Pháp luật về hoạt động môi giới thương mại điện tử TT TIENG ANH

There has not beenany prior research to distinguish between the legal nature of E-Commerce Brokerage activities and traditional commercial brokerageactivities.. The thesis compares the l

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AND TRAINING

HANOI LAW UNIVERSITY

NGUYEN NGOC ANH

LAWS ON ELECTRONIC COMMERCE BROKERAGE

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ho tro tai file : luanvanchat@gmail.com

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HANOI LAW UNIVERSITY

Scientific Instructors 1 Dr NGUYEN THI DUNG

2 Dr DOAN TRUNG KIEN

Hanoi Law University on … 2022

The thesis is archived at:

1 National Library

2 Hanoi Law University Library

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1 The urgency of the topic research

In Vietnam, until 2006, E-Commerce activities were first amended bylegislations 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 thegrowth in E-commerce Brokerage activities In the market, CommerceBrokerage emerges in new forms conducted via electronic devices andthrough data messages, which are referred to as E-commerce Brokerageactivities Being more convenient, quick, and borderless, E-commerceBrokerage 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 anonline market for sellers and buyers to connect, and then profit from theirservice as middlemen To increase competitiveness, E-commerce brokersoften charge sellers with no fees for displaying their product/service on theplatform Instead, the fees will be calculated on the basis of successfultransactions The technological features (online markets, interface…) serve

as a ground for the dependency of all parties involved and influence theircommercial behavior As for the sellers/service providers and buyers, theycan only find each other and establish, conduct, change or end theircommercial activities via the technological platform of the intermediaries

As for the brokers, the values created by E-Commerce Brokerage aredifferent from the traditional brokerage activities via technology They notonly execute their brokerage activities via technological devices but alsovia their own technological platforms

Having done some secondary research, the researcher notices a fewshortcomings as follows:

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

established E-Commerce Brokerage activities are still intrinsicallyinconsistent Although they carry the characteristics of both CommerceBrokerage and E-Commerce, simply combining two definitions mightnot be the best way to recognize all the legal characteristics of E-Commerce Brokerage Therefore, a need for an in-depth examination ofthe legal nature of E-Commerce Brokerage arises There has not beenany prior research to distinguish between the legal nature of E-Commerce Brokerage activities and traditional commercial brokerageactivities Distinguishing these commercial activities will be useful inguiding the formulation and improvement of the law as well as theprocess 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 activitiesmainly regulates two aspects: the law governing commercialintermediary activities in general and commercial brokerage inparticular; and the law governing e-commerce activities However, asthe two legal systems above regulate e-commerce brokerage activities atthe same time, overlapping and conflicting are inevitable, yetregulations 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 theparties involved, but there is a lack of research in order to have a legal basisfor adjusting this activity in practice In Report No 442/BC-CP datedOctober 1, 2020, in section II.9.2.1, part B also noted: “Practice shows thatthere are E-Commerce operation models that do not belong to both modelsthat are regulated in Decree No 52/2013/ND-CP (some models are justintermediaries that help buyers search for goods and services afteraccessing other websites and receive commissions for

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each successful transaction)… It is necessary to have legal regulations

to regulate the above models to ensure the adjustment of a healthy Commerce model, to protect the interests of consumers and to avoid taxrevenue loss with profits generated”

E-Obviously, this is a commercial activity with many advantages thatbrings various benefits and is in line with modern shopping trends In thefuture, various types of E-Commerce Brokerage services are predicted todevelop in a variety of forms, vibrant in content and economically efficient

As the legal consciousness is behind social reality, a new activity arisingwill lead to arguments and different views It is, therefore, necessary tostudy 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 alegal basis in time to regulate actual activities

Both the theoretical aspect and the legal status of E-CommerceBrokerage activities have not been studied; therefore, it is necessary toset 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-CommerceBrokerage Activities in order to perfect the law governing E-CommerceBrokerage activities

To accomplish the abovementioned research purpose, the thesisfocuses on the following research missions:

- Providing an overview of the research situation related to the thesistopic

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

- Analysing regulations on E-Commerce Brokerage activities andthe current situation of law enforcement on E-Commerce Brokerageactivities

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- 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 on E-Commerce Brokerage

3 Object and scope of research

3.1 Research objects

The research objects of the thesis include the legal contents related

to E-Commerce Brokerage activities; the practice of promulgating andenforcing the law on E-Commerce Brokerage activities in Vietnam; theexperience of countries in perfecting the law governing E-CommerceBrokerage activities

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, foreigncurrencies and other means of payment; betting or gambling services;realease and distribution services of digital products, radio andtelevision services are not within the research scope of the thesis Therecommendations to improve the law presented in the thesis are alsoconsistent with the adjustment method, scope of adjustment andadjusting 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 segmentwhere E-Commerce Brokerage activities were born, developed strongly,and tend to continue its expansion in the future Retail is understood as thedirect sale of goods and services to consumers who use the goods/servicefor the needs of individuals and households, not for

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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 followingmethods: analysis, synthesis, commentary, interpretation, comparativelaw, statistics, and so on to clarify each specific content, in order toachieve the missions proposed The thesis also uses general researchmethods

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 Brokerageactivities with new contents including the affirmation that E-CommerceBrokerage activities are commercial brokerage activities carried out on

a technology basis It is the technology background that has createdvarious typical legal problems that need to be adjusted, yet the currentlegal system is still unable to address such issues The thesis builds thelegal concept of E-Commerce Brokerage activities Although there havebeen domestic and foreign studies referring to the concept of E-Commerce Brokerage, no comprehensive study on the legal concept hasbeen done The thesis compares the legal characteristics between E-Commerce Brokerage activities and traditional commercial brokerageactivities and thereby pointing out the legal issues arising in themanagement 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 Commerce Brokerage activities and presents the formal

E-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.

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

to countries in the world and Vietnam The thesis also points out theadvantages 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 throughassessing the legal status on legal issues such as Regulations about thesubjects 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-CommerceBrokerage Thereby, the thesis confirms the necessity to perfect the legalregulations 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 socioeconomicconditions of Vietnam today, the thesis has researched and proposed toimprove the law on E-Commerce Brokerage activities on the basis ofamending the legislation system about E-Commerce Therecommendations and solutions are feasible not only in terms ofperfecting the law but also improving the effectiveness of application, inline with the current practical context

E-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

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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:

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 đề pháp lý về hoạt động mua hàng theo nhóm” 6 [Some legal issues

on 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 cross-border E-Commerce services business].

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.

3Posts 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

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

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

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

Law University.

7Dr 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

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

There has not been any research directly addressing the issue of thelegal theory on E-Commerce Brokerage activities The Ph.D candidatehas 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.

9Ms 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.

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conference proceeding of Workshop “Mô hình kinh tế chia sẻ: Nhữngvấn 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 resultsachieved by different authors, the Ph.D candidate shall develop theconcept and legal nature of E-Commerce Brokerage activities in thethesis In addition, the thesis will also focus on clarifying the differencesbased on legal characteristics between E-Commerce Brokerageactivities 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

11Hoang 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

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

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

Third, the research results on the current legislature governing Commerce Brokerage activities A number of works have provided the

E-current legal status of Vietnam and foreign countries for specific types

of activities of E-Commerce brokers (such as group buying, carpoolingservices) Some documents also outline the current status of taxadministration, ensuring the harmonization of benefits with traditionalservice business models, controlling information transparency,managing electronic transactions, international payments, productquality, labor, employment, social security, and so on However, ingeneral, the current state of the law governing commercial brokerageactivities has not been 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 ofstudying the theory of E-Commerce Brokerage and at the same timeassessing the actual situation of the law regulating activities in a specificway, the author will continue to propose solutions to improve the law onthis 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

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

comprehensively analyzed and assessed the current situation of lawenforcement on E-Commerce Brokerage

Fourth, the thesis proposes to perfect the law governing

E-Commerce Brokerage activities by amendingn the legal documentsystem on E-Commerce

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-CommerceBrokerage 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 economicdevelopment 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

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The thesis is based on the following research hypotheses:

- E-Commerce Brokerage activities carry the general nature ofcommercial brokerage activities However, such activities beingimplemented through a technology platform has created distinct legalcharacteristics 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-CommerceBrokerage activities are proposed in the direction of mainly amendingthe 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 morethan 1 billion USD in revenue, while AOL reached 1.2 billion in 10weeks12 This is considered an impressive start for the development ofE-Commerce Brokerage activities Early forms of E-CommerceBrokerage 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 publishedthe 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.

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