Pháp luật về hoạt động môi giới thương mại điện tử tóm tắt TA

TÓM TẮT NHỮNG ĐIỂM MỚI CỦA LUẬN ÁN Về mặt lý luận, luận án có những đóng góp cơ bản sau: Thứ nhất, luận án xây dựng khái niệm, đặc điểm pháp lý về hoạt động môi giới thương mại điện tử. Chính nền tảng công nghệ đã tạo ra nhiều vấn đề pháp lý đặc trưng, cần được điều chỉnh mà hệ thống pháp luật hiện hành vẫn còn trống. Luận án chỉ ra những vấn đề pháp lý phát sinh trong quá trình quản lý đối với hoạt động môi giới thương mại điện tử. Thứ hai, luận án làm rõ khái niệm, đặc điểm pháp lý “Pháp luật về hoạt động môi giới thương mại điện tử”. Luận án đưa ra cấu trúc hình thức và cấu trúc nội dung của pháp luật về hoạt động môi giới thương mại điện tử. Về mặt thực tiễn, luận án đã có những đóng góp cơ bản sau: Thứ nhất, luận án chỉ ra những bất cập của pháp luật hiện hành về hoạt động môi giới thương mại điện tử tại Việt Nam về các nhóm nội dung: Quy định về chủ thể của hoạt động môi giới thương mại điện tử; Quy định về hợp đồng môi giới thương mại điện tử; Quyền và nghĩa vụ của các bên trong quan hệ pháp luật môi giới thương mại điện tử; Quản lý nhà nước trong lĩnh vực môi giới thương mại điện tử. Thứ hai, luận án đã nghiên cứu, đề xuất hoàn thiện pháp luật về hoạt động môi giới thương mại điện tử theo phương hướng bổ sung trong hệ thống văn bản pháp luật về thương mại điện tử. Những kiến nghị, giải pháp mang tính khả thi nhằm hoàn thiện pháp luật, nâng cao hiệu quả áp dụng, phù hợp với bối cảnh thực tiễn hiện nay.

MINISTRY OF EDUCATION

AND TRAINING

MINISTRY OF JUSTICE HANOI LAW UNIVERSITY

NGUYEN NGOC ANH

LAWS ON ELECTRONIC COMMERCE BROKERAGE

ACTIVITIES

Major: Economic Law Law: 9 38 01 07 SUMMARY OF DOCTORAL THESIS ON LAW

Ha Noi- 2022

HANOI LAW UNIVERSITY

Scientific Instructors 1 Dr NGUYEN THI DUNG

2 Dr DOAN TRUNG KIEN

INTRODUCTION

1 The urgency of the topic research

In Vietnam, until 2006, E-Commerce activities were first amended by legislations including Law on E-Transactions, Commercial Law 2005, the 2005 Civil Code, Decree 57/2006/ND-CP dated 9 June 2006 on E-commerce With its profound effect and outstanding characteristics, E-commerce grows in a quick and multifaceted way, a part of which is the growth in E-commerce Brokerage activities In the market, Commerce Brokerage emerges in new forms conducted via electronic devices and through data messages, which are referred to as E-commerce Brokerage activities Being more convenient, quick, and borderless, E-commerce Brokerage service has changed radically in the way it used to work E-commerce Brokerage activities happen as follows: On the Internet, E-Commerce intermediaries design applications or websites to create an online market for sellers and buyers to connect, and then profit from their service as middlemen To increase competitiveness, E-commerce brokers often charge sellers with no fees for displaying their product/service on the platform Instead, the fees will be calculated on the basis of successful transactions The technological features (online markets, interface…) serve as a ground for the dependency of all parties involved and influence their commercial behavior As for the sellers/service providers and buyers, they can only find each other and establish, conduct, change or end their commercial activities via the technological platform of the intermediaries As for the brokers, the values created by E-Commerce Brokerage are different from the traditional brokerage activities via technology They not only execute their brokerage activities via technological devices but also via their own technological platforms Having done some secondary research, the researcher notices a few shortcomings as follows:

First, the theories on E-Commerce Brokerage have not been

established E-Commerce Brokerage activities are still intrinsically inconsistent Although they carry the characteristics of both Commerce Brokerage and E-Commerce, simply combining two definitions might not be the best way to recognize all the legal characteristics of E-Commerce Brokerage Therefore, a need for an in-depth examination of the legal nature of E-Commerce Brokerage arises There has not been any prior research to distinguish between the legal nature of E-Commerce Brokerage activities and traditional commercial brokerage activities Distinguishing these commercial activities will be useful in guiding the formulation and improvement of the law as well as the process of applying the law into practice

Second, the current legal situation still has many shortcomings For

the time being, the legal system on e-commerce brokerage activities mainly regulates two aspects: the law governing commercial intermediary activities in general and commercial brokerage in particular; and the law governing e-commerce activities However, as the two legal systems above regulate e-commerce brokerage activities at the same time, overlapping and conflicting are inevitable, yet regulations to resolve such situations are lacking

Third, the purchase and sale of goods and provision of services

through the form of E-Commerce brokerage in Vietnam bring many benefits to the parties involved, but there is a lack of research in order to have a legal basis for adjusting this activity in practice In Report No 442/BC-CP dated October 1, 2020, in section II.9.2.1, part B also noted:

“Practice shows that there are E-Commerce operation models that do not belong to both models that are regulated in Decree No 52/2013/ND-CP (some models are just intermediaries that help buyers search for goods and services after accessing other websites and receive commissions for

each successful transaction)… It is necessary to have legal regulations to regulate the above models to ensure the adjustment of a healthy E-Commerce model, to protect the interests of consumers and to avoid tax revenue loss with profits generated”

Obviously, this is a commercial activity with many advantages that brings various benefits and is in line with modern shopping trends In the future, various types of E-Commerce Brokerage services are predicted to develop in a variety of forms, vibrant in content and economically efficient As the legal consciousness is behind social reality, a new activity arising will lead to arguments and different views It is, therefore, necessary to study new activities and to perfect the governing law At the general level, we need a general, basic and directional worldview so that

we can create a legal basis in time to regulate actual activities

Both the theoretical aspect and the legal status of E-Commerce Brokerage activities have not been studied; therefore, it is necessary to set out a legal study on E-Commerce brokerage activities

2 Purpose and Mission of research

The purpose of the thesis is to study the legal basis of E-Commerce Brokerage Activities in order to perfect the law governing E-Commerce Brokerage activities

To accomplish the abovementioned research purpose, the thesis focuses on the following research missions:

- Providing an overview of the research situation related to the thesis topic

- Clarifying theoretical issues and legal theories on E-Commerce Brokerage activities

- Analysing regulations on E-Commerce Brokerage activities and the current situation of law enforcement on E-Commerce Brokerage activities

- Examine the experience of establishing and enforcing the law in countries with developed E-Commerce Brokerage activities

- Research the requirements and specific solutions to improve the law

3.2 Research scope

In terms of content, the thesis limits the scope of research on legal

issues related to Commerce Brokerage as a commercial activity Commerce Brokerage in the field of financial services, banking, credit, insurance, lottery; buying, selling and exchanging money, gold, foreign currencies and other means of payment; betting or gambling services; realease and distribution services of digital products, radio and television services are not within the research scope of the thesis The recommendations to improve the law presented in the thesis are also consistent with the adjustment method, scope of adjustment and adjusting mechanism of the law in the field of Commerce

E-In terms of space, the thesis studies the E-Commerce Brokerage

activities in the retail market in Vietnam The retail market is the segment where E-Commerce Brokerage activities were born, developed strongly, and tend to continue its expansion in the future Retail is understood as the direct sale of goods and services to consumers who use the goods/service for the needs of individuals and households, not for

business (resale); it does not include consumption for production; Retailing is the final stage in the circulation of products to consumers1

4 Research methodology

In the research process, the thesis expects to use the following methods: analysis, synthesis, commentary, interpretation, comparative law, statistics, and so on to clarify each specific content, in order to achieve the missions proposed The thesis also uses general research methods

5 New contributions of the thesis

Theoretically, the thesis has the following contributions:

Firstly, based on the value of published scientific research results, the

thesis develops a theoretical system of E-Commerce Brokerage activities with new contents including the affirmation that E-Commerce Brokerage activities are commercial brokerage activities carried out on a technology basis It is the technology background that has created various typical legal problems that need to be adjusted, yet the current legal system is still unable to address such issues The thesis builds the legal concept of E-Commerce Brokerage activities Although there have been domestic and foreign studies referring to the concept of E-Commerce Brokerage,

no comprehensive study on the legal concept has been done The thesis compares the legal characteristics between E-Commerce Brokerage activities and traditional commercial brokerage activities and thereby pointing out the legal issues arising in the management process of E-Commerce Brokerage activities

Secondly, the thesis affirms that the State management of

E-Commerce Brokerage activities is necessary The thesis clarifies the legal concept of E-Commerce Brokerage activities and presents the formal

1 Pham Hong Tu (2012), Phát triển thị trường bán lẻ hàng tiêu dùng ở nông thôn Việt Nam (Development of the

retail market of consumer goods in rural Vietnam), Ph.D thesis, Institute of Trade Research, page 10.

structure and content structure of the law on this activity with reference

to countries in the world and Vietnam The thesis also points out the advantages and disadvantages in regulating legal relations

In terms of practice, the thesis has made the following contributions: Firstly, the thesis pinpoints the shortcomings of the current law in

regulating E-Commerce Brokerage activities in Vietnam through assessing the legal status on legal issues such as Regulations about the subjects of E-Commerce Brokerage activities; Regulations about E-Commerce Brokerage contracts; Rights and Obligations of parties in E-Commerce Brokerage; and State management in E-Commerce Brokerage Thereby, the thesis confirms the necessity to perfect the legal regulations on E-Commerce Brokerage activities

Secondly, through the theoretical study of E-Commerce Brokerage

activities and the legal experience of some countries in identifying Commerce Brokerage activities, regarding the socioeconomic conditions

E-of Vietnam today, the thesis has researched and proposed to improve the law on E-Commerce Brokerage activities on the basis of amending the legislation system about E-Commerce The recommendations and solutions are feasible not only in terms of perfecting the law but also improving the effectiveness of application, in line with the current practical context

6 The outline of the thesis

In addition to the introduction, conclusion, and the list of references,

the thesis includes the following parts:

The overview of research status related to the thesis topic

Chapter 1: Theoretical issues on E-Commerce Brokerage activities and the law on E-Commerce Brokerage activities

Chapter 2: Legal situation of E-Commerce Brokerage in Vietnam Chapter 3: Solutions to complete the law on E-Commerce Brokerage

THE OVERVIEW OF RESEARCH STATUS RELATED TO THE

THESIS TOPIC

1 Research situation on E-Commerce Brokerage activities and the law on E-Commerce Brokerage activities

1.1 Works that study E-Commerce Brokerage activities

First, the work identifying commercial brokerage activities: monograph “Pháp luật điều chỉnh hoạt động trung gian thương mại ở Việt Nam”2 [Law regulating commercial intermediary activities in Vietnam]

Second, the works of identifying E-Commerce Brokerage activities:

“Bài giảng Thương mại điện tử” 3 [E-Commerce lecture], the article “An electronic broker for business – to – business electronic commerce on the internet”4, the article “Business – to – Business Electronic Commerce”5

Third, research works identifying new-style E-Commerce activities with signs of E-Commerce brokers: Master’s Thesis in Law “Một số vấn

purchasing activities in group], the scientific report at the Seminar “Thảo luận chính sách về quản lý hoạt động kinh doanh dịch vụ thương mại điện

tử xuyên biên giới” 7 [Policy discussion on the management of border E-Commerce services business]

cross-2 Dr Nguyen Thi Van Anh (2009), Pháp luật điều chỉnh hoạt động trung gian thương mại ở Việt Nam, Labor and

Social Publisher, Hanoi

3 Posts and Telecommunications Institute of Technology, Faculty of Business Administration 1 (2013), Bài giảng

Thương mại điện tử (Lecture on E-commerce), Hanoi

4 Martin Bichler, Arie Segev, Carrie Beam (1998), “An Electronic Broker for Business – to – Business electronic

commerce on the internet”, International Journal of Cooperative Information Systems, Vol.07, No.04, http:

http://lcm.csa.iisc.ernet.in/ecomm01/segev.pdf accessed on July 18, 2016

5 David Lucking – Reiley and Daniel F.Spulber (2001), “Business – to – Business Electronic Commerce”, Journal

of Economic Perspectives Vol.15, No.1 (Winter, 2001)

6 Nguyen Ngoc Anh (2013), Một số vấn đề pháp lý về hoạt động mua hàng theo nhóm, Master's Thesis in Law,

Hanoi Law University

7 Dr Vo Tri Hao (2016), Bản chất pháp lý mô hình kinh doanh của Uber, Seminar “Thảo luận chính sách về quản

lý hoạt động kinh doanh dịch vụ thương mại điện tử xuyên biên giới” of The Central Institute for Economic Management of Vietnam, Hanoi, October 26, 2016

1.2 Works that study legal theory about E-Commerce Brokerage activities

There has not been any research directly addressing the issue of the legal theory on E-Commerce Brokerage activities The Ph.D candidate has only found works with research results that are closely related to this

issue: monograph “Pháp luật điều chỉnh hoạt động trung gian thương mại ở Việt Nam” [Law regulating commercial intermediary activities in Vietnam]; Master's thesis in Law “Một số vấn đề pháp lý về hoạt động mua hàng theo nhóm” [Some legal issues on purchasing activities in groups]

1.3 Works that assess the legal situation on E-Commerce Brokerage activities

First, the research works assessing the legal status of E-Commerce Brokerage activities in Vietnam: the article “Một số vấn đề về kinh tế chia sẻ” [Some issues about the sharing economy] on the website of the

Central Economic Committee8, the report “Quản lý thuế đối với hoạt động thương mại điện tử xuyên biên giới” 9 [Tax administration for cross- border E-Commerce activities], Vietnam E-Commerce Report 2014, Vietnam E-Commerce Report 2015

Second, research studies assessing the legal status of E-Commerce Brokerage activities in Vietnam and in some other countries: the report

“Quản lý thuế đối với hoạt động thương mại điện tử xuyên biên giới” [Tax administration for cross-border E-Commerce activities], the

8Department of General Economy - Central Economic Commission (2016), Một số vấn đề về kinh tế chia sẻ, The

Central Economic Commission, https://tinhtetrunguong.vn/fi/web/ de?p_p_id=101&p_p_lifecycle=0&p_p_state=pop_up&p_p_mode=view&p_p_col_id=column-

guest/thong-tin-construction-1&p_p_col_count=1&_101_struts_action=%2Fasset_publisher%2Fview_content&=2Fview_content&Id101_ass

et economy-sharing-sharing-economy- accessed on July 18 , 2016

9 Ms Nguyen Thi Cuc, Former Deputy Director General, General Department of Taxation, Chairwoman of Tax

Advisory Association (2016), Quản lý thuế đối với hoạt động thương mại điện tử xuyên biên giới, Seminar “Thảo

luận chính sách về quản lý hoạt động kinh doanh dịch vụ thương mại điện tử xuyên biên giới” of The Central Institute for Economic Management of Vietnam, accessed on October 26 , 2016

conference proceeding of Workshop “Mô hình kinh tế chia sẻ: Những vấn đề pháp lý đặt ra”10 [Sharing economic model: Legal issues raised]

1.4 Works that propose solutions to improve the law on E-Commerce Brokerage

Monograph “Pháp luật điều chỉnh hoạt động trung gian thương mại

ở Việt Nam” [Law regulating commercial intermediary activities in Vietnam], “Bài giảng thương mại điện tử” [Lecture on e-commerce], the article “Chính sách – Pháp luật – Phát triển – Nhìn nhận qua mô hình kinh doanh Taxi Uber” 11 [Policy - Law - Development - Perspective from Uber Taxi business model], “Quản lý thuế đối với hoạt động thương mại điện tử xuyên biên giới” [Tax administration for cross-border E- Commerce activities], the conference proceeding of Workshop “Mô hình

kinh tế chia sẻ: Những vấn đề pháp lý đặt ra” [Sharing economic model: Legal issues raised]

2 General comments on the research status of published scientific works related to the thesis topic

First, the results of theoretical research on E-Commerce Brokerage activities There has not been any research on the legal nature of E-

Commerce Brokerage activities Referring to the research results achieved by different authors, the Ph.D candidate shall develop the concept and legal nature of E-Commerce Brokerage activities in the thesis In addition, the thesis will also focus on clarifying the differences based on legal characteristics between E-Commerce Brokerage activities

and traditional brokerage activities

Second, the results of research on the legal theory of E-Commerce Brokerage The documents studied by the Ph.D candidate have specific

10 Scientific conference “Mô hình kinh tế chia sẻ: những vấn đề pháp lý đặt ra”, organized by the Ministry of Justice

on April 16, 2021

11 Hoang Ngoc Giao (2015), “Chính sách – Pháp luật – Phát triển – Nhìn nhận qua mô hình kinh doanh Taxi Uber”,

Nghiên cứu lập pháp (Legislative Research) , No 03+04 (283+284) February 2015

content on the legal structure governing commercial intermediary activities and the law governing E-Commerce activities However, there

is no document on the theory and legal structure of E-Commerce

studied in its entirety

Fourth, the research results on possible solutions to improve the law

on E-Commerce Brokerage There are no works that propose feasible

solutions to perfect the law on E-Commerce Brokerage On the basis of studying the theory of E-Commerce Brokerage and at the same time assessing the actual situation of the law regulating activities in a specific way, the author will continue to propose solutions to improve the law on this issue

3 Issues that require further research

First, the thesis continues to improve the theory of E-Commerce

Brokerage activities, thus creating a theoretical basis for identifying Commerce Brokerage activities

E-Second, the thesis builds a legal theoretical system on E-Commerce

Brokerage activities

Third, within the scope of the research, the thesis has comprehensively

analyzed and assessed the current situation of law enforcement on Commerce Brokerage

E-Fourth, the thesis proposes to perfect the law governing E-Commerce

Brokerage activities by amendingn the legal document system on Commerce

E-4 Research questions and theoretical basis

4.1 Research questions

The thesis topic “Law on E-Commerce Brokerage activities” poses the following research question: “What specific regulations should the law study to establish in order to regulate E-Commerce Brokerage activities and to ensure the objectives of state management and economic development?”

The content of the thesis needs to clarify the answers to the following questions:

Firstly, what are the different legal characteristics of E-Commerce

Brokerage activities compared to traditional commercial brokerage? Is it because of these differences that the management of E-Commerce Brokerage activities needs to more specific regulations?

Second, what are the current regulations on adjusting E-Commerce

Brokerage activities?

Third, how can regulations on E-Commerce Brokerage ensure the

harmonization of stakeholders’ interests, promote economic development and stay in line with modern trends?

4.2 Theoretical basis

The thesis uses the following research theories: Legal regulation, Freedom of Commerce, Sharing Economy, Theory of Commercial Intermediary, Transaction Cost Theory, and Theory of Abuse of Position

4.3 Research hypothesis

The thesis is based on the following research hypotheses:

- E-Commerce Brokerage activities carry the general nature of commercial brokerage activities However, such activities being implemented through a technology platform has created distinct legal characteristics and new legal problems

- The current regulations in the management of E-Commerce Brokerage activities are still inadequate

- Suggestions to improve the law governing E-Commerce Brokerage activities are proposed in the direction of mainly amending the legal system on E-Commerce

CHAPTER 1 THEORETICAL ISSUES ON E-COMMERCE BROKERAGE ACTIVITIES AND THE LAW ON E-COMMERCE

BROKERAGE ACTIVITIES 1.1 Theoretical issues on E-Commerce Brokerage activities

1.1.1 The birth and development of E-Commerce Brokerage activities

In December 1998, Amazon's online shopping festival reached more than 1 billion USD in revenue, while AOL reached 1.2 billion in 10 weeks12 This is considered an impressive start for the development of E-Commerce Brokerage activities Early forms of E-Commerce Brokerage appeared such as websites where buyers and sellers met, gold-selling sites, aggregator catalogs, online auction floors

In Vietnam, it was not until 2003 that the Ministry of Trade published the first “Report on Vietnam's E-Commerce” The report states that by

2003, “We have already begun and are quite fast in the first stage of the

12 See also: Posts and Telecommunications Institute of Technology, Faculty of Business Administration 1 (2013),

Bài giảng Thương mại điện tử (Lecture on E-commerce), Hanoi, page 68