Chương V Luật Thương mại 2005: Các hoạt động trung gian thương mại

Chapter V

INTERMEDIARY ACTIVITIES IN COMMERCE

SECTION 1. REPRESENTATION OF TRADERS

Article 141. Representation for traders

1. Representation for traders is defined as an arrangement where a trader is granted authorization (hereinafter referred to as the representative) by another trader (hereinafter referred to as the principal) to perform trades under the name or direction of the former, and earn remunerations for his/her representation service rendered.

2. Where a trader assigns one of his/her employees as his/her representative, the Civil Code shall be applied.

Article 142. Agreement on representation for traders

An agreement on representation for traders must be in writing or take other forms which have the same legal value.

Article 143. Scope of representation

Contracting parties may reach an agreement where the representative is authorized to represent, whether in part or in whole, trading activities that fall within the remit of the principal. 

Article 144. Duration of representation for traders

1. Duration of representation shall be agreed upon by contracting parties.

2. In the absence of any agreement, the validity duration of representation ends in either case where the principal or the representative notifies the other of termination of the representation agreement.

3. Unless otherwise agreed, if the principal unilaterally gives notification of termination of an agreement on representation in accordance with Clause 2 of this Article, the representative shall be entitled to claim remunerations paid by the principal for conclusion of contracts with his/her own clients and other payments that (s)he would have received.

4. Where duration of representation ends in such a manner, referred to in Clause 2 of this Article, upon the request of the representative, the representative shall be deprived of the right to claim any remuneration for trades that (s)he would have received, unless otherwise agreed upon by contracting parties.

Article 145. Obligations of the representative

Unless otherwise agreed, the representative shall take on the following obligations:

1. Perform trades under the name, and for the interests of, the principal;

2. Inform the principal of opportunities for, and outcomes of, performance of trades which have been authorized; 

3. Observe the principal’s instructions which are not in violation of laws and regulations.

4. Avoid performing trades under the name of his/her own or of any third party within the scope of representation;

5. Avoid disclosing or providing any non-party confidential information about his/her trades during the validity duration when his/her representation is rendered and within two years after that representation agreement is terminated;

6. Provide safe custody of assets or documents which have been entrusted to perform representation activities.

Article 146. Obligations of the principal

Unless otherwise agreed, the principal shall assume the following obligations:

1. Promptly inform the representative of conclusion of contracts that the representative has negotiated, execution of contracts that the representative has negotiated, approval or rejection of activities which do not fall within the agreed remit of the representative;

2. Provide assets, documents and any information necessary for the representative’s contractual representation activities;

3. Pay remunerations and other reasonable expenses to the representative;

4. Duly inform the representative of possibility that a contract may not be concluded or executed within the stated scope of representation.

Article 147. Entitlement to the representative’s remunerations

1. The representative shall be entitled to remunerations for any contract which is concluded within the contractual scope of representation. Entitlement to such remunerations arises as from the date agreed upon in an agreement on representation by contracting parties.

2. In the absence of any agreement, remuneration rate shall be defined in accordance with Article 86 hereof.

Article 148. Payment for any expense incurred

Unless otherwise agreed, the representative shall be accorded the right to claim payments for any expense incurred on a reasonable basis for the purpose of performing contractual representation activities.

Article 149. Lien

Unless otherwise agreed, the representative shall be entitled to exercise lien over entrusted assets and documents to secure the payment of remunerations and expenses due.

SECTION 2. COMMERCIAL BROKERAGE

Article 150.- Commercial brokerage

Commercial brokerage means a commercial activity whereby a trader acts as an intermediary (referred to as broker) between parties selling and purchasing goods or providing commercial services (referred to as principals) in the course of negotiations and entering into contracts for sale and purchase of goods or provision of services and shall be entitled to a remuneration under a brokerage contract.

Article 151.- Obligations of commercial brokers

Unless otherwise agreed, a commercial broker shall have the following obligations:

1. To preserve samples of goods and documents assigned for the performance of brokerage activities, and to return them to the principals after the completion of brokerage;

2. Not to disclose or supply information to the detriment of the interests of the principals;

3. To be responsible for the legal status, but not for the solvency, of the principals;

4. Not to take part in the performance of contracts between the principals, except where so authorized by the principals.

Article 152.- Obligations of principals

Unless otherwise agreed, a principal shall have the following obligations:

1. To supply information, documents, necessary means related to goods and services;

2. To pay brokerage remuneration and other reasonable expenses to the broker.

Article 153.- The right to enjoy brokerage remuneration

1. Unless otherwise agreed, the right to enjoy brokerage remuneration arises from the time the principals enter into contracts.

2. Where there is no agreement, brokerage remuneration rates shall be determined according to the provisions of Article 86 of this Law.

Article 154.- Payment of expenses incurred in relation to brokerage

Unless otherwise agreed, principals must pay all reasonable expenses incurred in relation to brokerage to brokers, even where the brokerage does not bring about any results for principals.

SECTION 3. SALE AND PURCHASE OF GOODS BY MANDATED DEALERS

Article 155.- Purchase and sale of goods by mandated dealers

Purchase and sale of goods by mandated dealers mean commercial activities whereby the mandatory conducts the purchase and sale of goods in his/her/its own name under terms agreed upon with the mandator and is entitled to receive mandate commission.

Article 156.- Mandatories

A mandatory for purchase and sale of goods is a trader dealing in goods which are consistent with the mandated goods and conducting the purchase and sale of goods under terms agreed upon with the mandator.

Article 157.- Mandators

A mandator of purchase and sale of goods may, or may not, be a trader that authorizes a mandatory to conduct the purchase and sale of goods at his/her/its request and pays a commission.

Article 158.- Mandated goods

All goods which are lawfully circulated may become the subject matter of a mandated sale and purchase.

Article 159.- Mandate contracts

Mandate contracts for purchase and sale of goods must be made in writing or in other forms of equivalent legal validity.

Article 160.- Sub-mandate to a third party

A mandatory shall not be allowed to sub-mandate a third party to perform the signed mandate contract for purchase and sale of goods, except where it is so approved in writing by the mandator.

Article 161.- Multilateral mandate

A mandatory may accept the mandate for purchase and sale of goods from different mandators.

Article 162.- Rights of mandators

Unless otherwise agreed, mandators shall have the following rights:

1. To request mandatories to supply adequate information on the performance of mandate contracts;

2. Not to bear responsibility in cases where mandatories commit law violations, except for cases specified in Clause 4, Article 163 of this Law.

Article 163.- Obligations of mandators

Unless otherwise agreed, mandators shall have the following obligations:

1. To provide information, documents and means necessary for the performance of mandate contracts;

2. To pay mandate commissions and other reasonable expenses to mandatories;

3. To hand over money and goods as agreed upon;

4. To bear joint responsibility in cases where mandatories commit law violations which are attributable to acts of mandators or intentional law-breaking acts of the parties.

Article 164.- Rights of mandatories

Unless otherwise agreed, mandatories shall have the following rights:

1. To request mandators to provide information and documents necessary for the performance of mandate contracts;

2. To receive mandate commissions;

3. Not to bear responsibility for goods handed over to mandators strictly under agreement.

Article 165.- Obligations of mandatories

Unless otherwise agreed, mandatories shall have the following obligations:

1. To conduct the purchase and sale of goods as agreed upon;

2. To notify mandators of matters related to the performance of mandate contracts;

3. To follow instructions of mandators as agreed upon;

4. To preserve assets and documents assigned to them for the performance of mandate contracts;

5. To keep secret information related to the performance of mandate contracts;

6. To hand over money and goods as agreed upon;

7. To bear joint responsibility for law violation acts of mandators, in cases where such law violation acts are partially attributable to their own faults

SECTION 4. COMMERCIAL AGENCY

Article 166.- Commercial agency

Commercial agency means a commercial activity whereby the principal and the agent agree that the agent, in its own name, sells or purchases goods for the principal or provides services of the principal to customers for remuneration.

Article 167.- Principals and agents

1. Principals are traders that deliver goods to agents for sale or provide money to agents for purchase of goods, or traders that authorize the provision of services to service-providing agents.

2. Agents are traders that receive goods to act as sale agents or receive money to act as purchase agents or accepts the authorization to provide services.

Article 168.- Agency contracts

Agency contracts must be made in writing or in other forms of equivalent legal validity.

Article 169.- Forms of agency

1. Off-take agency is a form of agency whereby the agent definitely sells or purchases a specific quantity of goods or provides a full service for the principal.

2. Exclusive agency is a form of agency whereby a sole agent is authorized by the principal to sell or purchase one or more goods items or to provide one or more types of services within a given geographical area.

3. General goods sale or purchase or service provision agency is a form of agency whereby an agent organizes a network of sub-agents to sell or purchase goods, or provide services for the principal.

The general agent represents the network of sub-agents. Sub-agents operate under the management and in the name of the general agent.

4. Other forms of agency agreed upon by the parties.

Article 170.- Ownership right in commercial agency

The principal is the owner of goods or money delivered to the agent(s).

Article 171.- Agency remuneration

1. Unless otherwise agreed, agency remuneration shall be paid to agents in the form of commission or price margin.

2. Where principals fix goods purchase or sale prices or service charge rates, agents shall enjoy commissions calculated in percentage of such goods purchase or sale prices or service charge rates.

3. Where principals do not fix goods purchase or sale prices or service charge rates but fix only agency prices, agents shall enjoy price margins. Price margin is determined to be the difference between goods purchase or sale price or service charge rate and the price fixed by the principals for the agent.

4. Where the parties do not agree upon the agency remuneration level, the remuneration level shall be calculated as follows:

a/ The actual remuneration level which has been previously paid by/to parties;

b/ Where Point a of this Clause cannot apply, the agency remuneration level shall be the average remuneration level applicable to the same type of goods or service paid by the principal to other agents;

c/ Where Points a and b of this Clause cannot apply, the agency remuneration level shall be the ordinary remuneration level applicable to the same type of goods or service in the market.

Article 172.- Rights of principals

Unless otherwise agreed, principals shall have the following rights:

1. To fix prices of goods purchased or sold or charge rates of services provided to customers under agency;

2. To fix agency prices;

3. To request agents to take security measures as provided for by law;

4. To request agents to make payments or deliver goods under agency contracts;

5. To inspect and supervise the performance of contracts by agents;

Article 173.- Obligations of principals

Unless otherwise agreed, principals shall have the following obligations:

1. To guide, supply information to, and facilitate, agents to perform agency contracts;

2. To bear responsibility for quality of goods of goods sale or purchase agents, and quality of services of service-providing agents;

3. To pay remuneration and other reasonable expenses to agents;

4. To return to agents their assets used as security (if any) upon the termination of agency contracts;

5. To bear joint responsibility for law violation acts of agents if such law violation acts are partly attributable to their faults.

Article 174.- Rights of agents

Unless otherwise agreed by the parties, agents shall have the following rights:

1. To enter into agency contracts with one or more principals, except for cases specified in Clause 7, Article 175 of this Law;

2. To request principals to deliver goods or money under agency contracts; to take back assets used as security (if any) upon the termination of agency contracts;

3. To request principals to guide, supply information and create other related conditions for the performance of agency contracts;

4. To decide on goods sale prices or service charge rates for customers, for off-take agents;

5. To enjoy remunerations and other lawful rights and interests brought about by agency activities.

Article 175.- Obligations of agents

Unless otherwise agreed, agents shall have the following obligations:

1. To purchase or sell goods or provide services to customers at prices or charge rates fixed by principals;

2. To comply strictly with agreements on handover and receipt of money and goods with principals;

3. To take security measures for performance of civil obligations as provided for by law;

4. To pay to principals any proceeds of the sale of goods, for sale agents; to deliver purchased goods to principals, for purchase agents; or to pay service charges to principals, for service-providing agents;

5. To preserve goods after the receipt thereof, for sale agents, or prior to the delivery thereof, for purchase agents; to bear joint responsibility for quality of goods of purchase or sale agents or quality of services of service-providing agents in cases where they are at fault;

6. To submit to inspection and supervision by principals, and to report to principals on their agency activities;

7. Where it is specified by law that an agent shall be allowed to enter into an agency contract with a principal for a certain type of goods or service, such provision of law must be complied with.

Article 176.- Payment in agency activities

Unless otherwise agreed, payments for goods, payment of service charges and payment of agency remunerations shall be made in installments after agents complete the purchase or sale of a specific quantity of goods or the provision of a specific volume of services.

Article 177.- Duration of agency

1. Unless otherwise agreed, the duration of agency shall expire only after a reasonable period of time which must be at least 60 days after either party to the agency contract notifies the other party of the termination of such agency contract.

2. Unless otherwise agreed, if the principal notifies the termination of the agency contract according to the provisions of Clause 1 of this Article, the agent shall have the right to request the principal to pay a compensation for the period of time during which it has acted as an agent for such principal.

The value of such compensation shall be an average one-month’s agency remuneration for each year the agent has acted as an agent for the principal. Where the duration of agency is less than one year, such compensation shall be equal to an average one-month’s agency remuneration during the agency term.

3. Where an agency contract is terminated at the request of the agent, the agent shall not have the right to request the principal to pay compensation for the period of time during which it has acted as an agent for the principal.