct a business is continuously inherited by the author through works with a unified approach including specific rights such as: the right to establish a business, the right to freely own property, the right to freedom of contract, the right to freedom of competition and some other related rights - The researches all acknowledge the role of law in ensuring the freedom to conduct a business - Regarding the factors affecting the guarantee of the freedom to conduct a business according to law, the authors mentioned to analyze a number of dominant factors including political system, economic regime, besides some works that the impact of barriers, hindering the ensuring of the freedom to conduct a business, such as State intervention, unhealthy business environment, corruption Secondly, on the study of the legal situation and practice of ensuring the freedom to conduct a business in Vietnam: Through an overview of the above studies, there are some unified common points in the assessment of the legal situation and practice of law enforcement related to the guarantee of the freedom to conduct a business - Acknowledging legal decisions on ensuring the freedom to conduct a business and quality of law building that has an important influence on ensuring the freedom to conduct a business of business entities - There still exist and limitations of legal decisions as many regulations are general and overlapping; regulations on business conditions and business licenses are still unreasonable, hindering enterprises' entry into the market - In practice of law enforcement, Vietnamese enterprises still bear many burdens on administrative procedures Third, on solutions and recommendations: Most researches have said that in order to ensure the freedom to conduct a business of business entities, it is necessary to amend the synchronous legal system Besides, the works propose solutions to improve efficiency to ensure the freedom to conduct a business 1.2 Problems of research projects have not been fully solved or need to be studied further Firstly, most of the researches on the freedom to conduct a business and the law on guarantee of the freedom to conduct a business have not clarified the concept of ensuring the the freedom to conduct a business; have not gone into depth analysis of overall ensuring the freedom to conduct a business from the concept, characteristics, the conditions and the meaning of securing the freedom to conduct a business to the concept, characteristics, and content of the law on securing the freedom to conduct a business Second, the majority of scientific works mainly analyze the provisions of the law and evaluate the practical implementation of the law on the content of the freedom to conduct a business, in comparison with reality to find the shortcomings and limitations of the law refulating on the content of the freedom to conduct a business which have not studied the overall law on guarantee of the freedom to conduct a business Laws on guarantee of the freedom to conduct a business need to look comprehensively, including stipulating the content of the freedom to conduct a business and stipulating measures to ensure the freedom to conduct a business Third, the researches have not identified and proposed fundamental solutions to the problem of ensuring the freedom to conduct a business according to law in Vietnam 1.3 Issues need to continue researching Firstly, in theory, the thesis will solve and deepen the theoretical issues of securing the freedom to conduct a business and the theory of the law to ensure the freedom to conduct a business Secondly, the author will continue to research the current Vietnamese legal situation and practices of securing the freedom to conduct a business in order to point out the advantages, limitations and shortcomings of the law on securing the freedom to conduct a business and find out the basic cause that makes the law on the freedom to conduct a business violated 3.1.1 The situation of ensuring the freedom to enter the market The Enterprise Law 2014, the Investment Law 2014 and the above legal documents have contributed to early accelerating the market entry process of business entities The regulations simplify licensing conditions and procedures, and the abolition of business conditions are no longer appropriate, creating an increasingly complete legal framework, creating a driving force for business development and attracting foreign investment The reality of registration to be an Enterprise Law shows that the number of new businesses has steadily increased, the application of information technology helps businesses reduce the costs of entering the market and contribute to improving the efficiency of State management, foreign investment attraction increased sharply, the business environment of Vietnam was continuously improved In addition to the results achieved, the practice of implementing the law on ensuring the freedom of market entry shows that there are still many barriers that slow down the process of joining enterprises: First, the criminalization of economic relations still occurs, which impedes the right to enter the business market For example, the coffee shop "Hello" happened in August 2015 Second, the market entry of enterprises is still limited and difficult because the barriers to business conditions are not really scientific, not consistent with reality, this issue is "torturing businesses to operate sincerely " The reason is that the sense of responsibility and capacity of some officials and civil servants is still limited, in addition, the law on ensuring the freedom to enter the business market is overlapping, regulations on business conditions and the list of conditional business lines also revealed many shortcomings that hindered the right of enterprises to enter the market 3.1.2 The situation of ensuring the freedom to conduct a business in the market 3.1.2.1 Situation of ensuring freedom of property ownership The law has many provisions to ensure the creation of a full and favorable legal basis for the establishment of the ownership, exploitation and efficient use of assets However, property registration regulations are prescribed in many different documents In addition, the timing of the transfer of ownership of real estate will be difficult to understand in the provisions of Article 161 of the Civil Code in 2015 and the Law on Land 2013 Practical implementation of the law on ensuring freedom of property ownership shows that the State has ensured the diversity of ownership forms and economic sectors, creating conditions for business entities in all economic sectors to develop In addition to the achieved results, the practice of securing the right to freedom of assets ownership of the business entity still has shortcomings: 14 Firstly, the guarantee of intellectual property rights is still limited, and infringements of intellectual property rights are complicated and diverse Secondly, the State has not yet had effective measures to promote the strengths of the collective economic sector and the private economy for development The activities of the State economic sector are still limited The reason is that awareness and consciousness of individuals and organizations on intellectual property rights is still very limited, propaganda, dissemination and education of the law on intellectual property rights is not extensive, and the rights subjects not know how to apply legal measures to protect their legal rights In addition, the management of State Enterprise is still weak, the training, investment and application of technology are very limited, and the overlapping of the management of enterprises affects the autonomy and self-responsibility of State Enterprise 3.1.2.2 Situation of ensuring the freedom of contract There are many provisions under current laws to ensure freedom of contract to create conditions for business entities to conduct business activities in an active and effective manner However, in recent years, there still exist a number of issued sub-law documents that limit the freedom of agreement of the parties to the contract of the enterprise, restricting the entity entering into a contract to open a payment account at the bank for organizations without legal status In addition, there is still a situation of freedom of contract interfered with by legal documents of state agencies, which limit the freedom to sign contracts and freely decide how to operate business On the other hand, there is still inequality in contractual conclusion between State Enterprises and enterprises of other economic sectors 3.1.2.3 Situation of ensuring the freedom of competition according to the law Ensuring of freedom of competition is specified in Article 51 of the 2013 Constitution, Article of the 2015 Civil Code and especially Competition Law No 23/2018 / QH14 These regulations have contributed to creating a legal corridor to ensure a healthy competition environment, thoroughly and comprehensively handle all competition acts that have or have the potential to cause anti-competitive effects on Vietnamese market The practice of implementing the law on ensuring freedom of competition in recent years has contributed to the formation of a culture of competition in business and the behavior orientation of business entities in accordance with the law, creating equality in business activities However, the reality still remains that some local state management agencies act or issue administrative documents containing imperative content to require enterprises to supply goods and supply service or discrimination between enterprises which affects 15 the healthy competitive environment, creates unequal discrimination that affects other enterprises in the market 3.1.3 Regulations on ensuring the right to free withdrawal from the market In order to ensure the freedom to withdraw from the business market, the laws of Vietnam provide for a variety of methods of withdrawal from the market of business entities For entities that not establish a company, you can choose one of the forms such as stopping cooperation, business investment in accordance with the law or stopping business registration or transferring shares and shares in accordance with the Law Enterprise 2014, Decree No 78/2015 / ND-CP dated September 14, 2015, Circular No 20/2015-TT-BKHDT dated December 1, 2015, Official Letter No 4211 / BKHDT-ĐKKD dated June 26 / 2015 on guiding the application of regulations on enterprise registration For entities that establish enterprises, the law provides for the right to withdraw from the market through suspending operations, dissolving and bankruptcy In addition to the achieved results, the implementation of the law on ensuring the right to withdraw from the market is still limited as ensuring the dissolution right of enterprises is still relatively low First, the practice of exercising the right to dissolve enterprises is low compared to the reality in the leading economies in terms of the advantageous level of business investment environment in the world The main reason is that enterprises' understanding of dissolution laws is still limited Second, the practice of exercising the right to request bankruptcy is not now easy because enterprises are afraid that the request for bankruptcy must be accompanied by all documents and records related to business activities 3.2 Situation of measures to ensure the freedom of conducting a business 3.2.1 Situation of ensuring the freedom to conduct a business by administrative procedure measures Administrative procedure measures are specified in the process of registration of enterprise establishment and dissolution and bankruptcy of enterprises In recent years, the Government and related agencies have continuously reformed administrative procedures to reduce the time and costs for business entities to enter the market in the shortest time However, the practice of market entry procedures for enterprises still takes a lot of time and goes through many procedures Besides, there are too many specialized management agencies involved in licensing procedures for enterprise establishment The procedures for withdrawing from the market still have shortcomings: Regulations on dissolution procedures still stipulate in many legal documents in many different fields, causing difficulties in the 16 implementation process as the regulations in the fields of tax, business registration, police, customs, insurance In addition, the regulations on procedures to request bankruptcy are still inadequate The cause of the above limitation is that the law-building work is not really suitable with the social reality In addition, in the law enforcement process, the competent officials have a "requiring money" attitude., some officials not have professional qualifications, leading to many errors when issuing business registration certificates and enterprises, they have to spend money and time to go to the procedures This not only affects the stable business environment but also affects the interests of businesses 3.2.2 Situation of ensuring the freedom to conduct a business by dispute resolution Dispute settlement measures are prescribed by law to help business owners both protect themselves or to request competent agencies or organizations to resolve them to protect their legal rights and interests According to Article 317 Commercial Law 2005 the forms of dispute settlement are: “Negotiation between the parties; Conciliation between the parties by an agency, organization or individual selected by the parties to act as the mediator; settlement at arbitration or court” In practice, it is showed that securing by dispute resolution does not really ensure the rights and interests of the disputing parties: The method of negotiating: the success rate is very few, abused by the parties, prolonging the negotiation and settlement time and lack of goodwill to settle The reason is that the capacity of the parties to the dispute resolution is still limited, on the other hand, there is no mechanism to bind the implementation of the negotiation results The mediation method still stipulates barriers such as: the mediator of the case must register at the Department of Justice, the procedure for recognizing successful mediation results outside of the Court is still complicated; moreover, in terms of psychology, the disputing parities have not really believed in the effectiveness of the mediation method The reason is that the legal corridor of Decree 22/2017 / ND-CP recently issued, on the other hand, the psychology of the parties has not really trusted the effectiveness of the mediation method There are still shortcomings in the solution to resolve the arbitration in the regulations on the implementation of the arbitral award are not specific and clear The reason is that the regulations on the enforcement of arbitral awards are not specific and clear, the arbitrator team is still limited in international commercial knowledge, about professional skills Inadequate measures to resolve the dispute at the Court: Overcrowding in the Court's adjudication activities, leading to delays in the resolution of the 17 case The main reason is due to the increase in the number of civil cases, including commercial business cases that the Courts handle with increasingly complex while the material facilities and state budget which are invested for the court system of organization is limited; Procedure order and procedures are still strict and cumbersome, on the other hand, the provisions on time limit for settlement of the case have not taken into account that the specific elements of business and commercial disputes that are often complicated In addition, the capacity and qualifications of some judges and court employees are still limited, the sense of observance of civil service is not strict, the sense of responsibility, the attitude of serving the people is not good, and doesn’t meet the requirements 3.2.3 Situation of ensuring the freedom to conduct a business by sanctions measures against violations of enterprise freedom 3.2.3.1 Situation of ensuring the freedom to conduct a business by measures against administration violations Administrative measures have an important role in contributing to ensuring administrative discipline, protecting security, order, safety, society, the legal rights and interests of citizens, organizing, preventing, handle acts and violations to freedom to conduct a business of the enterprise In practice, the implementation of administrative measures has not yet achieved the desired effect The situation that enterprises have not strictly complied with the law such as: Evading the disclosure of business registration information, incorrect declaration of the contents of the enterprise registration dossiers; fake identity to set up businesses, buy and sell invoices still exist The cause of the above violation is due to: The sense of responsibility of business entities is not high, and many enterprises have not mastered the provisions of the law, leading to law violations In addition, the level of penalties for business violations is still low and there are many regulations about the documents of the current administrative sanctions which are quite scattered, leading to not timely updating and catching up with new information of the enterprises 3.2.3.2 Situation of ensuring the freedom to conduct a business by civil measures In order to ensure the business management of the business entity when there is an infringement action, Vietnamese Law provides for self-protection measures in Article 12 of the Civil Code and protection measures through competent agencies and organizations and civil sanctions includes: Recognizing, respecting, protecting and securing their civil rights; forced termination of infringement; forced public apology and correction; forced performance of obligations; forced compensation for damage; Cancellation of a particular unlawful decision of a competent agency, organization or person; 18 other requirements in accordance with the law However, the provisions in Article 12 are still too general in determining the correspondence between self-protection measures and the nature and severity of violations The practice of applying self-protective measures of business subjects is still very limited due to the lack of awareness and full understanding of the provisions of the law, and the skills in negotiation and negotiation are still limited For protection measures implemented by competent agencies and organizations, there are still inadequacies in the provisions specified in Article 292 Commercial Law in 2005 that overlap and conflict with the 2015 Civil Code, especially regulations on handling contract violation on the current maximum penalty are no longer appropriate and obstruct the parties' right to freely agree on in the contractual relationship; measures to compensate the business subject for damage in the disputing relationship, which is required by the business entity to prove the damage caused by the legal entity's violation However, to prove the level of damage, especially the damages caused by environmental pollution of enterprises to individuals, other enterprises are not simple 3.2.3.3 Situation of ensuring the freedom to conduct a business by criminal measures Criminal measures are applied to those who intentionally commit acts of infringing upon the freedom to conduct a business Criminal sanctions include: fine, non-custodial reform, imprisonment Especially, for the first time in the history of the legislature, there is a criminal liability of commercial legal entities for criminals which is specified in Article 76 of the 2015 Criminal Code amended and supplemented in 2017, under which there are 33 crimes for which the juridical person must bear criminal liability However, the current regulations on criminal prosecution for commercial legal entities still have many shortcomings, specifically: Scope of criminal liability of commercial legal entities; conditions for criminal liability of commercial legal entities in Article 75 are not yet specific and difficult to apply; on proving the intentional or unintentional error of the juridical person, proving whether or not there are legal associates Recent practice shows that individuals and commercial legal entities violate the law, affecting the business activities of true business entities, violations occur in many fields but most commonly are still the fields of environment, banking, insurance, and commercial activities However, criminal measures have not really brought into play the full effect in handling violations of the law of commercial legal entities, only stopping at the examination of criminal liability of individuals belonging to commercial legal entities trade This shows that criminal measures are not enough to deter, prevent and stop violations of commercial legal entities, affecting the 19 legitimate rights and interests of other commercial legal entities in the process business activities 3.2.3.4 Situation of ensuring the freedom to conduct a business by other measures Vietnamese law has specified other measures to support the guarantee of freedom to conduct a business, including support for credit access, information support; technology support, tax support, legal support such as: Law to support small and medium enterprises in 2017; Law on access to information and legal documents which guide implementation have specified the right of people and businesses to access information, and at the same time, stipulates the accountability of state agencies to ensure the equal, democratic However, the current legal decisions are still lacking, not specific, making it difficult for business entities to access loans, access information before investing in business, such as information about economic zones, markets business is very limited; regulations on tax support policies when startups also offer many conditions for businesses Vietnam's regulations on credit granting are too strict to ensure conditions for financial capacity assessment documents and requirements for collateral In practice, in terms of the access to resources such as information, land, capital and access in the fields of science, engineering and technology, the enterprises face many difficulties Chapter ORIENTATION AND SOLUTIONS TO PERFECT THE LAW, IMPROVE THE EFFICIENCY OF ENSURING THE FREEDOM TO CONDUCT A BUSINESS IN VIETNAM 4.1 Orientation to perfect the law on ensuring the freedom to conduct a business in Vietnam 4.1.1 Comprehensively understand the provisions of the 2013 Constitution on ensuring human rights and citizen's right 4.1.2 Comprehensively understand the Party and State's views on perfecting the socialist-oriented market economy institutions 4.1.3 Ensure compliance with international law and requirements of international economic integration 4.1.4 Ensure to adapt to the effects of the fourth industrial revolution 4.2 Some solutions to improve the law and improve efficiency to ensure the right to free business in Vietnam 4.2.1 Perfecting the law on guaranteeing freedom of conducting a business in Vietnam 4.2.1.1 Complete the law on ensuring the content of the freedom to conduct a business 20 First, perfecting the law on ensuring the right to free entry into the business market (i) Review and amend the Law on Enterprises 2014 and other guiding documents on enterprise registration towards: - Agree on the regulations on the discontinuation of business on the enterprise registration certificates in Article 29 Law on Enterprises 2014 with Clause Article 24 Law on Enterprises 2014 regarding the content of the application for enterprise registration and Point B Clause Article 25 on the charter company - Agree on regulations on the content and procedures for public announcement of the content of enterprise registration on the National Portal At the same time, regulations on handling measures and specific sanctions for enterprises that fail to fulfill their obligation to disclose business registration information on the National Enterprise Registration Portal - Amend regulations on rights of common shareholders in Clause Article 114, Clause Article 149 Law on Enterprises to protect the rights of investors (ii) Reviewing and amending legal regulations on business conditions and amending Appendix of the Law on Investment to the list of conditional business that are currently not suitable for scientific and legal basis and practical basis to continue ensuring the freedom of conducting a business of people and businesses, in which: - Amend the provisions at Points d, e, g, Clause 2, Article of Decree No 118/2015 / ND-CP on general business conditions, impeding the right of enterprises to enter the market - Review and amend the list of business which has conditions in the Law on Investment (revised) 2016 Second, perfecting the law on ensuring freedom in business activities in the market (i) Complete regulations on ensuring freedom of property ownership, in which: - Improve the law to ensure intellectual property rights to ensure the rights and interests of genuine business subjects - Completing the law on state enterprise equitization to improve the performance of state enterprises - Complete the law on household busines in the direction of ensuring household busines to promote its capacity and available resources for production and business - Improve policies and laws to create conditions for the private economy to bring into play its available potentials to contribute to a stronger development of our economy 21 - Agree on the legal decision on current property registration to ensure the most common legal principles when building legal documents about property registration In addition, it is necessary to unify the provisions of Article 161 of Civil Code 2015 with the provisions of the Law on Land 2013 on the determination of the time of transfer of land ownership, in which, the time of establishment of ownership and other rights towards property which is calculated from the time the property is registered at the competent authority and the parties have completed registration procedures to change the name (ii) Complete the legal regulations on ensuring freedom of contract, in which, it is necessary to amend Circular 32/2016 / TT-NHNN dated December 16, 2016 on amending and supplementing a number of articles and subarticles Annex of Circular 23/2014 / TT-NHNN dated August 19, 2014 of the State Bank of Vietnam in the direction of creating favorable conditions for all individuals, organizations with legal status and organizations without legal status have the right to open a payment account at a bank to ensure the unity of the current economic development policy of the Party and the State Besides, it is necessary to consider amending Clause Article 45 of Circular 63/2014 / TT- BGTVT regulates the organization and management of car transport and road support services to avoid interference with the freedom to choose partners, freely agree to the contractual terms of parties (iii) Complete legal provisions on ensuring the right to freedom of competition under the law, in which, it is necessary to amend Decree 94/2017 / ND-CP on goods, services, and areas exercising state monopolies in commercial activities and the provisions of Clause 1, Article 5, Law on Enterprises 2014 and ensure consistency with the provisions of Decree No 24/2012 / ND-CP dated April 3, 2012 of the Government on management gold trading Third, perfecting the law on freedom of withdrawal from the market Completing the legal decision ensures the right to withdraw from the market, such as amending the regulations on dissolution procedures towards enterprises in the direction of simplicity in terms of documents and procedures, when performing dissolution requests, helping businesses save money and time to travel In addition, it is necessary to amend the regulations of Bankruptcy Law in 2014, ensuring the specificity, feasibility and convenience of enterprises in implementing bankruptcy procedures 4.2.1.2 Complete legal regulations on measures to ensure the freedom to conduct a business First, perfecting the law on administrative procedures related to the process of entering the business market and withdrawing from the business market 22 Firstly, it is necessary to unify enterprise registration procedures under the Law on Enterprises, eliminate different procedures and requirements for the establishment of enterprises in specialized law, irrespective of the types of business activities and investors Secondly, reviewing and eliminating cumbersome and contradictory administrative procedures that increase costs of enterprises and prevent enterprises from entering the market Thirdly, building a systematized set of procedures related to the process of entering the business market, operations and withdrawal from the business market Secondly, perfecting the law on measures of dispute resolution to ensure the legitimate rights and interests of business entities Firstly, improve the regulations on methods of dispute resolution by commercial mediation: It is necessary to soon promulgate the Law on Commercial Mediation, because the current legal decision on mediation is still prescribed in many legal documents different laws Secondly, amending the provisions of the Law on Commercial Arbitration in 2010 in the direction of better ensuring the Court's support for the method of dispute resolution by arbitration; at the same time, it is necessary to specify the issue of cancellation of arbitral decisions Refund the provisions on dispute resolution methods at the Court in the direction that the dispute resolution procedures must be simple, the time limit for dispute resolution must take into account specific factors, especially business and trading cases is complicated, it takes time to gather evidence, it is necessary to extend a maximum time limit to resolve the case to help the Court best ensure the legitimate rights and interests of the litigant In addition, cross-border international disputes are increasingly high, in order for judicial activities to be conducted effectively and effectively, to meet the requirements, it is necessary to include regulations on the application of information technology in the court's adjudication Thirdly, complete regulations on measures to handle violations of business freedom Firstly, perfecting the legal provisions on administrative sanctions towards building sanctions which strongly tighten the responsibility of entities when implementing registration activities, business activities as well as implementing the procedures in the market withdrawal process Second, it is necessary to have detailed guidelines on Articles 11 and 12 of the Civil Code 2015 on methods of protecting civil rights and specific guidance on the order and procedures for implementing the method of selfdefense of civil rights At the same time, civil laws need to be amended and supplemented in the direction that procedural agencies are also responsible for 23 proving the extent of damage caused by violations of the law, in order to ensure rights and benefits of the enterprises whose freedom to conduct a business is violated Third, it is necessary to amend and complete the legal provisions on criminal measures applying to commercial legal entities Specifically: (I) Expand the scope of criminal liability of a commercial legal entity for the group of identity crimes, criminal group titles; crime of human trafficking, murder in order to ensure compliance with international law (ii) The conditions specified in Article 75 of the Criminal Code 2015 are very difficult in applying criminal prosecution against legal entities Therefore, it is necessary to combine the conditions that " Criminal acts are committed in the name of commercial legal entities" and " criminal acts are performed with the direction, administration or approval of commercial legal entities " to as the basis for the criminal prosecution of legal entities (iii) Adding provisions on intentional errors in Article 10, unintentional crimes in Article 11, co-conspirators with commercial legal entities in Article 17 to serve as a basis for handling criminal liability of criminal liability of commercial legal entities Fourthly, complete regulations on support measures to ensure the right to business freedom Firstly, it is necessary to amend legal regulations on land in order to create favorable conditions for enterprises to access land resources in a convenient way such as simplifying registration procedures for the rights of using land Second, complete legal provisions on support to ensure that business owners have access to preferential capital sources in the direction of simple regulations on loan procedures, and shorten loan appraisal period Thirdly, perfecting regulations on supporting business entities in accessing advanced science and technology and transferring and innovating technology so that businesses can improve efficiency, productivity in production and business processes Fourth, promulgate regulations to support business entities in accessing information, consulting and free legal advice on procedures for registration of establishment of businesses, converting household business into enterprises 4.2.2 Solutions to improve efficiency in ensuring the freedom to conduct a business according to Vietnamese Law In order to improve the efficiency of securing the freedom to conduct a business in our country in the upcoming time, it is necessary to synchronously implement the following solutions: 24 Firstly, increase the dissemination and education of the law on freedom of conducting a business and guarantee the right to freedom of business in Vietnam Second, reforming administrative procedures in the field of investment and business Third, improve the operational efficiency of agencies and organizations in ensuring the right to business freedom Fourthly, to strengthen the capacity of the contingent of cadres and civil servants to perform the task of state management on investment and business Fifth, applying scientific and technological achievements to ensure business freedom of enterprises CONCLUSION Research on the topic "Ensuring the freedom to conduct a business in accordance with Vietnamese law" is done in the context of building and perfecting a socialist-oriented market economy and extensive international integration Especially, the Industrial Revolution 4.0 has posed many challenges to the responsibilities of agencies and organizations in securing the freedom to conduct a business This is a topic with a wide and complex research scope, which many authors research in different aspects, within the scope of the thesis research, the author draws some conclusions as follows: Freedom to conduct a business is a basic human right that has economic, political and social significance and is recognized in the United Nations conventions and in the Constitution and laws of countries around the world In economic relations, the business entity is an important force in the creation of material wealth for socio-economic development, but is subject to the management of the State, on the other hand due to the impact of the negative side of the market economy, the interests of this business entity are at risk of being compromised by other business entities in society Therefore, securing the freedom to conduct a business is an objective and urgent requirement Ensuring that freedom to conduct a business is the responsibility of agencies and organizations in preserving, respecting, implementing, protecting and creating political, economic, social and legal conditions to help business entities enjoy, perform and protect freedom of market entry, freedom in business operations in the market and freedom of withdrawal from the market In the legal aspect, ensuring the freedom to conduct a business is understood as the overall legal regulations promulgated or recognized by the State, regulating the content of the freedom to conduct a business and the security measures to help the business entity enjoy, fully implement the freedom to conduct a business in practice and preventing and handling acts of 25 obstructing, violating the rights to freedom of market entry, the right to freedom of business activities in the market and the right to free withdrawal from the market The current law on securing the freedom to conduct a business in Vietnam, in addition to full regulations on the content of securing the freedom to conduct a business, there are also security measures to ensure that the freedom to conduct a business are implemented in practice like the regulations on administrative procedures which exercise the freedom of conducting a business , provisions on measures to handle dispute resolution, measures to handle violations of the freedom to conduct a business and other support measures to ensure the freedom to conduct a business such as support to access capital, land, science, technology, information, technical skills The synchronous implementation of these measures will contribute to ensuring the freedom to conduct a business of business entities which is effectively implemented in practice It can be said that our State has been trying to enact many policies and laws to create conditions for business entities to quickly enter the market such as reforming administrative procedures, removing conditions which creates barriers for business entities in the process of entering the market, cuts down on investment costs in business production creating a legal basis and a favorable business environment for business entities to develop However, in addition to the advantages, the legal system of Vietnam still has shortcomings and limitations that need to be completed, specifically: the content of the right to enter the market is still contradictory; the order and procedures for entering the market and withdrawing from the market are still cumbersome; business activities of enterprises are bound by business conditions imposing on enterprise size or business conditions that interfere with the self-determination of enterprises…; regulations on measures to ensure the freedom to conduct a business are quite general, not really effective The process of applying and implementing the law shows that, on the way to enjoy, implement and protect the freedom to conduct a business, the business entity is still facing difficulties because they have to incur a lot of investment costs to comply with regulations such as facilities substances, machinery, equipment, labor, training, to meet the requirements of the law; the official fees and charges that enterprises and people have to pay in the course of implementing related procedures; unofficial "hand-to-hand" charges for favorable decisions Besides, the implementation of the responsibility to ensure the freedom to conduct a business of the competent agencies and organizations is still limited because the officials and civil servants are not fully aware of the reedom to conduct a business is a natural and inherent right of the subjects that each officer and civil servant must be obliged to perform and create conditions for them to enjoy and fully exercise their rights 26 In order to ensure that the freedom to conduct a business is implemented in practice, the completion of policies and laws in a consistent and synchronous manner together with the implementation of solutions to improve the effectiveness of freedom to conduct a business is an urgent issue and is the responsibilities of the subjects to ensure the freedom to conduct a business However, if there is a complete, transparent, objective legal system, but in reality the fact that the relevant competent agencies and organizations not perform their responsibility to ensure the freedom to conduct a business, the business entity will not enjoy, implement and protect the freedom to conduct a business fully Therefore, the improvement of the law and raising awareness of the public action of officials and civil servants performing tasks is the core, regular and continuous issue, is the basis to ensure freedom to conduct a business of business entities which is implemented in practice and aiming to contribute to the socio-economic development of the country 27 LIST OF PUBLISHED RESEARCH WORKS BY AUTHOR Some issues on the legal mechanism to ensure the freedom to conduct a business in Vietnam, Journal of Lawyers, No 3/2018, pages 41-45 Shortcomings and a number of recommendations to improve the law on ensuring freedom of conducting a business in Vietnam, Journal of Lawyers, No 5/2018, pages 50-56 A number of solutions to improve the efficiency of ensuring the freedom to conduct a business in accordance with Vietnamese law, Journal of Lawyers, No 2/2019, pages 34-38 28 ... securing the freedom to conduct a business and enhance the efficiency of securing the freedom to conduct a business in Vietnam today Methodology and research methods The thesis is done on the basis... the freedom of conducting a business and improve the efficiency of ensuring the freedom to conduct a business in Vietnam today 6 Theoretical and practical significance of the thesis - Theoretical... researching Firstly, in theory, the thesis will solve and deepen the theoretical issues of securing the freedom to conduct a business and the theory of the law to ensure the freedom to conduct a business
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