Chương III Nghị định 52/2013/NĐ-CP thương mại điện tử: Hoạt động thương mại điện tử

Chapter III

E-COMMERCE ACTIVITIES

Article 24. Subjects of e-commerce activities

The subjects involved in e-commerce activities include:

1. Traders, organizations or individuals that develop e-commerce websites by themselves to serve their commercial promotion, sales or service provision (owners of sales e-commerce websites).

2. Traders, organizations or individuals that develop e-commerce websites to provide an environment for other traders, organizations or individuals to conduct their commercial promotion, sales or service provision (traders or organizations providing e-commerce services).

3. Traders, organizations or individuals that use websites of traders or organizations providing e-commerce services to serve their commercial promotion, sales or service provision (sellers).

4. Traders, organizations or individuals that purchase goods or services on sales e-commerce websites and e-commerce service provision websites (customers).

5. Traders or organizations providing technical infrastructure for owners of sales e-commerce websites and for traders and organizations providing e-commerce services (traders or organizations providing infrastructure).

6. Traders, organizations or individuals that use electronic equipment connected to other networks for carrying out commercial activities.

Article 25. Forms of organization of e-commerce activities

1. Sales e-commerce website is an e-commerce website developed by traders, organizations or individuals by themselves to serve their commercial promotion, sales or service provision.

2. E-commerce service provision website is an e-commerce website developed by traders or organizations to provide an environment for other traders, organizations or individuals to conduct their commercial activities.

The e-commerce service provision website is of the following types:

a/ E-commerce trading floor;

b/ Online auction website;

c/ Online promotion website;

d/ Other types of website as stipulated by the Ministry of Industry and Trade.

3. With the applications installed on electronic devices connected to the network that allow users to access the databases of other traders, organizations and individuals to purchase and sell goods, provide or use services, depending on the utilities of these applications, traders or organizations shall comply with this Decree’s provisions on sales e-commerce website or e-commerce service provision websites.

4. The Ministry of Industry and Trade shall stipulate e-commerce activities conducted on the mobile telecommunications network.

Article 26. Principles of e-commerce activities

1. Principle of free and voluntary agreement in e-commerce transactions

The parties to e-commerce activities are free to reach agreement not contrary to the provisions of law to establish the rights and obligations of each party in the transaction. This agreement is a ground for the settlement of disputes arising in the transaction process.

2. Principles of determination of the scope of business in e-commerce.

If traders, organizations or individuals conducting their activities of sales, service provision or commercial promotion on e-commerce websites do not specify geographical limits of these activities, these activities are regarded to be conducted on a national scale.

3. Principles of determination of the obligation to protect consumer interests in e-commerce

a/ The owners of sales e-commerce websites and the sellers on e-commerce service provision website shall comply with the Law on Protection of Consumer Interests when providing the goods or services to customers;

b/ The customers on e-commerce service provision websites are e-commerce service consumers and consumers of goods and services provided by the sellers on these websites;

c/ In case the sellers directly post information about their goods and services on e-commerce websites the traders or organizations providing e-commerce services and the traders or organizations providing infrastructure are not the third party providing information as prescribed by the Law on Protection of Consumer Interests.

4. Principles of trading in goods and provision of services restricted from trading or provision or goods and services subject to business conditions through e-commerce

The subjects applying e-commerce for trading in goods and providing services restricted from trading or provision, or goods and services subject to business conditions shall comply with relevant regulations on the trading in those goods and provision of those services.

Section 1. ACTIVITIES OF SALES E-COMMERCE WEBSITES

Article 27. Responsibilities of traders, organizations or individuals that own sales e-commerce websites

1. To notify the Ministry of Industry and Trade of the set-up of sales e-commerce websites as prescribed in Section 1, Chapter IV of this Decree.

2. To fully provide information on the website under the provisions of this Section and take responsibility for the accuracy and adequacy of information.

3. To comply with the provisions on the protection of customer personal information specified in Section 1, Chapter V of this Decree.

4. To comply with the provisions in Section 2, Chapter II of this Decree if the website has the online ordering function.

5. To comply with the provisions in Section 2, Chapter V of this Decree if the website has the online payment function.

6. To provide information about the situation of their business at the request of a competent state agency to serve the making of e-commerce statistics, inspection, examination and handling of violations in e-commerce.

7. To fulfill tax obligations as prescribed by law.

Article 28. Provision of information on sales e-commerce websites

1. Sales e-commerce websites must fully provide information about the owners of the websites, goods and services and terms of sales and purchase contracts applicable to goods and services introduced on the websites as specified in Articles 29 thru 34 of this Decree.

2. Such information must satisfy the following requirements:

a/ Being obvious, accurate, searchable and understandable;

b/ Being arranged in the corresponding sections on the website and accessible online;

c/ Being storable, printable and displayable later;

d/ Being displayed clearly to customers before the time they send a proposal for conclusion of contract.

Article 29. Information about website owner

Traders, organizations or individuals that own sales e-commerce websites shall publish the following minimum information on the website homepage:

1. Name and address of the head office of the trader or organization or name and address of permanent residence of the individual.

2. Number, date and place of issuance of the business registration certificate of the trader or the number, date of issuance and issuer of the organization’s establishment decision or individual’s personal tax identification number.

3. Telephone number or another online contact method.

Article 30. Information about goods or services

For goods or services introduced on sales e-commerce website, traders, organizations or individuals shall provide information so that customers can correctly identify features of goods or services in order to avoid misunderstanding when deciding to make a proposal for conclusion of contract.

Article 31. Information about price

1. Information on prices of goods or services, if any, must be made clear that prices are inclusive or exclusive of the costs related to the purchase of goods or services, such as taxes, packing cost, shipping cost and other arising costs.

2. Unless otherwise agreed by the parties, if the information about the prices of goods or services listed on the website does not clearly indicate the price is inclusive or exclusive of the costs related to the purchase of goods or services such as tax, packing cost, shipping cost and other arising costs, the price is understood to have included all the above costs.

3. For services on e-commerce service provision websites specified in Sections 2 and 4 of this Chapter, the websites must publish detailed information about the method of calculation of service charge and payment mechanism.

Article 32. Information on general trading conditions

1. Traders, organizations or individuals shall publish the general trading conditions for goods or services introduced on the website, including:

a/ Conditions or restrictions on the provision of goods or services, such as limits on time or geographic scope, if any;

b/ Return policies, including return term and method, or exchange of goods purchased, method of getting refunds and cost of this return;

c/ Product warranty policy, if any;

d/ Service standards, service provision process, charge tariff and other terms related to the provision of services, including conditions and restrictions, if any;

dd/ The seller’s obligations and customer’s obligations in each transaction.

2. The general trading conditions must have a font color contrast with the background color of the website on which the general trading conditions are posted and the languages expressing the general trading conditions must include Vietnamese.

3. In case the website has the online ordering function, the seller must have a mechanism for customers to read and express their consent to the general trading conditions before sending a proposal for conclusion of contract.

Article 33. Information about shipment and delivery

1. Traders, organizations or individuals shall publish the following information about the conditions for shipment and delivery applicable to goods or services introduced on the website:

a/ Method of delivery of goods or provision of services;

b/ Estimated time limit for the delivery of goods or provision of services, taking into account the geographical distance and method of delivery;

c/ Geographical limits of the delivery of goods or provision of services, if any.

2. In case of delay in the delivery of goods or provision of services, traders, organizations or individuals shall promptly notify customers thereof and create opportunities for them to cancel the contracts if so wished.

Article 34. Information about payment methods

1. Traders, organizations or individuals shall disclose all payment methods applicable to goods or services introduced on the website, together with clear and accurate explanations so that customers can understand and choose the appropriate payment method.

2. If the e-commerce website has the online payment function, traders, organizations or individuals shall create a mechanism for customers to use this function to review and confirm detailed information about each transaction before making the payment.

Section 2. OPERATION OF E-COMMERCE TRADING FLOORS

Article 35. Provision of e-commerce trading floor services

1. Traders or organizations that provide e-commerce trading floor services are traders or organizations setting up e-commerce websites for other traders or organizations to conduct a part or the whole of the process of sale and purchase of goods and services on these websites.

2. Forms of operation of e-commerce trading floor:

a/ Website allows participants to open booths for display and introduction of goods or services;

b/ Website allows participants to set up branch websites for displaying and introducing goods or services;

c/ Website has a sale and purchase section permitting participants to post news of sale and purchase of goods or services;

d/ Other types of website stipulated by the Ministry of Industry and Trade.

3. Websites operating as goods exchanges:

a/ Traders or organizations setting up e-commerce websites that permit participants to sell and purchase goods according to the method of goods exchange must have a license for goods exchange establishment and shall comply with regulations on the goods exchange;

b/ The Ministry of Industry and Trade shall specify the mechanism of monitoring and connection of transaction information between the state management agencies and the goods exchange and other requirements on the operation of the website operating as a goods exchange.

Article 36. Responsibilities of traders or organizations providing e-commerce trading floor services

1. To register for setting up websites providing e-commerce trading floor services under Section 2, Chapter IV of this Decree and publish the information registered on the website homepage.

2. To develop and publish on the website regulations on operation of the e-commerce trading floor under Article 38 of this Decree; monitor the e-commerce trading floor and ensure the implementation of these regulations.

3. To request traders, organizations or individuals that are the sellers on the e-commerce trading floor to provide information as specified in Article 29 of this Decree upon registration for service use.

4. To apply a mechanism of examination and monitoring to ensure the seller’s information provided on the e-commerce trading floor is correct and adequate.

5. To store the registration information of traders, organizations or individuals participating in the e-commerce trading floor and regularly update relevant changed or supplemented information.

6. To establish a mechanism to permit traders, organizations or individuals participating in the e-commerce trading floor to perform the process of conclusion of contract as specified in Section 2, Chapter II of this Decree if the website has the online ordering function.

7. To apply necessary measures to ensure the safety of information relating to business secrets of traders, organizations or individuals and consumers’ personal information.

8. To take timely remedial measures upon detection or receipt of reports about business acts in violation of the law on the e-commerce trading floor.

9. To assist the state management agencies in investigating illegal business acts, provide registration information, history of transactions and other documents about the subjects committing violations of the law on the e-commerce trading floor.

10. To publicly announce the mechanism to settle disputes arising during transactions on the e-commerce trading floor. When customers on the e-commerce trading floor have conflicts with the sellers or their lawful interests are damaged, to provide customers with information about the sellers and actively assist customers in protecting their rights and legitimate interests.

Article 37. Responsibilities of sellers on the e-commerce trading floor

1. To fully and accurately provide information specified in Article 29 of this Decree to traders or organizations providing e-commerce trading floor services upon registration for service use.

2. To provide complete information about the goods or services as specified in Articles 30 thru 34 of this Decree when selling goods or providing services on the e-commerce trading floor.

3. To ensure the accuracy and truthfulness of information about the goods or services provided on the e-commerce trading floor.

4. To implement the provisions in Section 2, Chapter II of this Decree upon application of the online ordering function on the e-commerce trading floor.

5. To provide information about the situation of their business at the request of competent state agencies to serve the making of e-commerce statistics.

6. To comply with the laws on payment, advertising, promotion, protection of intellectual property rights, protection of consumer interests and other relevant laws when selling goods or providing services on the e-commerce trading floor.

7. To fulfill tax obligations as prescribed by law.

Article 38. Regulations on operation of the e-commerce trading floor

1. The regulations on operation of the e-commerce trading floor must be displayed on the website homepage

2. The regulations on operation of the e-commerce trading floor must include the following contents:

a/ Rights and obligations of the trader or organization providing e-commerce trading floor services;

b/ Rights and obligations of users of e-commerce trading floor services;

c/ Describing the trading process for each type of transaction that may be conducted on e-commerce trading floor;

d/ Reviewing operation and handling competence of the trader or organization providing e-commerce trading floor services upon detection of business acts in violation of the law on the e-commerce trading floor;

dd/ Rights and obligations of the parties in transactions conducted on the e- commerce trading floor;

e/ Limitations on the responsibilities of the trader or organization providing e-commerce trading floor services in transactions conducted on the floor;

g/ Regulations on information safety and management on the e-commerce trading floor;

h/ Mechanism of settlement of complaints and disputes between parties related to the transactions conducted on the e-commerce trading floor;

i/ Policies on protection of personal information of users of e-commerce trading floor services specified in Article 69 of this Decree;

k/ Measures to handle infringements upon consumer interests on the e-commerce trading floor;

l/ Measures to handle violations committed by people who do not comply with the regulations on operation of the e-commerce trading floor.

3. When there is any change in one of the contents specified in Clause 2 of this Article, the trader or organization providing e-commerce trading floor services shall notify all users of e-commerce trading floor services at least 5 days prior to application of such change.

Section 3. OPERATION OF ONLINE PROMOTION WEBSITES

Article 39. Provision of online promotion services

1. Traders or organizations providing online promotion services are those that set up online promotion websites to promote goods and services of other traders, organizations or individuals (referred to as partners) under the terms of the contract on promotion services.

2. Forms of online promotion service:

a/ Selling goods vouchers and service vouchers so that customers can buy goods or use services of the partners at preferential prices or with other benefits;

b/ Selling frequent customer cards to enable customers to use goods or services from a network of partners at preferential prices or with other benefits compared with those upon purchase of goods and services of ach individual partner;

c/ Other forms of online promotion services stipulated by the Ministry of Industry and Trade.

Article 40. Information about promotion activities on online promotion websites

1. Information about each promotion activity posted on online promotion websites must include the following contents:

a/ Name, address, phone number and other contact information of the trader, organization or individual having goods or services to be promoted;

b/ Descriptions of goods or services to be promoted and goods or services used for promotion, including information about the origin of goods, specifications and quality of goods or services;

c/ Promotion period, starting date, ending date and area of promotional activities;

d/ Prices of goods and services provided before the time of promotion;

dd/ Total actual costs customers must pay to possess the goods and use the services promoted, including the costs paid to the trader or organization providing the online promotion services;

e/ Specific contents of conditions associated with the promotion of goods or services.

2. If the website has a mechanism for receiving online comments or feedback from customers about the goods or services promoted, these comments must be publicly displayed on the website so that other customers can see them.

Article 41. Responsibilities of traders or organizations providing online promotion services

1. To register the set-up of online promotion service provision websites as prescribed in Section 2, Chapter IV of this Decree.

2. To comply with provisions of the Commercial Law and relevant laws on promotional activities.

3. To comply with provisions on protection of customer’s personal information in Section 1, Chapter V of this Decree.

4. To comply with provisions in Section 2, Chapter II of this Decree if the website has the online ordering function for goods vouchers and service vouchers or frequent customer cards.

5. To comply with provisions in Section 2, Chapter V of this Decree if the website has the online payment function.

6. To fully publish contents specified in Article 40 of this Decree in each promotional information posted on their websites.

7. To develop and publish on their website the regulations on operation and comply with provisions in Article 38 of this Decree.

8. To develop and publish on their website the mechanism of receipt and settlement of customer’s complaints about quality of goods or services promoted or goods or services used for promotion.

9. To take responsibility of the third party in providing information on goods or services for consumers in accordance with the Law on Protection of Consumer Interests.

10. To pay compensations to customers if the goods vouchers, service vouchers or frequent customer cards that they have issued are denied by their partners contrary to the conditions published on their websites or on those goods vouchers, service vouchers or frequent customer cards.

Article 42. Responsibilities of traders, organizations or individuals having goods or services promoted

1. To fully and accurately provide information about the goods or services promoted.

2. To properly implement commitments to the quality of goods or services promoted according to the information provided.

Article 43. Contract on promotion services

1. A contract on promotion services between a trader or an organization providing the online promotion services with a trader or an organization or individual having goods or services promoted shall comply with provisions in Article 90 of the Commercial Law, and must have the following contents:

a/ Dividing responsibilities between the parties in the implementation of the order and procedures for carrying out promotional activities in accordance with the law on promotion;

b/ Specifying the obligations to settle complaints and pay compensations to customers in case the goods or services promoted or goods or services used for promotion are not consistent with the announced or committed contents.

2. Traders or organizations providing online promotion services shall perform the obligations specified at Points a and b, Clause 1 of this Article if the contract on promotion services does not specify the above contents.

Section 4. OPERATION OF ONLINE AUCTION WEBSITES

Article 44. Provision of online auction services

1. Traders and organizations providing online auction services (below collectively referred to as online auction service providers) are those that set up online auction websites for other traders, organizations or individuals to organize auctions of their goods on those websites.

2. Traders and organizations providing online auction services that fail to register the provision of auction services may not organize online auctions.

Article 45. Requirements on technical system serving online auctions

1. A technical system serving online auctions must have at least the following functions:

a/ Recording and storing all bids made in an auction;

b/ After an auction begins, once every 30 (thirty) seconds showing the recorded highest bid and its bidder on the website for all auction bidders to see.

2. In case the system does not allow auction bidders to retract bids that they have made, it must have a clear notification thereof to auction bidders right before the time of the auction. The notification must state specific responsibilities of auction bidders that make bids but refuse to purchase auctioned goods.

Article 46. Responsibilities of traders and organizations providing online auction services

1. To register their online auction websites as prescribed in Section 2, Chapter IV of this Decree.

2. To perform the responsibilities prescribed in Article 36 of this Decree.

3. To establish online auction methods and process.

4. To build technical systems to serve online auctions for goods sellers to organize auctions by the established methods and process.

5. To provide online tools for goods sellers to publicly, adequately and accurately notify and post necessary information relevant to auctioned goods.

6. To provide online tools for goods sellers to display images of goods and goods samples or documents introducing goods for auction bidders’ consideration.

7. To provide goods sellers with information on developments of auctions organized by goods sellers when so requested.

8. To make notices of auction results and send them to goods sellers and purchasers and related parties as prescribed in Article 51 of this Decree.

9. To take responsibility in case errors of the technical system make an auction unable to proceed:

a/ If the errors of the technical system make an auction unable to begin at the time the seller expects to organize such auction, the online auction service provider shall refund the seller all expenses for the organization of the auction which the latter has paid to the former;

b/ If the errors of the technical system make auction bidders unable to continue making bids after the auction begins, the online auction service provider shall cancel the auctions result and allow the seller to organize a new auction, and concurrently bear all expenses related to the new auction.

Article 47. Responsibilities of sellers on online auction websites

1. To publicly, adequately and accurately notify and post necessary information relating to auctioned goods.

2. To announce reserve prices; asking price, if any.

3. To take responsibility for the quality and specifications of auctioned goods.

4. To settle purchasers’ complaints about auctioned goods.

5. Not to sell goods which are pledged or mortgaged items or subject to a dispute.

6. To perform other responsibilities prescribed in Article 37 of this Decree.

Article 48. Auction venues and time

1. Auction venues are registered places of permanent residence or offices of sellers.

2. Auction time is decided by sellers.

3. Time of making a bid by an auction bidder is the time of sending an e-document notifying a certain bid made in an auction.

4. Time of recording a made bid is the time when the information system of the trader or organization providing online auction service receives an e-document notifying a bid made by an auction bidder.

Article 49. Notification of goods auction

A notification of goods auction must be made on an online auction website and contain the following details:

1. Starting time of auction.

2. Ending time of auction.

3. Contact information of the seller.

4. Necessary information about the goods.

5. Reserve price.

6. Asking sale price, if any.

7. Payment deadline and method.

8. Deadline and method of delivery of goods to the purchaser after the auction ends.

9. In case the auctioned goods are subject to ownership registration as prescribed by law, the notification of goods auction must contain the following additional details:

a/ Time and place for goods display;

b/ Time and place for reference to goods documents;

c/ Time and place for goods purchase registration;

d/ Time and method of carrying out procedures for goods ownership transfer.

Article 50. Identification of goods purchasers

1. For an ascending-bid auction, the goods purchaser is the first bidder who has the last bid higher than that of the previous bidder and higher than the asking price and recorded by the information system of the trade or organization providing online auction services before the end of the auction.

2. For a descending price auction, the goods purchaser is the first bidder who accepts the reserve price or a price lower than the reserve price and that is recorded by the information system of the trader or organization providing online auction services before the end of the auction.

3. Where many bidders simultaneously make their last bids in an ascending price auction or their first bids in a descending price auction, the seller shall organize for these bidders to draw the purchaser.

Article 51. Notification of auction results

1. Traders and organizations providing online auction services shall make notifications of goods auction results immediately after the end of auctions, even when auctions are unsuccessful.

2. A notification must clearly provide information on the goods, the last bid and the time when the system receives the last bid, and contact information of the purchaser.

3. For goods which are subject to ownership registration as prescribed by law, notifications of auction results serve as the basis for establishing contracts on sale and purchase of auctioned assets and carrying out relevant procedures for transfer of ownership over these goods.

4. Notifications of auction results will be sent to electronic addresses of goods sellers and purchasers registered with traders or organizations providing online auction services.

5. Where many bidders simultaneously make their last bids in an ascending price auction or their first bids in a descending-bid auction, the system must send notifications to all these bidders and request them to organize a draw to the purchaser. The form of decide drawing is decided by the seller.