Legal answers

Purpose of the work of exercising the right to prosecution, controlling on the the site visit, autopsy, investigation and inspection

Answered

On May 02, 2018, the Supreme People’s Procuracy issued Decision No.170/QD-VKSTC promulgating the temporary regulations on the exercise of the right to prosecution, controlling on the the site visit, autopsy, investigation and inspection. This Decision took effect on the date of its signing.

Accordingly, Decision No.170/QD-VKSTC defines the purpose of the exercise the right to prosecution as follows as follows:

Determining whether or not there is a crime committed for handling according to the provisions of law. In cases where there are people killed, suspected of being killed, dying in water, death due to hanging, death due to toxins, poisonous gas, electric shock, death due to traffic accidents, deaths due to labor accidents and other deaths that have not yet been determined cause the organization of site inspection, autopsy, forensic examination and verification and initial investigation at the site to clarify the grounds for handling followed provisions of law.
Field inspection, autopsy, investigation and inspection must be timely, objective, comprehensive, complete, accurate and lawful; all violations during the field inspection, autopsy, investigation and inspection must be detected in order to overcome and strictly handle.
Passing the results of field inspection, autopsy, investigation and inspection to determine whether the crime has shown signs of crime or without signs of crime. In cases where post-mortem examinations, post-mortem examinations, experimental investigations and expertise show that there are signs of crimes, criminal cases must be instituted to conduct investigation according to the provisions of law.

By the temporary regulations on the purpose of the exercise of the right to prosecution, controlling on the the site visit, autopsy, investigation and inspection issued together with Decision No.170/QD-VKSTC, the Supreme People’s Procuracy have set out the basic principles that have meaningful in improving the quality of investigative activities and creating favorable conditions for judicial work “right person, right guilty”.

New regulations on registration of means of railway transport

Answered

On April 27, 2018, the Ministry of Transport issued Circular No.21/2018/TT-BGTVT regulating the registration of means of railway transport and moving the means of railway transport in special cases. This Circular took effect since July 1, 2018.

Accordingly, Circular No.21/2018/TT-BGTVT have main contents as follows:

Regulations on the order and procedures for granting, re-granting, withdrawing or deleting certificates of registration of the means of railway transport operating on national railway, special-use railway or urban railway and the movement the means of railway transport in special cases.
The time limit for carrying out the above-said procedures shall not exceed 3 working days after the receipt of complete and accurate dossiers. The Vietnam Railway Administration shall have to grant the registration certificate; in case of refusal to grant certificates, the owners shall have to reply in writing, clearly stating the reasons therefor.
Provisions on special circumstances for moving the means of railway transport:

– To move on the railway to inspect the technical features of the means before the pre-acceptance test, handing over and exploitation;

– Moving on railway from one gathering place to another gathering place for storing and preserving means; moving on the railway carrying out rescue when required.

With specific and detailed regulations, Circular No.21/2018/TT-BGTVT is expected to contribute to improving the management of means of railway transport, thereby facilitating the development of rail traffic.

Regulations on the transport of goods on national railways and specialized railways with rail links to national railway

Answered

On May 02, 2018, the Ministry of Transport issued Circular No.22/2018/TT-BGTVT regulating the transport of goods on national railway and specialized railways with rail links to national railway. This Circular took effect since July 1, 2018.

Accordingly, Circular No.22/2018/TT-BGTVT regulates the transport of goods on railways as follows:

On determining the goods’ name: The transport hirer shall have to correctly declare the goods name at the request of the enterprise. In case of dangerous goods, they must be inscribed correctly in the list of dangerous goods transported by rail. The transport hirer shall be responsible for the consequences arising from incorrect declaration of the goods.
On the priority of goods transport: The goods received at the same time shall be given priority dangerous goods; corpses, remains; live animals, perishables, fast-drop weight; other types of goods other than those specified above shall be prescribed by enterprises.
On the packing of goods: Depending on the nature of the goods, the transport hirer must pack properly to ensure that the goods are not lost, reduced in quantity, damaged, reduced in quality or influenced to other goods in the process of loading, unloading and transportation. Goods packed in boxes or packages must be inscribed with trademarks, signs, symbols of goods characteristics (if any), weight, full names of goods, ensuring accuracy and clarity; particularly for corpses, the remains must be escorted and ensured hygiene, epidemic prevention and protection, and adequate papers as prescribed by law.
On the return of the wagons to the place of loading and unloading: At least two hours before the time of granting the carriage, the enterprise shall have to notify the transport hirer of the quantity and code of the carriages put into the loading and/or unloading road or communication point. When the branch road or special-use road line contracts provide the time of daily vehicle, enterprises shall not need to notify.

As compared with previous circulars, Circular No.22/2018/TT-BGTVT has issued new regulations to overcome remaining difficulties, in order to meet the needs of individuals, enterprises involved in railway freight transport, at the same time express the State’s interest in raising the quality of transport services and creating conditions for the development of rail transport service.

Abolishing the principle for determining the interest rates for capital mobilized for investment capital in the form of public-private partnership

Answered

On March 28, 2018, the Ministry of Finance issued Circular No.30/2018/TT-BTC amending and supplementing a number of articles of the Ministry of Finance’s Circular No.75/2017/TT-BTC dated July 21, 2017 issued by The Finance Ministry amending and supplementing a number of articles of Circular No.55/2016/TT-BTC dated March 23, 2016 stipulating a number of articles on financial management of investment projects in the form of public-private partnership and cost of investor choice. This Circular took effect since May 12, 2018.

Accordingly, the Circular No.30/2018/TT-BTC has abolished the principle for determining the interest rate for capital mobilized for investment capital in the form of public-private partnership, specifically as follows:

Abolishing the principle that the interest rates must not be more than the average interest rates for medium-term and long-term of four state-owned commercial banks at the time of negotiating project contracts.
For projects that have signed contract before May 12, 2018, they shall continue to implement the signed project contracts. However, if after the above-mentiond time, the project adjusts the interest rates, the adjustment shall comply with the provisions of this Circular.

Circular No.30/2018/TT-BTC is expected to contribute to creating favorable conditions for enterprises to access more sources of capital, thereby speeding up the implementation of projects under the form of public-private partnership, creating momentum for the overall development of the country’s economy.

Raising investor’s equity ratio in public-private partnership (PPP)

Answered

On May 04, 2018, The Government issued Decree No.63/2018/ND-CP on investment in the form of public-private partnership. This Decree took effect since June 19, 2018.

Accordingly, Decree No.63/2018/ND-CP stipulates the principle of determining the owners’ equity ratio as follows:

For projects with a total investment capital up to VND 1,500 billion, the investor’s equity ratio must not be lower than 20% of the total investment capital;
For a project with a total investment capital over VND 1,500 billion, the owner’s equity ratio shall be determined on the following principle: For a capital up to VND 1,500 billion, the equity capital percentage must not be lower than 20%; for a capital of over VND 1,500 billion, the equity capital ratio must not be lower than 10%;
Capital contributed by the State, support capital for the construction of auxiliary works, compensation, ground clearance and resettlement shall not be included in the total investment capital to determine the owner’s equity ratio.

With detailed and specific regulations, compared with the previous documents, Decree No.63/2018/ND-CP was assessed to open up opportunities for greater cooperation for investors, suitable with the government’s open-door policy recently on calling for investment capital from abroad.

The basis for valuation of property in criminal procedure

Answered

On March 7, 2018, The Government issued Decree No. 30/2018/ND-CP detailing the establishment and operation of Property Valuation Council; sequence, property valuation procedures in criminal procedure. The Decree took effect since May 1, 2018.

Accordingly, Decree No.30/2018/ND-CP stipulates the basis for valuation of property as follows:

For non-prohibited property, it must be based on at least one of the following grounds:

– Market price of the property;

– Prices set by competent state agencies;

– Price provided by the price-appraising enterprise;

– Price in the documents and dossiers enclosed with property to be valuated (if any);

– Other bases on the price or value of the property to be valued.

For prohibited property, it must be based on at least one of the following priority bases:

– The purchase price collected on the informal market at the time and place where the property is a prohibited goods requested for valuation or in another locality;

– The price stated in the contract or purchase invoice or the import declaration of the prohibited property (if any);

– Price provided by the price-appraising enterprise;

– Market prices in the region or the world of prohibited goods notified or provided by competent agencies or organizations;

– Listed prices, prices stated in contracts or purchase invoices or import declarations of similar properties permitted for business, circulation or use in Vietnam;

– Market prices in the region and in the world of similar property are allowed to trade, circulate and use in these markets;

– Other bases to help determine the value of assets to be valued by the competent bodies conducting criminal procedures and take responsibility for the accuracy and reliability of these bases.

Apart from the property valuation bases mentioned above, Decree 30/2018/ND-CP specifies the prices from the above mentioned sources of information as determined at the time and place where the property is valued. Where the source of information on the property price is collected at another time or in another locality, such price level shall be adjusted in accordance with the time and place where the property is valued.

As a result, the Decree No.30/2018/ND-CP has been supplemented and completely refined the grounds for property valuation in criminal procedure, thereby support better for the implementation of investigating and handling criminal acts as well as having important implications in the execution of criminal judgments.

State capital investment in enterprises, use and management of capital and assets in enterprises

Answered

On March 8, 2818, The Government issued Decree No.32/2018/ND-CP amending and supplementing certain articles of The Government’s decree No.91/2015/ND-CP dated October 13, 2015 on state capital investment in enterprises, use and management of capital and assets in enterprises. The Decree took effect since May 1, 2018.

Accordingly, Decree No.32/2018/ND-CP contains some important contents as follows:

Narrowing the state capital investment in maintaining the rate of state-owned share and contributed capital: Decree No. 32/2018/ND-CP eliminates some industries such as cigarette production, electricity distribution, petrol wholesale, wholesale food, urban water drainage, organic chemicals, international maritime transport, rail transport, plant varieties, agricultural and forestry activities in accordance with the law.
State enterprises shall not be allowed to use capital assets and right to use the leased land to contribute their capital to or invest in real estate (except those whose main businesses are types of real estate stipulated in the Law on Real Estate Business), or contribute their capital or buy shares of banks, insurance companies, securities companies, venture investment funds, securities investment funds or securities investment companies, except for special cases decided by the Prime Minister.
Supplementing the regulations on state capital diversion at enterprises:

– The transfer of state capital in enterprises must be associated with the restructuring of the enterprise;

– State capital transfer must be through completion of the open auction, the competitive bidding and arrangement or “book-building” approach.

Thus, Decree No. 32/2018/ND-CP plays an important role in the management of state capital investment in enterprises, use and management of capital and assets in enterprises, contributing to the efficient use of state capital, avoid losses and waste.

From May 2018, reduction of mobile connection fees

Answered

On December 29, 2018, the Ministry of Information and Communications issued Circular No.48/2017/TT-BTTTT regulating connection fees for voice calls from local land-based fixed telephone networks to the National land mobile phone network and connection fees for voice calls between two national land mobile communications networks. The Circular took effect on May 1, 2018.

Accordingly, Circular No.48/2017/TT-BTTTT regulates the connection fee for voice calls as follows:

If a landline network subscriber calls a mobile number, the mobile network operator will be paid 320 VND per minute.
For connection between mobile networks, the charge rates shall be determined on a case-by-case basis: In case of calling the subscribers of the Viettel network, the outgoing mobile phone network shall have to pay Viettel 400VND per minute; By calling MobiFone, VinaPhone, Vietnamobile, Global Mobile Telecommunications, the mobile network will have to pay 440 dong per minute.
The above-mentioned connection charge rates shall cover the connection charge rates paid to enterprises when they are indirectly connected via domestic long-distance networks but exclusive of value added tax.

The Ministry of Information and Communications requires telecommunication enterprises to provide voice and cellular telephone connection services of the mobile networks and local networks to publicize price information and post up prices strictly according to the provisions of the Law on Telecommunications, Law on price and related guiding documents.

In general, it can be seen that compared with the previous circular regulating the cost of voice calls between two mobile communications networks, the new charge stipulated in Circular No. 48/2017/TT-BTTTT have been reduced 20%. Thus, the Circular is significant in promoting the development of mobile communication services, contributing to the implementation of the policy of modernization, application of information technology in Revolution 4.0 set by the Government.

Regulation on the prepress, press and postpress of printed products for foreign organizations and individuals (not presented in Vietnam)

Answered

On February 28, 2018, The Government issued Decree No.25/2018/ND-CP amending and supplementing a number of articles of the Government’s Decree No.60/2014/ND-CP dated 19/06/2014 on printing activities. The Decree took effect on May 1, 2018.

Accordingly, Decree No.25/2018/ND-CP amended and supplemented regulations on the prepress, press and postpress of printed products for foreign organizations and individuals (not presented in Vietnam) as follows :

The head of the printing establishment shall take responsibility before law for the contents of the printed product;
Only receive the prepress, press and postpress of printed products inscribed in the printing activity permits or contents already certified as having been registered for printing activities;
Having contracts with organizations and individuals that order the prepress, press and postpress of printed products. Contracts must contain information as names and addresses of foreign organizations and individuals that have products need to be prepressed, pressed and postpressed; information as name, type of printing product, quantity of printing, place of production, time of export, name of border gate of export, importing country of printed products and other relevant information;
Updating the information of the products received for the prepress, press and postpress of printed products into the “Publication management book for the prepress, press and postpress of printed products”;
In case of receiving the prepress, press and postpress of printed products such as newspapers, magazines, leaflets, brochures and other printed products with political, historical, geographic, religious, Vietnamese administrative boundaries, the sovereignty of the country, the printing establishment must have a complete and accurate written declaration on the name and address of the foreign organization or individual who orders the prepress, press and postpress of printed products; the information on names, types of printed products, printed quantities, places of production, export border-gates of printed products. Written declarations sent via online public services or postal, delivery services or directly to the provincial-level state management agencies in charge of printing activities where the printing establishments carry out the prepress, press and postpress of printed products within one day after the contract is made;
Exporting 100% of products printed abroad.

It can be seen that, compared with the previous regulations, Decree No.25/2018/ND-CP has made important amendments and supplements, especially for foreign organizations and individuals. Accordingly, this Decree is expected to create a clear and transparent legal corridor, ensuring effectiveness in state management as well as creating conditions for promoting the development of the printing industry.

Amending, supplementing and abolishing administrative procedures in the field of publishing, printing and distribution

Answered

On April 11, 2018, the Ministry of Information and Communications issued Decision No.529/QD-BTTTT on the announcement about administrative procedures were amended, supplemented, administrative procedures were abolished in the field of publishing, printing and distribution under the jurisdiction of the Ministry of Information and Communications. The Decision took effect on May 1, 2018.

Accordingly, Decision No.529/QD-BTTTT amended and supplemented 13 administrative procedures, abolished 02 administrative procedures, including the following procedures:

The list of administrative procedures to be amended and supplemented includes: Granting printing permits; Renewal of printing permits; Registration of printing establishments; Change the printing operation registration information; Issuing permits for import of printing equipment; To register for use of color photocopiers, printers with color photocopy function; Transfer of color copiers, color photocopying machines; Declaration of operation of photocopy service establishment; Change the information of the photocopy service facility.
The list of administrative procedures to be abolished includes: Granting of the prepress, press and postpress licenses to foreign countries in central and local.

By the amendments, supplements and abolitions of administrative procedures in the field of publishing, printing and distribution, Decision No.529/QD-BTTTT is assessed in accordance with current guidelines and policies of the Government on simplifying administrative procedures, creating conditions for enterprises to expand their freedom to conduct a business.