Chương 6 Nghị định 12/2006/NĐ-CP: Gia công hàng hoá có yếu tố nước ngoài

Chapter VI

PROCESSING OF GOODS INVOLVING FOREIGN BUSINESS ENTITIES

SECTION 1. PROCESSING FOR FOREIGN BUSINESS ENTITIES

Article 29 Business entities which may process goods for foreign business entities

Business entities, including business entities with foreign owned capital, shall be permitted to process all goods for foreign business entities, except for goods on the lists of goods the import and export of which is prohibited or temporarily suspended. With respect to goods on the lists of goods the import and export of which is subject to issuance of a permit, business entities may only enter into processing contracts after they have been issued with a permit by the Ministry of Trade.

Article 30 Processing contracts

A processing contract must be made in writing or in another form with equivalent legal validity, and may include the following terms:

(a) Names and addresses of contracting parties and of the party directly conducting the processing;

(b) Name and quantity of processed products;

(c) Prices for processing;

(d) Time-limit for and method of payment;

(dd) List, quantity and value of imported raw materials, sub-materials and supplies and domestically produced raw materials, sub-materials and supplies (if any) for processing; levels of use of raw materials, sub-materials and supplies; level of consumption of supplies and wastage rate of raw materials in processing;

(e) List and value of machinery and equipment leased, lent or donated for the purpose of processing (if any);

(g) Measures to treat scrap and discharged waste and principles for dealing with leased or borrowed machinery and equipment and with left-over raw materials, sub-materials and supplies upon termination of the processing contract;

(h) Location and time of goods delivery;

(i) Trade mark of goods and appellation of origin of goods;

(k) Duration of validity of contract.

Article 31 Levels of use and consumption and wastage rate of raw materials, sub-materials and supplies

The levels of use and consumption and the wastage rate of raw materials, sub-materials and supplies shall be as agreed by the parties in processing contracts, taking into account the permissible levels and rates in the relevant Vietnamese manufacturing and processing industries as at the time of entering into the contract. Directors of enterprises being processors shall be responsible for the use of imported raw materials, sub-materials and supplies solely for the purpose of processing, and any breaches shall be dealt with in accordance with law.

Article 32 Leasing, borrowing or importing machinery and equipment of suppliers for implementation of processing contracts

Processors may lease or borrow machinery and equipment from their suppliers for the purpose of implementation of processing contracts. The lease, borrowing or donation of machinery and equipment must be agreed in the processing contract.

Article 33 Rights and obligations of suppliers and processors

1. In respect of suppliers:

(a) To provide all or a part of the raw materials and supplies for processing as agreed in the processing contract;

(b) To take back all processed products, leased or lent machinery and equipment and left-over raw materials, sub-materials, supplies and scraps after liquidation of the processing contract, except in cases of on-the-spot export, destruction or donation thereof as permitted by this Decree;

(c) To send experts to Vietnam to provide instructions on production techniques and inspect the quality of processed products as agreed in the processing contract;

To be responsible for the right to use trademarks of goods and appellations of origin of goods;

(dd) To comply with the law of Vietnam on processing activities and with the terms of the signed processing contract;

(e) To be permitted to conduct on-the-spot export of processed products, leased or lent machinery and equipment and left-over raw materials, sub-materials and supplies, faulty products and scraps in accordance with written agreements between the parties concerned and consistent with current regulations on control of import and export of goods; provided that all tax obligations and other financial obligations stipulated by law must be fulfilled.

2. In respect of processors:

(a) To be exempted from import duties in respect of machinery, equipment, raw materials, submaterials and supplies temporarily imported in accordance with the fixed limits for the purpose of implementation of a processing contract; to be exempted from export duties in respect of processed products;

(b) To employ other business entities as processors;

(c) To be provided with a part or all of the raw materials, sub-materials and supplies for processing as agreed in the processing contract and to pay export duties in accordance with the provisions of the Law on Import and Export Duties in respect of the raw materials, submaterials and supplies purchased locally;

(d) To receive payment from the supplier in the form of processed products, except in cases where such products are on the lists of goods the import and export of which is prohibited or temporarily suspended. In respect of products for which import and export is subject to issuance of a permit, there must be a permit from the Ministry of Trade or from the competent body authorized by the Ministry of Trade;

(dd) To comply with the law of Vietnam on processing, exporting, importing and manufacturing goods locally and the terms of the signed processing contract;

(e) To carry out procedures for on-the-spot export of processed products, leased or lent machinery and equipment and left-over raw materials, sub-materials and supplies, faulty products and scraps as authorized by principals.

3. Conditions for on-the-spot import and export of processed products, leased or lent machinery and equipment and left-over raw materials, sub-materials and supplies, faulty products and scraps:

(a) The provisions of the law relating to import goods and duties and other financial obligations must be complied with;

(b) A contract of sale and purchase must be entered into between the foreign business entity or entity legally authorized by the foreign business entity and an import business entity.

Article 34 Transitional processing

Business entities shall be permitted to conduct transitional processing.

1. The processed products under any one processing contract may be used as materials for processing in Vietnam under another processing contract.

2. Processed products under a processing contract in one phase shall, under instructions of the supplier, be provided for the purpose of the processing contract of the following phase.

Article 35 Finalization and customs clearance of processing contracts

1. Upon termination or expiry of a processing contract, the parties to the processing contract must finalize the contract and carry out clearance procedures with the customs office.

In respect of processing contracts having a duration of more than one year, the processors shall carry out customs clearance procedures for such contracts every year with the customs office.

2.  The basis for finalization and customs clearance of a processing contract is the quantity of imported raw materials, sub-materials and supplies and the quantity of products exported against the fixed level of use of raw materials, sub-materials and supplies, the fixed level of consumption of supplies and the wastage rate as agreed in the processing contract.

3. Upon completion of a processing contract, any machinery and equipment leased or borrowed under the contract, left-over raw materials, sub-materials and supplies, faulty products and scraps shall be dealt with as agreed in the processing contract which must be consistent with the law of Vietnam.

4. he destruction of faulty products and scraps (if any) may only be carried out with permission from the Department of Natural Resources and Environment and must be conducted under the supervision of the customs office. In cases where destruction in Vietnam is not permitted, reexportation on instructions of the supplier shall be required.

5.The donation of machinery, equipment, raw materials, sub-materials, supplies, scraps or faulty products shall be regulated as follows:

(a)The principal must issue a written document of gift;

(b)The donee must fulfil import procedures in accordance with current provisions on import and export; and must pay import duties and other taxes (if any) and register assets in accordance with current regulations.

Article 36 Customs procedures

The Ministry of Finance shall provide guidelines on customs procedures and financial obligations applicable to the export of processed products and shall monitor importation and exportation related to processing contracts.

SECTION 2. PROCESSING OF GOODS IN FOREIGN COUNTRIES

Article 37 General provisions

1. Business entities of all economic sectors may have any type of goods which are permitted to be circulated in Vietnam processed in foreign countries for business purposes in accordance with law.

2. The exportation of machinery, equipment, raw materials, sub-materials or supplies for processing and the importation of processed products must comply with the law on import and export.

3. Contracts for processing of goods in foreign countries and the customs procedures in respect of the import and export of such processed goods shall comply with the provisions of articles 30 and 36 of this Decree.

Article 38 Rights and obligations of business entities having goods processed in foreign countries

1. To export temporarily machinery, equipment, raw materials, sub-materials or supplies or to tranship machinery, equipment, raw materials, sub-materials or supplies from a third party to the processor for the purpose of implementation of a processing contract.

2. To re-import processed products and, upon completion of a processing contract, to re-import left-over machinery, equipment, raw materials, sub-materials or supplies.

3. To sell processed products and exported machinery, equipment, raw materials, sub-materials or supplies for the purpose of implementation of a processing contract in the market of the country of the processor or any other market and to pay tax in accordance with the current law.

4. To be exempted from import duties and export duties in respect of machinery, equipment, raw materials, sub-materials or supplies temporarily exported for re-import; or to pay export duties in accordance with the Law on Import and Export Duties where re-import is not carried out.

5. To send experts and technical workers abroad for the purpose of inspection and acceptance of processed products.

6. The Ministry of Finance shall provide guidelines on discharge of financial obligations applicable to processed products imported to service domestic consumption.