THÚY tóm tắt LUẬN án (TIẾNG ANH)

The contract interpretation regime is designed to provide a legal basis for resolving disputes that occur between the parties, aswell as avoiding arbitrary discretion of the competent su

HANOI LAW UNIVERSITY

HA THI THUY

HÀ THỊ THÚY INTERPRETATION OF CONTRACTS IN ACCORDANCE WITH VIETNAMESE LAW REGULATIONS

Specialization: Civil Law and Civil Procedure

Code: 9 38 01 02

SUMMARY OF LAW DISSERTATION

Hanoi – 2019

NỘIHANOI HA HANOI LAW UNIVERSITY

Academic Supervisor: Assoc.Prof Dr Bui Đang HieuAAGS TS Bùi Đăng Hiếu

Reviewer 1: Dr Hoang Thi Thuy Hang

Reviewer 2: Assoc.Prof Dr Phan Huu Thu

Reviewer 3: Dr Dinh Trung Tung

Dissertation will be examined by the Council of DissertationEvaluation at Hanoi Law University on , 2019

Dissertation is available at:) Thư viện Quốc gia;

1) National Library;

2) Library of Hanoi Law University

2) Thư viện Trường Đại học Luật Hà Nội

A INTRODUCTION

1 Implication of the dissertation

Interpretation of contracts is not a new regime in civil law ingeneral and contract law in particular From B.C, Roman lawyers laidthe foundation for the establishment of a contract interpretation.Studying legal concepts, establishing principles, explanatory methods

as well as explanatory bases will create a solid rationale for legislators

to consider, receive and reflect them into legislations to improve thelegal provisions on contract interpretation However, in Vietnam today,there is almost no scientific work to systematically study theoreticaland practical issues about the contract interpretation

In practical terms, for many reasons the contracts may haveambiguous, confusing, too general, or contradictory terms whichmade other people hard to understand or understand in differentmeanings The contract interpretation regime is designed to provide

a legal basis for resolving disputes that occur between the parties, aswell as avoiding arbitrary discretion of the competent subject wheninterpreting the contract However, the grounds for interpreting thecontract specified in the Civil Code are not sufficient that make thesubject settle the dispute on the interpretation of contract lacking alegal basis for resolution, leading to arbitrary discretion in applyingthe law Therefore, the study to improve the regime of contractinterpretation aims to create an objective and sufficial legal basis,contributing to protecting the rights and legitimate interests of theparties in the contract, promoting the develop and keeping stable forcivil exchanges

The market economy and the globalization trend have led to anincreasing number of contracts The requirement of interpreting thecontract is increasing, that makes the regime of contract interpretationplay an important role in keeping the contract relationship stable, andcreating a legal basis for dispute resolution

For all those reasons, it is necessary to study the topic

"Interpretation of contracts in accordance with Vietnamese law regulations" to meet the requirements of improving the law as well as

contributing to the theoretical and practical basis for the contractinterpretation

2 Research objectives and study mission

The dissertation systematized the theoretical issues of contractinterpretation, studied the status of Vietnamese law on theinterpretation of contracts and practice of the contract interpretation inVietnam as well as modern views on the contract interpretation in theworld From which, the dissertation aimed to provide solutions toimprove the provisions of law on contract interpretation and improvethe effectiveness of the contract interpretation in Vietnam

To achieve the above objectives, the dissertation needs tofulfill the following tasks:

- Clarifying the theoretical issues of the contract interpretation

- Studying the current legal status of the contract interpretationand the practice of the contract interpretation in Vietnam

- Studying the viewpoints of the contract interpretation in thelaw of some typical countries in the world and the practice ofcontracting and implementing contracts in Vietnam

- Proposing recommendations on the regime of contractinterpretation in the Civil Code, amendment and supplement to theprinciples and bases for the contracts interpretation as well as givingspecific recommendations to increase the effectiveness of applyinglegal provisions on the contract interpretation in Vietnam

3 Subject and Scope of the Research

Research subbjects of the dissertation including:

- Theoretical issues of contracts, interpretation of contracts,interpretations of wills and interpretation of civil transactions;

- Regulations on the contract interpretation of the Civil Codesthrough periods and some related legal documents on contractinterpretation in Vietnam, including Commercial Law and ConsumerProtection Law

- Practice of the contract interpretation in Vietnam

Scope of the research:

The dissertation concentrated on researching the theoretical,legal and practical issues of interpretation of civil contracts andcommercial business contracts

In terms of time, the dissertation studied the provisions ofVietnamese law on the contract interpretation in the Civil Codes fromthe French colonial period to Civil Code 1995, Civil Code 2005, andCivil Code 2015, and mainly researched the contract interpretation

in the Civil Code 2015 Regarding the practice of the contractinterpretation, the dissertation focused on the practice of contractinterpretation of competent subjects from the Civil Code 1995 comesinto effect up to now

4 Research Methodology

The dissertation used the methodology of dialecticalmaterialism and historical materialism on the basis of views,objectives and lines of the Party and the State on the issues ofeconomics, politics, culture and society

The dissertation used a combination of different researchmethods, including the method of researching social science andhumanities in general and the method of scientific law research foreach specific content to achieve the desired goals

5 The new contributions of the dissertation

The dissertation was the first scientific work at the level ofdoctoral dissertation studying comprehensively and systematicallythe theoretical and practical issues of interpretation of civil contract

in Vietnam The dissertation had some new contributions as follows: The first, the dissertation systematically built the theoreticalissues of contract interpretation, including building a concept of thecontract interpretation, identifying the legal nature of the contractinterpretation and discriminating the contract interpretation withother related activities, determining the neccesity of the contractinterpretation, the subject of the contract interpretation, the scope ofthe contract interpretation, the principle of the contract interpretationand the legal consequences of the contract interpretation

The second, the dissertation analyzed and evaluated objectivelyand comprehensively the bases of the contract interpretation inaccordance with current Vietnamese laws and practical interpretation

of civil contract in Vietnam Specifically, the dissertationconcentrated on analyzing the basis of the contract interpretationcomparing with the reality of the contract interpretation through anumber of typical judgments and decisions Since then, thedissertation pointed out inadequacies in the interpretation of contract

in Vietnamese law and offered orientations to apply the bases of thecontract interpretation in Vietnam

The third, the dissertation analyzed both theories on thecontract interpretation in the world and modern views on the contractinterpretation of international countries

The fourth, the dissertation also pointed out the bases of thecontract interpretation which need to be supplimented to the law oncontract interpretation of Vietnam on the basis of acquiring foreignlaws, as well as compliance with the theories and realities of thecontract interpretation in Vietnam

The fifth, on the basis of pointing out the shortcomings thatneed to be overcome in the regimes of the contract interpretation inVietnam, the dissertation has proposed solutions to improve theVietnamese law on the contract interpretation, including proposals onthe changing position of the contract interpretation regimes in CivilCode of Vietnam, proposals on the order of application of the basesfor contract interpretation in Vietnam and proposals on constructingthe regimes of the contract interpretation in the Civil Code whichcomposing 16 Articles stipulating cases of interpretation of contract,principles of contract interpretation, bases of contract interpretationand legal consequences of uninterpretd contract cases

The last, the dissertation proposed solutions to improve theeffectiveness of the application of law on the contract interpretation

of Vietnam, including two groups of solutions: solutions for subjectsinterpreting the contract and solutions for parties in the contract

6 Theoretical and practical meanings of the dissertation

The first, the dissertation has a scientific contribution inproviding a system of theoretical and practical issues on theinterpretation of contracts From which, a lawmakers have a basis tostudy and reflect them into the provisions of law At the same time, it

is also the basis for competent subjects understanding the base ofcontract interpretation to effectively perform the contractinterpretation

The second, the dissertation has a significant meaning incompleting the current contract law in Vietnam in order to meet therequirements of the market economy in the period of globalization.The third, the dissertation is also a reference source for lawyers

in researching, applying or teaching contract law in research, trainingand teaching law institutions

7 Structure of the dissertation

In addition to the introduction, overview of the research,conclusion, references, the content of the dissertation consists of 4chapters

B OVERVIEW OF STUDIES RELATED

TO RESEARCH TOPIC

1 Overview of studies related to the research topic

1.1 Overview of studies related to theoretical

issues of contract 1.1.1 International Researches

Contract is always one of the most important legal regimes ofthe private legal system in any country Up to now, there are a lot oflegal works researching the contracts in the world In general, theseresearches concentrated on studying a general study of contracts or

an in-depth aspect of contracts and are considered as a theoreticalfoundation for the dissertation to study the contract interpretation

1.1.2 Domestic Researches

The scientific researches on the contracts in Vietnam so farhave a very large number in comparision with other researches onlegal science Each period of development history of contract regime

in Vietnam, there are many typical researches, especially from themid-90s of the twentieth century, the regime of contracts had a

significant role, so the researches on contracts in Vietnam increasedvery fast in terms of quantity and research content.

1.2 Researches on the contract interpretation

“Elements of cравнительное правоведение в сфере частного праваontracравнительное правоведение в сфере частного праваt interpretation” by Steven J Burton, Oxford

Publisher, 2009; The Interpretation of Contracts, Lewison K., Sweet

and Maxwell, London, 2011; “Толькование договора” by Жученко

liability for compensation”, Ho Chi Minh City University of Law,Hong Duc Publishing House, 2014.

Regarding the articles, there are: "Interpretation of civilcontracts: Foreign comparison and Article 408 of Civil Code" by Dr.Nguyen Ngoc Khanh, Journal of Legislative Studies, No 10/2004;

"Discussing the regime of the contract interpretation in the Draft ofCivil Code (amended)", State and Law Journal, March 2015 by twoauthors Assoc.Prof Dr Ha Thi Mai Hien and Ma Ha Thi Thuy; "Theregime of interpreting civil transactions in the draft of Civil Code(amended)", by Assoc Prof Dr Nguyen Quoc Suu, ElectronicCommunist Review, March 23, 2015; The presentation "The regime

of contracting in the draft of Civil Code 2005 (amended)” of Dr.Nguyen Bich Thao at the workshop "Assigning assets, obligationsand contracts in the draft of Civil Code (amended)" coordinated byHanoi National University

2 Evaluate the research results of scientific researches related to the dissertation

In international aspect, there are a number of elaborateresearches on the contract interpretation, but studying the lawregulation and practices of foreign countries In Vietnam, there are alot of researches related to contract in general, but not researching thetheoretical and practical issues of the contract interpretation inVietnam However, these domestic and foreign researches havestudied several aspects of teh contract interpretation in Vietnam Theevaluation of these researches provides the author with an overview

of the research situation related to the topic, then, giving the researchorientation to the topic

3 Research orientation of the dissertation

3.1 Issues the dissertation continues to acquire and develop

On the basis of research and evaluation of researches related tothe topic, the dissertation acquired and continued to develop theissues: the first is the basic theory of the contract interpretation thathave been developed by scientists; the second is the theory of thecontract interpretation which was built by lawyers from the time ofRome, such as the will theory, the doctrine of expressing will and the

doctrine of the middle; The third is the results of researches on thecontract interpretation regime of some countries in the world; the last

is that the dissertation continued to use traditional research methods

in legal science that other scholars used

3.2 New orientations of the dissertation

The hypothesis set out in the dissertation is: Firstly, the regime

of the contract interpretation in Civil Code 2015 has not been built on

a solid and systematic basis Secondly, the reality of the contractinterpretation of competent subject got many difficulties, and therehave not been yet a solid legal basis due to inadequate principles andinterpretations of contracts in the Civil Code; some interpretationsare not feasible and suitable with the practice of the contractinterpretation in Vietnam

The research orientation of the dissertation are:

Firstly, building a rationale for development of the regime ofthe contract interpretation and for the interpretation of contract of thecompetent subject in Vietnam

Secondly, analyzing the principles and basis of theinterpretation of contracts in current Vietnamese laws and thepractice of the contract interpretation in Vietnam, indicating therational and irrational points of the principles and bases inaccordance with theoretical and verifiable basis

Thirdly, studying the views on contract interpretation ofcountries in the world to apply, study and propose some additionalinterpretations of the contract on the regime of the contractinterpretation in Vietnam

Finally, on the basis of the theoretical, practical and personalviews of the researcher, the dissertation proposes recommendations

to improve the law on contract interpretation in Vietnam and theeffect of the contract interpretation in Vietnam today

Conclusion

The study of the contract interpretation has been concernedand mentioned in different aspects and scopes However, there hasnot been an intensive, comprehensive and systematic research about

theory and reality of the contract interpretation in accordance withVietnamese law regulations.

The study of the topic "Interpretation of contracts in accordance with Vietnamese law regulations" is a necessary and

new scientific task on selective inheritance of research results

C MAIN CONTENT CHAPTER 1: THEORETICAL ISSUES OF THE CONTRACT

INTERPRETATION 1.1 The neccessity of interpreting the contract

The neccessity of interpreting the contract appears when thecontract has unclear contents and terms The cause of this ambiguitymay be due to subjective reasons such as the use of words (usingwords with diffirent meanings, words without meaning, local words),the expression is not clear, spelling errors in the process ofexpression, or due to objective reasons such as different regionalpractices, as well as due to circumstances in which contracts mayhave different understandings Because the contract contains unclearcontents and terms, the parties cannot agree on how to understand Atthis time, the interpretation of the contract is necessary to clarify theunclear content of the contract to determine the rights and obligations

of the parties and/or responsibilities for violation of contract by eachparty

The determination of the cause of the contract interpretation aswell as the demand of the contract interpretation makes sense inidentifying principles, basis of the interpretation and the appropriateinterpretation method

1.2 Concept of the contract interpretation

The regime of the contract interpretation appeared fromRoman times Along with the struggle and development of legalscience fields, and the change of the purpose of the contractinterpretation, this regime has undergone many changes

The contract interpretation is the activity of a competentsubject to clarify unclear contents and terms of the contract based onthe principles and legal grounds

1.3 The legal nature of the contract interpretation and

distinguish the contract interpretation with other issues

1.3.1 The legal nature of the contract interpretation

The legal nature of contract interpretation is that the subjectinterprets the contents of the contract when the contract containsunclear terms and contents to determine each party's rights andobligations

1.3.2 Distinguish the contract interpretation with other issues

1.3.2.1 Distinguish the cравнительное правоведение в сфере частного праваontracравнительное правоведение в сфере частного праваt interpretation and interpretation of wills

Although the interpretation of the contract and theinterpretation of the will have much in common, these two activitieshave a lot of differences in the nature of the interpretation, thecompetent subject of the interpretation, the sequence of theinterpretation, the basis of the interpretation, as well as legalconsequences of the interpretation

1.3.2.2 Distinguish the cравнительное правоведение в сфере частного праваontracравнительное правоведение в сфере частного праваt interpretation with the supplement

of the missing cравнительное правоведение в сфере частного праваlause of the cравнительное правоведение в сфере частного праваontracравнительное правоведение в сфере частного праваt based on the law provisions

There are many opinions that the supplement of the contracts

is a contract interpretation activity However, these two activities arecompletely different in terms of reasons to interpret and reasons forsupplementing contracts; nature and basis for interpretation andgrounds for supplementing contracts

1.3.2.3 Distinguish the cравнительное правоведение в сфере частного праваontracравнительное правоведение в сфере частного праваt interpretation and legal interpretation

Many legal scientists of the Russian Federation and the UKconsider the contract interpretation as a special form of legalinterpretation However, in Vietnam these are two completelydifferent activities on the competent subject, the legal consequences

of the interpretation, the purpose of the interpretation, and the basis

subject, the basis and the principles of the interpretation oradjustment of the contract.

1.4 Competent subjects interpret the contract

The contract must be interpreted when the parties to thecontract do not agree on how to understand a certain content orclause of the contract, resulting in a dispute So the nature of thedispute on contract interpretation is a kind of contract dispute.Therefore, the competent subject with the authority to interpret thecontract is the Court or the arbitration The interpretation of thecontract by the parties themselves is not a proper interpretationbecause the parties are not bound to interpret under any mandatoryprocess, rule, or base As a result of this interpretation, the partiesmay make new provisions for the contract, or change some terms inthe original contract

1.5 Scope of the contract interpretation

The scope of the contract interpretation will be determined inthe following cases:

Firstly, resolving a contract dispute in which contains unclearcontents and terms leads to the parties' disagreement on how tounderstand the contract This is considered as interpreting the content

of the contract The competent subject will have to perform thecontract interpretation even if the parties do not require aninterpretation, but the terms of the contract are unclear, and theinterpretation is necessary to resolve contract disputes

Secondly, the contract interpretation is to determine the nature

of the contract that has been concluded, even if the contract is named

by the parties - an interpretation of the identity

1.6 Principles of the contract interpretation

1.6.1 The principle of interpretation respects the will of the parties rather than the words of the contract

1.6.2 The principle of interpretation must not alter the content of the contract

1.6.3 The principle of interpretation in the direction of priority makes the contract effectively

1.6.4 The principle of interpretation in a fair and reasonable way 1.6.5 The principle of interpretation in a way that benefits the