[Luật Kinh doanh] Phân tích các điều kiện để hợp đồng có hiệu lực theo điều 117 của Bộ Luật dân sự Việt Nam năm 2015 (English)

Tiểu luận môn Luật Kinh doanh (tiếng Anh).

UEH LAW SCHOOL ASSESSMENT COVER SHEET (To be completed by students, signed, dated and attached to front of assessment) STUDENT ID NUMBER: 31181021940 FAMILY NAME: NGUYỄN OTHER NAMES: THÙY THƯƠNG THƯƠNG Unit name: Analyze the conditions for effective contracts under Article 117 of Civil Code 2015 Lecturer’s name: Nguyen Khanh Phuong Minimum number of words: 2.500 Due date: 06/10/2021 Word count: 2963 Time & Date submitted: 12AM, 06/01/2021 FINAL MARK: …………… Academic Honesty All form of plagiarism and unauthorized collusion are regarded as academic dishonesty by the University of Economics Ho Chi Minh City, resulting in penalties including failure of the unit of study and possible disciplinary action If you are in doubt about academic honesty, please consult with your lecturer Declaration (Tick each box)  I have already submitted or will be submitting my assessment by the due time and date  I/we have read and understood the Decision on Academic Dishonesty and Plagiarism Policy by the University of Economics Ho Chi Minh City  I understand that failure to comply with the above can lead to the University commencing proceedings against me for potential student misconduct  This work is substantially my/our own, and to the extent that any part of this Work is not my/our own I/we have indicated as such by acknowledging the source of that part or those parts of the Work  The assessment has not been submitted previously for assessment in another unit  The assessment conforms to the requirements in the Unit Syllabus  The Law School may communicate a copy of this Work to a plagiarism checking service NGUYỄN THÙY THƯƠNG THƯƠNG ……………………… Student Signature 06/01/2021 Date TABLE OF CONTENTS INTRODUCTION 1.1.Rationale of the essay 1.2.Researching method .1 1.3.Scope of the analysis 1.4.Design of the essay MAIN LEGAL ISSUES 2.1.The basics of the civil contracts 2.1.1 Definition of civil contracts 2.1.2 Forms of contracts 2.2.The conditions for effective contracts under Article 117 of Civil Code 2015 and their analysis 2.2.1 Subjects of civil transactions 2.2.2 The voluntariness of the subjects in civil transactions 2.2.3 The objective and contents of the civil transactions 2.2.4 The form of civil transactions 2.3.Practical cases 2.3.1 Case .6 2.3.2 Case .7 2.4.Some notable changes of Article 117, Civil Code 2015 CONCLUSION REFERENCES .11 UEH - Law School Business Law- Final Exam INTRODUCTION 1.1 The rationale of the essay Nowadays, civil transactions are the type that arises often They can be created in many forms, appearing from the smallest things to the bigger problems in society Among those ordinary civil activities, a contract is an important transaction form of any subject, whether it is an individual or a legal entity It should be emphasized that the issue of drafting and signing a completing and good contract is vital Therefore, acknowledging the current regulations for all types of civil transactions will help the ones entering into the civil contracts ensure their rights, make the transactions take place smoothly, save time when disputes or lawsuits occurring, and limit the risk of unnecessary damages Therefore, it is extremely important for the subject to determine the general validity conditions of a civil contract, thereby complying with them to avoid problems leading to contract invalidation and lose their benefits For that reason, in this essay, by analyzing the provisions of Article 117 of Vietnam Civil Code 2015, we will understand more about the conditions for effective civil contracts, then how the law applies to some practical cases in Vietnam 1.2 Researching method The main researching method is to collect data from textbooks, law websites, the Civil Code 2015, etc Therefrom, the information collected is used for synthesizing and analyzing the clauses in Article 117 of Civil Code 2015, then apply the law in practical cases, and make comments 1.3 Scope of the analysis The scope of the essay’s analysis only focuses on the conditions for effective contracts in accordance with Article 117 of the Vietnam Civil Code 2015 and related provisions 1.4 Design of the essay This essay is divided into three parts: • Part 1: Introduction • Part 2: Main legal issues of the topic • Part 3: Conclusion UEH - Law School Business Law- Final Exam MAIN LEGAL ISSUES 2.1 The basics of civil contracts 2.1.1 Definition of civil contracts According to Article 116 of Civil Code 2015, “civil transaction means a contract or a unilateral legal act which gives rise to, changes or terminates civil rights and civil obligations” This provision shows that a contract is a type of civil transaction Therefore, under Article 385 of Civil Code 2015, “contract means an agreement between parties in relation to the establishment, modification or termination of civil rights and obligations” These civil rights and obligations can be buying and selling, exchanging, giving away, lending, leasing, borrowing property, or accomplish work 2.1.2 Form of contracts Following clause of Article 119, Civil Code 2015: • There are three kinds of contracts’ forms: verbality, written, or through specific acts • Therein, civil transactions by way of electronic means in the form of data messages following the on e-transactions shall be deemed to be written transactions 2.2 The conditions for effective contracts under Article 117 of Civil Code 2015 and their analysis Under Article 117 of the Civil Code 2015, four conditions below must be satisfied before a civil contract can be determined to take effect Civil transactions failing to satisfy any one of these conditions shall be invalid, except where otherwise prescribed by this Code – as under Article 122 2.2.1 Subjects of civil transactions The first condition for the civil contract to be effective is that “the subjects have civil legal capacity and capacity for civil acts appropriate to the established civil transaction” (1) (1) Point a, Clause of Article 117, Civil Code 2015 UEH - Law School Business Law- Final Exam For the civil transactions established by individuals, they are only valid if they are consistent with the level of civil act capacity specified from Article 16 to Article 24 of Civil Code 2015, as follow: • Individuals aged at least 18 years old shall have full capacity for civil acts, unless they are declared being incapacitated or having limited act capacity by court The ones with full civil act capacity are engible for all types of civil transactions • Individuals from six to under 15 years old with insufficient civil act capacity, whenever entering into and performing civil transactions, must obtain the consent of their legal representatives, except for civil transactions which are performed for the purpose of meeting the needs of daily life appropriate to the age group • Individuals between 15 and 18 years of age may establish and perform civil transactions, except for the transactions relating to real property or movable property which require registration, and other transactions which must be approved by their legal representatives • Individuals under the age of or lost their capacity for civil acts, due to any mental or illness, are not allowed to enter into civil transactions Their civil transactions must be established and performed by their legal representative Legal entities enter into civil transactions through their legal or authorized representatives The representative establishes and performs civil transactions on behalf of the represented person The rights and obligations established by the representative give rise to the rights and obligations of the legal entities In Clause 2, Article 125 of the Civil Code 2015, it also stipulates that in some special cases when establishing a civil transaction, such transaction is not determined to be invalid In addition, according to the provisions of Articles 18 and 86 of the Civil Code 2015, the civil legal capacity of individuals and legal entities is basically unlimited, except in the case of this Code or other relevant laws Thus, in cases where other laws contain provisions and requirements on the legal capacity of the subject, such provisions must be complied with UEH - Law School Business Law- Final Exam 2.2.2 The voluntariness of the subjects in civil transactions The second condition for the civil contract to be effective is that “the subjects participating in the transaction act entirely voluntarily” (2) In law, “voluntariness is a choice being made of a person's free will, as opposed to being made as to the result of coercion or duress” (3) When establishing civil transactions, subjects are free in choosing other participants, deciding the objects, prices, locations, and other issues relating to the transactions This is one of the basic principles specified in Clause 2, Article of The Civil Code 2015: Freedom, voluntary commitment, and agreement Violation of the subjects’ voluntariness is a violation of the law In cases of violation of this Clause, civil transactions are invalidated: • One of the two subjects is being threatened or coerced to establish civil transactions (a) • One of the two subjects subject is being deceived when entering the civil transactions (a) • Subject has a full capacity of civil acts, but at the time of the establishment of civil transactions, they cannot be aware and control their acts (b) If so requested, the Court will declare such transactions invalid 2.2.3 The objective and contents of the civil transactions The third condition for the civil contract to be effective is that “the objective and contents of the civil transaction are not contrary to the law or social morals” (4) According to Article 118 of Civil Code 2015, “the objectives of a civil transaction are the interests which the subjects wish to achieve at the time when they enter into such a transaction” The content of a civil transaction is a summary of the terms that the subjects have committed and (2) (3) (a) (b) (4) Point b, Clause of Article 117, Civil Code 2015 According to Wikipedia on “Voluntariness” Article 127 of Civil Code 2015 Article 128 of Civil Code 2015 Point c, Clause of Article 117, Civil Code 2015 UEH - Law School Business Law- Final Exam agreed upon in the transaction These terms define the rights and obligations of the parties arising from the transaction The purpose and content of the transaction are closely related For a civil transaction to have legal effect, the purpose and content of the transaction must not violate the prohibition of the law and social morals Prohibited laws are regulations that not allow subjects to perform certain acts Social morals are common standards of behavior between people in social life, which are recognized and respected by the community Transactions established to evade the law or contrary to social morality are civil transactions with illegal purposes and contents, which does not give rise to the legal effect of such civil transactions In this Code, Article 123 also mentions that any contract that violates this clause will be invalid 2.2.4 The form of civil transactions The fourth condition for the civil contract to be effective is that “the form of a civil transaction is a condition for its effectiveness in cases where the law so provides” (5) The form of a civil transaction is a means of expressing the content of a civil transaction In this way, the counterparty - as well as the third party, can know the contents of the established civil transaction The form of civil transactions is especially important in civil proceedings It is the evidence confirming the existing relationships between the parties, thereby determining civil liability when violations occur Also, this provision shows more flexibility, whereby the form of a transaction is not necessarily considered a mandatory condition for the transaction to take effect Civil transactions can be created verbally, in writing or by specific acts The subject establishing a civil transaction has the right to choose its form Only in some special cases does the law have formal requirements for the subjects to abide by In cases where the law stipulates that (5) Clause of Article 117, Civil Code 2015 UEH - Law School Business Law- Final Exam civil transactions must be created in writing, certified by the state notary public, authenticated, registered, or required to obtain permission, such provisions must be complied with (based on Clause of Article 119, Civil Code 2015) Any civil contract that violates this clause will be invalid, except for the cases under Article 129 2.3 Practical cases (6) 2.3.1 Case Judgment 151/2019/DS-PT dated November 25, 2019 People's Court of Soc Trang province Regarding: Dispute on the deposit contract Contents: Mr N and his wife decided to transfer to Mr M their part of resettlement land for 400,000,000 VND (the contract was already established) Mr M had already deposited 380,000,000 VND While waiting for company P to assign a contract, Mr N asked Mr M to transfer to company P's account an amount of 324,490,000 VND to carry out procedures for granting a land use right certificate (LURC) to Mr N; and then Mr N would transfer the ownership to Mr M However, Mr N and his wife did not complete the procedures for the ownership transferring Therefore, Mr M filed a lawsuit requiring Mr N to continue performing the contract Based on the records of testimonies from relevant parties: • At the time Mr N, his wife, and Mr M came to the agreement and established the deposit contract, Mr N’s household had not had the LURC yet • The resettlement land was granted to Mr N's household, including Mr N, his wife, and their sons – people, but the deposit agreement was only made by Mr N and his (6) All judgments had been omitted parts that are not related to the law being mentioned in the essay UEH - Law School Business Law- Final Exam wife without the consent of Mr N’s sons They also did not agree to continue the transfer after knowing about this agreement General assessment: • Considering that the deposit contract is a measure to secure the performance of civil obligations and is a form of civil transaction, it is only valid if established in accordance with the provisions of the Civil Code 2015 • Because Mr and Mrs N did not have the LURC at the time the deposit contract was established, they did not have the right to decide what to with the land – as defined in Article 166 and Article 167 of Vietnam Land Law 2013 • The fact that Mr and Mrs N came to an agreement with Mr M on the deposit to secure the transfer of the resettlement land when the LURC had not been issued, was a violation of Point a, Clause 1, Article 188 (7) of the Vietnam Land Law 2013 • That Mr and Mrs N transferred the land to Mr M without their son’s consent while this land was granted to all eight people in Mr N’s household was a violation of Clause 1, Article 101 (8) of the Civil Code 2015 Summary: The deposit agreement and contract between Mr N, his wife, and Mr M violated the prohibition of the law, so it was invalidated according to the provisions of Point c, Clause of Article 117, Article 122, and Article 123 of the Civil Code 2015 Therefore, Mr M’s petition against Mr and Mrs N was not accepted 2.3.2 Case Judgment 03/2020/DS-ST dated July 14, 2020 (7) It states that land users may exercise the rights to use lands if they have the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law (8) It states that when one member of a household participates in a civil transaction, a written authorization must be obtained from the remaining members, unless otherwise agreed UEH - Law School Business Law- Final Exam People's Court of Ninh Binh province Regarding: Dispute on the civil contract Contents: On July 29, 2017, due to the need for money to business, Ms Vu Thi Th transferred to Mr Dien Van Q the land to grow annual crops, which was granted a LURC named after Mrs Th The transfer price agreed by the two parties was 150,000,000 VND, and fully paid by Mr Q The transfer by both parties shall be made in handwritten paper and signed by the seller and the buyer as the basis for implementation After receiving the money, from 2017 until then, Ms Th had not carried out the procedures to transfer the ownership to Mr Q and his wife Mr Q required Mr Th that she had to return the money he had paid back if she didn’t transfer the land ownership to him, but she had not done it On March 10, 2020, Mr Q requested the People's Court of Ninh Binh City to cancel the contract for the transfer of land use rights signed between Mr Q and Ms Th, forcing Ms Th to pay Mr Q the amount of 150,000,000 VND and compensating for damage according to regulations General assessment: • Considering that the transfer of land use rights is a form of civil transaction, the contract of this transaction is only valid if it is established in accordance with the provisions of the Civil Code 2015 After the establishment of this contract, Mrs Th and Mr Q did not register at the competent state agency; also, Ms Th did not follow the procedures prescribed by law on land use right transfer This violated Point a, Clause 3, Article 167 of Land Law 2013 It clearly stated: “Contracts on transfer, donation, mortgage or contribution of land use rights as capital or the rights to use land and land-attached assets must be notarized or certified ” • When Mrs T signed this contract with Mr Q, the marriage between her and her husband still existed and the land that she transferred to Mr Q was the mutual property of her and her husband during the marriage Therefore, that her husband did not enter UEH - Law School Business Law- Final Exam into the transaction was not in accordance with the provisions of Article 210, Article 213 (10) of the Civil Code 2015 Summary: When the involved parties signed a contract for the transfer of land use rights with each other, they did not strictly comply with the provisions of the law on the form, the content, and purpose of the contract, as prescribed in Point c of Clause 1, Clause of Article 117, Civil Code 2015 Thus, this civil transaction was invalid, and the petition of Mr Q was accepted 2.4 Some notable changes of Article 117, Civil Code 2015 Article 117 of the Civil Code 2015 has many new and more progressive changes, solving many shortcomings compared to the Civil Code 2005 In Article 117, the word “person” used to imply the one who enters into the civil transaction in the Civil Code 2005 had been replaced by “the subject” This determines that the subject of a civil transaction can be an individual or a legal entity The general rule “observance of the law” is not recorded as a basic principle of civil law, but instead specifies cases in which subjects have limited civil rights or must comply with the Civil Code or other relevant laws, which is done by replacing the word “pháp luật” with “luật” This change has the effect of emphasizing the importance and effectiveness of legal documents compared to sub-law documents, in case of conflict between regulations CONCLUSION The contract is one of the most important legal institutions of civil law, the agreement among the parties is a necessary condition to establish a contract Then, the conditions for effectiveness will give legal validity to this contract, thereby giving rise to the rights and obligations of the parties involved, forcing the parties to respect and strictly enforce the rights and obligations in that (10) It states that joint owners have equal rights and obligations with respect to the multiple ownership property A husband and wife jointly create and develop multiple ownership property and have equal rights to possess, use and dispose of such property They shall agree on or authorize each other in relation to the possession, use and disposal of the multiple ownership property UEH - Law School Business Law- Final Exam contract It is extremely important to ensure these conditions, certifying that the contract has been made legally and has legal validity For civil contracts, these conditions for their effectiveness are clearly specified in Article 117 of the Civil Code 2015 Compared to the Civil Code 2005, there have been some changes in its provisions However, generally, the changes make these conditions more flexible and generalizable 10 UEH - Law School Business Law- Final Exam REFERENCES (1) Ministry of Justice (2017) Civil Transactions Những điểm Bộ Luật dân 2015, Labour Publishing House, Hanoi, 81 – 83 (2) Dr Nguyen Thi Hong Nhung (2017): Bình luận số điểm phần Quy định chung Bộ luật Dân năm 2015 Procuracy Magazine 14/2017 (3) Điều kiện có hiệu lực giao dịch dân theo quy định pháp luật Available at: https://lawkey.vn/dieu-kien-co-hieu-luc-cua-giao-dich-dan-su/ (20.05.2021) (4) Rubi (2020): Điều kiện có hiệu lực giao dịch dân theo Bộ luật Dân 2015 Available at: http://decuongtuyentruyen.com/tim-hieu-luat/dieu-kien-co-hieu-luc-cua-giao-dich-dan-su/ (20.05.2021) (5) Bản án 151/2019/DS-PT ngày 25/11/2019 tranh chấp hợp đồng đặt cọc Available at: https://thuvienphapluat.vn/banan/ban-an/ban-an-1512019dspt-ngay-25112019-ve-tranhchap-hop-dong-dat-coc-125075 (23.05.2021) (6) Bản án 03/2020/DS-ST ngày 14/07/2020 tranh chấp hợp đồng dân Available at: https://thuvienphapluat.vn/banan/ban-an/ban-an-032020dsst-ngay-14072020-ve-tranh-chaphop-dong-dan-su-165333 (22.05.2021) 11 ... the essay? ??s analysis only focuses on the conditions for effective contracts in accordance with Article 117 of the Vietnam Civil Code 2015 and related provisions 1.4 Design of the essay This essay. .. CONCLUSION REFERENCES .11 UEH - Law School Business Law- Final Exam INTRODUCTION 1.1 The rationale of the essay Nowadays, civil transactions are the type that arises often... INTRODUCTION 1.1.Rationale of the essay 1.2.Researching method .1 1.3.Scope of the analysis 1.4.Design of the essay MAIN LEGAL ISSUES