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PROCEDURES FOR REGISTRATION OF PARENTS AND CHILDREN WITH FOREIGN ELEMENTS

1. Procedures for registration of parents and children with foreign elements

Step 1: The person requesting registration of father, mother and child submits declarations and papers, objects or other evidence to prove paternity or mother-child to the civil registration agency, including:

+ Documents of health agencies, assessment agencies or other competent agencies and organizations in the country or abroad certifying paternity and mother-child relations.

+ In case there is no evidence proving the above-mentioned parent-child relationship, there must be a written affidavit of the parties receiving the father, mother and child, with at least two people witnessing the parent-child relationship.

In case of registration for adoption of father, mother and child between Vietnamese citizens and foreigners or between foreigners, foreigners must submit additional copies of passports or valid documents in place of passports to prove their identity.

Step 2: Within 15 days from the date of receipt of sufficient documents, civil servants performing civil status work shall verify and post the admission of fathers, mothers and children at the office of the district-level People’s Committee for 07 consecutive days;

At the same time, send a written request to the commune-level People’s Committee of the place of permanent residence of the recipient being a parent, child to be listed within 07 consecutive days at the office of the commune-level People’s Committee.

Step 3: The Justice Department shall report and propose the Chairman of the district-level People’s Committee to decide on the registration of father, mother and child, if deemed eligible, the Chairman of the district-level People’s Committee shall settle.

Step 4: When registering to receive fathers, mothers and children, the parties must be present; civil servants doing civil status work shall record them in the Civil Status Book, and sign the Civil Status Book with the parties.

The chairman of the district-level People’s Committee shall issue extracts to the parties.

2. Which agency has the authority to register the adoption of parents and children with foreign elements?

In Article 43 of the Law on Civil Status 2014,  there are provisions on the competence to register parents and children as follows:

Competence to register fathers, mothers and children

The district-level People’s Committees of the localities where the recipients are fathers, mothers and children reside shall register the adoption of fathers, mothers and children between Vietnamese citizens and foreigners; between Vietnamese citizens residing in the country and Vietnamese citizens residing abroad; between Vietnamese citizens residing abroad; between Vietnamese citizens who concurrently have foreign nationality and Vietnamese citizens or foreigners; between foreigners with each other that one or both parties permanently reside in Vietnam.

Thus, the district-level People’s Committee of the place of residence of the recipient being a parent, child is the competent agency to register the admission of fathers, mothers and children with foreign elements.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Marriage and family issues

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Procedures for refusing to receive inheritances with foreign elements

1. Is it permissible to refuse to receive inheritances with foreign elements?

According to the provisions of Article 613 of the Civil Code 2015, heirs are individuals:

– Alive at the time of the opening of the inheritance;

– Became pregnant before the person leaving the inheritance died and was born and alive after the time of opening the inheritance.

In addition, all individuals are equal in their rights to an estate by will or at law. Only the following cases are not entitled to inheritance:

– Being convicted of acts of intentionally infringing upon life, health, serious ill-treatment, torturing or seriously violating the honor and dignity of the bequeathed person;

– Serious breach of the obligation to nurture the bequeathed person;

– Convicted of an act of intentionally infringing upon the life of another heir in order to enjoy the share or all of the estate to which this person is entitled;

– Deceiving, coercing, preventing the bequeathed person from making a will, forging a will, etc.

Note that these people are not entitled to inheritance under the law, but only under the will if the person leaving the estate knows and still appoints them to the estate under the will.

At the same time, Article 620 of this Law also states that heirs have the right to refuse the estate but absolutely do not take advantage of the refusal to avoid fulfilling their property obligations to others.

Thus, a person, whether at home or abroad, if not falling into one of the above cases of inheritance, has the right to refuse to receive the estate.

2. Procedures for refusing to receive inheritances with foreign elements

Instead of going to a notary public practice organization in Vietnam to notarize the Written refusal to accept the inheritance, overseas people can contact the representative offices of the Socialist Republic of Vietnam abroad to make the refusal.

Pursuant to Article 78 of the 2014 Law on Notarization, this agency is entitled to notarize Wills, Documents refusing to receive estates, Power of Attorney documents and other contracts and transactions except for contracts for sale, conversion, transfer, gift, lease, mortgage, capital contribution with real estate in Vietnam.

Accordingly, the procedure for implementing a written refusal to receive an inheritance of a person abroad is the same as this procedure when carried out domestically according to the provisions of Article 59 of the Law on Notarization.

  • Documents to prepare

– Notarized request form;

– A copy of the Will (if inherited by Will) or a document proving the relationship between the person leaving the estate and the person refusing to accept the inheritance (if the inheritance is divided according to law);

– A death certificate or other document proving that the person leaving the estate has died;

– Draft Written refusal to accept inheritance (if any);

– Personal documents: ID card or passport or citizen identity … of the person who refuses to accept the inheritance.

  • Receiving and processing agencies

Overseas representations of the Socialist Republic of Vietnam

  • Fees

According to Appendix 02 of the diplomatic fee schedule issued together with Circular No. 264/2016/TT-BTC dated 14/11/2016, the fee in case the notarized Document refuses to receive inheritance is: 20 USD/copy.

After that, the overseas person sends this document to Vietnam so that the heirs in Vietnam continue to carry out the division of the inheritance.

 

 

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PROCEDURES FOR REFUSAL TO RECEIVE HERITAGE IN VIETNAM

1. Conditions for heirs to refuse to receive the estate

According to Article 620 of the Civil Code 2015 stipulates the condition that heirs are entitled to refuse to receive the estate, specifically:

– The refusal to receive an estate is not intended to evade the fulfillment of one’s property obligations towards another.

– The refusal to receive the estate must be made in writing and sent to the administrator of the estate, other heirs and the person assigned to divide the estate.

– The written refusal to accept the estate must be shown before the time of division of the estate

2. Order and procedures for refusal to receive inheritances

The aspirant heir refuses to accept the actual inheritance in the following order:

Step 1: Prepare a dossier of refusal to receive an inheritance

A person who refuses to receive an inheritance prepares the following documents:

– A written refusal to accept an inheritance that commits that the refusal to accept the inheritance is not intended to evade the fulfillment of property obligations (draft).

– Identity card/Citizen ID (certified copy).

– Family registration book (certified copy).

– Will (certified copy) in case of inheritance under a will or Document proving the relationship between the person leaving the estate and the person requesting notarization under the law on inheritance in case of legal inheritance.

– Death certificate of the bequeathed person (certified copy).

– Certificates of ownership, right to use (certified copies) or replacement papers prescribed by law for assets for which ownership and use rights must be registered in case of contracts or transactions related to assets (certified copies).

Step 2: The person refusing to receive the estate shall notarize the written refusal to receive the inheritance at the notary office/notary office

– The notary examines the record refusing to accept the inheritance.

– The person who refuses to receive the inheritance shall sign the document refusing the inheritance in front of the notary, in case the document has 02 pages, he must sign all 02 pages.

– In case the person who refuses to receive the estate cannot sign it, it must be signed; If that person cannot read, hear, sign, or score, there must be 02 witnesses.

– The probate officer executes the attestation for the written refusal to accept the estate.

(In case the notary public examines and finds that the record is missing, the person who refuses to receive the estate or the invalid record shall explain to the person refusing to receive the estate that it is impossible to authenticate the written refusal to receive the estate)

Step 3: Receive a written recognition of refusal to accept the inheritance

– The person who refuses to receive the inheritance shall pay a notary fee and remuneration of VND 20,000 (according to Clause 3 Article 4  of Circular 257/2016/TT-BTC).

– Receive a written recognition of refusal to accept an inheritance.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Inherit inheritance

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OBLIGATIONS OF THE EMPLOYER WHEN UNILATERAL TERMINATING THE LABOR CONTRACT

1. The obligations of an employer when unilaterally terminating a labor contract illegally include:

– The employee must be admitted back to work under the signed labor contract; must pay wages, pay social insurance, health insurance, unemployment insurance during the days when the employee is not allowed to work and must pay the employee an additional amount equal to at least 02 months’ salary according to the labor contract.

After being readmitted to work, the employee shall refund to the employer the severance allowance, job loss allowance if received from the employer.

In case there is no longer a position or job entered into in the labor contract but the employee still wants to work, the two parties shall agree to amend and supplement the labor contract.

In case of violation of the provisions on the notice period specified in Clause 2, Article 36, Labor Code 2019, an amount corresponding to the salary under the labor contract must be paid for the days without prior notice.

– In case the employee does not want to continue working, in addition to the payment specified in Clause 1, Article 41, Labor Code 2019, the employer must pay a severance allowance as prescribed in Article 46, Labor Code 2019 to terminate the labor contract.

– In case the employer does not want to take back the employee and the employee agrees, in addition to the amount the employer must pay as prescribed in Clause 1, Article 41, Labor Code 2019 and severance allowance as prescribed in Article 46, Labor Code 2019,  The two parties agree on an additional compensation for the employee but at least equal to 02 months’ salary according to the labor contract to terminate the labor contract. (Article 41, Labor Code 2019)

2. Responsibilities when terminating a labor contract in accordance with law

– Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full the amounts related to the interests of each party, except for the following cases which may be extended but must not exceed 30 days:

+ The employer who is not an individual terminates the operation;

+ The employer changes the structure, technology or for economic reasons;

+ Division, separation, consolidation, merger; selling, leasing, converting the type of business; transfer of ownership and right to use assets of enterprises or cooperatives;

+ Due to natural disasters, fires, enemy disasters or dangerous epidemics.

– Salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees under collective labor agreements and labor contracts shall be prioritized for payment in case the enterprise or cooperative is terminated from operation,  dissolved, bankrupt.

– The employer has the following responsibilities:

+ Complete the procedures for confirming the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other documents if the employer has kept them from the employee;

+ Provide copies of documents related to the employee’s working process if requested by the employee. The cost of copying, sending documents is paid by the employer. (Article 48, Labor Code 2019)

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

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THE EMPLOYER UNILATERALLY TERMINATES THE LABOR CONTRACT 

1. The Employer's right to unilaterally terminate the Labor Contract

1.1. The Employer unilaterally terminates the Labor Contract without prior notice

According to Clause 1, Article 36 of the Labor Code 2019, the Employer has the right to unilaterally terminate the Labor Contract without prior notice to the Employee, including the following cases:

  • Employees often fail to complete the work according to the evaluation criteria in the enterprise’s regulations. Regulations on work evaluation shall be provided by the enterprise in consultation with the representative organization of the employee.
  • The employee who is sick or has an accident has been treated for 12 consecutive months for those working under an indefinite-term labor contract or has been treated for 06 consecutive months for those working under a definite-term labor contract with a term of 12 months – 36 months or more than half of the term of the labor contract for those working under a definite-term labor contract with a term of less than 12 months but the ability to work has not recovered.
  • When the employee’s health recovers, the employer shall consider to continue entering into the labor contract with the employee.
  • Due to natural disasters, fires, dangerous epidemics, enemy disasters or relocation or narrowing of production and business at the request of competent state agencies.
  • The employee is not present at the workplace after the period of suspension of the labor contract.
  • The employee reaches the retirement age as prescribed by law, unless otherwise agreed.
  • The employee voluntarily quits without a valid reason for 05 consecutive working days or more.
  • The employee dishonestly provides information as prescribed in Clause 2, Article 16 of the Labor Code 2019 when entering into the labor contract, affecting the recruitment of the employee.

1.2. The employer unilaterally terminates the labor contract with prior notice

Unless the employee is not present at the workplace for 5 days or more or after the period of suspension of the labor contract, the remaining cases in which the enterprise unilaterally terminates the labor contract must notify the employee in advance as follows:

– At least 45 days for indefinite-term labor contracts.

– At least 30 days for labor contracts from 12 months – 36 months.

– At least 03 days for labor contracts of less than 12 months and for cases specified at Point b, Clause 1, Article 36 of the Labor Code 2019.

– For some specific industries, trades and jobs, the notice period shall comply with the Government’s regulations.

2. In case the Employer is not allowed to terminate the Labor Contract

Pursuant to Article 37 of the Labor Code 2019, in case the Employer is not allowed to exercise the right to unilaterally terminate the Labor Contract, including:

  • The employee is sick or has an accident or occupational disease and is being treated or nursed as prescribed by a competent medical examination and treatment establishment, except for the case specified at Point b, Clause 1, Article 36 of the Labor Code 2019.
  • The employee is on annual leave, personal leave and other leave agreed by the Employer.
  • Pregnant female employees; The employee is on maternity leave or raising a child under 12 months old.

 Thus, in case the parties in industrial relations want to unilaterally terminate the labor contract, they must consider each case in which they fall into whether it falls under the case of unilateral termination of the labor contract with prior notice or not.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

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OBLIGATIONS OF EMPLOYEES WHEN UNILATERALLY TERMINATING LABOR CONTRACTS 

1. Does an employee who unilaterally terminates a labor contract illegally have to compensate the employer?​

Pursuant to Article 40 of the Labor Code 2019 stipulates the obligations of employees when unilaterally terminating labor contracts illegally as follows:

1.1. OBLIGATIONS OF EMPLOYEES WHEN UNILATERALLY TERMINATING LABOR CONTRACTS ILLEGALLY

  1. No severance pay.
  2. To compensate the employer for half a month’s salary according to the labor contract and an amount corresponding to the salary under the labor contract for days without prior notice.
  3. To reimburse the employer for training expenses specified in Article 62 of this Code.

Thus, your case has unilaterally terminated the contract illegally, so you have the following obligations:

– You will not be entitled to severance pay,

– You must compensate the company for half a month’s salary according to the employment contract;

– You must compensate an amount corresponding to your salary for 10 days without notice,

– You must reimburse training costs to the company in accordance with Article 62 of the Labor Code (if any).

Accordingly, training costs as prescribed in Article 62 of the Labor Code 2019 include:

1.2. Vocational training contract between employer and employee and vocational training costs

…

  1. Training expenses include expenses with valid documents on expenses paid to teachers, learning materials, schools, classes, machines, equipment, practice materials, other expenses to support learners and salaries, social insurance premiums, health insurance, etc unemployment insurance for learners during school. In case the employee is sent for training abroad, the training cost also includes travel and living expenses during the training period.

2. Responsibilities when terminating a labor contract in accordance with law

– Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full the amounts related to the interests of each party, except for the following cases which may be extended but must not exceed 30 days:

+ The employer who is not an individual terminates the operation;

+ The employer changes the structure, technology or for economic reasons;

+ Division, separation, consolidation, merger; selling, leasing, converting the type of business; transfer of ownership and right to use assets of enterprises or cooperatives;

+ Due to natural disasters, fires, enemy disasters or dangerous epidemics.

– Salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees under collective labor agreements and labor contracts shall be prioritized for payment in case the enterprise or cooperative is terminated from operation,  dissolved, bankrupt.

– The employer has the following responsibilities:

+ Complete the procedures for confirming the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other documents if the employer has kept them from the employee;

+ Provide copies of documents related to the employee’s working process if requested by the employee. The cost of copying, sending documents is paid by the employer. (Article 48, Labor Code 2019)

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

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Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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THE EMPLOYEE UNILATERALLY TERMINATES THE LABOR CONTRACT

1. The employee's right to unilaterally terminate the labor contract

In the labor process, if the Employer violates the agreed regulations, the Employee has the right to unilaterally terminate the labor contract. However, in some cases where the parties unilaterally terminate the labor contract without falling under the violating regulations, it is still subject to the provisions of prior notice.

1.1. The employee unilaterally terminates the labor contract without prior notice

  • When falling into one of the following cases, the employee does not need to notify in advance according to Clause 2, Article 35 of the Labor Code 2019, including:
  • In case the employee is not arranged according to the right job, working location or is not guaranteed the agreed working conditions, unless the employee is transferred to another job.
  • A particularly sensitive issue in the labor process is not being paid in full or not paying wages on time.
  • The employee is mistreated, beaten or has insulting words or acts, acts that affect health, dignity and honor; subjected to forced labor.
  • In addition, in case the employee is sexually harassed at the workplace, the employee has the right to terminate the labor contract immediately and report it to the investigating agency for handling.
  • Pregnant female employees who have to quit their jobs may unilaterally terminate the labor contract.
  • Employees who reach the retirement age as prescribed by law are automatically entitled to quit their jobs, unless the parties have an agreement to hire elderly employees.
  • The Employer provides untruthful information that affects the implementation of the Labor Contract.

1.2. The employee unilaterally terminates the labor contract with prior notice

Cases where the employee does not fall into the natural cases of termination of the labor contract without prior notice. If you want to unilaterally, it is necessary to notify the Employer in advance according to Clause 1, Article 35 of the Labor Code 2019 as follows:

– At least 45 days for indefinite-term labor contracts.

– At least 30 days for labor contracts from 12 months to 36 months.

– At least 03 days for labor contracts under 12 months.

– For some specific industries, trades and jobs, the notice period shall comply with the Government’s regulations.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Labor Code

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DISPUTES OVER FAMILY MARRIAGE ARE SETTLED BY THE COURT

1. Disputes over family marriage are settled by the Court

According to Article 28 of the Civil Procedure Code 2015, disputes over family marriage under the jurisdiction of the Court include:

– Divorce, child custody disputes, division of property during divorce; division of property after divorce.

– Disputes over the division of joint property of spouses during marriage.

– Disputes over changes in direct custody of children after divorce.

– Disputes over the identification of a parent for a child or the identification of a child for a parent.

– Alimony disputes.

– Disputes over childbirth by assisted reproductive technology, surrogacy for humanitarian purposes.

– Disputes over child custody, division of property of men and women living together as husband and wife without marriage registration or when unlawful annulment of marriage.

– Other disputes over marriage and family, except for cases under the jurisdiction of other agencies or organizations as prescribed by law.

Thus, according to the above-mentioned provisions, cases falling under family marriage disputes fall under the jurisdiction of the Court.

2. How to determine how the Court resolves disputes over family marriage?

* Competence of district people’s courts

District-level People’s Courts shall have jurisdiction to settle according to the procedures of first instance civil, marital and family disputes specified in Articles 26 and 28 of the 2015 Civil Procedure Code, except for disputes over compensation for damages caused by improper application of administrative prevention measures in accordance with the provisions of competition law,  unless a claim for damages is settled in an administrative case.

(Point a, Clause 1, Article 35 of the Civil Procedure Code 2015)

* Competence of provincial people’s courts

Provincial-level People’s Courts shall have jurisdiction to settle according to the procedures of first instance civil, marriage and family, business, commercial and labor disputes specified in Articles 26, 28, 30 and 32 of the 2015 Civil Procedure Code, except for disputes under the jurisdiction of district-level People’s Courts;

Note: Provincial-level People’s Courts have jurisdiction to settle according to the procedures of first instance civil cases under the jurisdiction of district-level People’s Courts that provincial-level People’s Courts themselves take up for settlement when deeming it necessary or at the request of district-level People’s Courts.

(Point a, Clause 1, Clause 2, Article 37 of the Civil Procedure Code 2015)

* Jurisdiction of Courts by Territory

The territorial jurisdiction of the Court to settle civil cases is determined as follows:

– The court where the defendant resides or works, if the defendant is an individual or where the defendant is located, if the respondent is an agency or organization competent to settle according to the procedures of first instance civil, marital and family, business, commercial or labor disputes specified in Article 26,  28, 30 and 32 of the Code of Civil Procedure 2015;

– The litigants have the right to agree with each other in writing to request the Court of the plaintiff’s residence and work, if the plaintiff is an individual or where the plaintiff’s head office is located, if the plaintiff is an agency or organization to settle civil, marital and family disputes,  business, trade and labor specified in Articles 26, 28, 30 and 32 of the Civil Procedure Code 2015;

– The subject of the dispute is real estate, only the court where the real estate is located has jurisdiction to settle.

(Clause 1, Article 39 of the Civil Procedure Code 2015)

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Marriage and family issues

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HOW TO DIVIDE ASSETS AFTER DIVORCE UNDER THE LATEST 2024 REGULATIONS

1. What is the principle of division of property of spouses when divorced?

Accordingly, on the issue of property division will be divided according to the provisions of Article 59,  the 2014 Law on Marriage and Family specifies the principles of division as follows:

  • The principle of bifurcation (Clause 2, Article 59, Law on Family Marriage) but taking into account the following factors:

– The circumstances of the family and of the spouse;

– The contribution of spouses to the creation, maintenance and development of common property. The labor of spouses in the family is considered as paid labor;

– To protect the legitimate interests of each party in production, business and occupation so that the parties can continue to work to generate income;

– The fault of each party in violating the rights and obligations of spouses.

Thus, it can be simply understood that the principle of bifurcation is that each party gets half (1/2) of the value of property created during the marriage. However, the judge will consider other factors such as: Each party’s own circumstances, contributions, faults of the parties … That is, it is not rigidly applied that the bifurcation is 50:50% of the value of the asset, but it can be understood more flexibly that the split can be: 40:60 or 45:55% of the value of the assets created.  In fact, in special cases it is possible to divide the ratio: 70/30 or 80/20 is still considered legal and legal.

  • The principle of dividing common property in kind (It cannot be divided in kind to divide by value with payment of the difference in value). This principle is quite easy to understand, the law prioritizes dividing in kind first, not dividing in kind, then valuing it into money to divide, the party receiving the item has the value of paying back to the other party with the difference amount.
  • The principle that someone’s private property is owned by that person (except in cases where separate property has entered into common property. In case of a merger or mixing of separate property with common property, the non-recipient party will be paid the value of its assets contributed to that asset).

2. How to determine common property, separate property of spouses?

According to the provisions of Articles 33 and 43  of the 2014 Law on Marriage and Family, there are provisions on the determination of common and separate property as follows:

2.1 How to determine the separate property of spouses

Separate property of spouses is included in the following properties:

+ Assets that each person has before marriage: Based on the date of marriage registration, if such property exists before that date, it is in principle the separate property of the party in whose name owns that property.

+ Property inherited separately, gifted separately during the marriage period: Based on the form of inheritance separately, donated to Private to determine separate property.

+ Property is divided separately between spouses (according to Articles 38, 39 and 40 of the Law on Family Marriage 2014).

+ Assets serving essential needs of spouses and other assets as prescribed by law.

+ Profits and profits formed from someone’s private property are his or her own property.

2.2 How to determine joint property of spouses

According to Article 33 of the 2014 Law on Family Marriage, common property includes:

+ Assets created by spouses, income generated by labor, production and business activities, profits, income arising from separate property and other lawful income during the marriage period

+ Assets that husband and wife inherit jointly or are gifted jointly and other assets agreed upon by husband and wife are common property.

+ The land use right acquired by spouses after marriage is the joint property of the spouses, except for cases where the spouses inherit separately, are gifted separately or acquired through transactions with separate property.

+ Common assets of husband and wife are owned jointly and consolidated, used to ensure the needs of the family and fulfill the common obligations of the spouses.

+ In case there are no grounds to prove that the property that the spouses are disputing is the separate property of each party, such property is considered common property.

In short, with this provision, in principle, property formed during  marriage (from the date of marriage to the date of divorce or the death of one of the parties) is considered joint property if it cannot be proved that it is separate property. And according to the principles of division of property when divorcing in section 1 to settle if the couple cannot agree on a division with each other.

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Marriage and family issues

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How will child custody be resolved without a marriage registration?

1. Is it illegal to live together as husband and wife without registering your marriage?

According to Article 14 of the Law on Marriage and Family 2014 stipulates as follows:

Dealing with the consequences of men and women living together as husband and wife without registering their marriage

1. Men and women who are eligible for marriage under the provisions of this Law to live together as husband and wife without marriage registration shall not give rise to rights and obligations between husband and wife. Rights and obligations towards children, property, obligations and contracts between the parties shall be settled according to the provisions of Articles 15 and 16 of this Law.

2. In case a man and woman live together as husband and wife as prescribed in Clause 1 of this Article but then carry out the marriage registration in accordance with law, the marriage relationship shall be established from the time of marriage registration.
Currently, the marriage is voluntary of the two parties, but there is no stipulation that living together must register the marriage.

Therefore, current Vietnamese law does not prohibit men and women from living together without registering their marriage. Although there are no rights and obligations between husband and wife, between men and women living together as husband and wife without marriage registration, rights and obligations for children, property, …

2. How are common children resolved if they have not registered their marriage?

Article 15 of the 2014 Law on Marriage and Family stipulates:

Article 15. Rights and obligations of parents and children in cases where men and women live together as husband and wife without marriage registration.

Rights and obligations between men and women living together as husband and wife and children shall be settled in accordance with the provisions of this Law on the rights and obligations of parents and children.

Thus, if a man and a woman live together as husband and wife without registering their marriage, the joint custody of their children will still be settled in the same way as they have been married.

According to Article 81 of the Law on Family Marriage 2014 stipulates:

Article 81. The care, nurture and education of children after divorce

  1. After a divorce, parents still have the rights and obligations to look after, care for, nurture and educate their minor children, adult children who have lost their civil act capacity or are incapable of working and have no assets to support themselves in accordance with this Law, The Civil Code and other relevant laws.
  2. Spouses agree on the direct custody of children, obligations and rights of each party after divorce for children; in case of failure to reach an agreement, the Court shall decide to assign the child to a direct custody party based on the child’s interests in all aspects; If your child is at least 07 years old, your child’s wishes must be considered.
  3. Children under 36 months old shall be entrusted to their mothers for direct custody, unless the mother is not qualified to directly look after, care for, nurture or educate the child or the parents have other agreements suitable to the interests of the child.

 

Accordingly, the Court will consider the following factors to determine who is the direct custodian of the child:

+ The court decides to assign the child to a direct custody party based on the interests in all aspects of the child; If your child is at least 07 years old, your child’s wishes must be considered.

+ Children under 36 months old shall be assigned to their mothers for direct custody, if the mother is not qualified to directly look after, care for, nurture and educate their children, they will directly hand them over to the father to raise the child or prioritize the agreement of the parties if it is beneficial for the child.

Note: The wishes of children aged 7 years and older when deciding who to live with is only one of the factors for the court to consider the decision to assign the child directly to custody. The court must consider a range of other factors comprehensively to make a final decision. This decision is based on the best interests of the child and the appropriateness of the future upbringing of the child.  

The rights and obligations of parents towards their children are very important, even if the parents do not have a marital relationship. Parents need to ensure that they are responsible and care about the development and education of their children later on. The relationship between father, mother and child is a sacred and noble relationship, so ensuring and maintaining this good value is contributing to ensuring the culture and fine customs of the nation, and at the same time contributing to the implementation of the State’s legal policies.

 

To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance for Marriage and family issues

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Email: hue.truong@htlaw.vn

Phone: +84 935 439 454.

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RESOLVING CHILD CUSTODY DISPUTES AFTER DIVORCE

1. Determination of the joint child of the spouses

Pursuant to Article 88 of the Law on Marriage and Family 2014. then the determination of joint children of spouses is carried out according to the following principle:

  • Children born during marriage or because the wife becomes pregnant during marriage are joint children of the spouses.
  • Children born within 300 days from the time of termination of marriage belong to the case where the wife becomes pregnant during the marriage period, therefore, is also identified as a common child.
  • Children born before the date of marriage registration and recognized by parents as joint children of the spouses. This includes cases where parents adopt jointly, i.e. joint adoptions are also identified as joint children of husband and wife.

In addition, Article 94 of the 2014 Law on Marriage and Family also recognizes that children born in the case of surrogacy for humanitarian purposes are joint children of the spouses through surrogacy from the time the child is born.

2. Conditions for gaining custody

Pursuant to the provisions of Article 81 of the Law on Marriage and Family 2014, the care, nurture and education of children after divorce will be handled as follows:

  • Parents still have the right and obligation to look after, care for, nurture and educate their minor children, adult children who have lost their civil act capacity or are incapable of working and have no property to support themselves;
  • Spouses agree on direct custody of children, obligations and rights of each party after divorce for children;
  • In case of failure to reach an agreement, the Court shall decide to assign the child to a direct custody party based on the child’s interests in all aspects; If your child is at least 07 years old, your child’s wishes must be considered.
  • Children under 36 months of age shall be assigned to their mothers for direct custody, unless the mother is not qualified to directly look after, care for, nurture or educate the child or the parents have other agreements suitable to the interests of the child.

3. Request to change direct custody of children after divorce

The court settles a request to change the direct custody of children after a divorce when one of the following grounds exists:

  • Parents have an agreement on changing the direct custody of the child in accordance with the interests of the child. This ground belongs to cases where there is a request to change the direct custody of the child but no dispute arises;
  • The person who directly raises the child is no longer eligible to directly look after, care for, nurture and educate the child.

Legal basis: Clause 2, Article 84 of the Law on Marriage and Family 2014.

The subject who has the right to request a change of direct custody of the child is determined as follows:

  • In case the parents agree on the change of the direct custody of the child in accordance with the interests of the child, the parent shall jointly request the Court to settle the civil matter (without dispute).
  • The parent is not the direct custodian of the child who wants to regain custody of the child;
  • On the basis of the interests of children, the following individuals, agencies and organizations have the right to request a change of direct custody of children: Relatives; State management agency in charge of family; State management agencies for children; Women’s Union.

Legal basis: Article 84 of the Law on Marriage and Family 2014.

4. Procedures for resolving child custody disputes after divorce

  • Competence

Pursuant to Clause 1, Article 28 of the 2015 Civil Procedure Code, disputes over child custody after divorce fall under the jurisdiction of the People’s Court.

  • Order of execution

The order of procedures for settling child custody disputes after divorce is carried out as follows:

Step 1: Prepare the dossier and submit the petition to the competent People’s Court.

The petition includes:

  • Petition according to Form No. 23-DS issued together with Resolution 01/2017/NQ-HDTP dated January 13, 2017 of the Council of Judges of the Supreme People’s Court;
  • Proof of identity of the parent (copy of y);
  • Divorce judgment/decree (copy y);
  • Your child’s birth certificate (copy y);
  • Documents and evidence proving the request to change the custody of the child;
  • Other relevant documents.

Step 2: The court considers the application and accepts it according to regulations

Step 3: Preparing for trial

Step 4: Take the case to trial at first instance

Step 5: Appeal and carry out the appellate procedure of the case (if any).

Legal basis: From Articles 186 to 315 of the Civil Procedure Code 2015.

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DO INVESTMENT CERTIFICATES HAVE TO BE ADJUSTED WHEN ADDING TRADES?

1. Regulations on investment registration certificates?

According to the provisions of Clause 11 Article 3 of the Law on Investment 2020, an Investment Registration Certificate is an official document issued to investors to record information related to investment projects. The certificate can be provided in paper or electronic form, depending on the specific preferences and requirements of the investor.

– If requested by the investor, the Investment Registration Certificate can be issued in written form. This paper copy will be printed and certified by the competent investment registration agency.

– If the investor chooses this method, the Investment Registration Certificate will be provided in the form of an electronic document. This electronic copy has legal validity and is issued by the investment registration authority, ensuring confidentiality and transparency of information.

– The investment registration certificate, whether paper or electronic, will fully record important information about the investment project. This information includes:

  • Name of investor and contact information.
  • Information about the investment project, including purpose, scale, investment capital, implementation location, and other relevant factors.

– Both paper and electronic copies have equivalent legal validity and are accepted in legal transactions related to investment projects.

– In the case of electronic copies, the investment registration authority will ensure information safety and confidentiality, prevent unexpected modifications and ensure the integrity of registration data.

2. Do investment certificates have to be adjusted when adding trades?

According to Clause 2, Article 41 of the Law on Investment 2020, investors will carry out procedures for adjustment of the Investment Registration Certificate in case the adjustment of the investment project changes the contents of the Investment Registration Certificate.

The contents of the Investment Registration Certificate are specified in Article 20 of the Investment Law 2020, including:

– Name of the investment project.

– Investors.

– Investment project number.

– Location of the investment project, land area used.

– Objectives and scale of investment projects.

– Investment capital of investment projects (including contributed capital of investors and mobilized capital).

– Operation duration of the investment project.

– Progress of investment projects, including:

  • Progress of capital contribution and mobilization of capital sources.
  • The progress of the implementation of the main operational objectives of the investment project, in case the investment project is divided into phases, the implementation progress of each phase must be prescribed.

– Forms of investment incentives and support and grounds and conditions for application (if any).

– Conditions for investors to implement investment projects (if any).

Pursuant to Clause 2, Article 41 of the Law on Investment 2020, investors shall carry out procedures for adjustment of the Investment Registration Certificate in case the adjustment of an investment project changes the contents of the Investment Registration Certificate. Thus, in case the addition of business lines does not change the objectives of the investment project specified in the Investment Registration Certificate, the enterprise is not required to carry out procedures for adjustment of the Investment Registration Certificate in accordance with the provisions of law.

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PROCEDURES FOR ESTABLISHING A FOREIGN-INVESTED VALUATION SERVICE COMPANY

1. What is valuation service business?

Price appraisal as prescribed in Clause 15, Article 4  of the 2012 Price Law means that an agency or organization with the function of valuation determines the monetary value of assets as prescribed by the Civil Code in accordance with the market price at a location,  certain times, serving certain purposes according to price appraisal standards.

Accordingly, enterprises providing price appraisal services are established in accordance with the Law on Enterprises. A valuation enterprise may operate when it is granted a Certificate of eligibility for provision of price appraisal services by the Ministry of Finance in accordance with law.

2. Conditions for provision of foreign-invested price appraisal services

The conditions for provision of foreign-invested valuation services include the following contents:

– Regarding the ownership ratio as prescribed in Article 12 of Decree 151/2018/ND-CP:

+ Members being organizations: up to 35% of the charter capital of a limited liability company appraising two or more members.

+ Founding shareholders being organizations: up to 35% of the charter capital of the valuation joint stock company.

+ In case there are many organizations contributing capital, the total contributed capital of the organizations must be equal to 35% of the charter capital of a limited liability company with two or more members, a valuation joint stock company.

– Regarding the form of investment: Foreign individuals and organizations may only invest in the form of joint venture.

– Vietnamese partner participating in investment activities: Must be a Vietnamese valuation enterprise.

– For foreign investors: Foreign investors have been established, providing lawful valuation services in the host country.

PROCEDURES FOR ESTABLISHING A FOREIGN-INVESTED VALUATION SERVICE COMPANY - HTLaw

3. Procedures for establishing a foreign-invested valuation service company

Step 1. Apply for an Investment Registration Certificate

Subjects subject to application for an Investment Registration Certificate:

+ Investment projects of foreign investors;

+ Investment economic organizations establish economic organizations; investment in capital contribution, purchase of shares, capital contribution of economic organizations;

The dossier includes:

  1. A written request for implementation of an investment project;
  2. For individual investors: A valid copy of identity card, identity card or passport;
  3. For institutional investors: A valid copy of the Certificate of Incorporation or other equivalent document confirming legal status;
  4. An investment project proposal includes the following contents: investors implementing the project, investment objectives, investment scale, investment capital and capital mobilization plan, location, duration, investment progress, labor demand, proposal for investment incentives, impact assessment, socio-economic efficiency of the project;
  5. A copy of one of the following documents: Financial statements of the last 02 years of the investor; Commitment of financial support of the parent company; Commitment to financial support of the financial institution; Guarantee on the financial capacity of the investor; Documents explaining the financial capacity of the investor;
  6. Proposing land use needs; in case the project does not request the State to allocate land, lease land, permit change of land use purpose, submit a copy of the site lease agreement or other document certifying that the investor has the right to use the location for the implementation of the investment project;
  7. Explanation on the use of technology applied to the project, for projects using technologies on the list of technologies restricted from transferring.

Competence to grant investment certificates: Department of Planning and Investment

Step 2. Apply for a Business Registration Certificate

If a foreign investor jointly contributes capital with Vietnamese to establish a company, the procedures are as follows:

Documents to prepare:

  1. Application for business registration;
  2. The company’s charter;
  3. List of members of a limited liability company or a list of shareholders of a joint-stock company;
  4. A valid copy of one of the attestation documents:
  5. Valid ID card or valid passport for individuals;
  6. Certificate of business registration for the organization and enclosed with personal identification papers, authorization documents of the authorized representative of the organization;
  7. Decide on capital contribution for company members, company shareholders being organizations;
  8. Power of attorney for company establishment services for Viet An Law.

Place of application: Department of Planning and Investment where the company is headquartered.

Step 3. Apply for a Certificate of eligibility for provision of price appraisal services

According to the provisions of Clause 2, Article 38 of the Law on Price, a price appraisal enterprise must be granted a Certificate of eligibility for provision of price appraisal services by the Ministry of Finance to come into operation.

Conditions for issuance of the Certificate of eligibility for provision of valuation services by a foreign-invested valuation company in Vietnam:

  • Having a Business Registration Certificate, Enterprise Registration Certificate or Investment Certificate as prescribed by law;
  • There are at least 03 price appraisers registered to practice at the enterprise, of which at least 02 capital contributors/founding shareholders;
  • The legal representative, director or general director of a two-member limited liability company/joint-stock company must be a price appraiser registered to practice at the enterprise;
  • Ensure the above-mentioned capital contribution ratio.

A dossier of application for a Certificate of eligibility for provision of price appraisal services includes:

  • Application for the Certificate of eligibility for provision of price appraisal services according to the form in Appendix 2 – Circular 38/2014/TT-BTC;
  • Certified copy of the business registration certificate, enterprise registration certificate of the enterprise;
  • The price appraisal practice registration certificate of the appraisers registered to practice valuation at the enterprise is certified by the enterprise; Certificate of fostering professional knowledge of price appraisal for practicing price appraisers (if any);
  • Copies of labor contracts or appendices to labor contracts (if any) of price appraisers practicing at enterprises;
  • Documents proving the level of capital contribution of members being organizations, for limited liability companies with two or more members and joint-stock companies;
  • Receipt of payment of prescribed fees;
  • A certified copy of the written appointment of the position for the legal representative of the enterprise, the authorization document in the field of price appraisal (if any).

Place of application: Ministry of Finance.

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ADMINISTRATIVE PENALTIES FOR TRAFFICKING IN COUNTERFEIT GOODS LABELS AND PACKAGES

I. What are counterfeits?

Pursuant to Point dd, Clause 7, Article 3 of Decree 98/2020/ND-CP, counterfeit goods are defined as follows:

a/ Goods whose use value or utility is not in accordance with the origin of natural nature and name of the goods; goods that have no use, use or use value, incorrect use compared to the declared or registered use value;

b) Goods with at least one of the quality criteria or basic technical characteristics or quantitative main substances that make up the use value or utility of the goods only reach 70% or less than the minimum level specified in registered technical regulations or quality standards, announcing the application or recording on labels and packages of goods;

c) Counterfeit drugs as prescribed in Clause 33, Article 2 of the 2016 Law on Pharmacy and counterfeit medicinal herbs as prescribed in Clause 34, Article 2 of the 2016 Pharmacy Law;

d) Veterinary drugs and plant protection drugs without active ingredients; there are not enough registered active substances; have active ingredients different from those stated on labels and packages of goods; have at least one of the active ingredient contents only reach 70% or less than the minimum level specified in registered or announced technical regulations or quality standards;

dd) Goods with goods labels or packages of goods bearing false instructions forging names and addresses of organizations or individuals producing or importing or distributing goods; forging circulation registration codes, publication codes, barcode codes of goods or forging goods packaging of other organizations or individuals; forgery of the origin and origin of goods or places of production, packaging and assembly of goods;

e/ Counterfeit stamps, labels and packages of goods.

II. Administrative fines

Administrative penalties for producing counterfeit goods labels and packages of  goods are specified in Article 12 of Decree 98/2020/ND-CP

1. For the act of trafficking in counterfeit goods labels and packages specified at Point dd, Clause 7, Article 3 of this Decree, fines are as follows:

a) A fine ranging from VND 1,000,000 to VND 3,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued at less than VND 3,000,000 or illegal profits of less than VND 5,000,000;

b) A fine of from VND 3,000,000 to VND 5,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 3,000,000 to less than VND 5,000,000 or illegal profits from VND 5,000,000 to less than VND 10,000,000;

c) A fine of from VND 5,000,000 to VND 10,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 5,000,000 to less than VND 10,000,000 or illegal profits from VND 10,000,000 to less than VND 20,000,000;

d) A fine of from VND 10,000,000 to VND 20,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 10,000,000 to less than VND 20,000,000 or illegal profits from VND 20,000,000 to less than VND 30,000,000;

dd) A fine of from VND 20,000,000 to VND 30,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 20,000,000 to less than VND 30,000,000 or illegal profits from VND 30,000,000 to less than VND 50,000,000;

e) A fine of from VND 30,000,000 to VND 50,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued at VND 30,000,000 or more or illegal profits of VND 50,000,000 or more without being examined for penal liability.

ADMINISTRATIVE PENALTIES FOR TRAFFICKING IN COUNTERFEIT GOODS LABELS AND PACKAGES - HTLaw

2. A fine twice the fine specified in Clause 1 of this Article shall be imposed for the act of importing counterfeit or counterfeit goods in one of the following cases:

a) Being food, food additives, food preservatives, food processing aids, drugs and medicinal raw materials without being examined for penal liability;

b) Being animal feed, aquatic feed, aquaculture environment treatment products, livestock waste treatment products, fertilizers, veterinary drugs, plant protection drugs, plant varieties and livestock breeds;

c/ Being cosmetics, medical equipment, detergents, chemicals, insecticidal and bactericidal preparations used in household and medical fields, cement, construction iron and steel, helmets.

3. Additional sanctions:

a/ To confiscate exhibits for violations specified in this Article, except for the case of applying remedial measures specified at Points a or b, Clause 4 of this Article;

b/ To forfeit the right to use practice licenses and certificates from 01 month to 03 months for violations specified in this Article in case of repeated or repeat violations.”

4. Remedies

The act of trading in counterfeit goods labels and packages of goods will apply remedial measures in Clause 4 Article 11 of Decree No. 98/2020/ND-CP dated August 26, 2020.

+ Forcibly remove infringing elements on labels and packages of counterfeit goods or forcibly destroy counterfeit goods for violations specified in this Article, except for the case of removal from the territory of Vietnam.

+ Forcibly removed from the territory of the Socialist Republic of Vietnam or re-exported counterfeit goods for the act of importing counterfeit goods.

+ Forcibly surrender the illegal profits gained due to the commission of violations.

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ADMINISTRATIVE PENALTIES FOR PRODUCING COUNTERFEIT GOODS LABELS AND PACKAGES

I. What are counterfeits?

Pursuant to Point dd, Clause 7, Article 3 of Decree 98/2020/ND-CP, counterfeit goods are defined as follows:

a/ Goods whose use value or utility is not in accordance with the origin of natural nature and name of the goods; goods that have no use, use or use value, incorrect use compared to the declared or registered use value;

b) Goods with at least one of the quality criteria or basic technical characteristics or quantitative main substances that make up the use value or utility of the goods only reach 70% or less than the minimum level specified in registered technical regulations or quality standards, announcing the application or recording on labels and packages of goods;

c) Counterfeit drugs as prescribed in Clause 33, Article 2 of the 2016 Law on Pharmacy and counterfeit medicinal herbs as prescribed in Clause 34, Article 2 of the 2016 Pharmacy Law;

d) Veterinary drugs and plant protection drugs without active ingredients; there are not enough registered active substances; have active ingredients different from those stated on labels and packages of goods; have at least one of the active ingredient contents only reach 70% or less than the minimum level specified in registered or announced technical regulations or quality standards;

dd) Goods with goods labels or packages of goods bearing false instructions forging names and addresses of organizations or individuals producing or importing or distributing goods; forging circulation registration codes, publication codes, barcode codes of goods or forging goods packaging of other organizations or individuals; forgery of the origin and origin of goods or places of production, packaging and assembly of goods;

e/ Counterfeit stamps, labels and packages of goods.

II. Administrative fines

Administrative penalties for producing counterfeit goods labels and packages of  goods are specified in Article 12 of Decree 98/2020/ND-CP

1. For the act of producing counterfeit goods labels and packages specified at Point dd, Clause 7, Article 3 of this Decree, fines are as follows:

a) A fine ranging from VND 2,000,000 to VND 5,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued at less than VND 3,000,000 or illegal profits of less than VND 5,000,000;

b) A fine of from VND 5,000,000 to VND 8,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 3,000,000 to less than VND 5,000,000 or illegal profits from VND 5,000,000 to less than VND 10,000,000;

c) A fine of from VND 8,000,000 to VND 15,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 5,000,000 to less than VND 10,000,000 or illegal profits from VND 10,000,000 to less than VND 20,000,000;

d) A fine of from VND 15,000,000 to VND 25,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 10,000,000 to less than VND 20,000,000 or illegal profits from VND 20,000,000 to less than VND 30,000,000;

dd) A fine of from VND 25,000,000 to VND 40,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued from VND 20,000,000 to less than VND 30,000,000 or illegal profits from VND 30,000,000 to less than VND 50,000,000;

e) A fine of from VND 40,000,000 to VND 50,000,000 in case of counterfeit goods equivalent to the quantity of genuine goods valued at VND 30,000,000 or more or illegal profits of VND 50,000,000 or more without being examined for penal liability.

ADMINISTRATIVE PENALTIES FOR PRODUCING COUNTERFEIT GOODS LABELS AND PACKAGES - HTLaw

2. A fine twice the fine specified in Clause 1 of this Article shall be imposed in one of the following cases of counterfeit goods:

a) Being food, food additives, food preservatives, food processing aids, drugs and medicinal raw materials without being examined for penal liability;

b) Being animal feed, aquatic feed, aquaculture environmental treatment products, livestock waste treatment products, fertilizers, veterinary drugs, plant protection drugs, plant varieties and livestock breeds;

c/ Being cosmetics, medical equipment, detergents, chemicals, insecticidal and bactericidal preparations used in household and medical fields, cement, construction iron and steel, helmets.

3. Additional sanctions:

a/ To confiscate exhibits for violations specified in this Article, except for the case of applying remedial measures specified at Point a, Clause 4 of this Article;

b/ To confiscate devices which are tools and machinery used to produce counterfeit goods for violations specified in this Article;

c) Revoke the right to use practice licenses and certificates from 03 months to 06 months for violations specified in this Article in case of repeated or repeat violations;

d) Suspend part or all of the violating production activities from 03 months to 06 months for violations specified in this Article.

4. Remedies:

a/ To forcibly remove infringing elements on counterfeit labels and packages or forcibly destroy counterfeit goods for violations specified in this Article;

b/ To forcibly surrender the illegal profits gained as a result of committing violations specified in this Article.

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DO INNOVATIVE ENTERPRISES RECEIVE INCENTIVES FROM THE GOVERNMENT OF VIETNAM?

I. What is an innovative start-up enterprise?

According to the provisions of Clause 1, Article 2 of Circular 01/2018/TT-BKHCN, innovative start-up enterprises are:

“startup” means an enterprise that is able to grow quickly by using intellectual property, technology and new business models and operates for no more than 05 years from date on which the first enterprise registration certificate is issued.

DO INNOVATIVE ENTERPRISES RECEIVE INCENTIVES FROM THE GOVERNMENT OF VIETNAM? - HTLaw

II. Support innovative start-up businesses

  • Methods to support innovative start-up businesses specified in Article 21 of Decree 80/2021/ND-CP are as follows:

– Select enterprises that won national or international prizes for startups or have startup-related products or projects, or are granted patents; or are granted science and technology enterprise certificate, high technology enterprise certificate or high technology-applying enterprise certificate.

– Select enterprises that have been invested in or will be invested in under commitment of startup investment funds; receive assistance or will receive assistance from co-working spaces, startup assistance organizations, service providers, incubation facilities, business promotion facilities, startup centers as prescribed by investment laws.

– Selection via a Council:

Assisting organizations may establish a Council to select eligible startups according to the criteria specified in Article 20 of this Decree following these principles:

a) The quantity of members and working mechanism of the Council shall be decided by the establishing authority;

b) At least 50% of the Council members shall be independent counselors. Other members shall be representatives of assisting organizations and work on a part-time basis;

c) The Council’s operating budget is consolidated into the management budget to support small and medium-sized enterprises of agencies and organizations supporting small and medium-sized enterprises.

  •  The content of supporting innovative startups according to the provisions of Clause 2, Article 12 of Circular 01/2018/TT-BKHCN is as follows:

– Partial support for direct labor payment and use of specific services such as training and start-up coaching; marketing and promoting products and services; exploit technology information and inventions; payment, finance; Evaluate and value the results of scientific research and technological development and intellectual property; Legal consulting, intellectual property, investment, establishment of science and technology enterprises, commercialization of scientific research results and technology development, intellectual property.

– Partial support for providing digital space and online support services; Trial production, making sample products, perfecting technology

– Support part of the funding to participate in short-term training courses at a number of reputable business promotion organizations abroad and support part of the funding to connect startup networks and support startups. Vietnam’s industry and venture capital with the region and the world; connect

– Connect, introduce partners, and support procedures through science and technology representatives and Vietnamese trade representatives abroad to access foreign markets.

 

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Land has been encroached, what is the basis to reclaim it?

I. The concept of "Encroached land"

– There is no concept regulating the concept of “encroached land”. However, the act of encroaching and appropriating land is regulated in Article 3 of Decree 102/2014/ND-CP on administrative sanctioning of violations in the field of land as follows:

“1. Land encroachment is the act of a land user moving a landmark or plot boundary to expand the land area.

2. Land appropriation is the use of land without permission from a competent state agency or the use of land allocated or leased by the State but at the end of the allocation or lease term the land is not extended by the State. use without returning the land or use land without carrying out procedures for land allocation or land lease according to the provisions of land law.”

Thus, the concept of encroached land can be understood as land that belongs to the legal use rights of an individual or organization but is illegally used by others through land encroachment or land appropriation.

II. Basis for reclaiming encroached land

– According to Clause 1, Article 170 of the 2013 Land Law: “Use land for the right purpose, within the boundaries of the land plot,…”, land users have the obligation to use land within the boundaries of the land plot. The act of encroaching and appropriating land is considered an act of violating the boundaries of a land plot, violating the legal land use rights of other individuals. Pursuant to Clause 1, Article 12 of the 2013 Land Law, regulations on prohibited acts in land use:

“1. Encroaching, occupying, and destroying land.”

– Thus, the act of encroaching on land is considered a prohibited act and must not be carried out. Committing acts of encroachment or appropriation of land may be subject to administrative sanctions with fines ranging from 1,000,000 VND to 10,000,000 VND depending on the type of land and the act of encroachment or occupation based on Article 10 of Decree 102/2014/ ND-CP.

– In addition, according to the above legal basis, the person who encroaches on land must return the encroached or occupied land and restore the land to its original condition.

Land has been encroached, what is the basis to reclaim it? - HTlaw

III. Measures to reclaim encroached land

– According to Clause 24, Article 3 of the 2013 Land Law, “Land dispute is a dispute about the rights and obligations of land users between two or more parties in land relations.” From this definition, it can be seen that reclaiming encroached or occupied land is considered as a land dispute over use rights.

– There are many measures to reclaim encroached or occupied land, however, the first measure that must be applied when resolving a land dispute is conciliation based on Article 202 of the 2013 Land Law:

“2. If the disputing parties cannot reconcile a land dispute, they should send an application to the commune-level People’s Committee where the disputed land is located for conciliation.

3. The Chairman of the Commune People’s Committee is responsible for organizing conciliation of land disputes in his/her locality; During the implementation process, it is necessary to coordinate with the commune-level Vietnam Fatherland Front Committee and member organizations of the Front and other social organizations. Procedures for conciliation of land disputes at the Commune-level People’s Committee are carried out within no more than 45 days from the date of receipt of the request to resolve the land dispute.”

– If conciliation fails (when one or both parties do not agree or do not implement the conciliation results), the party whose land is encroached or occupied can sue in court according to the provisions of Article 26 of the 2015 Code of Civil Procedure:

“Article 26. Civil disputes fall under the Court’s jurisdiction

…

2. Disputes over ownership and other rights to property.

….”

– Thus, when a land dispute occurs related to encroachment or land appropriation, the person whose legitimate rights and interests are violated can conciliate and initiate a lawsuit to court to request the invader. The offender stops the illegal act and restores the land to its original state.

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WHAT DOCUMENTS ARE REQUIRED FOR MOTORBIKES AND CARS ON THE ROAD?

I. General provisions

– In order to be able to participate in road traffic by motor vehicle, the driver of the vehicle, in addition to meeting the conditions on age and health, must also meet the requirements for compulsory documents to carry according to regulations. Pursuant to Clause 2, Article 58 of the Law on Road Traffic 2008 amended and supplemented in 2019:

“The driver of a vehicle must carry the following documents:

a) Vehicle registration;

b/ Driver’s licenses for drivers of motor vehicles prescribed by law

c/ Certificates of inspection of technical safety and environmental protection for motor vehicles prescribed by law

d/ Certificate of civil liability insurance of the owner of the motor vehicle.”

– The above documents are generally required for drivers of all types of motor vehicles when participating in road traffic. Therefore, if the driver does not carry all the documents prescribed by law and still participates in road traffic, the driver of the vehicle risks being fined for violations.

– However, depending on the type of vehicle, vehicle displacement and road traffic purpose, drivers may have to supplement and carry different types of documents.

II. Documents when operating a motorcycle (motorbike)

– Pursuant to Clause 2, Article 58 of the Law on Road Traffic mentioned above, when participating in road traffic by motorbike, the driver needs to bring the following documents:

            – Vehicle registration certificate (Also known as Cavet)

            – Driver’s license (Also known as a Driver’s License)

            – Certificate of Civil Liability  Insurance (Also known as Motor Insurance)

– However, it should be noted that for a driving license, the driver will need to carry a different type of license for each type of motorcycle pursuant to Clause 2 Article 59 of the Law on Road Traffic as follows:

* For small displacement two-wheelers: A two-wheeled motorcycle with cylinder capacity from 50 cm3 to less than 175 cm3. For this type of vehicle, the driver needs to carry a Class A1, Class A2 or Class A3 Driving License.

* For large displacement two-wheelers: A two-wheeled motorcycle with a cylinder capacity of 175 cm3 or more. For this type of vehicle, the driver needs to bring a Class A2 Vehicle Type License.

* For tricycles: Are tricycles. For this type of vehicle, the driver needs to carry a Class A3 Driving License.

WHAT DOCUMENTS ARE REQUIRED FOR MOTORBIKES AND CARS ON THE ROAD? - HTLaw

III. Documents when driving a car

– Pursuant to Clause 2, Article 58 of the Law on Road Traffic mentioned above, when participating in road traffic by motorbike, the driver needs to bring the following documents:

            – Vehicle registration certificate (Cavet)

            – Driver’s license (By re)

            – Certificate of Civil Liability Insurance (Car Insurance)

            – Certificate of inspection of technical safety and environmental protection for motor vehicles (Register of automobiles)

– In addition, pursuant to Clause 13 Article 80 of Decree 100/2019/ND-CP, the car registration certificate will be replaced with a certified copy of the vehicle registration certificate and the receipt provided by the bank or credit institution in case the car owner buys a car with installment payment or the car is mortgaged at the bank.

– And just like motorbikes, car driving licenses also vary depending on the type of vehicle according to Clause 4 Article 59 of the Law on Road Traffic:

“a) Class A4 issued to drivers of tractors up to 1,000 kg;

b) Class B1 is issued to non-practicing drivers operating passenger cars with up to 9 seats; trucks and tractors with a tonnage of less than 3,500 kg;

c) Class B2 is issued to a practitioner driving a passenger car with up to 9 seats; trucks and tractors with a tonnage of less than 3,500 kg;

d) Class C shall be issued to drivers of trucks and tractors with a tonnage of 3,500 kg or more and vehicles specified for driving licenses of classes B1 and B2;

dd) Class D shall be issued to drivers of passenger cars with between 10 and 30 seats and vehicles specified for driving licenses of classes B1, B2 and C;

e) Class E shall be issued to drivers of passenger cars with more than 30 seats and vehicles specified for driving licenses of classes B1, B2, C and D;

g) Class FB2, FD, FE driving licenses issued to drivers who already hold driving licenses of classes B2, D and E to drive vehicles specified for driving licenses of this class when towing trailers or passenger cars connected to wagons; Class FC issued to drivers who already hold a Class C driver’s license to drive vehicles specified for Class C when towing trailers or semi-trailer tractors.”

– It should be noted that driver’s licenses for four-wheelers and cars are generally valid and at the expiration of the period the driver must take a test to be reissued.

– In addition, if the car is a vehicle used for transport purposes, the driver may need to carry specific licenses such as Road Use License for transporting super-sized and super-heavy goods, Dangerous goods transport license for transporting dangerous goods, etc …

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IS MAKING A BAILIFF’S REPORT A GOOD CHOICE WHEN BORROWING MONEY?

I. What is “a bailiff’s report”?

According to Clause 3, Article 2, Decree 08/2020/ND-CP stipulates:

“A bailiff’s report” refers to a document which records an event or behavior witnessed by the bailiff and is produced at request of an individual, agency, or organization at request of this Decree.

​ Legal value of a diploma:

– Bailiff’s report does not replace notarized documents, authenticated documents, or other administrative documents.

– Bailiff’s report are a source of evidence for the Court to consider when resolving civil and administrative cases according to the provisions of law; is the basis for conducting transactions between agencies, organizations and individuals according to the provisions of law.

II. Procedures for making “a bailiff’s report”

To obtain “a bailiff’s report”, the bailiff needs to complete the procedures specified in Article 39 of Decree 08/2020/ND-CP as follows:

1. A bailiff must witness, produce bailiff’s report, and be responsible to the solicitor and the law for his/her bailiff’s report. Events and affairs recorded in bailiff’s reports must be objective and truthful. If necessary, a bailiff has the right to invite a witness to attest to the production of bailiff’s report.

The solicitor must adequately provide information and documents relating to the production of bailiff’s report (if any) and be responsible for accuracy and legitimacy of provided information and documents.

When producing bailiff’s report, the bailiff must explain legitimacy of the bailiff’s report to the solicitor. The solicitor must append signature or fingerprints in bailiff’s report.

2. Bailiff’s report must sign each page, stamp the Bailiff’s Office and record it in the certificate book made according to the form prescribed by the Minister of Justice.

3. Bailiff’s report must be sent to solicitor and stored at bailiff office in accordance with regulations and law on archive similar to notary documents.

4. Within 3 working days from the date on which bailiff’s report is produced, the bailiff office must send the bailiff’s report and documentary evidence (if any) to the Department of Justice where the bailiff office is located. Within 2 working days from the date on which bailiff’s report is received, the Department of Justice must record in the bailiff’s report registry.

Is making a bailiff’s report a good choice when borrowing money? - HTlaw

III. Is making a bailiff’s report a good choice when borrowing money?

Creating a bailiff’s report when borrowing money is a good thing to ensure the rights of both the borrower and the lender. Bailiff’s report has high evidentiary value and can be used to resolve disputes in court or competent state agencies.

Benefits of creating a bailiff’s report when borrowing money:

– Minimize risks: Bailiff’s report has high evidentiary value. Therefore, creating a bailiff’s report when borrowing money can help minimize risks between parties when a dispute occurs.

– Prove the authenticity of the transaction: Bailiff’s report is made by the Bailiff’s office. Therefore, creating a bailiff’s report can authenticate transactions such as loan amount, interest rate, loan term, …

– Save time and costs: Currently, the cost of preparing a bailiff’s report for services at the Bailiff’s office usually ranges from 3 million VND to 5 million VND. At the same time, the procedures and processes for creating a bailiff’s report are not too complicated and expensive.

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What does the application for personal income tax refund include?

1. What does the application for personal income tax refund include?

Pursuant to Article 42 of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration,  There are regulations on tax refund records. Accordingly, the personal income tax refund dossier includes:

– A written request for handling the amount of tax, late payment and overpayment penalty according to Form No. 01/DNXLNT issued together with Appendix I of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration;

– A written authorization as prescribed by law in case the taxpayer does not directly carry out tax refund procedures, except for cases where the tax agent submits a tax refund dossier according to the contract signed between the tax agent and the collector;

– List of tax payment documents according to form No. 02-1/HT issued together with Appendix I of Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry of Finance guiding the implementation of a number of articles of the Law on Tax Administration and Decree No. 126/2020/ND-CP dated October 19, 10 of the Government detailing a number of articles of the Law on Tax Administration (applicable for organizations and individuals paying income);

– Personal income tax withholding documents (are tax withholding documents that enterprises issue to entities);

– Identity card or identity document of the person applying for personal income tax refund;

– A copy of the labor contract (if tax finalization at the tax office managing the enterprise deducts the family situation);

– Or household registration book or temporary residence book (if tax finalization at the tax office where the individual resides).

 

2. How to calculate the amount of personal income tax overpaid to be refunded:

In fact, if we have paid personal income tax and want to know whether we pay personal income tax at a competent state agency with excess or shortage, we are required to do settlement activities in accordance with the law. Individuals can settle according to many different formulas, can settle directly with tax authorities or conduct activities to authorize income payment agencies if qualified as prescribed by law. Apply the formula:

Overpaid personal income tax amount = Personal income tax paid – Personal income tax payable according to tax finalization

If this formula result is positive, it is an overpayment amount, whereas negative is an underpayment of taxes.

Where:

– Personal income tax paid: The amount of tax paid is determined on the state budget payment paper (for enterprises or individuals paid to the state budget according to the taxpayer’s tax code) or personal income tax withholding documents (for individuals);

– The amount of personal income tax payable according to tax finalization: If you want to determine, you must make tax finalization. And the formula for calculating the annual personal income tax finalization is as follows: Personal income tax payable for the whole year = (Average monthly taxable income x partial progressive tax rate schedule) x 12 months. Where:

+  Average monthly taxable income is determined by the formula: Average monthly taxable income = (Total taxable income – sum of deductions) / 12 months;

+ Taxable income is the total income from wages and wages that the individual actually receives from January 1 to December 31 of the settlement year. There is the following formula: Taxable income for the whole year = Total income received during the year – amounts determined to be tax-free during the year;

+ Deductions include: Family deduction (self + dependents) + Compulsory insurance + Charitable, educational and humanitarian contributions.

What does the application for personal income tax refund include? - HTlaw

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CAN VIETNAMESE TRADERS BE AGENTS IN BUYING AND SELLING GOODS FOR FOREIGN TRADERS?

I. Law provisions on commercial agents

About the concept

According to the provisions of Article 166 of the 2005 Commercial Law, a commercial agent is:

“Commercial agency is a commercial activity whereby the principal and the agent agree that the agent on their own behalf buy and sell goods for the principal or provide services to the principal. for customers to receive remuneration”.

From the above regulations, commercial agency is a commercial activity in which the agent will, on behalf of the principal, purchase and sell goods or provide services and receive remuneration.

About form

According to the provisions of Article 169 of the 2005 Commercial Law, commercial agents have the following forms of agency:

  1.  An off-take agent is a form of agency in which the agent buys and sells a complete volume of goods or provides a complete service to the principal.
  2. Exclusive agency is a form of agency in which in a certain geographical area the principal only assigns one agent to buy or sell one or a number of goods or provide one or a certain type of service. determined.
  3. General agent for buying and selling goods and providing services is a form of agency in which the agent organizes a system of affiliated agents to carry out the purchase and sale of goods and provision of services for the principal. .

The general agent represents the affiliated agent system. Affiliated agents operate under the management of the general agent and on behalf of the general agent.

  1. Other forms of agency as agreed upon by the parties.

Currently, according to regulations, there will be various forms of agents such as: offtake agents, exclusive agents, and agents for buying and selling goods and providing services. In addition, there are other forms of agency agreed upon by the parties.

II. Can Vietnamese traders act as agents to buy and sell goods for foreign traders?

According to Clause 1, Article 50, Decree 69/2018/ND-CP regulates traders acting as agents to buy and sell goods for foreign traders as follows:

“Traders are allowed to act as agents to buy and sell goods for foreign traders, except for goods on the List of goods banned from export or temporarily suspended from export, and goods on the List of goods banned from import and temporarily suspended from import. . For goods exported and imported under License, traders may only sign agency contracts after being granted a License by the ministry or ministerial-level agency with management authority.

According to the above regulations, Vietnamese traders have the right to act as agents to buy and sell goods for foreign traders.

However, these types of goods must not be on the List of goods banned from export or temporarily suspended from export or on the List of goods banned from import or temporarily suspended from import.

CAN VIETNAMESE TRADERS BE AGENTS IN BUYING AND SELLING GOODS FOR FOREIGN TRADERS? - htlaw

III. Procedures for import, export and return of goods under agency contracts for foreign traders

According to the provisions of Article 52 of Decree 69/2018/ND-CP, procedures for exporting and importing goods under agency contracts are as follows:

“Goods under agency contracts to buy and sell goods with foreign traders must be followed when exported or imported in accordance with the same regulations as for exported and imported goods specified in this Decree.” .

Accordingly, goods under goods purchase and sale agency contracts with foreign traders will go through import and export procedures according to the provisions of Article 4 of Decree 69/2018/ND-CP.

For returning goods specified in Article 53 of Decree 69/2018/ND-CP as follows:

“Goods under sales agency contracts in Vietnam for foreign traders may be re-exported if they cannot be consumed in Vietnam. Tax refund is carried out according to regulations of the Ministry of Finance.

Vietnamese traders have the right to re-export goods under sales agency contracts with foreign traders if those goods cannot be sold in Vietnam.

 

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DISADVANTAGES ABOUT VNeID INTEGRATION BUT PEOPLE STILL NEED TO BRING DOCUMENTS

I. What is VNeID?

According to the provisions of Clause 12, Article 3 of Decree 59/2022/ND-CP, VNeID is:

“dinhdanhdientu.gov.vn”, “vneid.gov.vn” refers to an e-identification webpage created and developed by the Ministry of Public Security to enable access to e-identification and e-authentication services during the process of handling of administrative procedures, public administrative services and other transactions in cyberspace; help promote facilities and amenities necessary for agencies, entities and individuals.

Thus, VNeID electronic identification card is a mobile application developed by the National Population Data Center of the Ministry of Public Security of Vietnam.

VNeID was built with the purpose of replacing traditional documents. This application is built on a database of identification, population and electronic authentication, providing utilities for developing digital citizens, digital government, and digital society.

II. Are people forced to use VNeID electronic identification?

According to Decree 59/2022/ND-CP, currently, there are no regulations forcing people to register to use VNeID.

However, recently, the police nationwide are implementing a policy of calling and encouraging people to register electronic identification accounts on the VNeID application according to the Prime Minister’s policy in the Identity and Identification Development Project. Electronic reality serving national digital transformation.

DISADVANTAGES ABOUT VNeID INTEGRATION BUT PEOPLE STILL NEED TO BRING DOCUMENTS - htlaw

III. Inadequacies in VNeID integration

Although the VNeID application has been integrated in many agencies, organizations, and businesses, people still need to bring traditional identification documents when making transactions. The reason is that there are still some inadequacies as follows:

– The rate of people using VNeID is still low: According to statistics from the Ministry of Public Security, as of October 2023, only about 60% of the Vietnamese population has registered to use the VNeID application. This makes integrating VNeID at agencies, organizations, and businesses difficult because many people still do not have the application or have not activated the application.

– The national population database has not been completed: The national population database is an important foundation for integrating VNeID. However, this database still has some shortcomings, such as some people’s information has not been fully and accurately updated and some people’s information being duplicated. This can lead to errors when authenticating information using VNeID.

– Agencies, organizations, and businesses are not ready for VNeID integration: Some agencies, organizations, and businesses do not have enough resources and human resources to deploy VNeID integration. In addition, some agencies, organizations and businesses do not have close coordination with each other in integrating VNeID.

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IS SAME-SEX MARRIAGE RECOGNIZED OR NOT?

I. Same-sex marriage and the situation of recognition of same-sex marriage in the world

Same-sex marriage is a marriage between two people of the same sex, that is, two people of the same biological sex. This means that two people in a marital relationship are both male or both female.

Same-sex marriage is considered part of homosexual rights, which remains controversial to this day. There are many countries that have recognized same-sex people in general and their rights, especially same-sex marriage rights in particular, such as Canada, Netherlands, Belgium, Spain, UK, USA, …

However, on the contrary, there are many countries in the world that do not recognize or have not recognized same-sex marriage, and even punish homosexuals, typically Muslim countries in the Middle East, Africa, and other countries. Asian countries such as Iran, China, India, Indonesia, Eastern European countries such as Russia, Belarus, etc. Vietnam is one of the countries that does not recognize same-sex marriage.

II. Is same-sex marriage recognized in Vietnam?

Currently, in Vietnam, experts estimate that by 2023, in Vietnam it is estimated that there will be about 3-5% of the total population of homosexuals of all ages, of which the number of homosexuals is between the ages of 20 to 40 – the most common age for marriage.

Previously, marriage between people of the same sex was prohibited according to Clause 5, Article 10 of the 2000 Law on Marriage and Family, and the person who committed this act was even subject to administrative fines:

“Article 10. Cases where marriage is prohibited

…

5. Between people of the same sex.”

However, in the 2014 Law on Marriage and Family, the 2015 amendments prohibiting marriage between homosexuals were canceled and revised in Clause 2, Article 8:

“The state does not recognize marriage between people of the same sex.”.

Although the State still does not recognize same-sex marriage, this amendment demonstrates the progress of the Law on Marriage and Family, meaning that the act of marriage between people of the same sex is not a prohibited act. and therefore there will be no penalty for doing so.

Is same-sex marriage recognized or not? - htlaw

III. The legal reason same-sex marriage is not recognized in Vietnam

There are many reasons for not recognizing same-sex marriage, such as factors in national history, customs and traditions, family culture, non-recognition by the majority of society… But when considering from a legal perspective, the reason can be seen from the 2013 Constitution of Vietnam. In Clause 1, Article 36 of the 2013 Constitution:

“Men and women have the right to marry and divorce. Marriage follows the principles of voluntariness, progress, monogamy, husband and wife equality, and mutual respect.”.

Thus, the Constitution – the document with the highest legal value – stipulates that one of the principles of marriage is one wife, one husband, meaning there must be two different genders to have the right to marry and divorce. kiss.

At the same time, in the 2014 Law on Marriage and Family, amended and supplemented in 2015, it is also noted in Clause 5, Article 3 that: “Marriage is the establishment of a husband and wife relationship by a man and a woman according to the provisions of the Law this is about marriage conditions and marriage registration.”. That means only men and women can get married.

From there, it can be seen that in order to recognize the issue of same-sex marriage, the entire legal system needs to change, starting with the highest legal document, the Constitution. Recognition of same-sex marriage is still controversial because it can change the structure, the most basic component, the nucleus of a society – the family.

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LAW REGULATIONS ON MINI APARTMENT CONSTRUCTION

I. What is a mini apartment?

According to the provisions of Clause 3, Article 3 of the 2014 Housing Law, apartment buildings are:

Apartment building means any multi-storey building which has multiple apartments, public stairs, hall ways, private areas, common areas and common infrastructural works for organizations, households or individuals, including apartment buildings for residential use and mixed-use buildings for both business and residential purposes.

Currently, the law still does not have specific regulations on “mini apartments”, however, in Clause 2, Article 46 of the 2014 Housing Law, there are relevant regulations as follows:

In case the household or individual is permitted to build a multi-storey house whose each storey has two self-contained apartments or above satisfying minimum floor area standards, private areas and common areas in the apartment building as prescribed in this Law, each apartment shall be recognized the homeownership.

Thus, it can be understood that a “mini apartment” is a house built by households or individuals, consisting of 2 or more floors, on each floor there are 2 or more apartments and each apartment usually has an Area from 30 m2 to 50 m2, suitable for low-income people or small families.

II. What actions are prohibited in the management and use of mini apartments?

According to the provisions of Article 35 of Decree 99/2015/ND-CP, prohibited acts in the management and use of mini apartments are as follows:

1. Using the funding for management, operation, and maintenance of shared area against provisions of the Law on Housing, this Decree, and the Statute on management and use of apartment buildings promulgated by the Ministry of Construction.

2. Causing permeation or leakage; make noise beyond the limits specified by law; discharging garbage, wastewater, exhaust gases, toxic substances against regulations of law on environmental protection or internal regulations on management and use of the apartment building.

3. Breeding animals in the apartment building.

4. Painting, decorating the outer sides of the apartments of apartment building against regulations on its design and architecture.

5. Repurpose the share area of the apartment building without permission; repurpose the non-residential area in the apartment building against the designed approved by a competent authority.

6. The following business lines are prohibited in the business area of an apartment building:

a) Explosive, combustible materials, and business lines that endanger life and property of users of the apartment building as set out in regulations of law on fire safety;

b) Discotheque business; repair of motor vehicles; slaughtering, provision of services causing pollution as set out in regulations of law on environmental protection.

Restaurant, karaoke, and bar business must ensure noise isolation, fulfillment of fire safety requirement, have emergency exits, and conformity with other business conditions prescribed by law.

7. Committing other prohibited acts related to management and use of apartment buildings specified in Article 6 of the Housing Law.

LAW REGULATIONS ON MINI APARTMENT CONSTRUCTION - htlaw

III. Issue Certificates to buyers of mini-apartment houses

Hanoi People’s Committee issues Certificates to buyers of mini-apartment houses according to the provisions of Clauses 2 and 3, Article 22 of Decision 24/2014/QD-UBND:

2. The mini-apartment apartment is built according to the License issued by a competent authority, ensuring standards, construction regulations and detailed construction planning at a scale of 1/500 or urban construction planning. For areas that have been planned and approved by competent authorities according to the provisions of law on construction, a Certificate will be issued with the form of land use being general use. In case the construction project does not have a License or is built without a permit, the household or individual building the mini apartment building will not be granted a Certificate.

3. Households and individuals building mini apartment buildings, on behalf of apartment buyers, carry out procedures for issuance of ownership certificates for those apartments when carrying out procedures for transferring land use rights and transferring ownership rights. Own housing according to regulations.

IV. Authority to issue Construction Permits for mini apartments

According to the provisions of Article 103 of the Construction Law 2014 (amended by Clause 37, Article 1 of the Amended Construction Law 2020), there are the following provisions:

The Provincial People’s Committee issues construction permits for works that require a construction permit in the province, except for works under the licensing authority of the District People’s Committee.

The Provincial People’s Committee decentralizes and authorizes the Department of Construction, the Management Board of industrial parks, export processing zones, high-tech zones, economic zones, and district-level People’s Committees to issue construction permits within their functions. and the scope of management of this agency.

– District-level People’s Committees issue construction permits for level III, level IV works and individual houses in the area under their management.

– The agency competent to issue construction permits is the agency that has the authority to adjust, extend, reissue and revoke the construction permit it issues.

– In case the agency competent to issue construction permits does not revoke the construction permit issued improperly, the Provincial People’s Committee shall directly decide to revoke the construction permit.

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PROCEDURES FOR APPLYING A FIRE PREVENTION LICENSE FOR A RESTAURANT

I. What is a Fire Protection License?

Fire protection license (abbreviated as PCCC) is a certificate of fire protection design approval. This is a legal document proving that the grantee has met fire protection conditions according to the provisions of the law.

Fire protection license is one of the popular and mandatory sub-licenses when individuals and business organizations have fire prevention and fighting requirements.

II. What is the purpose of applying for a Fire Protection License?

Applying for a fire protection certificate helps businesses, organizations, and individuals ensure the safety of fire prevention and fighting activities, helps minimize the risks of fire and explosion, and increases the ability to handle unexpected problems. suspect, extinguish the fire quickly, thereby minimizing damage to people and property.

Procedures for applying for a fire prevention and fighting license - htlaw

III. Documents and Procedures for applying for a fire protection license

a) Document components:

– Copy of business registration certificate;

– Application for issuance of certificate of eligibility for fire prevention and fighting;

– Copy of fire protection approval certificate and fire prevention acceptance document;

– List of employees trained in fire prevention and fighting;

– Statistics table of fire prevention and fighting equipment;

– Fire-fighting plan

b) Procedures:

Step 1: Submit an application for a Fire Prevention and Fighting License

Accordingly, depending on the case of applying for a fire prevention and fighting license, the licensing agency is regulated as follows:

– The Department of Fire Prevention, Fighting and Rescue under the Ministry of Public Security will issue fire prevention and fighting licenses for cases approved and accepted by the Department regarding fire prevention and fighting.

– The Fire Prevention, Fighting, and Rescue Police Department of the Provincial Police will issue fire prevention and fighting licenses for authorized cases.

Step 2: The receiving officer checks the dossier’s validity according to the law’s provisions.

The competent authority will receive the application, check the composition and validity of the application, and comply with regulations.

Step 3: Receive results of Fire Prevention and Fighting License

Based on the appointment date on the application receipt, individuals and organizations go to the place to submit the application to receive the results.

The time limit for processing procedures for applying for a fire protection license is from 5 – 15 working days, calculated from the date of receipt of all valid documents; In case the license is not granted, there will be a written response clearly stating the reason.

Note:

Fire protection license is valid for 3 years from the date of issue. Therefore, businesses and individuals need to pay attention to the time it takes to re-apply for a new license so as not to affect business operations.

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Procedure for Disowning a Child

I. Conditions for Disowning a Child

Based on clause 2, Article 89 of the 2014 Marriage and Family Law, a person believed to be the parent of someone has the right to request the Court to determine that the individual is not their child:

“A person recognized as the parent of someone may request the Court to determine that the individual is not their child.”

Based on clause 2, Article 88 of the 2014 Marriage and Family Law: “In cases where the parents do not acknowledge the child, evidence must be provided and it must be determined by the Court.” Therefore, if someone is considered a parent, they must prove that they are not the parent of the child if they do not wish to acknowledge the child.

Specifically, based on the spirit of Resolution No. 02/2000/QN-HĐTP dated December 23, 2000, issued by the Council of Judges of the Supreme People’s Court, which states: “…when someone requests the Court to determine whether a particular individual is their child or not, there must be evidence; therefore, in principle, the requester must provide evidence. In necessary cases, genetic testing may be required. The requester of genetic testing must pay the testing fee.”

Therefore, the condition for someone not to acknowledge a child (whom the law has determined to be their parent) is that the child is not their biological child, and there must be evidence proving that they are not the parent of the child. This must be determined and recognized by the Court.

Procedure for Disowning a Child - htlaw

II. Procedure for Disowning a Child by Parents

Parents have the absolute right to refuse to acknowledge a child if that child is not biologically theirs. In this case, the steps to disown the child are as follows:

Step 1: Gather evidence proving that the child is not theirs

Parents need to provide valid evidence that they are not the biological parents of the child. There are several ways to do this, but the most common and convincing method is through DNA testing, comparing the child’s DNA with that of the alleged parents. Parents can visit hospitals or medical centers that offer DNA testing services for examination and sample collection.

Step 2: Prepare the documents

After determining that the child is not biologically theirs, you need to prepare the following documents:

– A request to disown the child

– The evidence prepared in Step 1

– Identification documents of the requester

– Divorce decree (if applicable)

Step 3: Submit the documents and await the Court’s jurisdiction

According to Article 32 of the 2015 Civil Procedure Code, cases related to determining parental status fall under the jurisdiction of the district-level courts. Therefore, the requester who wishes to disown the child should submit the documents to the district-level court where they are residing or temporarily residing.

Within the specified time frame, the Court will take jurisdiction over your request.

Step 4: Receive the result

The requester seeking to disown the child will receive the result after the Court issues a decision regarding the request.

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REGULATIONS ON LICENSE PLATE PRICES

1. Number and serial number of license plates of cars up for auction

The Minister of Public Security decides the number of car license plates put up for auction at each auction, including car license plates of provinces and centrally run cities, with series symbols: A, B , C, D, E, F, G, H, K, L, M, N, P, S, T, U, V, X, Y, Z white background, unregistered black letters and numbers, Expected to issue new ones, currently in the Vehicle Registration and Management System of the Ministry of Public Security and supplement the number of car license plates for the Police of provinces and centrally run cities in case of running out of car license plates. to register before the next auction.

2. Auction regulations

Based on the contents agreed upon by the Ministry of Public Security, the asset auction organization promulgates the Auction Regulations, including the following contents: List of car license plates up for auction, auction time for each plate car number, account for payment of deposit to participate in the auction and other contents as prescribed in Article 34 of the Law on Asset Auction.

3. Conditions for registering to participate in the auction

Firstly , the subjects participating in the auction are Vietnamese organizations and individuals who are eligible to participate in the auction of car license plates according to the provisions of Decree No. 39/2023/ND-CP and other relevant laws. according to the provisions of Clause 1, Article 3 of this Decree and pay the deposit to the asset auction organization according to the provisions of Clause 2, Article 3 of Resolution No. 73/2022/QH15.

Second, organizations and individuals registering to participate in the auction are responsible for the accuracy and truthfulness of declaring information to register to participate in the auction.

4. Steps to conduct a car license plate auction

Step 1: Register to participate in the auction :

– Registration to participate in the auction is done entirely online at the online auction information page of the asset auction organization: https://dgts.moj.gov.vn

– Auction participants are given an access account and instructions on how to use the account, how to bid and other content on the online auction information page to conduct the auction;

– Auction participants can choose car license plates according to their needs in the list of car license plates offered for auction from all provinces centrally run cities nationwide to participate in the auction;

– Auction participants pay the application fee and deposit for the car license plate they have chosen to participate in the auction into the asset auction organization’s account and are given an auction participation code for the auction. license plate of that car;

– The asset auction organization is responsible for receiving auction registration information and deposits continuously from the date of listing the asset auction until 03 days before the auction.

Step 2: Auction participants access the online auction information page with their access account and carry out auction procedures according to the Auction Regulations.

Step 3: At the end of the online auction, the online auction information page determines the auction winner, announces the auction results, and displays the auction minutes for the auction winner to confirm. , sent to the email of the auction participant registered with the asset auction organization.

Step 4: The auctioneer is responsible for organizing the online auction, authenticating the auction minutes with a digital signature to send to the winning bidder.

Step 5: The Ministry of Public Security assigns officers to monitor, supervise the auction organization process:: number of auctioneers, number of auction participants, auction results and other related issues.

Step 6: Auction orders and procedures not specified in this Decree shall comply with the provisions of the Law on Asset Auction.

Regulations on license plate prices - htlaw

5. Deposit to participate in auction

Auction participants must pay a deposit in advance. The deposit amount is agreed upon by the asset auction organization and the person having the auctioned asset, but the minimum is 5% and the maximum is 20% of the starting price of the auctioned asset.

The deposit is deposited into a separate payment account of the asset auction organization opened at the bank from the time of registration until 03 days before the auction.

In case of winning the auction, the deposit will be transferred to the collection account of the Ministry of Public Security to be paid into the state budget according to regulations.

6. Deadline for paying auction winnings

Within 15 days from the date of announcement of auction results, the winning bidder must pay the entire auction winning amount after deducting the deposit amount into the collection account of the Ministry of Public Security opened at the bank. foreign bank branches. Auction winnings do not include vehicle registration fees.

7. Refund winning auction

Within 12 months from the date of receipt of the document confirming the license plate of the winning car in the auction or the document extending the registration period in case of force majeure events or objective obstacles, the auction winner has not yet registered the winning car’s license plate attached to the vehicle, the Ministry of Public Security will send a notice to the auction winner at the registered address in the auction registration dossier.

In case the auction winner dies, the auction winner’s legal heir will be refunded the auction winning amount paid (after deducting auction organization expenses according to regulations and without interest being charged). according to the law.

8. In case of stopping the auction

First, the asset auction organization is forced to stop the auction in the following cases:

+ The Ministry of Public Security requests to stop the auction according to the provisions of Points c and d, Clause 1, Article 47 of the Law on Asset Auction;

+ Force majeure event.

The Ministry of Public Security decides to organize a re-auction after meeting all conditions for holding an auction according to regulations.

 

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If parents divorce, do they have the right to change their child’s last name in Vietnam?

I. Parents' right to change their child's last name

According to point a, clause 1, Article 27 of the 2015 Civil Code, biological parents have the right to change the last name for their child from the father’s last name to the mother’s last name or vice versa:

“Individuals have the right to request the competent state authority to recognize the change of surname in the following cases:

a) Change of last name for the biological child from the father’s last name to the mother’s last name or vice versa;

…”

However, after divorce, either the father or mother may be granted custody of the child and may therefore desire to change the child’s last name to their own. In this case, the unilateral change of the child’s last name is a practical necessity, and whether this can be done or not will be addressed as follows.

If parents divorce, do they have the right to change their child's last name in Vietnam? - htlaw

II. Is it possible to unilaterally request a change of surname for the child?

According to Clause 1, Article 7 of Decree 123/2015/ND-CP guiding the Law on Civil Status:

“Changing the last name, middle name, or first name for individuals under 18 years old, as stipulated in Article 1 of Article 26 of the Citizenship Law, requires the consent of the parents, which must be clearly expressed in the Declaration; for individuals aged 9 and above, their consent is also necessary.”

Therefore, if the child is under 18 years old, the parents need to reach an agreement on the name change, which must be clearly stated in the declaration. For individuals aged 9 and above, their consent is also required.

Even after divorce and the completion of marital obligations, including property division, the responsibilities of parents towards their children still exist. Therefore, when wanting to change a personal matter for a child, especially their name, the consent of both the father and mother is required, and it may also involve the child if they are of a legal age as prescribed by law.

As a result, a parent cannot unilaterally change the child’s name without the consent of the other parent and, if applicable, the child’s consent.

III. The procedure for changing the last name for a child

In accordance with Article 28 of the Law on Civil Status, the procedure for changing the last name for a child will be carried out as follows:

Step 1: Submit a declaration in the prescribed form and related documents to the citizenship authority.

Step 2: Receive the result

Within a period of 3 working days from the date of receiving all the required documents as stipulated in paragraph 1 of this Article, if it is found that the change or correction of citizenship is justified, in accordance with the provisions of civil law and related laws, the judicial officer – citizenship official shall record it in the Citizenship Register. They will also sign the Citizenship Register along with the applicant and submit a summary report to the Chairman of the People’s Committee at the commune level for the applicant.

In cases requiring verification, the time limit may be extended for no more than 3 additional working days.

    To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance with child matters after divorce

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DO CHILDREN BORN IN VIETNAM WHO HAVE THREE MOTHERS WHO ARE BRITISH CITIZENS, DO THEY OFFICIALLY HAVE BRITISH NATIONALITY?

I. Right to choose nationality for children

According to the provisions of Clause 2, Article 16 of the Vietnamese Nationality Law 2008 on the nationality of children born to parents who are Vietnamese citizens.

“2. A child either of whose parents is a Vietnamese citizen at the time of his/her birth and the other is a foreign national has the Vietnamese nationality if so agreed in writing by his/her parents at the time of birth registration. In case a child is born in the Vietnamese territory but his/her parents fail to reach an agreement on the selection of his/her nationality, the child has Vietnamese nationality”.

Thus, in case there is no written agreement on the choice of nationality for the child at the time of birth registration, that child will have Vietnamese nationality.

Do children born in Vietnam with one parent of British nationality automatically have British nationality? - htlaw

II. Do children born in Vietnam with one parent of British nationality automatically have British nationality?

Clause 1, Article 36 of the 2014 Law on Civil Status stipulates the birth registration procedures as follows:

“1. Birth registrants shall submit the papers specified in Clause 1, Article 16 of this Law to the civil status registration agency. In case either parent is or both parents are foreigner(s), a document on the agreement of the parents on the selection of citizenship for their child”.

If the parents choose a foreign citizenship for their child, their agreement document must contain certification of a competent foreign state agency of which they are citizens.

Pursuant to Clause 2 of Official Dispatch 436/HTQTC-HT of 2021, the Department of Civil Status, Citizenship, and Authentication guides the confirmation of written agreements to choose British nationality for children of British citizens and Vietnamese citizens as follows:

“The Embassy of the United Kingdom of Great Britain and Northern Ireland in Hanoi said: in accordance with British law, the British diplomatic representative agency in Vietnam (British Embassy in Hanoi and British Consulate General in Ho Chi Minh) does not have the authority to confirm British citizenship for children (children of British citizens and Vietnamese citizens). Therefore, when registering the birth of a child of a Vietnamese citizen and a British citizen at Vietnam’s competent civil registration agency, the section recording the child’s nationality (if Vietnamese nationality is not selected, there is no written confirmation from another competent agency of the United Kingdom of Great Britain and Northern Ireland that the child has British nationality) will be left blank”.

In case the parent chooses a foreign nationality for the child, the written agreement must be certified by a competent British state agency of which the parent is a citizen.

Thus, from the above regulations it can be seen. Children born in Vietnam to one parent who is a British citizen do not automatically have British citizenship.

    To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance with British nationality

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FIRE IN RENTED ROOMS, WHO IS RESPONSIBLE, THE LANDLORD OR THE TENANT?

I. Basis for Imposing Liability for Non-contractual Damages

In accordance with Clause 1 and 3, Article 584, Civil Code 2015, the liability for non-contractual damages shall arise based on the following grounds:

“1. Anyone who engages in conduct that infringes upon the life, health, dignity, reputation, honor, property, rights, or legitimate interests of others, resulting in damages, must provide compensation, except as otherwise provided by this Code or other relevant laws.

…

3. In cases where property causes damages, the owner or possessor of the property shall be liable for compensating the damages, except in cases where the damages occur as specified in Article 2 of this Code.”

However, according to Clause 2, Article 584 of the Civil Code, the person causing the damage shall not be liable for non-contractual damages if there is an event of force majeure when performing the act.

FIRE IN RENTED ROOMS, WHO IS RESPONSIBLE, THE LANDLORD OR THE TENANT? - htlaw

II. Who is Responsible?

The situation of a rented room fire gives rise to liability for non-contractual damages involving damaged property, which may include the building itself, its contents, and potentially harm to individuals, as well as damage to neighboring properties. Depending on factors such as the fault of the party performing the action, the causal relationship between the action and its consequences, and whether the action is in violation of the law, we can distinguish the following cases:

Case 1: The consequences result entirely from the fault of the tenant

In cases where the tenant’s actions lead to the fire, whether intentional (such as deliberately setting the house on fire) or unintentional (such as accidentally causing a fire by dropping a lit cigarette onto flammable materials), the tenant is fully responsible for compensating the damages to the landlord and neighboring properties (if applicable).

Case 2: The consequences result entirely from the fault of the landlord

If the house fire occurs due to the fault of the landlord, for example, if they did not meet fire safety standards during construction, then the landlord is solely responsible for their actions and cannot demand compensation from the tenant. In cases where the fire causes harm to the tenant and other neighboring properties, the landlord is liable for compensation.

Case 3: The consequences result from the faults of both the tenant and the landlord

In this scenario, both the tenant and the landlord are responsible for compensating the damage that corresponds to their respective faults. In cases where it is impossible to determine the degree of fault for each party, Article 587 of the Civil Code of 2015 applies: “… if the degree of fault cannot be determined, they must compensate for the damage equally.”

III. Cases Where the Person Causing Damage is Not Liable

Based on Clause 2, Article 584, Civil Code 2015:

“2. The person causing damage shall not be liable to compensate for the damage in cases where the damage arises from an event of force majeure or is entirely the fault of the injured party, except in cases of other agreements or different legal provisions.”

Accordingly, there are two situations in which the person causing damage is not liable:

– When the consequences result from an event of force majeure.

– When the person causing damage is at fault, but the fault lies entirely with the injured party.

Based on Clause 1, Article 156, Civil Code 2015, a force majeure event is defined as “an objective event that cannot be foreseen and cannot be overcome despite the application of all necessary measures and capabilities.”

In both of these cases, the person causing damage is not liable for compensation, unless there are other agreements or different legal provisions stipulating otherwise.

    To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance with Liability for Non-contractual Damages.

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HOW DO EMPLOYERS WHO SIGN MANY LABOR CONTRACTS PAY FOR SOCIAL INSURANCE?

HOW DO EMPLOYERS WHO SIGN MANY LABOR CONTRACTS PAY FOR SOCIAL INSURANCE? - htlaw

I. Can a worker sign multiple labor contracts?

According to the provisions of Article 19 of the Labor Code 2019, it is stipulated as follows: “Article 19. Entering into Multiple Labor Contracts

  1. A worker may enter into multiple labor contracts with multiple employers, but must ensure the full implementation of the agreed-upon terms.

  2. If a worker enters into multiple labor contracts with multiple employers, participation in social insurance, health insurance, unemployment insurance shall be carried out in accordance with the regulations of the laws on social insurance, health insurance, unemployment insurance, and occupational safety and hygiene.”

Therefore, a worker can enter into labor contracts with multiple different employers as long as they fulfill the agreed-upon terms and comply with the current labor laws.

II. Who is required to participate in social insurance?

According to the provisions of Article 2, Clause 1 of the Social Insurance Law 2014, the applicable subjects are as follows:

a) Vietnamese citizens working under indefinite-term labor contracts, fixed-term labor contracts, seasonal labor contracts, or specific-term labor contracts with a duration of at least 03 months but less than 12 months, including labor contracts signed between employers and legal representatives of individuals under 15 years of age as prescribed by labor law.

b) Employees working under labor contracts with a duration of at least 01 month but less than 03 months;

III. Participants in unemployment insurance:

Based on the provisions of the Employment Law, specifically Article 43, these are the subjects that participate in unemployment insurance: Workers must participate in unemployment insurance when working under labor contracts or employment contracts as follows:

  • Labor contracts or employment contracts of indefinite duration;
  • Labor contracts or employment contracts of definite duration;

IV. Subjects participating in health insurance

There are 6 groups of subjects participating in health insurance:

1- Those for whom employees and employers contribute;

2- Those for whom social insurance agencies contribute;

3- Those for whom the state budget contributes;

4- Those supported by the state budget with a specific contribution rate;

5- Those participating in health insurance as part of their household registration;

6- Those for whom employers contribute.

 

V.How do workers working for multiple companies simultaneously pay social insurance?

According to Clause 1, Article 42 of the consolidated document No. 2089/VBHN-BHXH dated June 26, 2020, from the Vietnam Social Security, it states: “Workers simultaneously holding two or more labor contracts with different entities shall contribute to social insurance, occupational accident and occupational disease insurance based on the first labor contract signed, contribute to health insurance based on the labor contract with the highest salary, and contribute to labor union and unemployment insurance based on each labor contract.” Therefore, if a worker works for multiple companies simultaneously, social insurance contributions are as follows:

  • Social insurance (retirement and survivorship fund): contributions are made to the company where the first labor contract is signed;
  • Social insurance (occupational accident and occupational disease insurance): contributions are made to all companies with labor contracts (however, the worker does not need to contribute to this fund, and the employer will contribute);
  • Unemployment insurance: contributions are made to the company where the first labor contract is signed;
  • Health insurance: contributions are made to the company where the labor contract with the highest salary is signed.

    To save time on researching procedures, filling out forms, notarizing, and waiting to submit documents, you can contact HT for consultation and assistance with Labour Law.

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THE COMPANY FACING ECONOMIC DIFFICULTIES, CAN IT ARBITRARILY REDUCE THE SALARY OF EMPLOYEES?

THE COMPANY FACING ECONOMIC DIFFICULTIES, CAN IT ARBITRARILY REDUCE THE SALARY OF EMPLOYEES? - htlaw
     The ongoing economic recession has had a significant impact on businesses worldwide in general, and in Vietnam specifically. Given the prevailing challenges, everyone is affected, including both businesses and employees. Therefore, the question arises:
.

I. Can a company facing economic difficulties unilaterally reduce the salaries of its employees?

The response from HTLaw is negative, as indicated by the following:

Pursuant to Article 94 of the 2019 Labor Code:

“Article 94. Principle of wage payment

Employers must directly, fully, and timely pay wages to employees. In cases where employees cannot receive wages directly, employers may pay wages to individuals duly authorized by the employees.

Employers must not restrict or interfere with the employees’ right to decide on their wage expenditures. They must not coerce employees to spend wages on purchasing goods or using services from the employer or other entities designated by the employer.”

Thus, employers are obligated to directly, fully, and timely pay wages to employees in accordance with the agreement within the corresponding labor contract for the work performed.

Furthermore, Article 33 of the 2019 Labor Code stipulates:

“Article 33. Amendment and supplementation of labor contracts

      During the execution of a labor contract, if either party requests to amend or supplement the content of the labor contract, they must inform the other party at least 03 working days in advance regarding the content to be amended or supplemented.

In cases of mutual agreement, the amendment or supplementation of the labor contract shall be executed through the signing of an appendix to the labor contract or the establishment of a new labor contract.

If the parties do not reach an agreement on the amendment or supplementation of the labor contract, the originally concluded labor contract shall continue to be executed.”

      It is evident that if the intention is to reduce an employee’s wage, the company must notify the employee at least 03 days in advance. If the employee agrees to the wage reduction, the parties can agree to sign an appendix to the labor contract or a new contract to adjust the wage level. However, if the employee does not agree, the company must still pay the wage as agreed upon in the signed labor contract, and an arbitrary reduction of wages is not permissible.

II. Now, assuming a company unilaterally reduces an employee's wage, can the company be subject to penalties?

The answer is affirmative, based on Section 2 of Article 17 of Decree No. 12/2022/NĐ-CP:

“2. Fine for employers committing any of the following acts: Failure to pay wages promptly in accordance with legal regulations; failure to pay or underpay wages to employees as agreed upon in the labor contract; failure to pay or underpay overtime wages; failure to pay or underpay night-shift wages; failure to pay or underpay wages during a suspension of work as stipulated by law; restricting or interfering with the employees’ right to decide on wage expenditures; coercing employees to spend wages on purchasing goods or using services from the employer or other designated entities; improperly deducting wages from employees in violation of legal regulations; failure to pay or underpay wages as prescribed to employees temporarily assigned to different tasks than those stated in the labor contract or during a strike; failure to pay or underpay wages for unused annual leave or remaining annual leave days upon termination or loss of employment; failure to provide advances or inadequate advances for wages during temporary suspension of work as stipulated by law; failure to pay adequate wages during a temporary suspension of work when the employee is not subject to labor discipline according to one of the following levels: …

(a) From 5,000,000 VND to 10,000,000 VND for violations involving 01 to 10 employees;

(b) From 10,000,000 VND to 20,000,000 VND for violations involving 11 to 50 employees;

(c) From 20,000,000 VND to 30,000,000 VND for violations involving 51 to 100 employees;

(d) From 30,000,000 VND to 40,000,000 VND for violations involving 101 to 300 employees;

(e) From 40,000,000 VND to 50,000,000 VND for violations involving 301 or more employees.”

Furthermore, the provisions in Section 1 of Article 6 of Decree No. 12/2022/NĐ-CP state:

“1. The prescribed fine levels for violations of the provisions in Chapters II, III, and IV of this Decree shall apply to individuals, except as provided for in Sections 1, 2, 3, 5 of Article 7; Sections 3, 4, 6 of Article 13; Section 2 of Article 25; Section 1 of Article 26; Sections 1, 5, 6, 7 of Article 27; Section 8 of Article 39; Section 5 of Article 41; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 of Article 42; Sections 1, 2, 3, 4, 5, 6, 7, 8 of Article 43; Sections 1, 2, 3, 4, 5, 6 of Article 45; Section 3 of Article 46 of this Decree. The prescribed fine level for organizations shall be twice the fine level for individuals.”

      Consequently, according to the above regulations, if a company arbitrarily reduces an employee’s wage, it can be fined from 5,000,000 VND to 10,000,000 VND for individuals and from 10,000,000 VND to 20,000,000 VND for organizations.

III. Hence, what should employees do to safeguard their rights?

     Employees have the right to unilaterally terminate the labor contract without prior notice if the company arbitrarily reduces their wages, as per Section 2 of Article 35 of the 2019 Labor Code, which stipulates that:

“…

(b) Failure to fully pay or pay wages on time, except as provided in Section 4 of Article 97 of this Code;

…”

To save time on understanding procedures, filling out forms, notarizing documents, and waiting for application processing, you can get in touch with HT for consultation and assistance regarding Labor Law.

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Posted on

HOW ARE WAGES FOR EMPLOYEES RESOLVED WHEN THE BUSINESS GOES BANKRUPT?

According to the provisions of Point dd, Clause 1, Article 108 of the Law on Bankruptcy 2014, one of the mandatory contents of the decision declaring bankruptcy is the content of termination of the labor contract with the employee, settlement of the employee’s rights and interests. of workers.

I. Cases of termination of labor contracts

Clause 7, Article 34 of the Labor Code 2019 provides as follows:

“7. The employer who is a natural person dies; and is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.”

…

Therefore, when the enterprise goes bankrupt, the labor contract between the employer (enterprise) and the employee will terminate.

II. Responsibility when terminating the labor contract

Article 48 of the Labor Code, 2019 stipulates that when bankrupt, an enterprise must ensure its responsibility to pay the following sums of money to employees:

“2. Priority shall be given to payment of the employees’ salaries, social insurance, health insurance, unemployment insurance, severance allowance, and other benefits under the collective bargaining agreement and employment contracts in case of shutdown, dissolution, or bankruptcy of an enterprise or cooperative.”

How are wages for employees resolved when the business goes bankrupt ?

III. Order of property division

Clause 1, Article 54 of the Law on Bankruptcy 2014 provides as follows:

Where a judge issues a decision declaring bankruptcy, the assets of the enterprise or cooperative shall be distributed in the following order:

“(a) Unpaid wages, severance allowances, social insurance and health insurance of the employees and other benefits by the executed labor contracts and collective labor agreement;

(b) Bankruptcy costs

(c) Debts arising after the commencement of the bankruptcy procedure which serves the purpose of business recovery of the enterprise or cooperative;

(d) Financial obligations to the State; unsecured debts payable to the creditors named in the list of creditors; secured debts that remain unpaid due to the value of the assets being insufficient to repay them”.

Therefore, when an enterprise goes bankrupt, its assets will be divided in the decision to declare bankruptcy in the order of asset division. Including the employee’s salary debt (Priority Order 2) and the employee still has the right to enjoy the money during the working period according to the contract between the two parties.

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HOW TO REGISTER FOR AN EXTRACT OF BIRTH CERTIFICATE FOR OVERSEAS VIETNAMESE

I. What is Extract of Birth Certificate?

According to Article 4, Clause 9 of the 2014 Law on Civil Status, an Extract of Birth Certificate is explained as follows:

“ An Extract of Birth Certificate is a document issued by competent state authority to prove the citizenship event of an individual registered at the citizenship registration agency. The original extract of birth certificate is issued immediately after the citizenship event is registered. A copy of the extract of birth certificate includes a copy obtained from the citizenship database and a copy authenticated from the original.”

From that definition, an extract of birth certificate can be understood as a document issued by the competent state authority to prove the event of birth registration of an individual at the citizenship registration agency.

HOW TO REGISTER FOR AN EXTRACT OF BIRTH CERTIFICATE FOR OVERSEAS VIETNAMESE - htlaw

II. Procedure for Registering Birth Certificate Extract for overseas Vietnamese

In case you are still residing abroad, you can authorize someone else to directly register for a copy of the birth certificate extract at the competent authority in Vietnam as follows:

Step 1: If the person you’re authorized is an organization or agency, this authorization must be established in writing following regulations. (If the authorized person is your grandfather, grandmother, father, mother, child, spouse, sibling, then you can skip this step.)

Step 2: The authorized person submits the application for issuing the copy of Birth Certificate Extract at the competent One-Stop Service Department/Administrative Center of the Civil status database-managing agency.

Step 3: Pay the required fees according to legal regulations.

If the application is complete and valid, it will be accepted. If the application is received after 3:00 PM, an Appointment Ticket will be issued, and the results will be returned to the requester on the next working day.

III. Documents for Registering a Birth Certificate Exctract

Documents for registering a copy of Birth Certificate Extract for Overseas Vietnamese include the following:

    • A declaration form for issuing the copy of birth certificate extract.
    • Authorization document.
    • Original birth certificate.
    • Personal identification documents (passport/ID card/citizen identification card or other documents with attached photo and personal information issued by the competent authority that still valid for use).
    • Household registration book of the requester.

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CAN VIETNAMESE ENTERPRISES SIGN INDEFINITE-TERM LABOR CONTRACTS WITH FOREIGN WORKERS?

I. Legal Basis

According to the provisions of Clause 2, Article 151 of the 2019 Labor Code:

“2. The duration of a foreign employee’s employment contract must not exceed that of the work permit. When a foreign employee in Vietnam is recruited, both parties may negotiate conclusion of multiple fixed-term labor contracts.“

The duration of the employment contract with foreign workers must not exceed the duration of the work permit.

Furthermore, according to the regulations in Article 155 of the 2019 Labor Code and Article 10 of Decree 152/2020/NĐ-CP, the maximum duration of a work permit is 2 years and can be extended once, not exceeding 2 years.

Therefore, employers and foreign workers will not be allowed to sign indefinite-term labor contracts.

II. Can a foreign worker without a work permit sign an indefinite-term contract?

There are certain cases in which foreign workers do not require a work permit to work in Vietnam, as regulated in Article 154 of the 2019 Labor Code:

“1. Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.

2. Is the Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value conformable with regulations of the Government.

3. Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.

4. Enters Vietnam for a period of less than 03 months to do marketing of a service.

5. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.

6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.

7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.

8. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.

9. Other circumstances specified by the Government.”

If a foreign worker falls into one of the above-mentioned cases, they can work in Vietnam without requiring a work permit.

However, according to Article 8 of Decree 152/2020/NĐ-CP, these individuals still need to be confirmed by the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs located where the foreign worker is expected to work. This confirmation is valid for a period of 2 years, and the reissuance of the confirmation is limited to a maximum of 2 years.

Therefore, even though foreign workers that are not required to obtain a work permit, they still cannot sign indefinite-term labor contracts.

CAN VIETNAMESE ENTERPRISES SIGN INDEFINITE-TERM LABOR CONTRACTS WITH FOREIGN WORKERS? - htlaw.vn

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WHEN IS A WORK PERMIT REVOKED?

I. Reasons for revocation of the work permit for foreign workers:

According to Article 20 of Decree 152/2020/NĐ-CP, the work permit for foreign workers in Vietnam may be revoked for the following 9 reasons:

  1. The work permit has expired.
  2. Termination of the labor contract.
  3. The terms of the labor contract do not match the content of the issued work permit.
  4. Working outside the scope specified in the issued work permit.
  5. The field of employment has ended or the contract has been terminated.
  6. The foreign country has sent written notice to recall the foreign worker employed in Vietnam.
  7. Enterprises, organizations, Vietnamese partners, or foreign organizations in Vietnam that employ foreign workers have terminated their activities.
  8. The employer or foreign worker fails to comply with the regulations of Decree 152/2020/NĐ-CP.
  9. The foreign worker violates Vietnamese laws during their employment, affecting security, order, and social safety.
When is a work permit revoked? - htlaw.vn

II. Process and procedures for revoking the work permit:

Based on Article 21 of Decree 152/2020/NĐ-CP, the procedures for revoking a work permit will be carried out as follows, depending on the case:

Case 1: The work permit has expired according to the provisions of Clauses 1, 2, 3, 4, 5, 6, and 7 of Article 156 of the Labor Code:

Step 1: The employer revokes the work permit of the foreign worker.

Step 2: Submit the application to the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the work permit.

The application includes:

The work permit of the foreign worker.

A document explaining the reason for revocation and the specific case falling under work permit revocation.

Deadline for submission: Within 15 days from the date the work permit expires.

Case 2: The employer or the foreign worker fails to comply with the regulations of this Decree; the foreign worker violates Vietnamese laws during their employment, affecting security, order, and social safety (Article 20 of Decree 152/2020/NĐ-CP):

Step 1: The Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the work permit makes the decision to revoke the work permit and notifies the employer.

Step 2: The employer revokes the work permit of the foreign worker.

Step 3: The employer returns the work permit to the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs that issued the permit.

Deadline for completion: Within 3 days from the date the authorized agency revokes the work permit.

Step 4: The employer receives a confirmation document of work permit revocation.

Processing time: Within 5 working days from the date the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs receives the revoked work permit.

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WHAT ARE THE REGULATORY IDENTIFICATION PLATES FROM AUGUST 15, 2023?

I. What is the identification plate from August 15, 2023?

According to the provisions of Article 3 of Circular 24/2023/TT-BCA, identification plates are License plates issued and managed according to the vehicle owner’s identification code (hereinafter referred to as identification plates). Identification number plate means a number plate with symbols, number plate series, size of letters and numbers, and number plate color as prescribed in this Circular.

– For vehicle owners who are Vietnamese citizens, license plates are managed according to personal identification numbers.

– For foreign vehicle owners, license plates shall be managed according to foreigners’ identification numbers established by electronic identification and authentication systems, permanent resident, temporary residence card numbers, or other identity cards issued by competent agencies.  

– For vehicle owners being organizations, license plates shall be managed according to the organization’s electronic identification code established by the electronic identification and authentication system; In case there is no electronic identification code of the organization, it shall be managed according to the tax code or establishment decision.

– In case the vehicle expires, damages, or transfers vehicle ownership, the vehicle owner’s identification plate shall be recovered and reissued by the vehicle registration authority when the vehicle owner registers another vehicle under his/her ownership. The identification plate number shall be retained for the vehicle owner for a period of 05 years from the date of revocation; After the above-mentioned time limit, if the vehicle owner has not registered, such identification plate number shall be transferred to the number plate warehouse for registration and issuance to organizations and individuals according to regulations.

– In case the vehicle owner moves his head office or residence from one province or centrally-run city to another, he shall be entitled to retain such identification plate number (not having to change the license plate).

II. From August 15, 2023, will people have to change their current number plates to identification plates

According to Article 39 of Circular 24/2023/TT-BCA stipulates:

For vehicles registered with license plates before August 15, 2023, but have not yet undergone recall procedures, such plates are determined to be the license plates of the vehicle owner.

For vehicles with registered 5-digit plates, if the vehicle owner has carried out recall procedures before August 15, 2023, such license plates will be transferred to the number plate inventory for issuance of number plates according to regulations.

For vehicles registered with 5-number plates with symbols “LD”, “DA”, “MĐ”, “R”, they will continue to be allowed to participate in traffic, even when changing or re-issuing number plates, unless the vehicle owner wishes to change the number plate according to the provisions of this Circular.

For vehicles with 3 or 4 number plates registered with plates, they are allowed to participate in traffic, except for the following cases:

– Vehicle owners wishing to issue identification plates

– Vehicle owners who carry out procedures for replacement of vehicle registration certificates, replacement of license plates, re-issuance of vehicle registration certificates, re-issuance of license plates, or registration of vehicle names or vehicle moves according to the provisions of this Circular shall revoke such 3 or 4 number plates and issue them to change to identification plates according to regulations.

License plate number according to regulations from August 15, 2023 - htlaw.vn

III. License plate revocations from August 15, 2023

According to the provisions of Article 23 of Circular 24/2023/TT-BCA, cases of revocation of registration certificates and license plates from August 15, 2023

1. The damaged vehicle cannot be used, or destroyed due to objective reasons.

2. Vehicles with expired expiry dates are not allowed to circulate by law.

3. The stolen or seized vehicle cannot be found or the vehicle is discarded, the vehicle owner shall request the revocation of the vehicle registration certificate and license plate.

4. Duty-free imported vehicles or vehicles temporarily imported by foreign agencies, organizations, or individuals for re-export, transfer of ownership, or destruction.

5. Vehicles registered in economic zones according to the Government’s regulations when re-exported or transferred into Vietnam.

6. The vehicle shall carry out procedures for registration to name and move.

7. The vehicle removes the engine or frame for registration of another vehicle.

8. The vehicle has been registered but detects a fake vehicle dossier or a vehicle with a conclusion of a competent agency that the engine number or chassis number is cut, welded, re-punched, erased, or issued number plates in contravention of regulations.

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DO FOREIGN EMPLOYEES WHEN HE/SHE QUITS BEEN RECEIVED SEVERANCE ALLOWANCE?

I. Can foreign workers be paid severance allowance when they quit their jobs?

According to the provisions of Article 46 of the Labor Code 2019, the conditions for receiving severance allowance are as follows:

1. In case an employment contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of this Code, the employer is responsible for paying severance allowance to the employee who has worked on a regular basis for a period of at least 12 months. Each year of work will be worth half a month’s salary, except for the cases in which the employee is entitled to receive retirement pension as prescribed by social insurance laws, and the cases specified in Point e Clause 1 Article 36 of this Labor Code.

2. The qualified period of work as the basis for calculation of severance allowance shall be the total period during which the employee actually worked for the employer minus the period over which the employee participated in the unemployment insurance in accordance with unemployment insurance laws and the period for which severance allowance or redundancy allowance has been paid by the employer.

3. The salary as the basis for calculation of severance allowance shall be the average salary of the last 06 months under the employment contract before the termination.

4. The Government shall elaborate this Article.

Also according to the provisions of Article 2 of the 2019 Labor Code, the subjects applied by this Code include:

1. Employees, trainees, apprentices and other workers without labor relations.

2.Employers.

3. Foreign employees who work in Vietnam.

4. Other organizations and individuals directly related to labor relations.

According to the above regulations, foreign workers working in Vietnam are also subject to the application of the 2019 Labor Code. Therefore, foreign workers working in Vietnam will be entitled to severance allowance if they meet the requirements meet the following conditions:

– Have worked regularly for full 12 months or more for the employer:

– Termination of the contract by the causes in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of the Labor Code 2019

+ Due to the expiration of the labor contract.

Completed the work according to the labor contract.

+ Both parties agree to terminate the labor contract.

+ The employee is sentenced to prison (no suspended sentence/not released), death penalty, prohibited from doing the job specified in the contract.

+ The employee dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.

+ The employer being an individual dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.

+ The employee unilaterally terminates the labor contract according to the provisions of Article 35 of this Code.

+ The employer unilaterally terminates the labor contract according to the provisions of Article 36 of this Code.

Do foreign employees when he/she quits been received severance allowance? - htlaw.vn

II. How is the employer who does not pay severance pay to foreigners?

According to the provisions of Clause 1, Article 48 of the Labor Code 2019, it is the responsibility of the employer to fully pay all amounts related to the employee’s interests, including severance pay.

Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days:

a) Shutdown of business operation of the employer that is not a natural person;

b) Changes in the organizational structure, technology or changes due to economic reasons;

c) Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative;

d) Natural disasters, fire, hostility or major epidemics.

If the employer fails to pay or does not fully pay the severance allowance to the foreign worker when they leave the job, the employer will be sanctioned according to the provisions of Clause 2, Article 12 of Decree 12/2022/ ND-CP.

The fine level for the employer is based on the number of employees being violated:

– From VND 1,000,000 to VND 2,000,000 for violations from 01 to 10 employees;

– From VND 2,000,000 to VND 5,000,000 for violations of between 11 and 50 employees;

– From 5,000,000 VND to 10,000,000 VND for violations of between 51 and 100 employees;

– From 10,000,000 VND to 15,000,000 VND for violations of between 101 and 300 employees;

– From 15,000,000 VND to 20,000,000 VND for violations of 301 employees or more.

The employer is also required to pay the full severance allowance plus interest on the unpaid amount at the highest interest rate on demand deposits of state-owned commercial banks announced at the time of settlement punish.

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THINGS TO NOTE WHEN CONTRIBUTING CAPITAL BY LAND USE RIGHTS

1. Conditions for capital contribution by land use rights

Land users may exercise the right to contribute capital by land use rights when the following conditions are met:

– Have a land use right certificate, except for the following cases:

– In case all recipients inheriting land use rights, ownership of houses and other assets attached to land are foreigners or overseas Vietnamese who are not eligible to buy housing associated with land use rights in Vietnam:

  + The heirs may not be granted a Certificate of land use rights, ownership of houses and other property attached to the land but is transferred or gifted to the inherited land use right.

  + In case of inheritance of land use rights, land users may exercise their rights when they have a certificate or are eligible to issue certificates of land use rights, ownership of houses and other assets attached to land.

– The land is not in dispute;

– Land use rights are not marginalized to ensure the execution of judgments;

– During the term of land use.

The conversion, transfer, lease, sub-lease, inheritance, gift, mortgage of land use rights, capital contribution by land use rights must be registered at the land registration office and take effect from the time of registration in the cadastral book.

2. Conditions for receiving capital contribution by land use rights

Economic organizations, households and individuals may transfer, receive capital contributions, or lease agricultural land use rights for the implementation of non-agricultural production and business investment projects when they fully meet the following conditions:

– There is a written approval from a competent state agency for an economic organization to transfer, receive capital contribution or lease the right to use agricultural land for the implementation of the project;

– The purpose of use for the land area to be transferred, contributed capital or leased land use rights must be in accordance with the land use planning and plan approved by a competent state agency;

– For land specialized in rice cultivation, it must comply with the provisions of Clause 3, Article 134 of the 2013 Land Law as follows:

  + Persons who are allocated or leased land for non-agricultural purposes by the State from land specialized in rice cultivation must pay a sum of money for the State to supplement the lost land area for rice cultivation or increase the efficiency of using rice land according to the Government’s regulations.

Things to keep in mind when contributing capital with land use rights - htlaw.vn

3. Dossier of capital contribution by land use right

– Application for registration of land fluctuations or houses associated with land use rights according to form No. 09/DK.

– Contracts and documents on capital contribution by land use rights, ownership of assets attached to land (original).

– Certificate of land use rights or houses associated with land use rights (original).

– Written approval of competent State agencies for economic organizations receiving transfers, capital contributions or leases of agricultural land use rights for the implementation of investment projects;

– The land user’s written consent for the owner of the property attached to the land to contribute capital to the property attached to the land in case the capital contribution is equal to the property attached to the land but the owner of the property attached to the land is not simultaneously a land user.

4. Procedures for capital contribution by land use rights

Order of execution:

Step 1: Valuation of land use rights. Valuation of land use rights or houses associated with land use rights can be set by shareholders, company members and jointly responsible or hired by professional valuation companies.

Step 2: Sign a capital contribution contract with land use rights and perform notarization at a notary office. The parties sign capital contribution contracts (specifying the time limit for capital contribution by land use rights) and carry out notarization procedures at the notary office.

Step 3: Register fluctuations in land use rights, ownership of assets attached to land in case of capital contribution by land use rights, ownership of assets attached to land.

Step 4: Register to change charter capital/investment capital according to the information contributed to relevant authorities.

In case of capital contribution by land use rights to establish a company, individuals/organizations shall carry out procedures within 90 days from the date of obtaining the enterprise establishment license.

In case of additional capital contribution, the charter capital of the established individual/organization shall carry out the procedures from the date of signing the capital contribution contract.

The registration agency for capital contribution to economic organizations is the land registration office at the provincial Department of Natural Resources and Environment or the agency receiving the dossier as prescribed by the People’s Committee of the province or centrally run city.

Tax provisions when contributing capital by land use rights:

– Registration fee: Free registration fee due to capital contribution by land use rights.

– Personal income tax: 2% on the transfer or sublease price. Accordingly, individuals who contribute capital by land use rights and real estate do not have to declare and pay PIT immediately. Only after one of the acts such as capital transfer, capital withdrawal, dissolution of the enterprise will this obligation be fulfilled.

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THINGS TO NOTE WHEN TRANSFERRING LAND USE RIGHTS

1. Order when transferring land use rights

Step 1: The parties need to consider the conditions between the buyer and the seller when making transactions on transfer, to the name of land use rights, assets attached to land

After that, the two parties make a contract for the transfer of land use rights and assets attached to the land and perform notarization at the notary office or the commune-level People’s Committee where the real estate is located. In the transfer contract it should be noted the following issues:

– The transfer information of the two parties must be accurate and consistent with their identity documents.

– The rights and obligations of the parties must ensure conformity with the provisions of law.

– Information on land parcels and assets attached to land must be accurate with the Certificate of Land Use Right, assets attached to land (specifying the number of sheets, number of parcels, land area, land use purpose, origin of land use, characteristics of assets attached to land, common use area, separate use area, structure, construction year (if any),…)

– Transfer price: can be detailed or recorded the total value of the transferred asset (note: the transfer price will directly affect the transferor’s tax obligations and other obligations).

– Time of land handover and registration of land use rights. The time of establishment of land use rights is the time when assets are recorded in the cadastral books of competent state agencies (land registration offices of district People’s Committees or assets with foreign elements are provincial-level Departments of Natural Resources and Environment where assets are located)

Step 2: Declare financial obligations at the People’s Committee of the district where the house or land is located

The two parties need to prepare a dossier to the branch of the land registration office of the district People’s Committee, the dossier includes:

– Registration fee declaration (2 copies declared and paid by the Buyer)

– PIT declaration (2 copies signed by the Seller, in case of donation, 4 copies)

– Notarized contract made (1 original)

– Certificate of land use rights, ownership of houses and other property attached to land (1 certified copy)

– Applicant’s CCCD (original for comparison)

– Power of attorney (in case the authorized organization or individual submits on its behalf)

– Confirmation of residence of the individual with financial obligations to the property.

Deadline for tax payment notice: 10 days After the notice, the taxpayer pays money to the state budget.

Taxes and fees to pay when transferring to the name of land use rights:

– PIT: 2% of the transfer price

– Registration fee: 0.5% of the entire area to be transferred

– Notary fee: based on the value of the property or contract, there will be a corresponding amount of revenue

– Fees for issuance of land use right certificates: Depending on the locality, there will be different revenues

– Application appraisal fee: Depending on the locality and applicable in case of initial issuance or reissuance or change of information in the certificate.

Step 3: Apply to transfer land use rights

It is necessary to prepare a set of declaration documents in the name at the branch of the land registration office of the District People’s Committee where the real estate is located.

– Application for registration of fluctuations (signed by the seller); In case there is an agreement in the contract about the buyer registering land fluctuations, the buyer will be the signatory instead.

– Contract for transfer of land use rights and assets attached to land (notarized according to regulations) (1 original)

– Certificate of land use rights, property attached to land (original)

– Certificate of payment to the state budget (original)

– Certified copy of ID/CCCD

– Certificate of residence of the transferee

Fees for changing the name of the certificate include:

– Cadastral fee: 15,000 VND/case

– Appraisal fee: The amount of revenue is equal to 0.15% of the value (to name) of transfer (At least 100,000 VND to a maximum of not more than 5,000,000 VND/case)

Things to note when transferring or transferring land use rights and assets attached to land - htlaw.vn

2. Notes when transferring land use rights

The transfer of the owner of land use rights will be exempt from PIT in some cases such as gift or inheritance, etc.

The basis for calculating PIT on income from real estate transfers is the transfer price each time and the tax rate.

The transfer price for the transfer of land use rights without construction works on the land is the price stated on the transfer contract at the time of transfer.

The transfer price for the transfer of land use rights associated with construction works on land, including houses and construction works formed in the future is the price stated on the transfer contract at the time of transfer.

In case of transfer of houses attached to land, the value of houses, infrastructure and architectural works attached to land shall be determined based on the price charged for registration fees prescribed by the Provincial People’s Committee.

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PROCEDURES FOR TRANSFERING LAND USE RIGHTS OR HOUSES ASSOCISTED WITH LAND USE RIGHTS WHEN RECEIVING INHERITANCE

1. The order of implementation when declaring inheritance is land use rights

Step 1: Carry out the inheritance declaration procedure at the relevant registry

To carry out the inheritance declaration procedure, the parties can choose to go to the notary office or the commune-level People’s Committee where the real estate is located to conduct inheritance division.

Dossiers when making inheritance declarations include:

– Resume of the recipient of the inheritance (notarized)

– Citizen Identity Card/Passport of persons named in the will or in the line of inheritance as prescribed by law.

– Power of attorney contract or power of attorney in case of establishing a transaction through a representative.

– Death certificate of the deceased (notarized)

– Will (original + notarized) if any leave a will

– Birth certificate, marriage certificate, documents proving the relationship of the heir and the deceased (original)

– Certificates of land use rights, assets attached to land, documents proving ownership of assets as inheritance (certificates of real estate, ownership of houses, licenses for sale and purchase, legalization of houses issued by district People’s Committees, passbooks, shares, share certificates, sales contracts, transfers,…)

After checking the dossier in full, in accordance with the provisions of law, the competent authorities shall publicly post it at the headquarters of the commune-level People’s Committee, the former permanent residence of the person who left the legacy; in case there is no permanent residence, it shall be posted at the commune-level People’s Committee, the person’s temporary residence for a limited time. If above places are not identified, then list at the commune-level People’s Committee, where the estate of the person who left the legacy is located.

After 15 days of listing, there are no complaints or denunciations, the notary agency certifies the written agreement on the division of inheritance.

Step 2: Carry out procedures for changing the name of the land use right certificate with the heirs

The heirs shall go to the Land Registration Office under the Department of Natural Resources and Environment or the agencies receiving the dossier according to the regulations of the provincial People’s Committee to carry out the procedures for transferring to the name of land use rights and assets attached to land.

Based on the dossier, the housing authority will inspect, locate the land plot, and send it to the tax office to determine the financial obligation (if any).

Taxes and fees to pay when transferring to the name of land use rights in case of inheritance:

– PIT: For income from inheritance (including houses, construction works formed in the future in accordance with the law on real estate business) between husband and wife; biological father, natural mother with biological children; adoptive father, adoptive mother with adopted child; father-in-law, mother-in-law with daughter-in-law; father-in-law, mother-in-law with son-in-law; grandfather, grandmother to grandson, grandfather to grandchild; siblings will be exempt from PIT. The remaining inheritance cases will be subject to PIT of 10% of the value of the real

– Registration fee: 0.5% of the value of the property inherited.

– Notary fee: based on the value of the heritage and detailed instructions in Circular 257/2016 / TT-BTC.

– Fees for issuance of land use right certificates: Depending on the locality, there will be different revenues

– Application appraisal fee: Depending on the locality and applicable in case of initial issuance or reissuance or change of information in the certificate.

Step 3: Apply and receive certificates of land use rights, assets attached to land

After the notice of the tax authority, the state management agency will send a tax payment notice for the landlord to pay financial obligations at the tax office (if the landlord is not subject to payment or exempt from paying financial obligations, there is no such step).

After paying taxes, the landlord shall submit tax receipts and registration fees to state management agencies to receive certificates of land use rights and assets attached to land.

Procedures for transferring land use rights when receiving inheritance - htlaw.vn

2. Notes when carrying out the procedure for transferring to the name of the declaration of inheritance.

The time to carry out procedures for issuance of certificates of housing ownership and land use rights to buyers is up to 30 days from the date of receipt of sufficient valid documents. This time does not count towards the time when the landlord goes to pay financial obligations to the State.

Usually, the procedures for declaring inheritance will take a lot of time, because during the declaration can lead to many disputes about inheritance, inheritance left and settled in court.

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HOUSING RIGHTS FOR FOREIGNERS IN VIETNAM

1. Foreign organizations and individuals are entitled to own houses in Vietnam

Foreign organizations and individuals investing in building houses under projects in Vietnam in accordance with the Law on Housing 2014 and relevant laws;

Conditions for foreign organizations and individuals to own houses in Vietnam

For foreign organizations and individuals invest in building houses under projects in Vietnam in accordance with the provisions of law, they must have investment certificates and have houses built in the project in accordance with the provisions of law;

A foreign organization must be an entity specified in Article 159 of the Law on Housing which has investment registration certificate or a permission issued by a Vietnam’s competent authority for operation in Vietnam which is still unexpired at the time of housing transaction (hereinafter referred to as investment registration certificate)

A foreign individual must have an unexpired passport bearing the entry seal of the Vietnam’s immigration authority and not given diplomatic immunity and privileges according to Ordinance on diplomatic immunity and privileges of diplomatic missions, consular offices, and representative authorities of international organizations in Vietnam.

Housing ownership rights for foreigners in Vietnam - htlaw.vn

2. Rights and obligations of housing owners being foreign organizations and individuals

Rights of housing owners

– Enjoy inalienable rights to his/her lawful housing; 

– Use the housing for residential purposes and other purposes not prohibited by regulations of law;

– Obtain the Certificate of the house(s) under their lawful homeownership as prescribed in this Law and law on land;

– Sell housing or transfer the agreement on housing purchase, lease , lease and purchase, gifting, exchange, inheritance, mortgage, capital contribution, lending, permission for stay, or authorize housing management ; if the agreement on housing gifting or inheritance is concluded with an entity ineligible for the homeownership in Vietnam, such entity is only entitled to the value of the house;

– Share the public utilities in that residential area as prescribed in this Law and relevant regulations of law.

– In case a foreigner is the owner of an apartment building, he/she shall have the common ownership and use rights to the common ownership of the condominium and the infrastructure works used in the common use of such apartment building, except for works built for business or must be handed over to the State in accordance with the provisions of law or as agreed upon in the purchase and sale contract, leases for the purchase of housing;

– Maintain, renovate, demolish and rebuild his/her house as precribed in regulations of law;

– Receive the compensation as prescribed in regulations of law or payment according to fair market price when their house is demolished, imposed compulsory purchase order, or commandeered by the State for national defense and security purposes; for socio-economic development purposes, or in the state of war, state of emergency, or disaster situations;

– File complaints, denunciation, or lawsuits over violations against their lawful ownership and other violations against law on housing.

– In case of building houses on leased land, they are only entitled to rent houses.

Obligations of foreigners when owning houses in Vietnam.

– Use the house for proper purposes as prescribed; compile and store documents on their house;

– Comply with regulations on fire safety, hygiene, environment, social safety and order as prescribed;

– Comply with regulations on housing sale or transfer of agreements on housing sale, housing lease, lease purchase, gifting, exchange, inheritance, mortgage, capital contribution, lending, permission for stay, or authorization of housing management; and comply with the Law on marriage and family when the house which is matrimonial property is transacted.

– Comply with regulations of law and do not cause damages to benefits of the State, public, or lawful rights and interests of other households or individuals when their house is maintained, renovated, demolished, or rebuilt; if the homeowner is eligible for fix-term homeownership prescribed in Law on Housing, the house shall be renovated or demolished under the agreement between contracting parties;

– Purchase insurance against fire pertaining to the house subject to insurance against fire as prescribed in law on fire safety and law on insurance business;

– Implement effective decisions on actions against violations, disputes, complaints, or denunciation of housing, housing compensation, relocation, or demolishment made by the competent agency when the State withdraws their land, conducts land clearance, imposes compulsory purchase orders;

– Enable related entities and competent persons to carry out the inspection, observation, or maintenance of equipment systems, technical infrastructure, or common areas;

– Fulfill financial obligations to the State when their homeownership is recognized, their transactions are conducted and over the period in which the house is used as prescribed.

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TERMINATION OF LABOR CONTRACT WHEN ENTERPRISES HAVE CHANGES IN STRUCTURE, TECHNOLOGY, OR DUE TO ECONOMIC REASONS

I. Cases in which there are changes in structure, technology, or due to economic reason

In accordance with clause 1 Article 42, changes in structure, technology, or due to economic reasons are detailed as follows:

Cases considered changes in structure and technology include:

“a) Changes in the organizational structure, personnel rearrangement;

b) Changes in processes, technology, and equipment associated with the employer’s business lines;

c) Changes in products or product structure”.

Cases considered changes due to economic reasons include:

“a) Economic crisis or economic depression;

b) Changes in law and state policies upon restructuring of the economy or implementation of international commitments”.

Termination of labor contract when enterprises have changes in structure, technology, or due to economic reasons - htlaw.vn

II. Laying off employees in cases of changes in structure, technology, or due to economic reason

Pursuant to clause 11 Article 34 of the Labor Code, a change in structure, technology or economic reasons is one of the reasons for which employers may dismiss employees. However, in order to protect employees against situations where the enterprise does not really need to be restructured or not because of economic reasons but employees are still laid off, at this time, the legal rights of employees will be affected. As a result, the prevailing rules have mentioned a process for termination of labor contract in the above cases. Businesses and employees should pay attention to protect their own interests.

III. Orders and procedures

When enterprises carry out restructuring, changes in technology that affects the employment of many laborers, or case for economic reasons that many employees are at risk of losing their jobs or being dismissed, the employer shall develop and implement a utilization plan based on Article 44 of the Labor Code 2019:

* Particularly in the case of structural and technological change, priority must be given to retraining old employees if there is a new position.

Step 1: Making and implementing a utilization plan

“A labor utilization plan shall have the following contents:

a) The names and number of employees to be retained, employees to be retrained for further employment, and employees to be working on a part-time basis;

b) Number and list of retired workers;

c) The names and number of employees whose employment contracts have to be terminated;

d) Rights and obligations of the employer, employee, and relevant parties regarding the implementation of the labor utilization plan;

đ) The measure and financial sources to implement the plan.”

Step 2: Have a discussion with the internal representative organization at the grassroots level for the employee representative organization of employees to which the employee is a member and notify 30 days in advance the provincial People’s Committee and the workers.

Step 3: Notice of termination of labor contract and issue decision on termination of labor contract.

In case of termination, the employer must pay the employee a redundancy allowance according to the provisions of Article 47 of the Labor Code.

IV. Things enterprise should consider

In order to avoid cases of illegal dismissal of employees, enterprises shall not skip any procedures since this may lead to a legal risk for the employer in the future.

If the employer develops a utilization plan, they need consider whether the changes in structure, technology, or economic reasons in the plan are suitable for the actual situation of the company or not? Moreover, enterprises also need to develop detailed plans for all employees affected by restructuring, changes in technology, or for the above economic reasons, to avoid inconsistencies compared with reality.

Enterprises should also pay attention to the issue of prioritizing the retraining of employees to continue using when there is a new workplace in case of structural and technological changes. In fact, many businesses just introduce other positions to employees and skip the step of training employees, which can be a legal risk in a labor lawsuit.

In practice, enterprises and employees can mutually agree to terminate the labor contract before making up their minds to carry out the above procedure to avoid unwanted legal disputes.

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CASES OF JUDGMENT ENFORCEMENT AND POSTPONEMENT OF JUDGMENT ENFORCEMENT

I. Judgements and rulings can be enforced

Pursuant to Article 2 Law on Enforcement of civil judgment, those judgments, and rulings of competent agencies that took legal effect can be enforced, including:

 “a) Judgments and rulings or parts of judgments and rulings of first-instance courts against which are not appealed or protested against according to appellate procedures;

b) Judgments and rulings of courts of appeal;

c) Cassation or reopening trial rulings of courts;

d) Foreign courts’ civil judgments and rulings, and foreign arbitral awards, which have been recognized and permitted for enforcement in Vietnam by Vietnamese courts;

e) Competition case settlement decisions of the Council for settlement of competition cases, which are not voluntarily executed by involved parties within 30 days after they take legal effect or against which no lawsuits are initiated at court;

f) Awards of commercial arbitrations”.

Nonetheless, it should be noted that there are two cases where judgment enforcement needs to be enforced immediately and this exception applies only to the judgment or decision of the First-instance Court. First, the judgment or decision related to the request for alimony, payment of salary and bonus, severance or redundancy allowance, compensation for loss of working capacity or compensation for loss of life, health or injury mentally lost, acceptance of worker returning to work. Second, the decision to apply provisional urgent measures.

To sum up, when listed judgment, and decision take legal effect, they can be enforced in accordance with the requirement of the judgement creditor.

Cases of judgement enforcement and postponement of judgement enforcement - htlaw.vn

II. Case of postponement of judgment enforcement

Source of provisions: Article 48 Law on Enforcement of civil judgment (Consolidated document in 2020 issued by Congress Office)

* Case of postponement:

(1) The judgment debtor falls seriously ill as certified by the health establishment of the district or higher level; people lacking legal capacity or having limited legal capacity.

(2) Judgement has an unidentified address or cannot fulfill by obligation under the judgment or ruling for other plausible reasons.

(3) The involved parties can agree to postpone the judgment enforcement. Besides, parties may agree in writing that the judgment debtor shall bear interest on the property obligations during the suspension period. The agreement shall specify the period of suspension as well as enclose signatures of parties.

(4) Property accepted by the court or distrained by competent agencies, but has subsequently decreased in value to or below the sum of the amount of the obligation and the costs of enforcement.

(5) The judgment enforcement agency had a requirement and is waiting for the competent agency to interpret the judgment or decision or respond to the petition.

(6) The person receiving the property, the person assigned to take care of somebody was legally required for the second time to come and receive the property or adopt the person but does not perform.

(7) There is a force majeure event or an objective hindrance that the transfer of judgment enforcement rights and obligations cannot be carried out.

(8) Judgement creditor does not receive the property or the property cannot be auctioned.

* Attentions:

Firstly, during the temporary suspension of enforcement of the judgment, the judgement debtor shall not bear interest in the obligation to transfer assets.

Secondly, the deadline for the competent authority to decide on the suspension of enforcement of the judgment is five working days and there are conditions for temporary suspension. Additionally, the maximum period for the temporary suspension of enforcement of the judgment is three months from the date of the written request for suspension of enforcement. Furthermore, if there is no basis for the suspension of enforcement of the judgment, or if there is a written document from the competent authority rejecting the request for enforcement activities must be performed within a five-day working period.

Thirdly, in cases where the obligation to enforce the judgment can be transferred to another entity or the enforcement debtor has other assets to enforce the judgment, the enforcement of the judgment may not be suspended (as stipulated in Article 14 of Decree No. 62/2015/NĐ-CP).

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UNILATERAL DIVORCE PROCEDURES WITH FOREIGN ELEMENTS IN VIETNAM

Unilateral divorce procedures with foreign elements in Viet Nam - Htlaw.vn

I. The concept of unilateral divorce.

Under Clause 14, Article 13 of the Law on Marriage and Family 2014 explains the term divorce as follows:

“Divorce is the termination of a conjugal relationship according to a legally enforceable judgment or decision of the Court.”

At the same time, under Clause 25, Article 3 of the Law on Marriage and Family 2014, the explanation of marriage relations with foreign elements is as follows:

“Marriage and family relations with foreign elements are marriage and family relations in which at least one party is a foreigner or overseas Vietnamese; marriage and family relations between the parties are Vietnamese citizens but the grounds for establishing, changing or terminating such relations according to foreign laws, arising abroad or assets related to such relations abroad.”

Thus, it can be understood that unilateral divorce with foreign elements is the fact that one spouse has a request for divorce in which at least one party is a foreigner or a Vietnamese residing abroad. Marriage and family relations between the parties are Vietnamese citizens but grounds for establishing, changing, or terminating such relations according to foreign laws, arising abroad, or assets related to such relations abroad.

II. Competence to settle.

Under Clause 2, Article 123 of the Law on Marriage and Family 2014, there are the following provisions:

“The competence to settle marriage and family cases involving foreign elements at the Court shall exercise by the Code of Civil Procedure provisions.”

Accordingly, the Code of Civil Procedure will govern the competence to settle marriage cases, including consent to divorce with foreign elements.

Clause 1, Article 37 of the Civil Procedure Code 2015 stipulates as follows:

“Provincial-level People’s Courts shall have jurisdiction to settle according to the procedures of the first instance the following cases:

a) Civil, marriage and family, business, commercial and labor disputes specified in Articles 26, 28, 30, and 32 of this Code, except for disputes falling within the jurisdiction of district-level People’s Courts specified in Clauses 1 and 4, Article 35 of this Code;

b) Civil, marriage and family, business, commercial and labor requirements specified in Articles 27, 29, 31, and 33 of this Code, except for requests falling under the jurisdiction of district-level People’s Courts specified in Clauses 2 and 4, Article 35 of this Code;

c/ Disputes and requests specified in Clause 3, Article 35 of this Code.”

Therefore, according to regulations, unilateral divorce cases with foreign elements will be handled by competent provincial-level people’s court agencies.

III. Unilateral divorce proceedings involving foreign elements.

Under Clause 1, Article 53 of the Law on Marriage and Family 2014 stipulates as follows:

“The court accepts the petition for divorce by the law on civil procedure.”

Thus, unilateral divorce proceedings involving foreign elements in Vietnam that are required to be settled in Vietnam will be applied according to the procedures in the current Civil Procedure Code of Vietnam.

Divorce procedures for foreigners in Vietnam are settled in the following order:

Step 1: File a lawsuit for divorce at the competent province/city;

Step 2: After receiving the petition with a valid dossier, the Court shall notify the payment of advance court fees;

Step 3: Pay the advance court fee at the competent civil judgment enforcement agency and return the receipt of the advance court fee to the Court;

Step 4: The court will convene and conduct procedures by the law.

IV. Time for settling unilateral divorce proceedings involving foreign elements

In the provisions of the Law on Family Marriage 2014 and the Civil Procedure Code 2015, there is no provision on how long it takes to settle a divorce case with foreign elements.

Based on the order of court proceedings as well as HT’s experience in settling in the field of marriage and family, the time to settle divorce cases with foreigners will usually take place as follows:

The period of unilateral divorce has foreign elements.

– The first instance level ranges from 04 to 06 months (if the defendant is absent, there is a property dispute, or other issues, it may take longer).

–  Appellate level from 3 to 4 months (if there is an appeal).

– In case of divorce in absentia, the period ranges from 12 to 24 months (due to judicial fiduciary procedures).

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GENERAL PROVISIONS ON MARRIAGE CONTRACT AND CONDITIONS ON EFFECT OF CONTRACT

I. Definition

Since the Law on Marriage and Family 2014 took effect, besides the statutory property regime, there is also a parallel regime, which is called “Matrimonial property regime according to agreement”.

Specifically, the matrimonial property regime according to agreement has not yet been defined by the legislator, but it can be understood as a set of rules governing property relations between husband and wife during the marriage period.

Regarding the time of establishment: Must be made before marriage registration.

Regarding the effective time: Being effective from the time of marriage registration.

Regarding the form: Notarized or authenticated document form.

II. Basic contents of a matrimonial property regime according to agreement

The basic contents of an agreement on the property regime include:

“a) Property determined as common property and separate property of the husband and wife;

b) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;

c) Conditions, procedures and principles of property division upon termination of the property regime;

d) Other related contents”.

About the property, detailed agreements include one of the following:

“a) Matrimonial property includes common property and separate property of husband and wife;

b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;

c) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse; or

d) Other different agreement”.

Attention: For matters arising in the implementation of the agreed property regime which have not been agreed or unclearly agreed by husband and wife, Articles of Law on Marriage and Family 2014 and corresponding provisions of the statutory property regime shall apply.

General provisions on marriage contract and conditions on effect of contract - htlaw.vn

III. Cases in which the matrimonial property regime according to agreement is invalid

Pursuant to Article 50, Law on Marriage and family, an agreement on the matrimonial property regime shall be declared to be invalid by a court when

Firstly, failing to comply with the validity conditions of the transaction specified in the Civil Code and other relevant laws.

Pursuant to Article 117, Civil code 2015:

“1. A civil transaction takes effect when meeting following conditions:

a) Participants in the transaction have legal personality and/or legal capacity in conformity with such transaction;

b) Participants in the transaction act entirely voluntarily;

c) The purpose and contents of the transaction are not contrary to the law and/or social ethics.

The forms of civil transactions shall be the conditions for its effectiveness in cases where it is so provided for by law”.

Moreover, according to Clause 1, Article 8, Law on Marriage and family 2014:

“1. Boys and girls can get married when meeting following conditions:

a) The man is full 20 years or older, the woman is full 18 years or older;

b) The marriage is voluntarily decided by the man and woman;

c) The man and woman do not lose the civil act capacity;

d) The marriage does not fall into one of the cases prescribed at Points a, b, c and d, Clause 2, Article 5 of this Law”.

To sum up, in the event that a man and woman who are under the age of marriage have an agreement on the matrimonial property regime, this agreement will be void. Because one of the parties does not have full civil legal capacity.

Secondly, the agreement on the property regime of husband and wife is violated in one of the provisions of Articles 29, 30, 31 and 32 of the Law on Marriage and family 2014.

It violates principles as following:

1. Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor.

2. Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.

3. When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.

4. Husband and wife have the right and obligation to make transactions to meet their family’s essential needs.

5. The establishment, making and termination of transactions related to the home being the sole domicile of husband and wife shall be agreed by both of them. In case the home is under the separate ownership of the husband or wife, the owner has the right to establish, make and terminate transactions related to that property but shall ensure domicile for the couple.

6. In transactions with third parties in good faith, the spouse who is the holder of the bank or securities account shall be regarded as the person having the right to establish and make transactions related to that property. In transactions with third parties in good faith, the spouse who is possessing a movable asset which is not required by law to be registered for ownership shall be regarded as the person having the right to establish and make transactions related to that asset in case there are rules on protection of third parties in good faith;

Thirdly, Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members”.

Therefore, by these provisions, there can be above three reasons for the Court to declare an agreement on the property regime between husband and wife is void.

IV. Matrimonial property regime according to agreement in case annulment of illegal marriage or cohabiting as husband and wife without marriage registration

Pursuant to Clause 3, Article 12 and Article 16, Law on Marriage and family, in case of annulling illegal marriage, the legal consequence is similar:

“1. Property relations, obligations and contracts between a man and woman cohabiting as husband and wife without marriage registration shall be settled under the partners’ agreement. In case there is no agreement, they shall be settled in accordance with the Civil Code and other relevant laws.

2. The settlement of property relations must ensure lawful rights and interests of women and children. Housework and other related work to maintain the cohabitation shall be regarded as income-generating labor”.

Regarding personal relations: The State will not recognize two people who are illegally married as husband and wife. Therefore, between them, there are no rights and obligations. From the date on which the court’s decision on the annulment of an illegal marriage takes legal effect, the two married parties must terminate their relationship as husband and wife.

Regarding the relationship of property, obligations, and contracts between the two parties in an illegal marriage: Because the illegal marriage is annulled, the two cannot be recognized as husband and wife. Therefore, the property relations, obligations, and contracts between them are settled as in the case of male and female cohabiting as husband and wife.

According to the provisions of the Civil Code 2015, the private property of each party will belong to that person, but the person with the separate property must prove that it is his/her own property. If the person having separate property cannot prove that it is their own property, this property is determined to be the common property of the two people.

Rights and obligations between parents and children: The court’s annulment of an illegal marriage does not affect the rights and obligations of parents towards their children. Because the rights and obligations between parents and children are regulated by law regardless of the legality of the marital relationship between parents. The rights and obligations of parents and children shall be settled according to provisions on rights and obligations of parents and children upon divorce.

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LEGAL ISSUES IN PROBATION

In the current context, before the parties officially enter into an employment relationship through a final employment contract, there is usually a probationary period. Although the probation has not been specifically defined in the current Labor Law, legal issues regarding it have been regulated. During this period, employees as well as employers need to pay attention to some legal issues in order to ensure their rights and benefits and to avoid risks.

Legal issues in probation - htlaw.vn

1. General provisions

As mentioned, although there is no clear definition, in an easy-to-understand way, probation is a voluntary agreement between two parties and is not mandatory. It is a short-term process in which both parties work together to evaluate the employee’s capacity, qualifications, awareness, working conditions, and labor utilization plan before making decisions to sign an official labor contract or continue to implement the contract that has been agreed upon.

Considering the probationary period, current laws still prioritize the agreement of each party, but that agreement must be within the allowed framework. Specifically, according to the regulations in Article 25 of the Labor Law 2019:

“ … Only one probationary period is allowed for a job and the probation shall not exceed:

1. 180 days for the position of enterprise executive prescribed by the Law on Enterprises, the Law on management and use of state investment in enterprises;

2. 60 days for positions that require a junior college degree or above;

3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;

4. 06 working days for other jobs”.

Considering salary, labor laws still prioritize the will of the parties. However, employees should note that during the probation, the salary must be at least 85% of the salary for that job.

II. Content and form of the probationary contract (agreement)

Considering the form, current regulations require the parties to agree on the probationary period, but there is no clear regulation on the form. The parties can agree on the content of the probation in the labor contract or agree on the probation by signing a separate probationary contract. In the case where the parties agree on the content of the probationary period in the labor contract, a written form is mandatory. However, to limit the risk of disputes, the parties should clearly agree in writing from the beginning in all cases.

Considering the content, the prevailing law respects all agreements and only stipulates mandatory terms. Compared to a regular labor contract, the mandatory content of the probationary relationship is reduced. Specifically, according to the regulations in Article 21 and Clause 2, Article 24 of the Labor Law 2019, the content of the probationary contract (agreement) includes:

“a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;

b) Full name, date of birth, gender, residence, identity card number or passport number of the person who concludes the contract on the employee’s side;

c) Tasks and workplace(s);

đ) Job – or position – based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;

g) Working hours, rest periods;

h) Personal protective equipment for the employee”.

III. Other notes

Considering the period during and after probation:

During the probationary period, each party has the right to revoke the probationary contract or the labor contract without prior notice and have no obligation of compensation.

On the other hand, after the probationary period ends, the employer must inform the employee of the probationary results. If the probation is satisfactory, the employer will continue to implement the labor contract that has been agreed upon, in the case where the probationary period is agreed upon in the labor contract. Otherwise, the employer must sign a labor contract in the case of a separate probationary contract.

Considering insurance policies:

Article 2 of the Social Insurance Law 2014 mentions the subjects of compulsory social insurance and only requires employees with a labor contract of indefinite duration or a fixed-term contract of at least three months to participate in compulsory social insurance. Therefore, this subject is not subject to mandatory social insurance participation policies.

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DISMISSAL PROCESS AGAINST EMPLOYEE UNDER LEGAL PROVISIONS

Pursuant to the provisions of the Labor Code 2019, dismissal is one of the highest and most serious forms of disciplinary measures applied by the Employer for the Employees. Therefore, the disciplinary process of dismissal is strictly regulated to best protect employees as well as bring fairness, equality and transparency to all laborers in the workplace.

I. Cases in which dismissal discipline is imposed

Pursuant to Article 125, Labor code 2019, cases in which dismissal discipline is imposed:

“1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses”.

Cases regarded as acceptable excuse include natural disasters, fires, being sick or relatives being sick certified by competent medical examination and treatment establishments and other cases specified in labor regulations.

Dismissal process against employee under legal provisions - htlaw.vn

II. Cases in which dismissal discipline cannot be imposed

Pursuant to Clause 4 and 5, Article 122, Labor code 2019, dismissal discipline shall not be taken against an employee during the period when:

“a) The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

b) The employee is held in custody or detention;

c) The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this Labor Code (The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations);

d) The employee is pregnant, on maternal leave or raising a child under 12 months of age.

… employee commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control”.

III. Dismissal procedure

Because dismissal is one of the disciplinary measures, the procedure for dismissing an employee is similar to the procedure for disciplining employees. Pursuant to Article 70, Decree 145/2020/ND-CP, the procedure of dismissal is carried out as follows:

At first, in case an employee’s violation is exposed when it is committed, the employer shall make a violation record and notify the internal employee representative organization, the employee’s legal representative (if the employee is under 15). When an employee’s violation is discovered after it is committed, evidences of such violation must be gathered.

Secondly, within the disciplinary period, the employer shall hold a disciplinary hearing as follows:

“a) At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants (the representative organization of employees; and the employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present) time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;

b) Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision;

c) The employer shall conduct the disciplinary hearing at the time and location agreed upon. In case any of the mandatory participants do not confirm his/her participation or is not present, the employer shall still conduct the hearing”.

Thirdly, minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the mandatory participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.

Hence, one of the conditions for conducting the meeting is the full participation of the parties including employers, employees and representatives from the internal representative organization of employees. Nonetheless, if employees and representatives do not attend, and no agreement is reached after then, the meeting can still take place.

IV. Time limit for taking dismissal measure

In accordance with prevailing law (Article 123, Labor code 2019), in principles, time limit for taking disciplinary measure (including dismissal measure) is 6 months. However, for specific cases including violations related to property, finance, technology secrets, and business secrets, the time limit in this situation was 12 months.

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NOTES WHEN ENTERPRISES UNILATERALLY DISMISS EMPLOYEES

I. Cases where the Company has the right to unilaterally terminate the contract with the Employee

Pursuant to Clause 1, Article 36 Labor code 2019:

“a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

b) The employee is sick or has an accident and remains unable to work after having treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.

Upon recovery, the employer may consider concluding another employment contract with the employee;

c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or downsizing of production and business at the request of competent state agencies, the employer has sought all remedies but still forced to reduce workplaces;

d) The employee is not present at the workplace after the time limit specified this Labor Code;

đ) The employee reaches the retirement age specified, unless otherwise agreed by the parties;

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

g) The employee fails to provide truthful information during the conclusion of the employment contract in a manner that affects the recruitment”.

Notes: For the days when the employer violates the notification obligation, the employee will receive the corresponding salary.

Notes when enterprises unilaterally dismiss employees - htlaw.vn

II. Procedures

Step 1. In general principles, employers take responsibilities to notify employees of the unilaterally termination of labor contract, specifically:

“a) at least 45 days in case of an indefinite-term employment contract;

b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases employees get sick or have accidents as above mention;

d) The notice period in certain fields and jobs shall be specified by the government”.

Step 2. The employee continues to perform the job until the contract is terminated and the work is handed over (if there is a prior agreement) and the employer only pays the salary, bonus and other amounts (severance / redundancy allowances). Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days:

* Shutdown of business operation of the employer that is not a natural person;

* Changes in the organizational structure, technology or changes due to economic reasons;

* Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative;

* Natural disasters, fire, hostility or major epidemics.

Step 3. On the last day of the contract, the parties sign the handover minutes and complete the procedures by signing salary and bonus documents (if any), ending the validity of the labor contract.

III. Form of notifications

Employers have obligations to send a written notice to the employee of the termination of his/her employment contract, except for the following cases (Clause 1, Article 45, Labor code 2019):

a. The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in the Criminal Procedure Code, capital punishment or is prohibited from performing the work stated in the employment contract by an effective verdict or judgment of the court.

b. The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.

c. The employee dies; is declared by the court as a legally incapacitated person, missing or dead.

d. The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.

đ. The employee is dismissed for disciplinary reasons.

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THE CONDITIONAL WILL

The conditional will - htlaw.vn

I. Will

Pursuant to prevailing law, “Will means an expression of the wishes of a natural person, made in order to bequeath his or her property to others after his or her death.” A will shall become legally effective from the time of commencement of the inheritance.”

A will must satisfy the following requirements in order to be lawful:

“a) The testator is of sound mind when making the will; without being deceived, threatened or coerced.

b)The contents of the will are not contrary to law or social morals and the will complies with legal formalities.

c) A will made by a person between fifteen and eighteen years of age must be made in writing and with the consent of the parents or guardian of such person.

d) A will made by a person who is incapacitated, or illiterate must be made in writing by a witness and must be notarized or certified.

e) An oral will shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Such will must be notarized or certified within five working days of the date on which the testator orally expressed his or her last wishes.”

A will or apart of a will shall be legally ineffective in any of the following cases:

“a) A body or organization named as an heir no longer exists at the time of commencement of the inheritance.

b) A will shall not be legally effective if the estate left to the heirs no longer exists at the time of commencement of the inheritance. If only part of the estate left to the heirs remains, only that part of the will which relates to such part of the estate shall be legally effective.

c) The estate left to the heirs no longer exists at the time of commencement of the inheritance. If only part of the estate left to the heirs remains, only that part of the will which relates to such part of the estate shall be legally effective.

d) Where a will contains provisions which are unlawful but such provisions do not affect the effectiveness of the remainder of the will, only such provisions shall be legally ineffective.

e) When a person leaves multiple wills over a property, only the last will is valid.”

II. Conditional wills

Case 1: Condition is valid

The condition is valid in case that the condition does not violate the prohibition of law and social morality, requirement of content as well as form of legal sanction.

Case 2: Condition is not valid

Condition recorded in a will is not valid when such condition is contrary to the provisions of law (both in terms of content and form of a legal will), not in accordance with ethical standards or social virtues.

Example: A testator leaves the entire estate to one person provided that he or she is not married before the age of 25. Thus, the condition is not valid because the will violates the principle of freedom to marry.

Consequences when the condition of will is not valid

When the condition of will is not legal, of course the will is not valid. The recipient of the estate can claim the estate without being bound by the testator.

 

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LEGAL PROVISIONS ON THE RIGHT TO TERMINATE INSURANCE CONTRACT OF POLICYHOLDERS AND LEGAL CONSEQUENCES

I. General rules refer to Life Insurance

Accordingly, the Law Insurance Business, Article 4, Clause 13: “Life insurance refers to a type of insurance designed to offer protection for an insured person who is alive or dead”.

Article 4, Clause 16: “Insurance contract refers to an arrangement between a policyholder and an insurer or a foreign non-life insurer’s branch or a mutual providing microinsurance product whereunder the policyholder is bound to pay insurance premiums; the insurer, the foreign non-life insurer’s branch or the mutual providing microinsurance service is bound to pay indemnity or insurance benefits or coverage under contractual terms and conditions”.

Specific concepts in a life insurance contract are detailed as follows in Article 4, Clause 24, 25, 26, Law Insurance Business 2022:

“Policyholder (also the assured) refers to an entity or person entering into an insurance contract with an insurer, foreign non-life insurer’s branch or mutual providing microinsurance product and paying insurance premiums.”

“Insured person (also the insured) refers to an entity and person whose property, civil liability, health, life, obligations or economic benefit is insured under an insurance contract.”

“Beneficiary refers to an entity or person that is designated to receive insurance payout as agreed upon in an insurance contract.”

The compulsory content of an insurance contract:

“a) The policyholder, the insured, the beneficiary (if any), the insurer or the foreign non-life insurer’s branch;

b) Subject matter insured;

c) Amount insured or property value insured or limit of liability insured;

d) Scope of insurance coverage and insurance benefits; insurance rules, terms and conditions;

đ) Rights and obligations of the insurer, the foreign non-life insurer’s branch and the policyholder;

e) Insurance policy period, date of entry into force of the insurance contract;

g) Insurance premium, premium payment option;

h) Insurance coverage and payment option;

i) Dispute resolution method.”

The current provisions also detailed that the subject matter of a life insurance contract is lifespan and/or human life. It should be noted that in the case where the policyholders enter into a contract in light of the death of another person, the written consent of that person as well as the specific amount of the beneficiary and the amount of insurance is requested.

Rules on how rights to unilaterally terminnate are used and related legal consequences - htlaw.vn

II. The right to unilaterally terminate the life insurance policy of the policyholder

The policyholders have the right to unilaterally terminate the insurance contract in the following cases:

To begin with, insurers and branches of foreign insurance companies do not accept the requirement for changes in risk level when there is a change in the factors serving as the basis for premium calculation, leading to a reduction in risks insured.

Moreover, when there is a transfer of the portfolio of insurance contracts, the policyholders have the right to unilaterally terminate the insurance contract if the transfer is not accepted.

Finally, for insurance contracts with a term of more than 1 year, within 21 days from the date of receipt of the insurance contract, the policyholders have the right to refuse to continue participating in insurance relationship.

III. Legal consequences

In case that the insurance contract is unilaterally terminated for the reason of not accepting the request for a change in the level of risk according to the demand of policyholders, “the insurer or the foreign non-life insurer’s branch shall be responsible for refunding insurance premiums paid in advance for days left to the expiry date of the insurance contract as agreed upon in the insurance contract. The insurer or the foreign non-life insurer’s branch shall be responsible for paying insurance indemnity or coverage as agreed upon in the insurance contract if the policy event occurs before the time of unilateral termination of the insurance contract”.

Regarding the situation where the insurance contract is unilaterally terminated due to the transfer of the insurance contract portfolio, the policyholders may be “refunded the cash surrender value or insurance premiums that he/she already pays in advance in proportion to the days left to the expiry date of the policy term, depending on specific types of insurance products. Where the property value is less than technical provisions in the transferred portfolio of insurance contracts, the refund that the policyholder receives shall be calculated according to the proportion of property value to technical provisions in the transferred portfolio of insurance contracts”.

Note: The cash surrender value of the insurance contract must be agreed upon by the parties and only applied when the parties consent.

In the situation that policyholders do not want to stick with the insurance contract within 21 days from the time of receiving the contract, they shall be “the policyholder may refuse to continue to participate in insurance. Where the policyholder refuses to continue to participate in insurance, the insurance contract shall be terminated and the policyholder shall be refunded insurance premiums that they have paid after deducting reasonable costs and expenses (if any) as agreed upon in the insurance contract; the insurer shall not be obliged to pay insurance indemnity or coverage in case of occurrence of a policy event.”. Nonetheless, it is considered the right to revoke the contract rather than the right to unilaterally terminate the contract and just valid only for contracts with a term of more than 1 year.

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CAN COMPANIES DEDUCT COMPENSATORY WEEKLY DAYS OFF FOR HOLIDAYS FROM ANNUAL LEAVES?

Can companies deduct compensatory weekly days off for holidays from annual leaves? - htlaw.vn

I. Provisions on weekly day off

Prevailing law stipulates that an employee is entitled to at least twenty-four consecutive hours of day off per week. In case the employee has to work continuously in light of the attributes of career or special reasons, the employee is still guaranteed to have at least four days off per month.

Regarding the specific weekly days off, the employer has the right to decide to arrange the rest day to be on Sunday or another determined day of the week but must be recorded in the labor regulations.

In case, if the weekly days off coincides with a public holiday or New Year according to the Labor Law, the employee is entitled to have compensatory leaves on the next working days.

II. Provision on yearly days off

According to the prevailing law, employee who has worked for full 12 months for an employer is entitled to annual leave with full salary according to labor contracts as follows:

“a) 12 working days for employees who work in normal working conditions;

…”

III. Provisions on public holidays

The prevailing law stipulates public holidays and the number of days in detail as follows:

“a) Gregorian Calendar New Year Holiday: 01 day (the 1st of January of the Gregorian calendar)

b) Lunar New Year Holidays: 05 days

c) Victory Day: 01 day (the 30th of April of the Gregorian calendar)

d) International Labor Day: 01 day (the 1st of May of the Gregorian calendar)

đ) National Day: 02 days (the 2nd of September of the Gregorian calendar and the previous or next day)

e) Hung Kings Commemoration Day: 01 day (the 10th of the third month of the Lunar calendar)”

IV. What should companies do when they have weekly days off different from Saturday and Sunday during the upcoming Hung Kings Anniversary, April 30 and May 1??

Currently, most businesses stipulate that the weekly days off is two days (Saturday and Sunday) or one day (Saturday or Sunday). This will affect the number of days off in the upcoming Hung Kings Anniversary, April 30 and May 1. However, this problem is resolved as follows:

+ For companies with weekly days off on Saturday and Sunday, employees will be entitled to make up for the rest of the week on the next working day (May 2 and 3). The total number of days off is 5 days.

+ For companies that have weekly days off on Saturday or Sunday, employees will be compensated for the weekly rest day on the next working day (May 2). The total number of days off is 4 days.

+ For companies that do not implement a fixed schedule of two days off as Saturday and Sunday but another day of the week, employees are only entitled to 3 holidays as prescribed. However, taking only 3 days off will sometimes not satisfy the needs of employees, or the operating situation of the business. Companies can stipulate the extra vacation schedule to suit the needs and plans of the two parties. In this case, there are some businesses that will agree and notify the employer about deducting the remaining days of leave from the annual leave, so that the employee has full 5 days off.

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INSTRUCTIONS ON HOW TO CALCULATE THE REGISTRATION FEES

Instructions on how to calculate the registration fees - htlaw.vn

I. GENERAL PROVISIONS ON REGISTRATION FEES

Fee is a fixed amount that organizations and individuals must pay when being provided with public services by state agencies serving state management as prescribed in the List of fees issued together with the Law on Fees and Charges 2015.

Thus, registration fee is the amount of money predetermined by state agencies on assets that individuals and organizations are obliged to pay.

On the principle of determining the amount of registration fee:

    • The fee collection rate is predetermined, not intended to offset costs;
    • The registration fee is calculated as a percentage of the property value;
    • Ensure fairness, openness, transparency and equality of rights and obligations of citizens.

Dossiers of making registration tax returns for houses and land:

    • Property registration fee declaration
    • Copies of old red books or related documents proving ownership
    • Copy of the contract of sale/transfer of real estate
    • In case individuals and organizations are exempt from registration fees, they need to submit copies of documents proving in accordance with the law when buying, selling, or transferring.

II. SUBJECTS SUBJECT TO REGISTRATION FEES

The subjects are subject to registration fees as follows:

    • House, land
    • Hunting guns; guns used for training or sports
    • Ships in accordance with regulations of the law on inland waterway transport and the maritime law (hereinafter referred to as “ships”), including barges, canoes, tugs, pushers, submarines, and submersibles; except for floating docks, floating storage units, and mobile offshore drilling units
    • Boats, including yachts
    • Aircraft
    • Two-wheeled or three-wheeled motorcycles, mopeds, and equivalences subject to registration fees and fitted with license plates issued by competent state agencies (hereinafter referred to as “motorcycles”).
    • Motor vehicles, trailers or semi-trailers towed by motor vehicles, and equivalences subject to registration fees and fitted with license plates issued by competent state agencies.
    • Frame, chassis assembly, engine assembly, and engine block of the property prescribed in Clauses 3, 4, 5, 6, and 7 of this Article, when replaced, subject to registration with competent state agencies.

Applicants of registration fees:

Organizations and individuals whose assets are subject to the above registration fees must pay registration fees when registering ownership and use rights with competent state agencies, except for cases subject to exemption from registration fees as prescribed by law.

III. HOW TO CALCULATE REGISTRATION FEE

Regulations on the rate of registration fee collection (%) are as follows:

    • Houses and land: 0.5% (houses, including: houses, working houses, houses used for other purposes; land, including: agricultural land and agricultural fee land in accordance with the Law on Land, regardless of whether the land has been built or not yet built)
    • Hunting guns; guns used for training or sports: 2%
    • Ships, including barges, canoes, tugs, pushers, submarines, submersibles; boats, including yachts; aircraft: 1%
    • Motorcycles: The fee is 2%, in some cases there will be a separate revenue.
    • Motor vehicles, trailers or semi-trailers towed by motor vehicles, or equivalences: 2%

The registration fee for the above-mentioned assets is a maximum of 500 million VND/1 asset/1 registration, except for cars carrying people with 9 seats or less, aircraft, yachts.

Particularly for the calculation of registration fees for houses and land, it is specified as follows:

Registration fee = fee x registration fee

Inside:

    • The fee is 0.5%
    • The levels of submission on a case-by-case basis are specifically defined as follows:
      • For registration and issuance of GCNQSDD: Registration fee = 0.5% x (Price of 01 m2 of land in the Land Price List x Bookable area)
      • For real estate transfers:
        • Case 1: The price of houses and land in the transfer contract is higher than the price of houses and land prescribed by the provincial People’s Committee: Registration fee payable = 0.5% x (price in the contract x area of the house or land transferred)
        • Case 2: The price of houses and land in the transfer contract is lower than the price of houses and land prescribed by the provincial People’s Committee: For land, registration fee = 0.5% x (price of 01 m2 of land in the land price list x transfer area); for houses, registration fee = 0.5% x (the area of the house subject to registration fee x price of 01 m2 ( VND/m2) x the rate (%) of remaining quality)

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STANDARDS OF TEACHERS AT FOREIGN LANGUAGE CENTER

Standards of teachers at foreign language center - htlaw.vn

I. Standards for Vietnamese teachers

Vietnamese teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in a foreign language or higher and a certificate of pedagogy.

II. Standards for foreign teachers

For native teachers: Teachers who are native speakers of foreign languages ​​(for each specific foreign language): Possess a college degree or higher and an appropriate certificate of foreign language teaching.

For non-native foreign teachers:

Foreign teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in foreign languages ​​or higher and an appropriate certificate of foreign language teaching;

– Having a college degree or higher, a certificate of foreign language ability at level 5 or higher according to the 6-level foreign language competency framework for Vietnam or equivalent and an appropriate certificate of foreign language teaching.

(Legal basis: Circular 21/2018 of the Ministry of Education and Training)

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THE LIST OF FACILITIES ELIGIBLE FOR CONDUCTING CHECKUP FOR FOREIGNERS WORKING IN VIETNAM

(ACCORDING TO OFFICIAL LETTER NO.143/KCB-PHCN&GD)

The list of facilities eligible for conducting checkup for foreigners working in Vietnam - htlaw.vn
NO.PROVINCENAME OF FACILITY
1HA NOIE Hospital
Xanh Pon Hospital
Duc Giang Hospital
Dong Da Hospital
Hoe Nhai Hospital
L'Hôpital Français de Hanoi
Hong Ngoc Hospital
Thu Cuc International Hospital
Trang An Hospital
Ha Noi Private Hospital
Vietlife Clinic
Dr. Binh TeleClinic
Bach Mai Hospital
2HAI PHONGViet Tiep Friendship Hospital in Hai Phong
Kien An Hospital in Hai Phong
Vietnam National Institute of Maritime Medicine
Hospital of Hai Phong University of Medicine and Pharmacy
3QUANG NINHQuang Ninh General Hospital
Bai Chay Hospital
Vietnam - Sweden Hospital in Uong Bi
4LANG SONProvincial General Hospital of Lang Son
5LAO CAILao Cai General Hospital
6CAO BANGCao Bang General Hospital
7YEN BAIYen Bai General Hospital
8LAI CHAULai Chau General Hospital
9DIEN BIENDien Bien General Hospital
Medical center of Tuan Giao District
10SON LASon La General Hospital
11PHU THOPhu Tho General Hospital
12VINH PHUCCentral 74 Hospital
13BAC KANBac Kan General Hospital
14THAI NGUYEN“A” Hospital of Thai Nguyen
Central General Hospital of Thai Nguyen
15BAC GIANGBac Giang General Hospital
16BAC NINHBac Ninh General Hospital
Thanh An - Thang Long Hospital
17HAI DUONGHai Duong General Hospital
18HUNG YENHung Yen General Hospital
Pho Noi Hospital
19HOA BINHHoa Binh General Hospital
20NINH BINHNinh Binh General Hospital
21NAM DINHNam Dinh General Hospital
22HA NAMHa Nam General Hospital
23THAI BINHThai Binh General Hospital
24THANH HOAThanh Hoa General Hospital
Hop Luc Hospital
Thanh Ha Hospital
25NGHE ANQuynh Lap National Leprosy Dermatology Hospital
26HA TINHHa Tinh General Hospital
27QUANG BINHVietnam – Cuba Dong Hoi Friendship Hospital
28QUANG TRIQuang Tri General Hospital
29THUA THIEN HUEHue Central Hospital
30QUANG NAMQuang Nam Central General Hospital
31DA NANGC Hospital in Da Nang
Da Nang Hospital
Hoan My Hospital
32QUANG NGAIQuang Ngai General Hospital
33BINH DINHBinh Dinh General Hospital
Quy Hoa National Leprosy Dermatology Hospital
34PHU YENPhu Yen General Hospital
35KHANH HOAKhanh Hoa General Hospital
36GIA LAIGia Lai General Hospital
37DAC NONGDak Nong General Hospital
Hospital of Dăk R’ Lap District
Dak Song General Hospital
38NINH THUANNinh Thuan General Hospital
39BINH THUANBinh Thuan General Hospital
40TAY NINHTay Ninh General Hospital
41BINH DUONGBinh Duong General Hospital
Columbia Asia International Hospital in Binh Duong
42DONG NAIDong Nai General Hospital
Thong Nhat Hospital in Dong Nai
Dong Nai International Hospital
43HO CHI MINH CITY115 People’s Hospital
Trung Vuong Hospital
Hospital of Thu Duc District
Van Hanh Hospital
An Sinh Hospital
Phuoc An Clinic - Branch No. 3
Cho Ray Hospital
FV Hospital
Sai Gon Columbia Asia International Clinic
44TIEN GIANGProvincial General Hospital of Tien Giang
45BEN TRENguyen Dinh Chieu Hospital
46TRA VINHTra Vinh General Hospital
47CAN THOCan Tho General Hospital
Hoan My Cuu Long Hospital
48SOC TRANGSoc Trang General Hospital
49AN GIANGProvincial General Hospital of An Giang
50DONG THAPDong Thap General Hospital
51KIEN GIANGKien Giang General Hospital
52BA RIA-VUNG TAUBa Ria Hospital
Le Loi Hospital
Vietsovpetro Medical Center

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SOME NOTES ON BIRTH REGISTRATION FOR CHILDREN OF TWO FOREIGNERS IN VIETNAM

Some notes on birth registration for children of two foreigners in Vietnam - htlaw.vn

I. Authority

District-level People’s Committee of the place of residence of the father or mother

II. The order of execution

Step 1: The person applying for birth registration submits the application to the civil status registration agency

Step 2: Immediately after receiving the required documents, if finding that the birth registration information is complete and valid, the civil status officer shall record the birth registration information in the civil status book. The civil status officer and the person making the birth registration shall both sign the civil status book.

Step 3: The Justice Division reports to the President of the district-level People’s Committee to issue a birth certificate to the person whose birth is registered.

III. Dossier

    1. Birth registration declaration form;
    2. Certification of birth;
    3. Agreement of parents on choosing nationality for their child;
    4. Confirmation of the foreign competent state agency that the child is entitled to such nationality;
    5. Passport of father and mother;
    6. Parent’s visa/temporary residence card (if it is not attached to the passport);
    7. Confirmation of temporary residence of the Ward police (father and mother).

IV. Settlement time

In fact, the Birth Certificate will be issued after 03-05 working days from the date of receiving the complete and valid dossier, depending on each People’s Committee.

V. Some general notes

    1. In case the child’s parent chooses a foreign citizenship for the child upon birth registration, besides the written consent to such choosing, a confirmation that such choosing conforms to the foreign country’s law from the competent authority of the foreign country is required.

However, in practice, many countries such as England, America, Colombia do not have a formality to issue such a certification, but only authenticate the signature of the parent in the agreement. In this case, the civil status registry will not be able to issue a birth certificate with the nationality desired by the parents, but the birth certificate will leave the nationality section blank.

    1. In the birth certificate registration form, the place of residence of the father and mother may be required to write a temporary residence address in Vietnam instead of a permanent address in a foreign country (depending on each civil status registration agency).
    2. In case the wife gives birth to a child before marriage registration without birth registration and, upon birth registration, the couple has a document recognizing the child as their common child, the father’s information shall be added to the child’s birth certificate immediately without applying for father-child relationship recognition.

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SOCIAL INSURANCE SCHEME FOR MATERNITY CASES

Social insurance scheme for maternity cases - htlaw.vn
No.ContentLegal BasisNote
1Definition:
Social insurance is a social security policy of the state to protect the interests of employees, this is a policy to ensure and offset a part of an employee’s real income when losing income. for cases of leave of work, maternity, sickness, labor accident, occupational disease, end of working age or death, on the basis of contribution to the social insurance fund
Compulsory social insurance:
- Sick;
- Maternity;
- Occupational accidents and diseases;
- Retire;
- Survivorship.		Clause 1 Article 3
Clause 1 Article 4 Law on Social Insurance
2Conditions to be entitled to the maternity regime: In one of the following cases:
- Pregnant female employees;
- Female workers give birth
- Female employees are surrogates and the mother asks for surrogacy
- The employee adopts a child under 6 months old;
- Female employees put on IUDs, employees take sterilization measures;
- Male employees who are paying social insurance premiums whose wives give birth to children.
Case: Female employees give birth; female employees as surrogates and mothers asking for surrogacy; employees adopt children under 06 months old; must pay social insurance premiums for full 06 months or more within 12 months before giving birth or adopting a child.
Case: A female employee who has given birth to a child and has paid social insurance premiums for full 12 months or more but has to take a leave of absence from work to take care of the pregnancy when she is pregnant under the direction of a competent medical examination and treatment establishment shall pay social insurance premiums. from full 03 months or more in the 12 months before giving birth.		Article 31 Law on Social Insurance
3Term to be entitled to benefits when giving birth:
- Female employees giving birth are entitled to take maternity leave before and after giving birth for 6 months. In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
- The maximum period of maternity leave before giving birth is not more than 02 months.		Clause 1 Article 31 Law on Social Insurance
4Level of maternity benefits:
The monthly allowance is equal to 100% of the average monthly salary on which social insurance premiums are based for the 06 months before taking leave for the maternity regime.		Article 39 Law on Social Insurance

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PROCEDURES FOR ISSUANCE OF CERTIFICATE OF VIETNAMESE NATIONALITY

I. Authority to issue Certificate of Vietnamese nationality

The applicant for a Certificate of Vietnamese nationality shall submit a dossier at the Department of Justice, where he or she resides in the country, or a representative mission, where he/she resides in a foreign country at the time of application submission.

Procedures for issuance of certificate of Vietnamese nationality - htlaw.vn

II. Condition

Vietnamese people residing abroad have not lost their Vietnamese nationality

III. Order of implementation (In Vietnam)

Step 1: Person wishing to confirm his/her Vietnamese nationality shall submit their dossiers directly at the Department of Justice of their residence or via the postal system.

Step 2: The Department of Justice receives the dossier, checks the validity and completeness of the documents included in the dossier:

+ If the application is complete and valid, it shall be recorded in the Acceptance Book and issued with a Certificate of Acceptance according to the prescribed form.

+ In case the application is incomplete or invalid, the applicant shall provide written instructions for supplementing and completing the application.

Step 3: Settlement of records

* Case 1: Having papers proving Vietnamese nationality:

Within 05 working days from the day on which the application is accepted, the Department of Justice shall examine the dossier, directly search it or send a written request to the Ministry of Justice to look up Vietnamese nationality.

Within 10 working days, the Ministry of Justice shall conduct a search and reply in writing to the Department of Justice. If there is doubt about the authenticity of documents proving Vietnamese nationality, the Department of Justice shall request the agency that has issued such papers to verify; within 10 days after receiving a written request from the Department of Justice, the agency that has issued that document shall verify and send a written reply to the Department of Justice.

Within 5 working days from the date of receipt of the search and verification results, if there are enough grounds to determine the Vietnamese nationality and the person is not on the list of persons entitled to renunciation of their nationality or deprived of their nationality, naturalization, the decision to naturalize Vietnam has been annulled, the Department of Justice shall record it in the Certificate of Vietnamese nationality issuance; the head of the agency shall sign and issue a certificate of Vietnamese nationality according to the prescribed form to the requester.

If there is no basis for granting a certificate of Vietnamese nationality, the Department of Justice shall reply in writing to the requester.

* Case 2: There is no document to prove Vietnamese nationality, but there are papers as a basis for determining Vietnamese nationality according to the provisions of Clause 2, Article 28 of Decree No. 16/2020/ND-CP:

Within 05 working days from the day on which the application is accepted, the Department of Justice shall actively search or request the Ministry of Justice to look up Vietnamese nationality.

Within 10 working days, the Ministry of Justice shall conduct a search and reply in writing to the Department of Justice. At the same time, the Department of Justice shall send a written request to the police office of the same level to verify the identity of the requester; within 45 working days from the date of receipt of the request of the Department of Justice, the police authority shall verify and send a written reply to the Department of Justice.

Within 05 working days from the date of receipt of the search and verification results, the Department of Justice shall continue to proceed with the same settlement as in case 1.

Step 4: The applicant based on the appointment date on the receipt to receive the settlement result at the Department of Justice as follows:

+ 1st time: Receive the result of processing the dossier or receive the notification that the dossier has been transferred for verification at the relevant agencies.

+ 2nd time: Receive the result of handling the application or the rejection document.

IV. Dossier composition

* Case 1: Having papers proving Vietnamese nationality:

+ An application form for a certificate of Vietnamese nationality (form TP/QT-2020-TKXNCQTVN), enclosed with 02 4×6 photos taken less than 6 months;

+ A copy of the person’s identity document such as identity card, citizen identification, residence document, temporary residence card, travel document, international travel document or certification of travel personal identity with a photo issued by a competent authority;

+ A copy of a valid document proving Vietnamese nationality as prescribed in Article 11 of the Law on Vietnamese Nationality (which is one of the following papers: Birth certificate, in case the birth certificate does not clearly show Vietnamese nationality) If male, must be accompanied by papers proving the Vietnamese nationality of parents; ID card; Vietnamese passport; Decision on naturalization of Vietnam, Decision on returning Vietnamese nationality, Decision on publicity. adoption of a foreign child, a decision for a foreigner to adopt a Vietnamese child) or a similar document issued by a previous government, including a birth certificate in which no there is a nationality section or a nationality section is left blank but on it are the Vietnamese names of the requester and his or her parents;

+ Papers proving the place of residence are one of the following documents: household registration book, temporary residence book, permanent residence card, temporary residence card (if any), in case the above documents are not available, the place of residence The applicant’s residence is the place where he/she is currently living and has the certification of the ward, commune or township police of his/her residence in the locality.

* Case 2: There is no paper to prove Vietnamese nationality, but there are papers as a basis for determining Vietnamese nationality according to the provisions of Clause 2, Article 28 of Decree No. 16/2020/ND- CP :

+ An application form for a certificate of Vietnamese nationality (form TP/QT-2020-TKXNCQTVN), enclosed with 02 4×6 photos taken less than 6 months old;

+ A copy of the person’s identity document such as identity card, citizen identification, residence document, temporary residence card, travel document, international travel document or certification of travel personal identity with a photo issued by a competent authority;

+ A curriculum vitae enclosed with one of the papers used as a basis for determining Vietnamese nationality:

  • Copies of papers on nationality, civil status, household registration, identification or other papers issued by competent Vietnamese authorities to Vietnamese citizens over the period from 1945 to before July 1/ 2009, including Vietnamese nationality or information related to Vietnamese nationality and citizens.
  • Copies of papers on nationality, civil status, household registration, identification or other documents issued by the former regime in South Vietnam before April 30, 1975, or papers issued by the former government in Hanoi from from 1911 to 1956, including Vietnamese nationality or information related to Vietnamese nationality and citizens.

+ Papers proving the place of residence are one of the following documents: household registration book, temporary residence book, permanent residence card, temporary residence card (if any), in case the above documents are not available, the place of residence The involved party’s residence is the place where he/she is living and has the certification of the ward, commune or township police of his/her residence in the locality.

– Where the law stipulates that the documents to be submitted are copies, the petitioner for settlement of nationality matters may submit documents which are photocopies from the originals, certified copies from the originals or granted copies. from the original book. If submitting a photocopy from the original, the original must be submitted for comparison; the person receiving the dossier shall check, compare the copy with the original and sign for verification.

In case the application is sent via the postal system, the copy of the document must be certified from the original or issued from the original book; The application, declaration, and curriculum vitae must be authenticated with signatures as prescribed by law.

V. Settlement time

– 20 working days for cases with documents proving Vietnamese nationality.

– 55 working days in case there is no proof of Vietnamese nationality.

VI. Fee

100,000 VND/case

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THE DIFFERENCES BETWEEN NOTARIZATION AND AUTHENTICATION

I. What is Notarization?

Pursuant to clause 1 Article 2 Law on Notarization 2014, Notarization is verifying in the form of a written certification by  a notary of a notarial practice organization related to the authenticity and lawfulness of a contract or another civil transaction (below referred to as contract or transaction) or of the accuracy, lawfulness and conformity with social ethics of the Vietnamese or foreign-language translation of a paper or document (below referred to as translation) of which is prescribed by law or voluntarily requested by an individual or organization to be notarized.

The differences between Notarization and Authentication - htlaw.vn

II. What is Authentication?

Pursuant to Article 2 of the Government Decree no. 23/2015/ND-CP, there are three (03) types of authentication:

(1) Authentication of copies of originals: competent agencies shall certify copies of the originals as true based on the originals.

(2) Authentication of signatures: competent agencies shall authenticate signatures on papers, documents as signatures of the person concerned

(3) Authentication of contracts and transactions: competent agencies shall authenticate time and venue where the contracts are executed; civil capacity, willingness, signatures or append fingerprints of contracting parties.

III. The differences between Notarization and Authentication

 Notarization Authentication
Legal RegulationLaw on Notarization 2014The Government Decree no. 23/2015/ND-CP
Authority Notaries appointed by the Minister of Justice to conduct notarial practice (Clause 2 Article 2 Law on Notarization 2014)Justice Office of provincial-affiliated districts and cities,
People’s Committees of Communes,
Diplomatic missions, consulate representative agencies and other agencies authorized to act as consuls in foreign countries;
Notaries (Article 5 The Government Decree no. 23/2015/ND-CP
NatureVerifying of the authenticity and lawfulness of a contract or other civil transaction. Therefore, a notary is responsible for the authenticity and lawfulness of those contracts and transactions.Authenticate of signatures, documents, and events of their accuracy and reality of the documents.
Authenticating persons shall not bear the responsibility for those document’s lawfulness.
Legal valueHigher legal value:
Notarized contracts and transactions may be used as evidence; details and circumstances of notarized contracts or transactions are not required to be proven, unless such contracts or transactions are declared to be invalid by courts.
4. Notarized translations are valid for use as their translated papers or documents.
(Clause 3, 4 Article 5 Law on Notarization 2014).		Lower legal value:
1. Copies certified as true from originals under this Decree have legal value when being used as substitutes for originals in transactions except otherwise prescribed by the law;
2. Authenticated signatures under this Decree have legal value in determining signer and his/her liabilities for the paper, document signed.
3. Authenticated contract under this Decree has legal value in serving as evidence of the time and venue where the contract is executed; civil capacity, willingness, signatures or append fingerprints of contracting parties.
(clause 2,3,4 Article 4 Government Decree no. 23/2015/ND-CP

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PROTECTION OF SOUND TRADEMARK

Sound trademark has been acknowledged and protected by law in many developed countries such as the United States, Japan, the EU, v.v. Under intellectual property law of these countries, detailed guidelines and regulations are set out

According to WIPO, a sound trademark may include: sounds that are music, which may be pre-existing, or newly composed for trademark purposes, or sounds that are not music existing in nature or sounds produced by man-made devices, machines or means.

In the US,  registrable sound trademarks must be distinctive, arbitrary, unique and can create an impression on the customers of the trade source of the goods or services in relation to which it is used. Sound marks in EU are defined as a trade mark consisting exclusively of a sound or combination of sounds.

As Vietnam is integrating in the global trend, The office of the National Assembly has approved of the protection of sound marks as trademarks in the latest amendments of Intellectual Property Law on 16/06/2022. This is an important milestone for more future detailed regulations and development relating to intellectual property protection in Vietnam.

Protection of sound trademark - htlaw.vn

I. Criteria for registration

Provided for in Article 72 of the amended Intellectual property law, criteria for registrable sound trademarks include:

(1) be represented graphically

(2) has distinctive character that differentiate the mark owners’ goods and services from others

Regarding the mark sample in the application form, pursuant to the amendment to Article 105 of Intellectual Property Law, in case of a sound mark, the mark sample must be submitted as an audio file and an accurate graphic representation of the sound.

II. Sound not protected as marks

Aside from the sound not satisfying the registration criteria, as set out in the amendment to clause 1 Article 73 of Intellectual Property Law, sounds that are identical or confusingly similar to Vietnam’s national anthem or that of other countries or international anthem shall not be protected.

III. Effectiveness

Provided for in clause 2 Article 3 of Law amending and supplementing a number of articles of the Intellectual Property law 2022, provisions relating to the protection of sound trademark shall be effective as from 14 January 2023.

IV. Legal complications

Apparently, despite having taken a step to recognize the protection of sound trademark, which is revolutionary, Vietnamese regulations regarding this matter are still ambiguous and lacking. As a result, many legal complications may arise, namely, possible copyright infringement or complications in the registration proceeding due to sound trademarks’ unique and complicated nature.   

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