Ebook Những nội dung cơ bản của Bộ Luật dân sự năm 2005: Phần 2

Mời các bạn cùng tham khảo tiếp nội dung cuốn sách Những nội dung cơ bản của Bộ Luật dân sự năm 2005 qua phần 2 sau đây. Luật này có nhiệm vụ bảo vệ quyền, lợi ích hợp pháp của cá nhân, tổ chức, lợi ích của Nhà nước, lợi ích công cộng; bảo đảm sự bình đẳng và an toàn pháp lý trong quan hệ dân sự, góp phần tạo điều kiện đáp ứng nhu cầu vật chất và tinh thần của nhân dân, thúc đẩy sự phát triển kinh tế - xã hội.

KEY ISSUES

IN THE 2005 CIVIL CODE

To diíĩíỉeminatc the kcy issucs o f cnnctcd im por ta n t codes a n d taivs such as the Civil C(XỈc, the Invcstnieỉìt Lcau, the Ixnv on IntcỊỊcctuol Propcrty a n d thc E n te rp ris e Law to the husincss community, Victnamcsc a n d [oreigìi rcodcrs, the Jucliciaỉ Pithlishiniĩ Housc, in ựoordiuation ivith the Intern atio na l Latc Department, the Ministrỵ ofJ iisticc , p iỉb ỉis h c s so nw books lìì both Victnanìcsc a n d English to iniroduce thc code a n d loivs s a i d ahocc.

ỉt is ou r hopc th a t íhc pu bti catio n s o f the ổ u d ic ia l Publishing ỉỉouíic Lvill bí' usefuỉ for Ihosc domcsỉic a n d [o r d g n in d iv i d u a l s a n d

o r g a m z a t i o n s Luho are in tercstcd in le a n ii n g ahouí the Victnamesc laivs. Wc,' als o hope th a t thcse books ivilỉ contribute to ensuring

tr an spare nc y o f the Vietìiam esc ỉegal system - one o f the rcquirc- ments for th is co u n tr y to hecome a mc mhe r o f the Worỉd Trade Orga n iza t ion (WTO).

We, therefore, h a ve the honor to introduce this book to readcrs!

Janiiaiy 2007

T H E JU D IC IA L PƯ B LISH IN G HOƯSE

Partl INTRODUCTION TO THE 2005 CIVIL CODE

Part I Introduction to the 2005 Civìl Code

I sTRllC I URK ()F THK 2005 C I\ IL CODK

The 2 0 0 5 C iv il Codc co m pri se s o f 36 Chapters, 777 Artỉcỉes

ivhivh a r e d i v i d c d i n t o th e f o l l o w i n g 7 Parts:

P a r t One: G e n e ra l p ro v ỉsio n s coniprises of 9 C h a p te rs

Chaptcr /: Tasks and effect of the Civil Code (Articles 1-3) Chapter II: Basic principles (Articles 4-13)

Chapter ///: Indivicluaỉs (Articles 14-83) comprises of 5 Sections:

Scction 1: Civil law capacity and civil actcapacitv of individu- als (Articles 14-23)

Section 2: Personal rights (Articlcs 24-51)

Section 3: Place of residence (Articles 52-57)

Section 4: G uardianship (Articlcs 58-73)

Section 5: Notice of search for persons who are absent from their places of residence, declaration of missing persons and decla- ration of death (Articles 74-83)

Chapter rV\ Legal persons (Articles 84-105) comprises of 2 Sections:

Section 1: General provisions on legal persons (Articles 84-99) Section 2: Types of legal person (Articles 100-105)

C h a p t e r V: Pamily households and cooperative groups

(Articles 106-120) comprises of 2 Sections:

Section 1: Pamily households (Articles 106-110)

Section 2: Cooperative groups (Articles 111-120)

Chapter VI: Civil transactions (Articles 121-138)

Chapter VII: R epresentation (Articles 139-148)

Key issues in the 2005 Civil Code

Chaptcr VIII: Time limits (Articles 149-153)

Chapter IX: S tatute of lim itations (Articles 154-162)

Part Two: Property and ovvnership rights comprises of 7 Chapters;

Chapter X: General provisions (Articles 163-173)

Chapter XI: Types of property (Articles 174-181)

Chapter XỈI: Contents of ovvnership rights (Articles 182-199)

comprises of 3 Sections:

Section 1: The right to possession (Articles 182-191)

Section 2: The right to use (Articles 192*194)

Section 3: The right to disposition (Articles 19Õ-199)

Chapter Xlll: Forms of ovvnership (Articles 200-232) compris-

es of 6 Sections;

Section 1: State ovvnership (Articles 200-207)

Section 2: Collective ownership (Articles 208-210)

Section 3: Private ovvnership (Articles 211-213)

Section 4: Common ownership (Articles 214-226)

Section 5: Ovvnership by political organizations, socio-political organizations (Articles 227-229)

Seclion 6: Ownership by socio-political-professional organiza- tions, social organizations, socio*professional organizations (Articles 230-232)

Chapter x rv : Establishm ent and term ination of ovvnership

rights (Articles 233-254) comprises of 2 Sections:

Section 1: Establishm ent of ovvnership rights (Articles 233-247) Section 2: Term ination of ovvnership rights (Articles 248-254)

Chapter XV: Protection of ownership rights (Articles 255-261)

Part I Introduction to the 2005 Civíl Code

C h a p t e r XVI: O ther provisions on ovvnership rights (Articles 262-279)

Part Three: Civil obligations and civil contracts comprises of 5 Chapters

C h a p t e r XVII: General provisions (Articles 280-427) compris-

es of 7 Sections:

Section 1: Civil obligations (Articles 280-282)

Section 2: Performance of civil obhgations (Articles 283-301) Section 3: Civil liability (Articỉes 302-308)

Section 4: T ransfer of the right to demand and transíer of civil obligations (Articles 309-317)

Section 5: Security for the performance of civil obligations (Articles 318-373)

Section 6: Term ination of civil obligations (Articles 374-387) Section 7: Civil contracts (Articles 388-427)

Chapter XVIII: Commonly used civil contracts (Articles 428­ 593) comprises of 13 Sections:

Section 1: Contracts for property sale and purchase (Articles 428-462)

Section 2: Contracts for property exchange (Articles 463-464) Section 3: Contracts for the donation of property (Articles 465-470)

Section 4; Contracts for property loan (Articles 471-479)

Section 5: Contracts for property lease (Articles 480-511) Section 6: Contracts for property borrovving (Articles 512-517) Section 7: Service contracts (Articles 518-526)

Key issues in the 2005 C ivil Code

Section 8: Contracts for transportation (Articles 527-Õ46)

Section 9: Processing contracts (Articles 547-5Õ8)

Section 10: Contracts for the bailmentoí propertv (Articles Õ59-566) Section 11: Insurance contracts (Articles 567-580)

Section 12; M andate contracts (Articles 581-589)

Section 13: Promise of reward and com petition for prizes (Articles Õ90-593)

Chapter XỈX: Performance of tasks vvithout m andate (Articles 594-598)

Chapter XX: Obligation to return the property possessed, used, benefits enjoyed thereừom vvithout a legal basis (Articles 599-603)

Chapter XXI: Liability to compensate for dam age ơutside con-

tract (Articles 604-630) comprises of 3 Sections:

Section 1: General provisions (Articles 604-607)

Section 2: D eterm ination of damage (Articles 608-612)

Section 3: Compensation for damage in a num ber of speciric cases (Articles 613-630)

Part Four: Inheritance com prises o f 3 Chapters

Chapter XXII: General provisions (Articles 631-645)

Chapter XXIIỈ: T estam entary inheritance (Articles 646-673)

Chapter XXIV: Inheritance at law (Articles 674-680)

Chapter XXV: Paym ent and division of inheritable estate (Articles 681-687)

Part Five: Provisions on the transter o f land use rights com-

prises of 8 Chapters

Chapter XXVI: General provisions (Articles 688-692)

Part I Introduction to the 2005 Civìl Code

Chapter XXVỈI: Contracts for the exchange of land use rights (Articlos 693-696)

Chaptcr KXVỈII: Contracts Cor the transĩer of land use rights (Articles 697-702)

Chapter XXIX: Contracts for the lease and s u b l e a s e of land use rights (Articles 703-714)

Chapter XXX: Contracts for the mortgage of land use rights (Articles 715-721)

Chapter XXXI: Contracts for the donation of land use rights (Articles 722-726)

Chapter XXXỈI: Contracts for the Capital contribution with laiid use rights (Articles 727-732)

Chapter XXXIII: Inheritance of land use rights (Articles 733-735)

Part Six: Intellectual property rỉghts and technology transfer com prìses of 3 Chapters

Chapter XXXrV: Copyright and related rights (Articles 736-749)

Chapter XXXV: Industrial property rights and the rights to plant varieties (Articles 750-753)

Chapter XXXVỈ: Technology transíer (Articles 754-757)

Part Seven: C ỉvil relations involving toreign elements (Articles 758-777)

Key issues in the 2005 C ivil Code

II NEW IM H O R TAN T PROVISIONS IN THE 2005 C IV IL ( O D K

Having a thorough grasp of policy guidelines for the process of drafting, the Drafting Committee has conducted a study on how to comprehensively revise the 1995 Civil Code, to surmount its short- comings and to meet the practical demands The nevvly enacted Civil Code contains the following new provisions:

1 Scope o f regulation

1.1 Transtér of land use ríghts

In a multi*sector market economy, influenced by objective laws of the market, land relations are not only administrative ones between the State and land users, but also economic and civil ones betvveen land users themselves Land use rights are special prop* erty rights established in land use relations and the transíer of land use rights is a special and conditional transaction The estab- lishment of real estate market through transactions for the trans- fer of land use rights is an objective and indispensable require- ment in the market economy in order to ensure the right to free- dom of Business and the right to íreedom of residence of all citi- zens Therefore, the 2005 Civil Code has the same provisions to that in Part Five of the 1995 Civil Code on the transfer of land use rights However, adhering to the basic principles of civil laws, the

2005 Civil Code only provides for the transfer of land use rights relating to civil rights Administrative procedures relating to the transíer of land use rights are regulated by the laws on land.

Accordingly, the 2005 Civil Code provides for legal bases for establishment of land use rights; forms of, prices for, principles for and effects of the transfer of land use rights; a number of common-

ly used contracts for the transfer of land use rights In addition, the provisions on the transíer of land use rights in the 1995 Civil Code were amended and supplemented to be consistent with the

Part I Introduction to the 2005 Civil Code

2003 Land Law These amendments and suppỉements are:

(i) Provisions on land use rights of legal persons and other sub- jects established upon the land assignment or the land lease or the land use right recognition by the State;

(ii) Provisions on contracts for the sub-lease of land use rights (Article 714, the 2005 Civil Code);

(iii) Provisions on contracts for the donation of land use rights (Articles 722 to 726, the 2005 Civil Code);

(iv) Provisions on contracts for Cap ital contribution with the value of land use rights (Articles 727 to 733, the 2005 Civil Code); and

(v) Provisions on the handling of mortgaged land use rights in coníormity with the nature of civil relations and to respect the vvill

of parties.

1.2 Intelloctuat property ríghts and tochnoỉogy transtor

Intellectual property rights and technology transĩer are extremely important matters for the scx^io-economic development

of the country, especially in the trend of international integration and for the development of a knovvledge-based economy at present

In the past, the provisions on intellectual property rights and tech- nology transíer in Part Six of the 1995 Civil Code created legal bases for the protection of intellectual property rights and the íacilitation of technology transfer in practice.

To spring from the vievvpoint that intellectual property rights (including personal and property rights) and technology transíer are basic civil rights of subjects in civil relations but are speciĩic issues, thereĩore, the 2005 Civil Code only provides for a number

of civil principles of ĩntellectual property rights and technology transíer, other issues of intellectual property rights and technolo-

Key issues in the 2005 C ivil Code

gy transfer are provided for in the Law on Intellectual Propertv and the Law on Technology Transfer.

In adđition, the comprehension of concept ''intellectuaỉ proper-

ty rights'" in the 2005 Civil Code has been Nvidening compared to that in the 1995 Civil Code At the same time, the 200Õ Civil Code concretizes a number of subjects of intellectual property rights provided for in the 1995 Civil Code as “other subjects as provided for by the law” These concretized subjects are satellite signals car- rying coded programs, semi-conductor integrated circuit layout designs, business secrets, trademarks, trade names, geographical indications and plant vaheties Therefore, subjects of intellectual property rights protected by our country’s laws are basically *'suf- ficienC compared to the requirements in international agreements

on intellectual property.

1.3 Houses

Houses are a special property and different from other proper-

ty in terms of property value and the procedure for establishment

of ownership rights, establishment of rights and obligations of par- ties to civil transactions relating to houses etc The 1995 Civil Code provided in a relatively detailed manner for contracts for the sale and purchase of houses (Articles 443-450) and contracts for

the lease of houses (Articles 489-502) In order to reflect the prac-

tice of civil transactions and to ensure the uniĩormity in the legal system, the 2005 Civil Code also provides for general issues of transactions relating to houses such as forms of transactions, rights and obligations of parties to transactions etc Other speciTic issues are provided by the laws on houses.

2 Subjects of civil legal relations

Reílecting special characteristics of the current socio-econom-

ic development in our country, the 2005 Civil Code continues to

Part I Introduction to the 2005 Civil Code

identiĩy cooperative groups and family households together with individuals and legal persons as subjects of civil legal relations Kamily households and cooperative groups have been operating as self-control economic establishments in many fields, especially in tho fields of agriculture, íorestry and Tishery, making positive con- tributions to the countrv’s development Their operations have also been provided for in some special legal documents.

At the same time, in order to clearly deĩine rights, obligations and legal liabilities of the above subjects, especially of íamily households in civil transactions, to ensure the healthy develop- ment of civil transactions as well as to íacilitate civil transactions betvveen ĩamily households, cooperative groups and other subjects, the 2005 Civil Code contains a number of amended and supple- mented provisions on common property of íamily households and

on the possession, use and disposition of common property of fam- ily households in a more detail, íuller and stricter manner Thereby, the Code provides for common property of family house- holds in Article 108.

The 2005 Civil Code also amends former legal provisions on the possession, use and disposition of common property of family households in a stricter manner.

3 Civil registration

Legal provisions on civil registration are bases for managing people in the society and protecting interests of the society and of each individual Civil registration is the certiíication by the State competent authorities of events such as birth, death, marriage, divorce, guarciianship, adoption, change of íamily and given names, change of nationality, determination of ethnicity and so on

in accordance with the laws on civil registration.

A majority of provisions in Section 4, Chapter I I I of the 1995

Key issues in the 2005 C ivil Code

Civil Code governed administrative relations between individuals and the State administrative agencies (civil registration agencies) in the process of civil registration Thereíore, in order to make a clear distinction between different branches of law, the 2005 Civil Code has no provision on civil registration which relates to administrative procedures and retains provisions on personal rights such as the right to registration of birth and death, the right to change íamily and given names, the right to adoption etc Such provisions are in Section 2 of Chapter III 'Tersonal rights" in the 2005 Civil Code.

4 A num ber o f personal rights

Personal rights are civil rights inherent to each individual, which cannot be transferred to others (unless otherwise provided for by law) The recognition of personal rights of individuals in the

2005 Civil Code is importantly meaningful in order to guide in details the citizens’ basic rights prescribed in the Constitution It manifests the respect and protection of legitimate rights and inter- ests of people in the society.

Bearing it in mind, the 2005 Civil Code retains and amends/supplements provisions on personal rights in the 1995 Civil Code to make them more practical (including 22 specific per- sonal rights) At the same time, to meet new requirements in the current situation, the 2005 Civil Code has a new provision on the right to donation of body organs (Article 33), the right to donation

of corpses, body organs after death (Article 34), the right to receive body organs (Article 35), the right to re-determination of gender (Article 36) However, these are new matters, needing more time

to see how they work in reality Therefore, the 2005 Civil Code pro- vides for them only in principle to reaíTirm personal rights of indi- viduals but details of these rights shall be provided for in special legal documents, as follows:

Part I Introduction to the 2005 Cívil Code

4.1 The rỉght to donation otcorpses and body organs

The right to donation of corpses, body organs is personal right

of individuals, maniíesting their self-determination of body organs

or corpses after their death This right, if done in reality in a right

m a n n e r , i s p r o f o u n d l y h u m a n i t a r i a n a n d m e a n i n g f u l , c o n t r i b u t -

i n g to the development o f S c i e n c e and m e d i c i n e i n Service o f

human beings Hence, in order to create legal basis for the per- formance of rights by individuals as vvell as to settle disputes aris-

en, it is necessary to prescribe the right to donation of corpses, body organs in the Civil Code.

In the 2005 Civil Code, the right to donation of corpses and body organs is provided for in Articles 33 and 34 in two cases: when an individual is alive and after his or her death, The dona-

t i o n a n d u s e o f b o d y organs o r c o r p s e s m u s t c o m p l y w i t h t h e prO '

visions of law.

4.2 The ríght to receive body organs

In order to ensure the interaction in relations between persons who donate and persons who receive body organs, together with the right to donation of body organs, the 2005 Civil Code has been added a provision on the right to receive such organs as a person-

al right in Article 35.

4.3 The ríght to re-determination otgender

Re-determination of gender is a matter vvhich occurred in real- ity, thereíore it should be recognized in the Civil Code as a person-

al right of individuals and serve as legal basis for special legal doc- uments on this matter Hence, the 2005 Civil Code provides that individuals have the right to re-determmation of gender in cases where his/her gender is affected vvith inborn defects or has not been properly shaped, vvhich needs medical intervention to clearly determine the gender.

Key issues in the 2005 Cỉvỉl Code

Along with the recognition of the right to re-cletermination of gonder, Paragraph 1 of Article 27 of tho 200Õ Civil Code also rec- ognizes the right to change family and given names in this case in order to ensure the exercise of this personal right in reality.

The summation of implementation of the 1995 Civil Code shovvs that provisions on many íorms of ownership in the 1995 Civil Code are generally suitable, reAecting the characteristics of each specific form of ovvnership in Vietnam Thereíore the 2005 Civil Code basically retains the 1995 Civil Code’s provisions on forms of ownership with some appropriate amendments and sup- plements On the basis of three ownership regimes recognized bv the Constitution, the 2005 Civil Code provides for the following six [orms of oivnership'.

(i) State ownership (replacing the form of ovvnership by the entire peopỉe in the 1995 Civil Code in order to more clearly define the subject’s responsibilities in the management, use and disỊX)si-

tion of property under the regime of ONvnership by the entire people); (ii) Collective ovvnership;

( i i i ) Private O N v n e r s h i p ;

(iv) Common ovvnership;

(v) Ovvnership by political or socio-political organizations;

Part I Introduction to the 2005 Civil Codc

(vi) Ownership by socio-politicnl-professional organizations, social organizations or socio-professional organizations.

With respect to the form of mixod ovvnership, the 199Õ Civil Codo provided that the possession, uso and disposition of proper- tieíi of mixed ovvnership shall be carried out in accordance with the provisions on common ownershÌỊ) Therc*fore, the 2005 Civil Code atĩiends tlìis provision in the direction that the form of mixed own- ership vvas incorporated into the form of common ownership.

ship right registration, movabte property subject to ownership right registration and im m ovable property from bona fíde possessors

To reclaim property is an important legal capacity of the ovvn- crs and legal possessors in order to protect their legal rights to ovvnership or possession In practice, hovvever, the transfer of property betvveen the subjects of civil relations is very complicat-

ed, Therefore, legai provisions on the right of the ovvners and iegal possessors to reclaim their property must reflect special character- istics of civil relations in order to be íeasible.

According to Article 264 of the 1995 Civil Code, the ovvners and legal possessors have the right to reclaim property from pos- sessors, users or persons who enjoy benefits from such property vvithout legal basis The exceptions are in cases where possessors

or persons enjoying property bữnefits vvithout legal basis are bona fide and they have possessed such properties continuously and publicly for at least 10 years with rcspect to movable property and

30 years vvith respect to immovable property.

In order to protect ovvnership rights of owners and stabilize civil relations, the 200Õ Civil Code contains new provisions on the right to reclaim property from bona ndo possessors in Articles 257 and 258.

Kcy issues in the 2005 C lvil Code

The purposes of these two new Articles are designed to protect the first owner of property and to take into account some special cases in the establishment of ovvnership rights of a third bona ĩide person They aim at stabilizing civil relations and limiting poten- tial disputes betNveen the Tirst owner and subsequent owners

e s t a b l i s h e d b y j u d g m e n t s of c o u r t s o r d e c i s i o n s of c o m p e t e n t S t a t e

agencies or by auctions.

7 Measures to secure the pertormance of civil obligations

Security for the períormance of civil obligations is preventive measures agreed upon by parties in civil relation in order tx5 secure the perĩormance of civil obligations and at the same time to pre- vent and overcome negative consequences caused by non-perform- ance or improper performance of obligations The agreement on security measures shall secure the liability to períorm obligations

of obligors or liabilities arisen out of contract of both parties Therefore, legal provisions on sGcurity have a lot of impact on the civil transactions in reality and are very important provisions of the Civil Code.

According to the 1995 Civil Code, measures to secure the per- ĩormance of civil obligations included pledge of property, mortgage

of property, deposit, and deposit via bank security deposit for lease of movable property, guaranty and penalties The 2005 Civil Code takes off the measure of penalties, and separates the meas- ure of guaranty in the 1995 Civil Code into the measure of proper-

ty guaranty and the measure of pledge of trust Moreover, the measures to secure the performance of civil obligations provided for in the 1995 Civil Code have been changed by the 2005 Civil Code to make them more practical in the new situation.

According to the 1995 Civil Code, the distinction betvveen pledge and mortgage of property depended on whether this proper-

ty was movable or immovable If the secured property was a

mov-Part I Introduction to the 2005 Cívil Code

able proỊierty, the parties to thí* transaction must use the measure

of plpclge of property If the secured prupertv was an immovable property, they must use the measurc of mortgage of property.

The 2005 Civil Code amends and supplements above provi- sions in the direction that the distinctioii betvveen the measure of pledge of property and the measure of mortgage of property bases

on vvhether the obligor transfers the secured property to the right holder or not, regardiess of whether such secured property is a movable or immovable If the obligor transíers the secured proper-

ty to the right holder, it is the measure of pledge If the obligor (or

a third party) still possesses the secured property and does not transíer it to the right holder it is the measure of mortgage Mortgage and pledge are provided in Articles 326 and 342.

In addition, to facilitate the performance of civil transactions

in reality, the 2005 Civil Code provides that a pledged property may be the one which is to be formed in the future.

8 T on tine

The 1995 Civil Code did not provide for the issue of tontine The organization of and participation in tontines were a very com- plicated matter in practice with various forms Some forms of par- ticipating in tontines are in fact civil transactions for the purpose

of mutuaỉ assistance among participants Hovvever, some forms of participating in or organizing tontines are forms of conducting business, such as borrovving or lending money, even in the form of usury Therefore, to create a healthy environment for participat- ing in tontines as well as to create legal basis for settlement of potential disputes, the 2005 Civil Code supplements a provision on tontine This provision identifies that tontine is in fact a form of contracts for borroNving property; participation in tontine is not an act of doing business, not for making profits, but only for the pur- pose of mutual assistance among people.

Key issues in the 2005 C ivil Code

9 L ia b ility to c o m p e n s a te fo r n o n -c o n tra c tu a l da m ag e (to rt)

Compcnsation for n o n -c o n tractu al clamago is a legal institu- tion, which was established at the oarliest and has been constant-

ly improved to make it be in accordance with the practice in eacli country In order to ensure the legitimate rights and interests of parties to a civil transaction, the 2005 Civil Code supplements a provision on the statute of limitations for initiating lavvsuits to demand for damage compensation At the same time, the Code amends a number of provisions on ciamage compensation in the direction to identifv more clearlv liability to compensate for dam- age and amount of compensation as follows:

9.1 The statute o f lim itations fo r initiating law suits to dem and for dam age com pensation

Based on the principle stipulated in Article lõõ of the 1995 Civil Code, the 2005 Civil Code has concretized the statute of lim- itation for initiating lawsuits in a number of speciĩic cases With respect to the claim for đamage compensation, Article 607 of the

2005 Civil Code provides that the statute of limitation shall be tvvo years from the date when the legitimate rights and interests of individuals, legal persons or other subjects are infringed upon.

9.2 C om pensation fo r dam age cau sed b y in M n g e m e n t upon

ìife, honor, dỉgntty and prestige

The 1995 Civil Code did not provide in detail for level of dam- age compensation for next of kin of person who has been infnnged upon life or for persons who have been infringed upon honor, dig- nity or prestige In the process of law application, depending on the specific case, courts must determine that a person who caused damage has to pay a certain amount of money to compensate for mental damage to victims or next of kin of victims.

In order to create legal basis for determining level of damage

Part I Introductíon to the 2005 Civil Code

comppnsatioii th at m ay agreed upoii hy relevant parties and to

contribute to stabilize civil relations, thc 2005 Civil Code provides

in íletails for level of damage coniỊKMìsation in c a s e s vvhere persons

who inừinge upon the life, honor, ciignity or prestige of others must compensate for damage and Ị)ay a sum of money as compen- aation for mental sufferings caused to sLich persons or their next of kin in Articles 609 to 611.

9.3 Com pensation to rd a m a g e caused by persons und erfifteen years old or persons having íost their civil act capacity while under the direct m anagem ent o fs c h o o ls , hospitals o r other organizations

The 1995 Civil Code providecl that schools, hospitals or other organizations who have committed faults in their management of persons under fifteen years old or persons having lost civil act capacity so that the latter causes damage, shall be jointly liable to compensate for damages together vvith the latter*s parents or guardians.

In order to enhance responsibilities of schools, hospitals or other organizations when they directly manage pupils and patients, Article 621 of the 2005 Civil Code provides that in cases where persons under fifteen years old or persons having lost civil act capacity cause damage to others while under the direct man- agement of schools, hospitals or other organizations, the latter shall be liable to pay damages If schools, hospitals or other organ- izations can prove that they have not committed any fault in the process of management, then the former’s parents or guardians must pay damages.

10 The statute o f lim ita tio n fo r in itia ting inherence-related law suits

The 1995 Civil Code provided for only type of the statute of lim- itation for initiating inherence-related lavvsuits which was 10 years counting from the time of opening the inheritance This provision

Key issues in the 2005 Civil Code

led to the interpretation that this statute of limitations would apply

to both initiating lavvsuits to demand the division of inheritable estate and initiating lawsuits to demand the performance of obliga- tions relating to inheritable estate Thereíore, the 2005 Civil Code provides in a more detailed manner for cases of initiating lawsuits and corresponding statutes of limitation as follows:

- The statute of limitation for a heir to request the division of estate, to determine his/her rights to inheritance or deny the inheritance rights of another person shall be ten years counting from the time of opening the inheritance.

- The statute of limitation for initiating a lavvsuit to demand a heir to the property obligations left by the decedent shall be three years counting from the time of opening the inheritance.

Part II THE 2005 CIVIL CODE

Part II The 2005 Civil Code

TASKS AND EFFECT OF THE CrVIL CODE

A rticle 1 Tasks a n d g o v e r n in g scope o f the Civil Code

The Civil Code provides the legal status, ìegal standards for the conduct of individuals, legal persons, other subjects; the rights and obligations of subjects regarding personal identities and prop- erty in civil, marriage and family, business, trade, labor relations (hereinafter referred collectively to as civil relations).

The Civil Code has the tasks of protecting legitỉmate rights and interests of individuals and organizations, State interests and

Key íssues ín the 2005 Civil Code

public interests; ensuring legal equality and saíety in civil rela- tions, contributing to the creation of conditions for meeting the material and spiritual demands of people, and to the promotion of socio-economic development.

A rticle 2, Effect o f the Cỉvỉl Code

1 The Civil Code shall apply to civil relations established from the effective date of this Code, unless otherwise provided for by this Code or the National Assembly s resolution.

2 The Civil Code shall apply in the territory of the Socialist Republic of Vietnam.

3 The Civil Code shall apply to civil relations involving for- eign elements, unless otherwise provided for by international treaties to which the Socialist Republic of Vietnam is a contract- ing party.

A rticle 3 A p p l i c a t io n o f practỉceSy a n a lo g y o f laivs

In cases where it is neither provided for by law nor agreed upon

by the parties, practices can be applied; if practices are unavail- able, analogy of laws may be applied Practices and analogy of laws must not contravene the principles provided in this Code.

In civil relations, the parties shall act entirely voluntarily and

Part II The 2005 Civil Code

neither party may impose prohibit coorre, threaten or hinder the other party.

Lawful undertakings or agreements shall be binding on the parties and must be respected by individuals, legal persons and other subjects.

A rticle 5 The p r in c i p l e o f eq u a lity

In civil relations, the parties shall be equal and shall not invoke differences in ethnicity, gender social status, economic sit- uation, belief, religion, educational level and occupation as reasons

to treat each other unequally.

A rticle 6 The p r in c i p l e o f goodivill a n d honesty

In civil relations, the parties must act in goodvvill and honesty

in establishment and performance of civil rights and obligations; neither party shall deceive the other party.

A rticle 7 The p r ỉn c ỉ p l e o f bearing civ il lia b ility

The parties shall strictly perform their own civil obligations axid shall themselves be liable for the non-performance or the incorrect perĩormance of obligations; if a party does not voluntari-

ly perform, it shall be forcecl to perform its obligations in accor- dance with the provisions of law.

A rticle 8 The p r ỉn c i p l e o f respect for g o o d m o ra ls a n d

t r a d ỉ t i o n s

The establishment and performance of civil rights and obliga- tions must ensure the preservation of national identities, respect and promote good customs, practiccs and traditions, solidarity, mutual affection and coopcration, tho principle of every individ- ual for the communitv and the community for every individual and the noble ethical values of elhnicities living together on Vietnamese soil.

Key issưes in the 2005 C ivil Code

Ethnic minority people shall be given favorable conditions in civil relations so as to step by step improve their material and spir- itual life.

The task of assisting elderly persons, young children and per- sons with disabilities in the performance of civil rights and obliga- tions shall be encouraged.

A rticle 9 The p r i n c ỉ p l e o f respect for, p r o t e c t i o n ofy

a Recognize his/her/its civil rights;

b Order the termination of the act of violation;

c Order a public apology and/or rectification;

d Order the performance of civil obligations;

dd.Order compensation for damage.

Article 10, The prin ciple of respect for State interests, Pub­ lic interesta a n d legitimate rỉghts a n d interests o fo th er persons

The establishment and perĩormance of civil rights and obliga- tions must not iníringe upon State interests, public interests and legitimate rights and interests of other persons.

A rticle 11 The p r ỉ n c ỉ p l e o f co m p lia n ce ivith laiv

The establishment and performance of civil rights and obliga- tions must comply with the provisions of this Code and other pro- visions of law.

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A rticle 12 The p r in c ip le o f c o n c ilia tio n

In civil relations, concilintion betwt*en the parties in accor- (lance with the provisions of Iaw shall be encouraged.

No one may use force or threaton to use force when participat- ing in civil relations and/or resolving civil disputes.

A rticle 13 Bases for estabiỉshrnent o f civỉl rights a nd

obligations

Civil rights and obligations shal! be cstablished on the

follow-ing bases:

1 Lawful civil transactions;

2 Decisions of courts or other competent State agencies;

3 A legal event which is specified by law;

4 Creation of spừitual values which are intellectual property objects;

5 Legitimate possession of property;

6 Damage caused by an illegal act;

7 Performance of a task without authorization;

8 Illegal possession and use of assets or illegal gain thereĩrom;

9 Other bases spccified by law.

C hapter III

INDIVIDUALS

Section 1

CIVIL LEGAL CAPACITY, CIVIL ACT CAPACITY 0F INDIVIDUALS

A rticle 14 Cỉvỉl legal c a p a c ity o f ỉ n d i v i d u a l s

1 The civil legal capacity of an individual is his/her capability

to have civil rights nncl civil oblitĩations.

Key issues ỉn the 2005 Cívil Code

2 All individuals shall have the same civil legal capacity.

3 The civil legal capacity of an individual shall exist from the time he/she is born and terminate when he/tíhe dies.

Article 15 Contents o f the cỉvỉt legal capacity of an individual

An individual shall have the following civil rights and obligations:

1 Personal rights not associated to property, and personal rights associated to property;

2 Ovvnership rights, inheritance rights and other rights with respect to property;

3 Rights to participate in civil relations and to assume obliga- tions arisingout of such relations.

Article 16 No restrỉctỉons on the civil legal capacity o f

an in d ìv id u a l

The civil legal capacity of an individual shall not be restricted, unlcss othcrwisc providcd for by law.

Article 17 The cỉvỉl act ca pacìty o f an ìn d iv ìd u a l

The civil act capacity of an individual IS his/her capability tx) estab-

lish and perform civil rights and obligations through his/hcr acts.

Article 18 A d u lts a n d m in o rs

Persons who are full eighteen years olci or older aro adults Persons vvho are not yet full eightoen years old are minors.

Article 19 The civìl act capacitỵ o f an a d u lt

An adult shall have full civil act capacity, except the cases speciĩied in Article 22 and Article 23 of this Code.

Article 20, The civil act capacity o f m inors ivho are betỉveen fu ll s ỉx y e a r s old a n d u n d e r fu ll eighteen yea rs old

1 Persons who are betvveen f u l l SỈX years old and under f u l l

Part II The 2005 Civil Code

eightcen years old must havo the consents of their representatives

at law vvhen establishiiìg and Ị)erforming civil transactions, except those transactions to nioot their daily-liío needs suitable to their

age grouỊ) or othervvise provided for by law.

2 In cases where a person who IS betvveen full fifteen years old and under full eighteen years old has his/her own property to ensure the performance of obligations, such porson may establish and per- form civil transactions hy him/herself without the consent of his/her representative at lavv unless othervvise provided for by law.

Article 21 Persons ivithout civil act capacity

Persons who are undcr full six years old shall not have civil act capacity All civil traiìsactions of Ị)ersons under full six years

of ag(? must be establishcHl and performed by their representa- tives at law.

Article 22 Loss o f civil act capacity

1 When a person is incapable of cognizing or controlling hi.s/her acts due to nnMital disease or other ailments, the Court mav, at the request of thp peM-son(s) vvith related rights or inter- ests, issue a decisioii to doclare such a person as having lost his/her civil act capacity, basccl on tho conclusion of a competent nunlical examinatioiì hoily.

\Vhen there is no lorìỊíor a basis for clpclaring a person as hav- ing lost his/her civil act rnpacity the Court shall, at the request of such person him/herself «r of a porsoii vvith related rights or inter- psts, issue a decision to rovoko the decision declaring the loss of civil act capacity.

2 Civil transactioỉis ()f persons who have lost their civil act capacity shall be establishod and pprformed by their representa- tives at law.

Key issues in the 2005 Civíl Code

Article 23 R estrỉctỉo n s on civil act capacity

1 Persons vvhose ađdiction to narcotics/drugs or to other stim- ulants leads to the squandering of their families’ property may be declared by decision of the Court to be persons with a rcstricted civil act capacity, at the request of persons with related rights or interests or of relevant agencies or organizations.

2 The at-law representatives of persons with a restricted civil act capacity and the scope of such representation shall be ciecided

by the Court Civil transactions related to the property of persons with a restricted civil act capacity must have the consents of their representatives at law, except for transactions to meet their claily- life needs.

3 When there is no longer a basis for declaring that a person has a restricted civil act capacity, the Court shall, at the request

of such person him/herself or a person with related rights or inter- ests, make a decision to revoke the decision having declared the restriction on his/her civil act capacity.

Section 2

PERSONAL RIGHTS

Article 24 P ersonal rỉg h ts

Personal rights specified in this Code are civil rights inheront

to each individual, which cannot be transferred to other persons, unless othervvise provided for by law.

Article 25 Protection o f p e rs o n a l rỉghts

When a personal right of an individual is inừinged upon, such person shall have the right to:

1 Make rectification him/herself;

2 Request the infringer or roqiiest competent agencies,

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izations to order the inĩringer to terminate the infringement and make a public apology anci/or rectiricntion;

3 Request the iníringer or r e q u e s t competent agencies or organ- izations to order the inừinger to pay compensation for damage.

Article 26 The right ivith respect to [amily a n d g ỉv en names

1 Each individual has the right to have a íamily name and a given name The family and given n a m e s of a person shall be the íamily and given names in the birth certiTicate of such person.

2 An individual shall establish and exercise civil rights and períorm civil obligations in his/her family and given names which have been recognized by a competent State agency.

3 The use of pseudonyms and pen names must not cause dam- age to the rights and interests of other persons.

A rticle 27. The rig h t to ch an g e fam ily an d given nam es

1 Individuals shall have the right to request competent State agencies tx) recognize the change of their íamily and/or given names in the following cases;

a VVhere it is so requested by the person who has a family or given name the use of which causes coníusion or affects the feel- ings of his/her íamily, the honor, legitimate rights and interests of such person;

b Where an adoptive father or mother requests to change the family and/or given name of an adopted child or when an adopted child ceases to be an adopted child and he/she or his/her biological íather or mother requests to reclaim the family andVor given name which was given to him/her by the biological father or mother;

c VVhere it is so requested by the biological father or mother

or the child when identiĩying the ĩather and/or mother of the child;

d VVhere there is a change of the family name of a child from

Key issues in the 2005 C ivil Code

that of the father to that of the mother or vice versa;

dd Where there is a change of the family name and/or given name of a person who was lost from his/her childhood and has dis- covered the origin of his/her bloodline;

e Where there is a change of the family name and/or given name of a person whose gender has been re-determined;

g Other cases speciried by law on civil status.

2 The change of the family name and/or given name of a person who is full nine years or older must be consented by that person.

3 The change of the family name and/or given name of an individual shall neither change nor terminate the civil rights and obligations vvhich have been established under the former family name and/or given name.

A rticle 28 The righ t to d e te r m in e e t h n ỉ c ỉ t y

1 An individual upon his/her birth may have his/her ethnici-

ty determined in accordance with the ethnicity of his/her biologi- cal mother and father In cases vvhere the biological father and mother belong to tvvo different ethnicities, the ethnicity of the child shall be determined as the ethnicity of the father or the eth- nicity of the mother in accordance vvith practices or in accordance with the agreement of the bioỉogical father and mother.

2 A person who has attained adulthood, the biological father and mother or guardian of a minor may request competent State agencies to re-determine his/her ethnicity in the following cases:

a To re-determine his/her ethnicity in accordance with the ethnicity of the biologicaỉ father or mother, if the father and moth-

er belong to two different ethnicities;

b To re-determine his/her ethnicity in accordance with the ethnicity of his/her biological father and/or mother in circum-

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stances where he/she IS thc a c l()Ị)t(‘ (i child of a person belonging to

a different ethnicity and has hacl hi.s/hor ethnicity determined in accordance vvith the ethnicity of his/hcr adoptive father and/or mother due to the uni(lentificatic)ii ()f his/her biological father and/or mother.

3 Where the bioloịĩical fathor or mother or the guardian of a minor requests the re-determinalion of the ethnicity of a minor who is full fifteen years or older uncler the provisions of Clause 2

of this Article, the consent of such minor is required.

Article 29 The right to registratỉon o f birth

Individuals, when born, shall h a v e the right to have their births registered.

Article 30 The right to registration o f d ea th

1 When a person dies, his/her next of kin, the house ovvner or the agency or organization to vvhich the dead person belonged must register the death of such person.

2 If a nevvborn infant dies after birth, the infant s birth and death must be registered; if the infant dies beíore or immediately upon birth, the infant’s birth and cleath must not be registered.

A rticle 31 The right o f an ìn d iv i d u a l ivỉth respect to

is under full fifteen ycars old the consent of his/her father, moth-

er, husband, wife, adult childron or representative is required, unless it is for State interests, public interests or otherwise provid-

ed for by law.

Key issues in the 2005 C ivil Code

3 It is strictly íorbidden to use pictures of other persons to inừinge upon their honor, dignity and/or prestige.

A rticle 32 The right to safety o f ỉife, h e a lth a n d body

1 Individuals shall shave have the right to safety of life, health and body.

2 When a person discovers another person who has got an accident or is sick whereby his/her life is threatened, the person who discovers him/her shall have the responsibility to deliver such person to a medical establishment; the medical establishment must not refuse to provide treatment to the person and shall have

to utilize all available means and capabilities to cure him/her.

3 The application of new curative methods on the body of a person and the anesthetization, surgery, amputation, implanta- tion and grafting of body organs must have his/her consent; if the person is a minor, has lost the civil act capacity or is an uncon- scious patient, the consent of his/her íather, mother, spouse, adult children or guardian is required; in cases where there is a threat

to the life of a patient which cannot wait for the opinions of the above-said persons, a decision of the head of the medical establish- ment is required.

4 A post-mortem operation shall be performed in the follow- ing cases;

a Where it is so consented by the decedent before his/her death;

b Where it is so consented by the decedents father, mother, wife, husband, adult children or guardian when there is no opin- ion of the decedent beíore he/she dies;

c VVhere it is so decided by a competent medical organization

or a competent S t a t e agency in case of necessity.

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Article 33 The rig h t to d o n a tỉo n o f body organs

Individuals shall have the right to donate thpir body organs for the purpose of medical trentment of other persons or scientií-

The donation and use of corpses, body organs of dead persons shall comply with the provisions of law.

Article 35 The right to receỉve body organs

Individuals shall have the right to receive body organs of other

persons for their medical treatment.

It is strictly forbidden to reccive and use body organs of other persons for commercial purposes.

Article 36 The rỉg h t to re-determ ination o f g en d er

Individuals shall have the right to the re-determination of their gender.

The re determination of gender of a person shall be perĩormed

in cases where his/her gender is affected with inborn defects or has not been properly shaped, which needs the medical intervention to clearly determine the gender.

The re-determination of gender shall comply vvith the provi- siơns of law.

Key issues in the 2005 Cívil Code

Article 37 The r ìg h t to p r o te c tỉo n o f honor^ dỈỊỊnity

a n d p restìg e

Individuals' honor, dignity and prestige shall be respected and protected by law.

Article 38 The rig h t to p erso n a l secrets

1 An individual’s rights to personal secrets shall be respected and protected by law.

2 The collection and publication of information and matorials

on the private life of an intlividual must be consented by that por- son; in cases vvhere that person has died, lost his civil act capaci-

ty or is under full ĩiíteen years, the consent of his/her father, mother, wife, husband, adult children or representativi* is required, except for cases vvhere the collection and publication of information and materials are made by decision of a competent agency or organization.

3 Letters, telephones, telegrams, other forms of electronic infor- mation of individuals shall be saíely and conĩidentially guaranteod The inspection of an individuars letters, telephones, telegrams and/or other forms of electronic iníormation may bo pt»r- íormed only in cases where it is so provided for by law and decid-

ed by competent State agencies.

Article 39 The rig h t to m a rria g e

Males and ĩemales vvho have fully met the conditions for mar- riage in accordance with the law on marriage and famiiy shall have the right to marriage at their free will.

The ĩreedom of marriage betvveen persons belonging to diffor- ent ethnicities and/or religions, between religious and non-reli- gious persons and betvveen Vietnamese citizens and foreigners shall be respected and protected by law.