Chương VI Luật thương mại 2005: Một số hoạt đông thương mại cụ thể khác

Chapter VI

SOME OTHER SPECIFIC COMMERCIAL ACTIVITIES

SECTION 1. COMMERCIAL PROCESSING

Article 178.- Commercial processing

Commercial processing means a commercial activity whereby a processor uses part or whole of raw materials and materials supplied by the processee to perform one or several stages of the production process at the latter’s request in order to receive remuneration.

Article 179.- Processing contracts

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

Article 180.- Goods for processing

1. Goods of all types can be processed, except for goods banned from business.

2. In case of processing of goods for foreign traders for overseas consumption, goods banned from business, goods banned from export or import may be processed if so permitted by competent state agencies.

Article 181.- Rights and obligations of processees

1. To hand over part or whole of raw materials and materials for processing in accordance with processing contracts or transfer money for purchase of materials with agreed quantities, quality and at agreed prices;

2. To take back all processed products, leased or lent machinery and equipment, raw materials, auxiliary materials, supplies and discarded materials after the liquidation of processing contracts, unless otherwise agreed.

3. To sell, destroy, donate or give as gifts on the spot processed products, leased or lent machinery and equipments, raw materials, auxiliary materials, redundant supplies, faulty products and discarded materials according to agreements and provisions of law.

4. To send their representatives to examine and supervise processing activities at processing places, to assign experts to guide production technology and inspect quality of processed products according to agreements in processing contracts.

 5. To be responsible for the legality of the intellectual property rights over processed goods, raw materials, materials, machinery and equipment for processing handed over to processors.

Article 182.- Rights and obligations of processors

1. To supply a part or whole of raw materials and materials for processing as agreed upon with processees in terms of quantities, quality, technical standards and prices.

2. To receive processing remunerations and other reasonable expenses.

3. In case of processing for foreign organizations and individuals, to be entitled to export on spot processed products; leased or borrowed machinery and equipment, raw materials, materials, redundant supplies, faulty products and discarded materials under the authorization of processees.

4. In case of processing for foreign organizations and individuals, to be exempt from import tax on machinery, equipment, raw materials, auxiliary materials and supplies, that are temporarily imported for the performance of processing contracts according to the provisions of tax law.

5. To be responsible for the legality of goods processing activities in cases where goods being processed are those banned from business, export or import.

Article 183.- Processing remuneration

1. Processors may receive processing remunerations paid in cash or in processed products, or machinery and equipment used for the processing.

2. In case of processing for foreign organizations and individuals, if processors receive processing remunerations in processed products, machinery and equipment used for processing, regulations on import of such products, machinery and equipment must be complied with.

Article 184.- Technology transfer in goods processing with foreign organizations and individuals.

Technology transfer in goods processing with foreign organizations and individuals shall be carried out in accordance with agreements in processing contracts and the provisions of Vietnamese law on technology transfer.

SECTION 2. AUCTION OF GOODS

Article 185.- Auction of goods

1. Auction of goods means a commercial activity whereby sellers themselves conduct or hire auction organizers to conduct public sale of goods to select purchasers that offer the highest prices.

2. Auctions of goods shall be performed by either of the following two modes:

a/ Upward bidding mode, which is an auctioning mode whereby the person who offers the highest price as compared with the reserve price shall have the right to purchase the auctioned goods;

b/ Downward bidding mode, which is an auctioning mode whereby the person who first accepts the reserve price or the lower price next to the reserve price shall have the right to purchase the auctioned goods.

Article 186.- Auction organizers, goods sellers

1. Auction organizers are traders that register the business of providing auctioning services or sell their own goods in cases where goods sellers conduct auctions by themselves.

2. Goods sellers are owners of such goods or persons mandated by goods owners to sell goods or persons entitled to sell goods of others according to the provisions of law.

Article 187.- Auction participants, auctioneers

1. Auction participants are organizations and individuals that register to participate in auctions.

2. Auctioneers are auction organizers or persons authorized by auction organizers to run auctions.

Article 188.- Auctioning principles

The auction of goods in commerce must be conducted on the principles of publicity, honesty and assurance of legitimate rights and interests of auction participants.

Article 189.- Rights of auction organizers

Unless otherwise agreed, auction organizers shall have the following rights:

1. To request goods sellers to provide fully, accurately and promptly necessary information on auctioned goods, to create conditions for auction organizers or auction participants to examine auctioned goods and hand over auctioned goods to goods purchasers in cases where auction organizers are not goods sellers;

2. To determine reserve prices in cases where auction organizers are sellers of auctioned goods or persons authorized by goods sellers;

3. To organize auctions;

4. To request goods purchasers to make payments;

5. To receive auction service charges paid by goods sellers according to the provisions of Article 211 of this Law.

Article 190.- Obligations of auction organizers

1. To organize auctions of goods in compliance with the principles and procedures provided for by law and by auction modes agreed upon with goods sellers.

2. To notify and post up in a public, full and accurate manner necessary information on auctioned goods.

3. To preserve auctioned goods when they are entrusted by sellers for safe-keeping.

4. To display goods, goods samples or documents introducing goods for auction participants to consider.

5. To compile documents on auctions of goods and send them to goods sellers and purchasers and relevant parties according to the provisions of Article 203 of this Law.

6. To deliver auctioned goods to purchasers according to contracts for provision of goods auctioning services.

7. To carry out the procedures for transferring ownership rights over auctioned goods which are subject to the ownership registration as provided for by law, unless otherwise agreed with goods sellers.

8. To pay to goods sellers proceeds from the sale of goods, including differences collected from persons that withdraw their offered prices defined in Clause 3, Article 204 of this Law or return unsold goods to goods sellers according to agreements. In case of no agreement, to pay money to goods seller within three working days after receiving money from goods purchasers, or to return the goods immediately within a reasonable time after auctions;

Article 191.- Rights of goods sellers that are not auction organizers

Unless otherwise agreed, goods sellers shall have the following rights :

1. To receive money amounts for auctioned goods and differences collected in cases specified in Clause 3, Article 204 of this Law or receive goods back in case of unsuccessful auctions;

2. To supervise the organization of auctions of goods.

Article 192.- Obligations of goods sellers that are not auction organizers

Unless otherwise agreed, goods sellers shall have the following obligations:

1. To deliver goods to auction organizers, create conditions for auction organizers and auction participants to examine goods, and supply in a full, accurate and timely manner necessary information on auctioned goods;

2. To pay auction organizing service charges according to Article 211 of this Law.

Article 193.- Goods auction-organizing service contracts

1. Goods auction organizing service contracts must be made in writing or in other forms of equivalent legal validity.

2. In cases where auctioned goods are objects of pledges or mortgages, goods auction organizing service contracts must be approved by pledgees or mortgagees, and sellers shall have to notify auction participants of the pledged or mortgaged goods.

3. If the auction is agreed upon in pledge or mortgage contracts but pledgors or mortgagors are absent without plausible reasons or refuse to enter into goods auction organizing service contracts, such contracts shall be entered into between pledgees or mortgagees and auction organizers.

Article 194.- Determination of reserve prices

1. Goods sellers must determine reserve prices. In cases where auction organizers are authorized to determine reserve prices, goods sellers must be notified thereof before auctions are posted up.

2. In cases where auctioned goods are objects of pledges or mortgages, pledgees or mortgagees must reach agreements with pledgors or mortgagors on the determination of reserve prices.

3. If the auction is agreed upon in pledge or mortgage contracts but pledgors or mortgagors are absent without plausible reasons or refuse to enter into goods auction organizing service contracts, the reserve prices shall be determined by pledgees or mortgagees.

Article 195.- Notification to persons with rights and obligations related to goods being objects of mortgage or pledge

In cases where goods are objects of pledge or mortgage, auction organizers, simultaneously with posting up goods auctions, must notify persons with related rights and obligations within seven working days before such goods are auctioned according to the provisions of Article 197 of this Law.

Article 196.- Time limit for notification and posting up of goods auctions

1. Within seven working days before a goods auction is held, the auction organizer must post up the auction at the auction venue, the place of goods display and his/her/its head office according to the provisions of Article 197 of this Law.

2. In cases where auction organizers are also goods sellers, the time limit for posting up auctions shall be decided by goods sellers themselves.

Article 197.- Contents of goods auction notification and posting up

A notice and post-up of a goods auction must have all the following contents:

1. The date and venue of auction;

2. The name and address of the auction organizer;

3. The name and address of the goods seller;

4. The list of goods, their quantities and quality;

5. The reserve prices;

6. Necessary information on the goods;

7. The place and time for displaying the goods;

8. The place and time for consulting the goods files;

9. The place and time for registering the purchase of goods.

Article 198.- Persons not allowed to participate in auctions

1. Persons who do not have civil act capacity, lose civil act capacity, or have restricted civil act capacity under the provisions of the Civil Code, or persons who, at the time of auction, are unable to cognize or control their acts;

2. Persons working in auctioning organizations; their parents, spouses and children;

3. Persons who have personally conducted the assessment of to be-auctioned goods; their parents, spouses and children;

4. Persons who do not have the right to purchase auctioned goods as provided for by law.

Article 199.- Registration for participation in auctions

1. Auction organizers may request persons who wish to participate in auctions to register for the auction participation before such auctions take place.

2. Auction organizers may request persons who wish to participate in auctions to make token payments which must not exceed 2% of the reserve prices of auctioned goods.

3. Where persons participating in auctions purchase auctioned goods, their token payments shall be cleared against the purchase prices; if they cannot purchase auctioned goods, their token payments shall be refunded to them right after auctions are completed.

4. Where persons who register for participation in auctions have made token payments but later failed to participate in auctions, auction organizers shall be entitled to retain such token payments.

Article 200.- Display of auctioned goods

Goods, goods samples, documents introducing goods and other necessary information on such goods must be displayed at places announced since the posting up.

Article 201.- Conducting of auctions

An auction shall be conducted in the following order:

1. The auctioneer makes a roll call of registered participants in the goods auction;

2. The auctioneer presents each auctioned goods item, repeats their reserve prices, answer questions of the auction participants, and ask them to offer bids;

3. As for the upward bidding mode, the auctioneer must clearly and accurately repeat the latest offered price which is higher than the price offered by the previous bidder for at least three times with an interval of at least thirty seconds. The auctioneer shall announce the winning bidder to purchase the auctioned goods only if after repeating for three times the price offered by such person, no one offers a higher price;

4. As for the downward bidding mode, the auctioneer must clearly and accurately repeat every reduced price level below the reserve price for at least three times with an interval of at least thirty seconds. The auctioneer shall announce immediately the person who first accepts the reserve price or any reduced price level below the reserve price to have the right to purchase the auctioned goods.

5. In cases where many persons concurrently offer the last price as for the upward bidding mode, or the first price as for the downward bidding mode, the auctioneer shall have to organize a lot drawing among such persons and announce the person who has drawn the winning lot as the purchaser of auctioned goods.

6. The auctioneer shall have to prepare a document on goods auction right at the auction venue, even when the auction is unsuccessful. The auction document must clearly state the auction result and be signed by the auctioneer, the purchaser and two witnesses from among the auction participants. For auctioned goods which must be notarized by the State Notary according to the provisions of law, the auction document must also be notarized.

Article 202.- Unsuccessful auctions

An auction shall be considered unsuccessful in the following cases:

1. There is no auction participant or no bid price is offered;

2. The highest price offered is lower than the reserve price, for the upward bidding mode.

Article 203.- Goods auction documents

1. Goods auction documents are documents certifying the goods purchase and sale. A goods auction document must have the following contents:

a/ The name and address of the auction organizer;

b/ The name and address of the auctioneer;

c/ The name and address of the goods seller;

d/ The name and address of the goods purchaser;

e/ The time and venue of the auction;

f/ The auctioned goods;

g/ The price at which the goods were sold;

h/ The names and addresses of two witnesses.

2. Auction documents must be sent to goods sellers, goods purchasers and related parties.

3. In case of unsuccessful auctions, auction documents must clearly state that the auctions were unsuccessful and have the contents specified at Points a, b, c, e, f and h, Clause 1 of this Article.

Article 204.- Withdrawal of offered prices

1. In case of an auction by the upward bidding mode, if the person offering the highest price immediately withdraws his/her bid, the auction shall still continue, starting again from the preceding offered price. In case of an auction by the downward bidding mode, if the person who first accepts the price immediately withdraws the accepted price, the auction shall still continue, starting again from the preceding accepted price.

2. The person who withdraws his/her offered price or withdraws his/her acceptance of the price shall not be allowed to further participate in the auction.

3. Where the auctioned goods are sold at a price lower than the withdrawn price which is previously offered for the upward bidding mode, or accepted for the downward bidding mode, the bid withdrawer shall have to pay the price difference to the auction organizer. Where the goods are sold at a higher price, the bid withdrawer shall not be entitled to such a difference.

4. In case of an unsuccessful auction, the bid withdrawer shall have to bear expenses for the auction and not be refunded his/her token payment.

Article 205.- Refusal to purchase

1. Unless otherwise agreed, after auctions are declared to be complete, purchasers shall be held liable. If purchasers refuse to purchase goods, they must obtain consents of goods sellers and bear all costs related to the organization of auctions.

2. In cases where purchasers of auctioned goods have paid token payments but refuse to purchase such goods, they shall not be refunded such token payments. Such token payments shall belong to goods sellers.

Article 206.- Registration of ownership right

1. Auction documents shall serve as basis for the transfer of the ownership right over auctioned goods, which must be registered according to the provisions of law.

2. On the basis of goods auction documents and other valid papers, competent state agencies shall have to register the goods ownership rights for goods purchasers according to the provisions of law.

3. Sellers and auction organizers are obliged to carry out procedures for transferring goods ownership rights to goods purchasers. Expenses for carrying out procedures for such transfer shall be deducted from proceeds from goods sale, unless otherwise agreed.

Article 207.- Time of payment for goods purchase

Time of payment for goods purchase shall be agreed upon by auction organizers and auctioned goods purchasers. If no agreement is reached, the time of payment for goods purchase shall be the time provided for in Article 55 of this Law.

Article 208.- Place of payment for goods purchase

Place of payment for goods purchase shall be agreed upon by auction organizers and goods purchasers. If no agreement is reached, the place of payment shall be the places of business of auction organizers.

Article 209.- Time limit for delivery of auctioned goods

Unless otherwise agreed upon by auction organizers and goods purchasers, the time limit for delivery of auctioned goods is provided for as follows:

1. For goods over which the ownership right is not required to be registered, auction organizers must deliver goods to their purchasers immediately after auction documents are made;

2. For goods over which the ownership rights have been registered, auction organizers must immediately carry out procedures for transferring the ownership rights and deliver goods to their purchasers immediately after the procedures for ownership right transfer are completed.

Article 210.- Place of delivery of auctioned goods

1. Where goods are things attached to land, the place of delivery thereof is the place where such goods are located.

2. Where goods are movables, the place of delivery thereof is the place where the auction is organized, unless otherwise agreed upon by auction organizers and goods purchasers.

Article 211.- Goods auction service charges

Where there is no agreement on goods auction service charges, such charges shall be determined as follows:

1. In case of successful auctions, auction service charges shall be determined according to Article 86 of this Law;

2. In case of unsuccessful auctions, goods sellers must pay a charge equal to 50% of the charge rate provided for in Clause 1 of this Article.

Article 212.- Expenses related to auctions of goods

Unless otherwise agreed upon between goods sellers and auction organizers, expenses related to auctions of goods shall be determined as follows:

1. Goods sellers shall bear the expenses for transportation of goods to the agreed places and the expenses for preservation of goods in cases where they do not deliver the goods to auction organizers for preservation;

2. Auction organizers shall bear the expenses for preservation of goods delivered to them, the expenses for posting up, notification and organization of auctions and other related expenses.

Article 213.- Responsibilities for auctioned goods untrue to notified or posted up ones

1. Within the time limit provided for in Article 318 of this Law, goods purchasers may return the goods to auction organizers and request compensations for damage if the auctioned goods are untrue to notified or posted up ones.

2. Where the auction organizer defined in Clause 1 of this Article is not the seller and the untruthful notified or posted up contents are attributable to the fault of the seller, the auction organizer shall have the right to return the goods and claim damages from the seller.

SECTION 3. BIDDING FOR GOODS OR SERVICES

Article 214.- Bidding for goods or services

1. Bidding for goods or services means a commercial activity whereby a party purchases goods or services through bidding (referred to as bid solicitor) in order to select, among traders participating in the bidding (referred to as bidders), a trader that satisfies the requirements set forth by the bid solicitor and is selected to enter into and perform a contract (referred to as bid winner).

2. The provisions on bidding in this Law shall not apply to bidding for public procurement according to the provisions of law.

Article 215.- Forms of bidding

1. Bidding for goods or services shall be conducted in either of the following two forms:

a/ Open bidding which is a form of bidding whereby the bid solicitor does not limit the number of bidders;

b/ Restricted bidding which is a form of bidding whereby the bid solicitor invites only a limited number of bidders to participate in the bidding.

2. The selection of the form of open bidding or restricted bidding shall be decided by bid solicitors.

Article 216.- Modes of bidding

1. Modes of bidding include bidding with one bid dossier bag and bidding with two dossier bags. Bid solicitors shall have the right to select the mode of bidding and must notify such in advance to bidders.

2. In case of bidding by mode of one dossier bag, a bidder shall submit its bid dossier consisting of technical and financial proposals in one dossier bag according to the requirements in the tendering dossier and the opening of bids shall be effected only once.

3. In case of bidding by mode of two dossier bags, a bidder shall submit its bid dossier consisting of technical and financial proposals in two separate dossier bags submitted simultaneously, and the opening of bids shall be effected twice. The dossier on technical proposals shall be opened first.

Article 217.- Pre-qualification of bidders

Bid solicitors may organize the pre-qualification of bidders in order to select those bidders that are capable of satisfying the conditions set forth by bid solicitors.

Article 218.- Tendering dossiers

1. A tendering dossier comprises:

a/ Tendering notice;

b/ Requirements related to goods or services subject to bidding;

c/ Methods of evaluation, comparison, grading and selection of bidders;

d/ Other instructions related to bidding.

2. Expenses for supply of documents provided to bidders shall be stipulated by bid solicitors.

Article 219.- Tendering notice

1. A tendering notice comprises the following principal contents:

a/ Name and address of the bid solicitor;

b/ Brief description of bidding contents;

c/ Time limit, place and procedures for receipt of tendering dossiers;

d/ Time limit, place and procedures for submission of bid dossiers;

e/ Instructions for reading tendering dossiers.

2. Bid solicitors shall have to notify on the mass media in case of open bidding or send notices on invitation to register for bidding participation to qualified bidders in case of restricted bidding.

Article 220.- Instructions to bidders

Bid solicitors shall have to provide bidders with instructions on the tendering conditions, procedures to be applied in the bidding process, and to answer questions of bidders.

Article 221.- Management of bid dossiers

Bid solicitors shall have to manage bid dossiers.

Article 222.- Bid bonds

1. Bid bonds shall be made in the form of bid deposit, collateral or guarantee.

2. Bid solicitors may request bidders to make bid deposits, bid collaterals or provide bid guarantees when submitting their bid dossiers. The percentage of a bid deposit or collateral shall be set out by bid solicitor but must not exceed 3% of the total estimated value of goods or services subject to bidding.

3. Bid solicitors shall stipulate the mode and conditions for making deposits, collaterals or providing bid guarantees. In case of bid deposits or collaterals, such deposits or collaterals shall be returned to unsuccessful bidders within seven working days from the date the bidding results are announced.

4. Bidders shall not be allowed to receive back their bid deposits or collaterals in cases where they withdraw bid dossiers after the expiration of the time limit for submitting bid dossiers (referred to as “bidding closure”), fail to enter into contracts or refuse to perform contracts in cases where they are bid winners.

5. Guarantors for bidders are obliged to guarantee bids for the guaranteed within the value equal to deposits or collaterals.

Article 223.- Confidentiality of bidding information

1. Bid solicitors must keep confidential bid dossiers.

2. Organizations and individuals involved in the organization of bidding and in the evaluation and selection of bids must keep confidential information relevant to the bidding.

Article 224.- Bid opening

1. Bid opening is the opening of bid dossiers at a fixed time or in cases where there is no prefixed time, the time of bid opening shall be the time immediately after the bidding closure.

2. All bid dossiers submitted on time must be opened publicly by bid solicitors. Bidders shall be entitled to attend the bid opening.

3. Bid dossiers which are not submitted on time shall be rejected and returned to bidders unopened.

Article 225.- Consideration of bid dossiers upon bid opening

1. Bid solicitors consider the validity of bid dossiers.

2. Bid solicitors may request bidders to clarify unclear contents in their bid dossiers. Requests and clarification of bid dossiers must be made in writing.

Article 226.- Minutes of bid opening

1. Upon bid opening, the bid solicitor and bidders that are present shall have to sign the minutes of bid opening.

2. A minutes of bid opening must have the following contents:

a/ Name of goods or service subject to bidding;

b/ Date, time and place of the bid opening;

c/ Names and addresses of the bid solicitor and bidders;

d/ Bidding prices of bidders;

e/ Written amendments or supplements and relevant contents, if any.

Article 227.- Evaluation and comparison of bid dossiers

1. Bid dossiers shall be evaluated and compared according to each criterion for an overall evaluation.

The criteria for evaluation of bid dossiers shall be provided for by bid solicitors.

2. The criteria mentioned in Clause 1 of this Article shall be evaluated by the score-giving method or other methods determined prior to the bid opening.

Article 228.- Amendment of bid dossiers

1. Bidders are not allowed to amend their bid dossiers after the bid opening.

2. In the course of evaluation and comparison of bid dossiers, bid solicitors may request bidders to clarify matters related to their bid dossiers. Requests of solicitors and replies of bidders must be made in writing.

3. Where bid solicitors amend some contents in tendering dossiers, they must send such amendments in writing to all bidders at least ten days before the deadline for submitting bid dossiers so that bidders have enough time to finalize their bid dossiers.

Article 229.- Classification and selection of bidders

1. On the basis of the result of the evaluation of bid dossiers, bid solicitors shall have to classify and select bidders according to the method already determined.

2. Where many bidders obtain equal scores and equally satisfy criteria to win the bidding, the bid solicitor shall have the right to select winning bidder.

Article 230.- Notification of bidding results and entry into contracts

1. Immediately after bidding results are available, bid solicitors shall have to notify them to bidders.

2. Bid solicitors shall finalize and enter into contracts with bid winners on the following bases:

a/ Bidding results;

b/ Requirements stated in tendering dossiers;

c/ Contents in bid dossiers.

Article 231.- Contract performance security

1. Involved parties may agree that bid winners should make deposits or collaterals or be provided with guarantees to secure the performance of contracts. Money amount to be deposited or used as a collateral shall be set by bid solicitors but must not exceed 10% of the contract value.

2. Contract performance security measures shall be effective up to the time of completion of contractual obligations by bid winners.

3. Unless otherwise agreed, bid winners shall receive back deposits or collaterals as security for the performance of contracts upon the liquidation of such contracts. Bid winners shall not be entitled to receive back deposits or collaterals as security for the performance of contracts if they refuse to perform such contracts after they are entered into.

4. After paying deposits or making collaterals to secure the contract performance, bid winners shall have their bid deposits or collaterals refunded.

Article 232.- Reorganization of bidding

A bidding shall be reorganized in one of the following cases:

1. Where there is a violation of the regulations on bidding;

2. Where all bidders fail to satisfy the bidding requirements.

SECTION 4. LOGISTIC SERVICES

Article 233.- Logistic services

Logistic services are commercial activities whereby traders organize the performance of one or many jobs including reception, transportation, warehousing, yard storage of cargoes, completion of customs procedures and other formalities and paperwork, provision of consultancy to customers, services of packaging, marking, delivery of goods, or other services related to goods according to agreements with customers in order to enjoy service charges.

Article 234.- Conditions for logistic service provision

1. Traders providing logistic services are enterprises fully satisfying the conditions for logistic service business provided for by law.

2. The Government shall specify logistic service business conditions.

Article 235.- Rights and obligations of traders providing logistic services

1. Unless otherwise agreed, traders providing logistic services shall have the following rights and obligations:

a/ To enjoy service charges and other reasonable expenses;

b/ To depart from instructions of customers during the performance of contracts for plausible reasons and in the interests of customers, provided that customers must be notified thereof immediately;

c/ To notify such customers immediately for further instructions in cases where instructions of customers cannot be followed in part or in whole;

d/ To perform their obligations within a reasonable period of time if there is no agreement on specific time limit for performance of their obligations to customers.

2. In the course of transportations of goods, traders providing logistic services must comply with the provisions of law and transportation practices.

Article 236.- Rights and obligations of customers

Unless otherwise agreed, customers shall have the following rights and obligations:

1. To guide, inspect and supervise the performance of contracts;

2. To provide sufficient instructions to traders providing logistic services;

3. To provide sufficient, detailed and accurate information on the goods to traders providing logistic services;

4. To pack and mark the goods according to contracts for purchase and sale of goods, except where there is an agreement that traders providing logistic services shall undertake to do such job;

5. To compensate for damage caused to, and pay reasonable costs incurred by, traders providing logistic services if such traders have strictly complied with customers’ instructions or if the customers are at fault;

6. To pay traders providing logistic services all amounts due.

Article 237.- Liability exemption for traders providing logistic services

1. Apart from the cases of liability exemption specified in Article 294 of this Law, traders providing logistic services shall not be liable for the goods loss caused in the following cases:

a/ The loss is caused by faults of customers or their authorized persons;

b/ The loss is caused by traders that have strictly followed the instructions of their customers or persons authorized by customers;

c/ The loss is attributed to defects of the goods;

d/ The loss occurs in cases of liability exemption according to law and transportation practices, if traders providing logistic services organize transportation;

e/ Trader providing logistic services are not notified of complaints within fourteen days from the date they deliver goods to recipients;

f/ After being complained against, traders providing logistic services are not notified of lawsuits against them being instituted at arbitrations or courts within nine months from the date of delivery of goods.

2. Traders providing logistic services shall not be liable for the loss of profits which their customers would have earned, for any services delayed or provided at wrong addresses, for which they are not at fault.

Article 238.- Limitation to liability

1. Unless otherwise agreed, the full liability of traders providing logistic services shall not exceed the limitation of liability for the full loss of the goods.

2. The Government shall provide in detail for the limitation of liability of traders providing logistic services in compliance with provisions of law and international practices.

3. Traders providing logistic services shall not enjoy the limitation of liability for damage compensation if persons with related rights and benefits prove that the loss, damage or delayed delivery of goods is caused by deliberate actions or inactions of traders providing logistic services with the intention to cause such loss, damage or delayed delivery or their actions or inactions are known to be risky who were also aware of such loss, damage, or delay would certainly occur.

Article 239.- The right to withhold and dispose of goods

1. Traders providing logistic services shall be entitled to withhold a certain quantity of goods and related documents in order to claim payment of due debts by customers but shall have to notify promptly customers thereof in writing.

2. After forty five days from the date of notification of the withholding of goods or their related documents, if customers fail to pay debts, traders providing logistic services shall be entitled to dispose of such goods or documents according to provisions of law. Where there are indications of deterioration of goods, traders providing logistic services shall have the right to dispose of the goods immediately after any debt of customers becomes due.

3. Before disposing of goods, traders providing logistic services must immediately notify their customers of such disposal.

4. All expenses for the withholding and disposal of goods shall be borne by customers.

5. Traders providing logistic services shall be entitled to use proceeds from the disposal of goods to pay for debts owed to them by their customers and related expenses. If the proceeds from the disposal of goods exceed the value of debts, the difference must be returned to customers. From that point of time, traders providing logistic services shall no longer be responsible for the goods or documents already disposed of.

Article 240.- Obligations of traders providing logistic services when withholding goods

When the right to dispose of goods provided for in Article 239 of this Law is not yet exercised, traders providing logistic services and withholding goods shall have the following obligations:

1. To preserve and keep the goods;

2. Not to use goods without consent of the parties whose goods are withheld;

3. To return goods where the conditions for withholding and disposal of goods provided for in Article 239 of this Law no longer exist;

4. To pay damages to the parties whose goods are withheld if they cause loss or damage to withheld goods.

SECTION 5. TRANSIT OF GOODS THROUGH THE VIETNAMESE TERRITORY; AND GOODS TRANSIT SERVICES

Article 241.- Transit of goods

Transit of goods means the transportation of goods owned by foreign organizations or individuals through the Vietnamese territory, including transshipment, portage, warehousing, shipment separation or alteration of modes of transportation or other jobs performed in the course of transit.

Article 242.- Right to transit goods

1. All goods owned by foreign organizations and individuals are allowed to be transited through the Vietnamese territory and subject only to customs clearance at import border-gates and export border-gates according to the provisions of law, except for the following cases:

a/ Goods are weapons, ammunitions, explosive materials and other type of highly dangerous goods, unless they are permitted by the Prime Minister;

b/ Goods are banned from business, export or import, which shall be allowed to be transited through the Vietnamese territory only when so permitted by the Trade Minister.

2. Goods in transit when being exported from, and means of transport carrying goods in transit when leaving, the Vietnamese territory must be the goods or means of transport which have previously entered the Vietnamese territory.

3. Foreign organizations or individuals that wish to transit their goods through the Vietnamese territory must hire Vietnamese traders providing transit services to do so, except for cases mentioned in Clause 4 of this Article.

4. The transit of goods through the Vietnamese territory by foreign organizations and individuals themselves or by hired foreign traders must comply with treaties to which the Socialist Republic of Vietnam is a contracting party and the provisions of Vietnamese law on exit, entry and transport.

Article 243.- Routes for transit

1. Goods shall only be transited through international border-gates and on certain routes in the Vietnamese territory.

2. On the basis of treaties to which the Socialist Republic of Vietnam is a contracting party, the Transport Minister shall specify routes on which the transportation of goods in transit is allowed.

3. In the course of transit, any change of routes on which the transportation of goods in transit is allowed must be consented by the Transport Minister.

Article 244.- Transit by airways

Transit by airways shall be carried out in accordance with treaties on aviation to which

the Socialist Republic of Vietnam is a contracting party.

Article 245.- Supervision of goods in transit

Goods in transit through the Vietnamese territory shall be subject to the supervision by Vietnamese customs authorities throughout the course of transit.

Article 246.- Transit duration

1. The maximum duration of transit through the Vietnamese territory shall be thirty days from the date of completion of customs procedures at import border-gates, except where goods are warehoused in Vietnam or damaged or lost in the course of transit.

2. Where goods are warehoused in Vietnam or damaged or lost in duration of transit and require more time for warehousing, remedying such damage or loss, the transit duration may be prolonged according to the amount of time required for such jobs and with approval of customs authorities where transit procedures are carried out; in cases where goods are transited under permits of the Trade Minister, approval of the Trade Minister is required.

3. During the period of warehousing or remedying damage and loss mentioned in Clause 2 of this Article, transit goods and means of transport carrying transit goods must still be subject to supervision by Vietnamese customs authorities.

Article 247.- Goods in transit consumed in Vietnam

1. Goods in transit defined at Points a and b, Clause 1, Article 242 of this Law shall not be permitted for consumption in Vietnam

2. Except for cases mentioned in Clause 1 of this Article, goods in transit shall be permitted for consumption in Vietnam only when it is so approved in writing by the Trade Minister.

3. The consumption of transit goods in Vietnam must comply with the provisions of Vietnamese law on import of goods, taxes, charges, fees and other financial obligations.

Article 248.- Prohibited acts during transit

1. To pay transit remunerations in transit goods.

2. To illegally consume goods in transit or means of transport carrying goods in transit.

Article 249.- Goods transit services

Goods transit services mean commercial activities whereby traders carry out the transit of goods under the ownership of foreign organizations or individuals through the Vietnamese territory for remunerations.

Article 250.- Conditions for providing transit services

Traders providing transit services must be enterprises with registrations of business of providing transportation services or logistic services according to Article 234 of this Law.

Article 251.- Transit service contracts

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

Article 252.- Rights and obligations of transit service hirers

1. Unless otherwise agreed, transit service hirers shall have the following rights:

a/ To request transit service providers to receive goods at import border-gates at the agreed time;

b/ To request transit service providers to promptly notify the conditions of goods in the course of transit through the Vietnamese territory;

c/ To request transit service providers to carry out all necessary procedures to limit damage or loss of goods in transit in the course of transit through the Vietnamese territory.

2. Unless otherwise agreed, transit service hirers shall have the following obligations:

a/ To deliver goods to import border-gates of Vietnam on time as agreed;

b/ To supply transit service providers with sufficient information on the goods;

c/ To supply sufficient documents necessary for transit service providers to carry out procedures for import or transportation in the Vietnamese territory and the export procedures;

d/ To pay transit remunerations and other reasonable expenses to transit service providers.

Article 253.- Rights and obligations of transit service providers

Unless otherwise agreed, transit service providers shall have the following rights:

a/ To request transit service hirers to deliver goods to import border-gates of Vietnam on time as agreed;

b/ To request transit service hirers to supply sufficient necessary information on the goods;

c/ To request transit service hirers to supply sufficient necessary documents for carrying out procedures for import and transportation in the Vietnamese territory and export procedures;

d/ To receive transit remunerations and other reasonable expenses.

2. Unless otherwise agreed, transit service providers shall have the following obligations:

a/ To receive the goods at import border-gates at the agreed time;

b/ To carry out procedures to import and export the goods in transit into and out of the Vietnamese territory;

c/ To be responsible for goods in transit in the course of transit through the Vietnamese territory;

d/ To perform necessary jobs to minimize loss and/or damage to the goods in transit in the course of transit through the Vietnamese territory;

e/ To pay assorted fees and charges and other financial obligations applicable to goods in transit as provided for by Vietnamese law;

f/ To cooperate with competent state agencies of Vietnam in dealing with matters related to the goods in transit.

SECTION 6. ASSESSMENT SERVICES

Article 254.- Assessment services

Assessment services are commercial activities whereby traders perform necessary jobs to determine actual conditions of goods, results of the provision of services and other contents at the request of customers.

Article 255.- Contents of assessment

Assessment comprises one or a number of contents regarding the quantity, quality, packing, value of goods, origin of goods, losses, safety, hygienic and quarantine standards, results of the provision of services, method of providing services and other contents at the request of customers.

Article 256.- Traders providing commercial assessment services

Only traders that satisfy all the conditions provided for by law and are granted business registration certificates for provision of commercial assessment services shall be allowed to provide assessment services and issue assessment certificates.

Article 257.- Conditions for providing commercial assessment services

Traders providing commercial assessment services must fully satisfy the following conditions:

1. Being enterprises established according to the provisions of law;

2. Having assessors who have all the qualifications specified in Article 259 of this Law;

3. Being capable of carrying out procedures and methods for assessing goods or services under the provisions of law, the international standards or which are commonlly applied by countries in assessment of such goods or services.

Article 258.- Scope of providing commercial assessment services

Traders providing commercial assessment services shall be allowed to provide assessment services in domains of assessment only when they fully satisfy the conditions provided for in Clauses 2 and 3, Article 257 of this Law.

Article 259.- Criteria of assessors

1. An assessor must fully satisfy the following criteria:

a/ Possessing a university or college degree suitable to the requirements of the domain of assessment;

 b/ Having a professional certificate for the assessment domain in cases where such professional certificate is required by law;

c/ Having worked for at least three years in the domain of assessment of goods or services.

2. Basing themselves on the criteria specified in Clause 1 of this Article, directors of enterprises providing commercial assessment services shall recognize assessors and be responsible before law for their decisions.

Article 260.- Assessment certificates

1. Assessment certificates are documents determining the actual conditions of goods and services according to the assessment contents required by customers.

2. Assessment certificates must be signed by competent representatives of enterprises providing commercial assessment services, have signatures and full names of assessors, and be affixed with professional seals already registered with competent agencies.

3. Assessment certificates shall only be valid for those contents already assessed.

4. Traders providing assessment services shall be responsible for accuracy of results and conclusions in assessment certificates.

Article 261.- Legal validity of assessment certificates with respect to assessment requesters

Assessment certificates shall be legally binding on assessment requesters in cases where they cannot prove that assessment results are non-objective, untruthful or obtained with technical or professional errors.

Article 262.- Legal validity of assessment certificates with respect to contractual parties

1. Where contracting parties agree on the use of an assessment certificate issued by a particular trader providing assessment services, such assessment certificate shall be legally binding on all the parties if they cannot prove that the assessment results are non-objective, untruthful or obtained with technical or professional errors.

2. Where contractual parties do not agree on the use of an assessment certificate issued by a particular trader providing assessment services, such assessment certificate shall only be binding on the party requesting the assessment according to Article 261 of this Law. The other contractual party shall have the right to request re-assessment.

3. If a re-assessment certificate is inconsistent with the original assessment certificate:

a/ Where the trader providing assessment services and issuing the original assessment certificate accepts the results stated in the re-assessment certificate, such results shall be legally binding on all the parties;

b/ Where the trader providing assessment services and issuing the original assessment certificate does not accept the results stated in the re-assessment certificate, the parties shall agree to select another trader providing assessment services to perform the re-assessment for the second time. The results of the second-time re-assessment shall be legally binding on all the parties.

Article 263.- Rights and obligations of traders providing assessment services

1. Traders providing assessment services shall have the following rights:

a/ To request customers to supply in a sufficient, accurate and timely manner necessary documents for performance of assessment services;

b/ To receive assessment service charges and other reasonable expenses.

2. Traders providing assessment services shall have the following obligations:

a/ To observe the standards and other relevant provisions of law on assessment services;

b/ To perform the assessment in an honest, objective, independent, timely manner and according to the assessment procedures and methods;

c/ To issue assessment certificates;

d/ To pay violation fines and/or damages according to the provisions of Article 266 of this Law.

Article 264.- Rights of customers

Unless otherwise agreed, customers shall have the following rights:

1. To request traders providing assessment services to perform the assessment according to the agreed contents;

2. To request re-assessment if they have sound reasons to believe that traders providing assessment services fail to properly satisfy their requirements or perform the assessment in an untruthful and non-objective manner or with technical and professional errors;

3. To request payment of fines or damages according to the provisions of Article 266 of this Law.

Article 265.- Obligations of customers

Unless otherwise agreed, customers shall have the following obligations:

1. To supply in a sufficient, accurate and timely manner necessary documents to traders providing assessment services when so requested;

2. To pay assessment service charges and other reasonable expenses.

Article 266.- Fines and damages in case of incorrect assessment results

 1. Where traders providing assessment services issue assessment certificates showing incorrect results caused by their unintentional faults, they must pay fines therefor to customers. The fine level shall be agreed upon by the parties but must not exceed ten times the assessment service charge.

2. Where traders providing assessment services issue assessment certificates showing incorrect results caused by their intentional faults, they must pay compensations for damage caused to customers that directly request the assessment.

3. Customers are obliged to prove that assessment results are incorrect and traders providing assessment services are at fault.

Article 267.- Authorized assessment

Where foreign traders providing assessment services are hired to perform assessment while having no license to operate in Vietnam, such traders may authorize traders providing assessment services which have been licensed to operate in Vietnam to provide assessment services but must still be held responsible for the assessment results.

Article 268.- Assessment at the request of state agencies

1. Traders providing assessment services which fully satisfy the conditions and criteria suitable with assessment requirements shall have to perform assessment at the request of state agencies.

2. State agencies which request the assessment shall have to pay assessment remunerations to traders providing assessment services according to agreements between the two parties on the basis of market prices.

SECTION 7. LEASE OF GOODS

Article 269.- Lease of goods

Lease of goods means commercial activities whereby one party transfers the right to possess and use goods (referred to as lessor) to another party (referred to as lessee) for a certain duration to enjoy rentals.

Article 270.- Rights and obligations of lessors

Unless otherwise agreed, lessors shall have the following rights and obligations:

1. To deliver leased goods to lessees as agreed upon in lease contracts;

2. To ensure that the right of lessees to possess and use leased goods is not disputed by a concerned third party in the lease duration;

3. To ensure that leased goods are suitable to the use purposes of lessees as agreed upon by the parties;

4. To maintain and repair leased goods within a reasonable duration. Where the maintenance and repair of leased goods cause harms to the use of such goods by lessees, lessors shall have to reduce rent rates or prolong lease duration corresponding to the time of maintenance and repair;

5. To receive rentals according to agreements or provisions of law;

6. To take back leased goods upon the expiration of the lease duration.

Article 271.- Rights and obligations of lessees

Unless otherwise agreed, lessees shall have the following rights and obligations:

1. To possess and use leased goods according to lease contracts and the provisions of law. Where there is no specific agreement on the manner in which leased goods should be used, such leased goods shall be used in a manner appropriate to their nature;

2. To maintain and preserve leased goods in the lease duration and return such goods to lessors upon the expiration of the lease duration;

3. To request lessors to perform the maintenance and repair of goods. If lessors fail to perform such obligation within a reasonable period of time, lessees may perform the maintenance and repair of leased goods and lessors shall bear all reasonable expenses for such maintenance and repair;

4. To pay rentals as agreed or according to the provisions of law;

5. Not to sell or sub-lease the leased goods.

Article 272.- Repair or alteration of original status of leased goods

1. Lessees must not repair or alter the original status of leased goods if not so consented by lessors.

2. Where lessees perform the repair or alter the original status of the leased goods without lessors’ consents, lessors shall have the right to request lessees to restore the original status of the leased goods or claim damages.

Article 273.- Liability for loss occurring in the lease duration

1. Unless otherwise agreed, lessors shall bear loss of leased goods occurring in the lease duration if lessees are not at fault in causing such loss.

2. In cases mentioned in Clause 1 of this Article, lessors shall have to repair leased goods within a reasonable duration to ensure the achievement of use purposes of lessees.

Article 274.- Pass of risks incurred to leased goods

Where the parties agree on the pass of risk to the lessee but the point of time of passing risks is not determined, that point of time shall be determined as follows:

1. In cases where the lease contract involves the transportation of goods:

a/ If the contract does not require the leased goods to be delivered at a designated place, risks shall be passed to the lessee when the leased goods are delivered to the first carrier;

b/ If the contract requires the leased goods to be delivered at a designated place, risks shall be passed to the lessee or the person authorized by the lessee to receive the goods at such place;

2. In cases where the leased goods are received by a bailee other than a carrier for delivery, risks shall be passed to the lessee as soon as the bailee acknowledge the lessee’s right to possess the leased goods;

3. In other cases not mentioned in Clauses 1 and 2 of this Article, risks shall be passed to the lessee upon the receipt of the leased goods by the lessee.

Article 275.- Leased goods inappropriate to contracts

Where there is no specific agreement, goods shall be deemed inappropriate to contracts when such goods fall into one of the following cases:

1. They are suitable to common utility of goods of the same type;

2. They are not suitable to specific purposes which the lessee has informed the lessor or the lessor should have known at the time the contract was entered into;

3. Their quality is not the same as goods samples handed over by the lessor to the lessee.

Article 276.- Rejection of goods

1. The lessor shall give the lessee a reasonable time after the receipt of goods for inspection thereof.

2. The lessee may reject the goods in the following cases:

a/ The lessor does not give conditions and a reasonable time to the lessee for inspecting the goods;

b/ When inspecting the goods, the lessee discovers that the goods are inappropriate to the contract.

Article 277.- Rectification or replacement of leased goods inappropriate to contracts

1. Where the lessee rejects leased goods inappropriate to the contract, if the time limit for delivery of goods has not yet expired, the lessor may promptly notify the lessee of the rectification or replacement of the goods and then perform such rectification or replacement of goods within the remaining duration.

2. Where the lessor, when performing the rectification mentioned in Clause 1 of this Article, causes inconvenience or unreasonable expenses to be borne by the lessee, the lessee shall have the right to request the lessor to remedy such inconvenience or pay such unreasonable expenses.

Article 278.- Acceptance of leased goods

1. The lessee shall be deemed having accepted the leased goods after being given a reasonable opportunity to inspect the leased goods and taking one of the following acts:

a/ Not rejecting the leased goods;

b/ Certifying the appropriateness of the leased goods to agreements in the contract;

c/ Confirming the acceptance of the goods despite their inappropriateness to agreements in the contract.

2. If the lessee discovers the inappropriateness of the leased goods to the contract after accepting such goods and such inappropriateness is detectable through a reasonable inspection before the acceptance, the lessee shall not be entitled to rely on such inappropriateness as an excuse for returning the goods.

Article 279.- Withdrawal of acceptance

1. Lessees may withdraw their acceptance of part or whole of the leased goods if the inappropriateness of such leased goods may render them unable to achieve the objectives of the entry into of contracts and falls into one of the following cases:

a/ Lessors fail to make reasonable rectification according to Article 277 of this Law;

b/ Lessees fail to detect the inappropriateness of the goods due to lessors’ guarantee.

2. The withdrawal of acceptance must be made within a reasonable period of time, which must not exceed three months as from the date lessees accept the goods.

Article 280.- Responsibility for defects of leased goods

Unless otherwise agreed, responsibility for defects of leased goods is provided for as follows:

1. In the lease duration, lessors shall be responsible for any defects of leased goods which already exist at the time of delivery of such goods to lessees, except for cases mentioned in Clauses 2 and 3 of this Article;

2. Lessors shall not be responsible for any defects of leased goods which already exist prior to the entry into of contracts and which lessees knew or should have known;

3. Lessors shall not be responsible for any defects of leased goods which are detected after lessees have accepted the leased goods and which would have been detected by lessees through reasonable inspections before accepting the goods.

4. Lessors shall be responsible for any defects of leased goods appearing after the time of passing risks due to lessors’ breaches of their committed obligations.

Article 281.- Sub-lease

1. Lessees shall be entitled to sub-lease goods only when they obtain consents of lessors. Lessees shall be responsible for sub-leased goods, unless they otherwise agree with lessors.

2. Where lessees sub-lease leased goods without consents of lessors, lessors may revoke lease contracts. Sub-lessees shall have to return the goods to lessors immediately.

Article 282.- Benefits arising in the lease duration

Unless otherwise agreed, all benefits arising from leased goods in the lease duration shall belong to lessees.

Article 283.- Change of ownership in the lease duration

Any change of ownership over leased goods shall not affect the validity of lease contracts.

SECTION 8. COMMERCIAL FRANCHISE

Article 284.- Commercial franchise

Commercial franchise means a commercial activity whereby franchisors permit and require franchisees to undertake by themselves to purchase or sell goods or provide services on the following conditions:

1. The purchase or sale of goods or provision of services shall be conducted in accordance with methods of business organization prescribed by franchisors and associated with the franchisors’ trademarks, trade names, business knows-how, business slogans, business logos and advertisements.

2. Franchisors shall be entitled to supervise and assist franchisees in conducting their business activities.

Article 285.- Commercial franchise contracts

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

Article 286.- Rights of franchisors

Unless otherwise agreed, franchisors shall have the following rights:

1. To receive franchise sums.

2. To organize advertising for the commercial franchise system and the commercial franchise network.

3. To conduct periodical or extraordinary inspections of activities of franchisees in order to ensure the uniformity of the commercial franchise system and the stability of quality of goods and services.

Article 287.- Obligations of franchisors

Unless otherwise agreed, franchisors shall have the following obligations:

1. To supply documents guiding the commercial franchise system to franchisees;

2. To provide initial training and regular technical assistance to franchisees for managing the latter’s activities in accordance with the commercial franchise system;

3. To design and arrange places of sale of goods or provision of services at the expenses of franchisees;

4. To guarantee the intellectual property rights over objects stated in franchise contracts;

5. To equally treat all franchisees in the commercial franchise system.

Article 288.- Rights of franchisees

Unless otherwise agreed, franchisees shall have the following rights:

1. To request franchisors to provide fully technical assistance related to the commercial franchise system;

2. To request franchisors to equally treat all franchisees in the commercial franchise system.

Article 289.- Obligations of franchisees

Unless otherwise agreed, franchisees shall have the following obligations:

1. To pay franchise sums and other amounts under commercial franchise contracts;

2. To invest adequate material facilities, financial sources and human resources to take over business rights and know-how transferred by franchisors;

3. To submit to the control, supervision and instruction by franchisors; to comply with all requirements set forth by franchisors on designing and arrangement of places of sale of goods or provision of services;

4. To keep secret the franchised business know-how even after the expiration or termination of commercial franchise contracts;

5. To stop using trademarks, trade names, business slogans, logos and other intellectual property rights (if any) or systems of franchisors upon the expiration or termination of commercial franchise contracts;

6. To manage their activities in accordance with the commercial franchise system;

7. Not to sub-franchise without permissions of franchisors.

Article 290.- Sub-franchise to a third party

1. A franchisee shall be entitled to sub-franchise to a third party (referred to as sub-franchisee) if it is so consented by the franchisor.

2. Sub-franchisees shall have the rights and obligations of franchisees provided for in Articles 288 and 289 of this Law.

Article 291.- Registration of commercial franchises

1. Before granting commercial franchises, intended franchisors must register them with the Trade Ministry.

2. The Government shall specify the conditions for conducting business under commercial franchise and the order and procedures for registering commercial franchises.

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