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Non-conduction of mediation or dialogue at Court

回答

On June 16, 2020, the 14th National Assembly voted to pass the Law on Mediation and Dialogue at the Court. This new law has specified the cases where mediation and dialogue are not conducted in court. As follows:

Non-conduction of mediation or dialogue at Court (Article 19 Law on mediation or dialogue at Court)

Claim compensation for damage to the State’s properties.
Cases arising from civil transactions that violate the prohibition of law or social ethics.
The petitioner, the respondent, persons with related interests and obligations have been duly invited to participate in mediation or dialogue for the second time but still absent due to force majeure events or objective obstacles or unable to participate in mediation or dialogue for valid reasons.
A spouse in a divorce dispute is legally incapacitated.
One of the parties proposes not to conduct mediation or dialogue.
One of the parties requests the application of a provisional emergency measure as per the Civil Procedure Code and the Administrative Procedure Law.
Other cases as prescribed by law.

The above are the cases where mediation and dialogue are not conducted in Court. The Law on Mediation and Dialogue at Court will officially take effect from January 1, 2021.

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The Role of the Mediator in procedures for mediation and dialogue at Court under the Law on Mediation, Dialogue at Court

回答

On June 16, 2020, the 14th National Assembly voted to pass the Law on Mediation and Dialogue at Court. This new law defines the role of the Mediator in the mediation and dialogue proceedings at the Court. As follows:

Preparation for mediation or dialogue at court (Article 21 – Law on Mediation, Dialogue at Court)

The work of preparing mediation or dialogue of mediators includes:

Receiving the application and attached documents transferred by the court;
Record the case in the logbook;
Examining the application and attached documents transferred by the court;
Determining litigation positions of the parties, their representatives and interpreters in the civil case or administrative lawsuit; notify them of mediation or dialogue;
Requesting the parties to supplement information, documents and evidence; proposing plans and solutions to resolve the civil case or administrative lawsuit;
Formulating plans and solutions for mediation or dialogue;
Invite reputable people capable of influencing each party to the mediation or dialogues for further support when necessary;
Studying relevant laws and regulations, understanding customs, practices and circumstances of the parties intended for mediation or dialogue when necessary;
Consulting with entities with expertise in fields related to the civil case or administrative lawsuit intended for mediation or dialogue when necessary;
Other contents necessary for mediation or dialogue.

2. Tasks of mediators in the process of conducting mediation or dialogue at court (Article 23 – Law on Mediation, Dialogue at Court)

Disseminate and explain rights and obligations of the parties.
Enable the parties to propose and discuss plans or solutions to settle the civil case or administrative lawsuit.
Analyze the effectiveness and feasibility of each plan and solution for resolving the civil case or administrative lawsuit; assist parties to reach an agreement.

The Mediator deals with both facts and legal matters, but law is not the focus of the mediation process. Mediation is not about deciding who is right and who is wrong, who is at fault, declaring who wins and who loses, but looking into the future. The focus is not on who said what, what to do in the past. Instead, its purpose is to find a practical solution that is acceptable to anyone involved, taking into account various interests, legal interests as well as other benefits (e.g.: To preserve relationships or honor or find competitive boundaries in the marketplace).

The above are regulations about the Role of the Mediator in procedures for mediation and dialogue at Court under the Law on Mediation, Dialogue at Court. The Law on Mediation and Dialogue at Court will officially take effect from January 1, 2021.

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Conditions for becoming a Mediator under the Law on Mediation, Dialogue in Court

回答

Conditions for becoming a Mediator under the Law on Mediation, Dialogue in Court

On June 16, 2020, the 14th National Assembly voted to pass the Law on Mediation and Dialogue at the Court. This new law fully specifies the criteria for a Mediator as well as the order, procedures, and authority to choose and appoint. This is an institutionalized policy to attract and mobilize human resources with knowledge and experience in society to participate in coordination with the Court to conduct mediations and dialogues to resolve civil disputes, administrative complaints.

Requirements for appointment of mediators (Article 10 – Law on Mediation, Dialogue at Court)

The person who wants to be appointed a mediator must be:

A Vietnamese citizen who is permanently residing in Vietnam;
Loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam;
Has full legal capacity;
Has good moral qualities, is exemplary in the observance of the law;
Meets all requirements below may be appointed as a mediator.

In addition to the above-mentioned conditions, a person who wants to be appointed as a Mediator must also fully meet the following conditions:

Having at least 10 years of experience as a Judge, Court Examiner, Court Clerk, Procurator, Procurator Inspector, Civil Judgment Executor, Inspector; lawyer, expert, or professional; being knowledgeable about customs and traditions and having prestige in the community;
Having experience and skills in mediation or dialogue;
Attain fitness to complete the assigned tasks;
Possessing a certificate of professional training in mediation or dialogue conducted by a training facility of the Supreme People’s Court, unless he/she has been a judge, court examiner of chief examiner or senior examiner level, court clerk of chief clerk or senior clerk level, procurator, executor of civil judgment, or inspector.

2. A person who falls into one of the following cases may not be appointed as a mediator (Clause 2 Article 10 – Law on Mediation, Dialogue at Court)

Failing to meet the requirements specified in Section 1 of this Article;

Having been an official or public employee; commissioned officer or non-commissioned officer of the People’s Army, professional solider, worker and defense officer; People’s Public Security commissioned officer or non-commissioned officer, or police worker.

3. Grounds for appointment of mediators (Article 11 – Law on Mediation, Dialogue at Court)

A person who finds himself/herself satisfactory with all the requirements specified in Clause 1, Article 10 of Law on Mediation, Dialogue at Court may submit an application for appointment of mediator to the court where he/she wishes to act as a mediator.

Within 20 days after receiving a duly complete application for appointment of mediator, the chief judge of the People’s Court of province shall consider appointing a mediator; if the application is refused, the chief judge must provide explanation in writing.

4.The term of office of a mediator is 3 years from the date of appointment (Clause 6 Article 11 – Law on Mediation, Dialogue at Court)

The above are regulations about conditions for becoming a Mediator under the Law on Mediation, Dialogue in Court. The Law on Mediation and Dialogue at Court will officially take effect from January 1, 2021.

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Regulations on notification of seal sample of the enterprise

回答

On June 17, 2020, The National Assembly promulgates the Enterprise Law 2020 to apply to enterprises; Agencies, organizations and individuals involved in the establishment, management organization, reorganization, dissolution and related operations of enterprises.

Accordingly, for the regulations on seal of enterprises, the Enterprise Law 2020 stipulates as follows:

The seal includes the seal made at the seal engraving establishment or the seal in the form of a digital signature in accordance with the law on electronic transactions.
The enterprise decides on the seal type, quantity, form and content of the seal of the enterprise, its branch, representative office and other units.
The management and keeping of the seal must comply with the company’s charter or the regulations issued by the enterprise, branch, representative office or other unit of the enterprise with the seal. Enterprises use seal in transactions in accordance with law.

The Law on Enterprises 2020 no longer provides for the notification of the enterprise’s seal sample to the business registration authority for public posting on the National Business Registration Portal after being granted a Certificate of Business registration.

Thus, the enterprise’s seal is decided, managed, and used by the enterprise in compliance with the above provisions of law, without having to notify the business registration agency.

The Enterprise Law 2020 takes effect from January 1, 2021.

Regulations on notification of seal sample of the enterprise

回答

Accordingly, for the regulations on seal of enterprises, the Enterprise Law 2020 stipulates as follows:

The seal includes the seal made at the seal engraving establishment or the seal in the form of a digital signature in accordance with the law on electronic transactions.
The enterprise decides on the seal type, quantity, form and content of the seal of the enterprise, its branch, representative office and other units.
The management and keeping of the seal must comply with the company’s charter or the regulations issued by the enterprise, branch, representative office or other unit of the enterprise with the seal. Enterprises use seal in transactions in accordance with law.

Thus, the enterprise’s seal is decided, managed, and used by the enterprise in compliance with the above provisions of law, without having to notify the business registration agency.

The Enterprise Law 2020 takes effect from January 1, 2021.

Operation duration of investment projects

回答

On June 17, 2020, the National Assembly promulgated the Law on Investment No. 61/2020 /QH14 regulating business investment activities in Vietnam and business investment activities from Viet Nam to foreign countries.

Accordingly, at Article 44 of this Law has new provisions on the operation duration of investment projects as follows:

For investment projects located in economic zones, the operation duration of investment projects must not exceed 70 years;
For investment projects implemented outside economic zones, the operation duration of investment projects shall not exceed 50 years;
Investment projects implemented in geographical areas with difficult socio-economic conditions, geographical areas with exceptionally difficult socio-economic conditions according to law provisions or investment projects with investment capital If the investment capital is large but the capital recovery is slow, the operation duration of investment projects may be longer but not exceeding 70 years;
In case an investment project expires and the investor wishes to continue implementing the investment project and meets the conditions prescribed by law, it may be considered for extension of the operation duration of the project but not exceeding the maximum time limit prescribed by each type of project.

However, not all investment projects will have their operation duration extended, with the following investment projects not being extended:

Investment projects using outdated technology, potentially causing environmental pollution, using resources to the point where they are in deficit.
An investment project in which the investor has to transfer without compensation of assets to the Vietnamese State or Vietnamese party.

The Investment Law takes effect from January 1, 2021, and applies to investors, agencies, organizations and individuals related to business investment activities.

Investment incentives

回答

On June 17th, 2020, the Law on Investment 2020 was passed by the 14th National Assembly and came into effect from January 1, 2021. Accordingly, the Law on Investment 2020 has added a number of industries eligible for investment incentives as well as additional investment incentive policies, specifically as follows:

Firstly, the Investment Law of 2020 adds many sectors with investment incentives. Specifically, the following sectors with investment incentives are added to the Law on Investment 2014, specified in Article 16:

University education;
Production of products formed from scientific and technological results in accordance with the law on science and technology;
Manufacture of products on the list of supporting industry products prioritized for development;
Preservation of drugs, manufacture of medical equipment;
Producing goods and providing services to create or join value chains, industry clusters.

Second, amending and supplementing beneficiaries of investment incentives. Accordingly, there are 03 subjects enjoying investment incentives modified, and 02 additional subjects as follows:

Investment projects for creative startups, innovation centers, research and development centers;
Investment in and trading in the product distribution chain of small and medium enterprises; investment in and commercial operation of technical facilities to support small and medium enterprises, small and medium-sized enterprise incubators; investing in and operating co-working areas to support small and medium-sized enterprises to start-up creations in accordance with the law on support for small and medium-sized enterprises.

Thirdly, add investment incentives: Quick depreciation, increase deductible expenses when calculating taxable income.

Fourthly, the Investment Law 2020 also adds a number of provisions on the principles and conditions for application of investment incentives, such as: application of time incentives, according to project implementation results; Investors must ensure that the preferential conditions are met during the period of enjoying incentives according to the provisions of law, …

Fifth, unlike the 2014 Investment Law, the new Law has special investment incentives and support policies that allow special incentives (up to 50% more) to create policies to attract FDI inflows.

Abolishing and adding a number of conditional business lines

回答

On June 17, 2020, the 14th National Assembly promulgated the Law on Investment No. 61/2020/QH14. This Law takes effect from January 1st, 2021. Accordingly, the Investment Law 2020 has made more comprehensive and complete changes than the shortcomings of the 2014 Investment Law. One of the outstanding contents is the regulation on abolishing and supplementing some conditional business lines. Specifically as follows:

First, to abolish 16 conditional business lines. The current list of conditional business sectors and trades is subject to the provisions of the Law amending and supplementing Article 6 and Appendix 4 on the List of sectors and trades subject to conditional business investment in the Investment Law 2014, including 243 industries and trades. However, because there are a number of conditional business lines that are deemed unnecessary and obstruct the market entry process of individuals and organizations, the Investment Law 2020 has reduced the number of industries and occupations conditional business to 227 occupations.

Secondly, adding 08 conditional business lines, including:

Processing, trading, transporting, advertising, displaying and storing specimens of plants and animals in the Appendixes of the CITES Convention and the list of endangered, precious and rare forest plants, animals and aquatic animals;
Trading in clean water (domestic water);
Business architecture services;
Registry of fishing ships;
Training and retraining for fishing ship crew members;
Data center service business;
Providing electronic identification and authentication services; Import press release service business.

Thirdly, the Investment Law 2020 also amends a number of regulations on business lines such as: Insurance brokers into “insurance, auxiliary” insurance brokers; Providing “. Vn” domain name registration and maintenance services into domain name registration and maintenance services; Business shipping, shipping agency services into shipping business;… and some detailed modification in other industries.

Legal News No. 14/2020

回答

New points of Enterprise Law 2020 – Part 3

回答

At the 9th session, National Assembly XIV, Enterprise Law 2020 (Law) was approved and will officially take effect on January 1, 2021. The following will be 5 new points specified in the last 4 chapters (Chapter VII, Chapter VIII, Chapter IX, Chapter X) of LAW 2020, specifically the article will go into details as follows:

Shorten the period of notice before suspending business from 2021:
Clause 1, Article 200 of Law 2014 stipulates: Enterprises have the right to suspend their business but must notify in writing the time and duration of suspending or resuming business to the Business Registration Authority at least 15 days before the date suspending or resuming business. This provision applies in case the enterprise resumes its business before the notified time limit.
However, Clause 1, Article 206 of Law 2020 shortened the period of notice before suspending business. Specifically: “Enterprises must notify in writing to the Business Registration Agencies no later than 03 working days before the date of suspending or resuming business before the notified time”.
Thus, the period of notice before suspending business is shortened from 15 days to 03 working days at the latest.
Provisions on exclusion of the case of dissolution due to revocation of enterprise registration certificate
Point d, Clause 1, Article 207 of Law 2020 stipulates: “Enterprises are dissolved in case of revocation of their enterprise registration certificates, unless otherwise prescribed by the Law on Tax Administration.”
This provision ensures consistency with the provisions of the Law on Tax Administration. At Point g, Clause 1 and Clause 2, Article 125 of the Law on Tax Administration 2019 provides:
“Article 125. Coercive measures to enforce administrative decisions on tax administration
1. Measures of enforcing administrative decisions on tax administration include:
…
g) Revoke the enterprise registration certificates
2. The measures of enforcing administrative decisions on tax administration specified in Clause 1 of this Article cease to be effective after the tax debt is fully paid into the state budget. “
Sole Proprietorship can be converted into Limited Liability Company, Joint Stock Company, Partnership Company
According to Article 205 of Law 2020, a Sole proprietorship may be converted into a Limited Liability Company, a Joint Stock Company or a Partnership Company under the decision of the owner of the Sole proprietorship if all of the following conditions are satisfied:
– The converted enterprise must fully meet the conditions prescribed in Clause 1, Article 27 of this Law;
– Owner of a Sole Proprietorship undertakes in writing to take personal responsibility with all of his assets for all unpaid debts and commit to pay all debts when due;
– The owner of a Sole Proprietorship has a written agreement with the parties of the unliquidated contract that the converted company will accept and continue to perform those contracts;
– The owner of a Sole Proprietorship makes a written commitment or has a written agreement with other capital-contributing members on the admission and employment of the existing labor force of a Sole Proprietorship.
Currently, Law 2014 only regulates cases where a Sole Proprietorship is transformed into a Limited Liability Company.
Adding a case of termination of partnership membership
According to Clause 1, Article 185 of Law 2020, general partners are terminated in the following cases:
– Voluntarily withdraw capital from the company;
– Death, disappearance, restriction or loss of civil act capacity, difficulty in cognition and behavior control;
– Being expelled from the company;
– Abiding by imprisonment or banned by a court from practicing certain jobs or doing certain jobs according to the provisions of law;
– Other cases prescribed by the company’s charter.
Compared with Law 2014, more cases of “having difficulty in cognition, behavior control” and ” Abiding by imprisonment or banned by a court from practicing certain jobs or doing certain jobs according to the provisions of law”.
Supplementing the provision “exercising the rights of owners of a Sole Proprietorship in some special cases”
Compared with the current regulations, Article 193 of Law 2020, supplementing the provisions of “exercising the rights of owners of a Sole Proprietorship in some special cases” is as follows:
– If the owner of a Sole Proprietorship is detained, serving a prison sentence, or executing an administrative handling measure at a compulsory detoxification establishment or a compulsory education establishment, he / she may authorize another person to do his/her rights and obligations.
– In case the owner of a Sole Proprietorship dies, the heir or one of the heirs according to the will or the law is the owner of the Sole Proprietorship under the agreement between the heirs. Where the heirs cannot reach agreement, they will register for conversion into a company or dissolution of the Sole Proprietorship.
– In case the owner of a Sole Proprietorship dies without an heir, the heir disclaims the inheritance or is deprived of the right to inherit, the property of the owner of the Sole Proprietorship shall be handled in accordance with the civil law.
– In case the owner of a Sole Proprietorship is restricted or loses his/her civil act capacity, has difficulties in cognition and behavior control, the rights and obligations of the owner of the Sole Proprietorship are exercised through his/her representative.

Above are 5 new points specified in the last 4 chapters (Chapter VII, Chapter VIII, Chapter IX, Chapter X), these regulations will be valid when Law 2020 takes effect (from January 1, 2020).

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