The law on the right to market entry – theory and practice in vietnam

Thus, the study of the role and relationship between the right to market entry in the general law on freedom of business, identifying the "barriers," and proposing solutions, contributin

AND TRAINING

HANOI LAW UNIVERSITY

NGUYEN NHU CHINH

THE LAW ON THE RIGHT TO MARKET ENTRY –

THEORY AND PRACTICE IN VIETNAM

EXECUTIVE SUMMARY OF LAW DISSERTATION

HA NOI – 2021

This dissertation is completed at:

HANOI LAW UNIVERSITY

date…… month…… year

You might found this dissertarion at:

1 National Library

2 Library of Hanoi Law University

INTRODUCTION

1 The necessity of the dissertation

There is a need in any commodity economy to do business freely In each specific historical period, the level of assurance and fulfillment of the need for freedom business is different This depends on many factors, in which the law plays an important and decisive role for ensuring the right to freedom of business In Vietnam, it was not until 1992 that "the right to freedom of business" was first recognized in the Constitution and continued

to be reaffirmed in a broader direction in the 2013 Constitution: “Everyone has the right to do business in industries that are not prohibited by law.” In order to have these provisions, the 6th National Congress of the Communist Party of Vietnam (November 1986) proposed a comprehensive reform path, focusing on economic innovation for industrialization and modernization of the country

In order to start a business and exercise the right to freedom of business, all organizations and individuals must carry out certain legal procedures to enter the market The right to market entry, which is recognized by law is an element of the right to freedom

of business The openness of market entry procedures in Vietnam, starting with the 1999 Enterprise Law, has contributed to the improvement of Vietnam's business environment on the international level However, besides the above positive changes, the right to market entry still contains many restrictions or "barriers" that make the realization of "the right to freedom of business" face many challenges Thus, the study of the role and relationship between the right to market entry in the general law on freedom of business, identifying the

"barriers," and proposing solutions, contributing to the improvement of the business

environment in Vietnam is essential Therefore, the author chose the topic: "Laws on the

right to market entry - theory and practice in Vietnam" to research the doctoral

dissertation of law

2 Purposes and objectives of research

- Clarifying the theoretical issues of the law on the right to market entry

- Analyzing and evaluating the current state of the law on market access rights in Vietnam

- On the basis of the theoretical issues and the current situation of the law on the right to market entry, the dissertation proposes directions to improve the law on market access rights in Vietnam and improve the enforcement efficiency of the market access laws

3 Object and scope of research

3.1 Research object

The legal scientific views on the right to market entry, including the views of domestic and foreign scientists in published scientific works; current legal provisions in Vietnam and some regulations of some typical countries in the world on market access rights

3.2 Scope of research

In terms of space, the dissertation studied Vietnamese law Certain

international law provisions and laws of other countries were for reference and comparison only

In terms of time, the dissertation studied the socio-economic and legal

context of Vietnam from the enactment of the 2013 Constitution to October

2020 Some contents mentioned the period after Party Congress VI (1986) up

to now

In terms of content, the dissertation mainly studied the legal provisions

on market access rights of domestic and foreign investors The dissertation also only studies economic organizations entering the market, operating for profit, specifically types of enterprises, not cooperatives, cooperatives unions and business households

on the right to market entry under Vietnamese law

Among the above methods, the systematic, analysis and comparative methods were used mainly and throughout most of the contents of the dissertation

5 Research results and new contributions of the Dissertation

First, the dissertation systematized and analyzed the theory of the right

to market entry, which is a component of the freedom of business and economic rights

Second, the dissertation analyzed the current legal provisions of the Vietnamese Constitution, Enterprise Law, Investment Law and other related

legislations on the right to investment and business market entry It can be affirmed that the law on market access rights in Vietnam has developed dramatically; administrative procedures for enterprises to enter the business market are continuously being reformed to meet actual needs; the time to enter the market has been shortened… However, there are still institutional barriers that need reform

Third, the dissertation analyzed the directions in improving the law on the right to market entry in Vietnam to ensure that this right is one of the fundamental rights of citizens, protected by the Constitution and specialized legislations And from such analysis, the dissertation proposed a number of solutions to improve the system and content of the law on the right to market entry

6 Structure of the dissertation

Apart from the introduction, the conclusion and the list of references, the dissertation is structured with the following main parts:

Chapter 1 Theoretical issues about the right to market entry and the law on market access rights

Chapter 2 Legal and enforment status the law on market access rights

in Vietnam

Chapter 3 Requirements and solutions to improve the law and the effectiveness of law enforcement on market access rights in Vietnam

OVERVIEW OF RESEARCH WORKS

1 Overview of the research

1.1 Studies on the freedom of business - economic rights

+ “Business and Human Rights: A Principle and Value - Based Analysis,” Wesley Cragg, Published as Chapter Nine in The Oxford

Handbook of Business Ethics, 2010

The research did not mention Vietnamese economic law but comprehensively mentioned the interaction between globalization and human rights The research results of the author greatly support the dissertation Specifically, the study shown that the law should have provisions to ensure the harmony the interests of business entities and the goal of human rights protection Hence, respecting the right to market entry is also respecting human rights in Vietnamese law

+ “Determinants of Economic Freedom Theory and Empirical Evidence,” Herbert Grubel, Fraser Institute, April 2015

A part of the research also explained specifically the problem posed by the dissertation, which is the relationship between the right to market entry and the conditions that limit this right Business conditions are both complementary to ensure free market access to business lines that not any organization or individual can carry out as well as to ensure freedom of competition However, if the business conditions are abused, it also limits the right to market entry Although it was research on Greece, the examples and proposals given are also suggestions for the dissertation

+ "Some issues of right to freedom of business in the current economic law in Vietnam" by Dr Bui Ngoc Cuong, National Political Publishing

House, 2004

The author gived the concept of right to freedom of business in the subjective and objective sense, as well as the content of the right including:

The right to guaranteed ownership of property; The right to market entry (business establishment, business choice, type of business); Freedom of contract; Freedom of competition and freedom to decide and settle disputes

In his research, Dr Bui Ngoc Cuong agreed and proved that the right to freedom of business is one of the contents of human rights However, in these studies, the content of market access rights was not specifically researched, only placed in the overall right to freedom of business The dissertation continues to study more in-depth about market access rights

1.2 Studies on market entry procedures and related barriers

+ “Lessons from Investment Policy Reform in Korea,” Françoise

Nicolas, Stephen Thomsen, Mi-Hyun Bang, OECD Working Papers on International Investment 2013/02

According to the Korean research study on market entry procedure for enterprises reform, Korea had set up a committee to control administrative procedures, as well as apply advanced information technology in market entry registration These were suggestions for the dissertation to offer a number of solutions that were consistent with international practices

“Cutting Red Tape Administrative Simplification in Viet Nam: Supporting the Competitiveness of the Vietnamese Economy,” OECD, 2011

The report clearly identified the advantages and disadvantages of the business environment, and these can be the bases to help Vietnam build and revise the 2014 Enterprise Law

+ “Law Reform in Vietnam: The Uneven Legacy of Doi Moi,” Spencer

Weber Waller, Loyola University Chicago & Lan Cao, Chapman University, International Law and Politics [Vol 29]

The study was written in 1996, when the two authors, along with three colleagues, came to Vietnam at the invitation of the Vietnamese Ministry of Education Therefore, the above study partly showed the economic - legal thinking reform in Vietnam in the early stage when it recognized private economy, market economy and freedom of business The study, however, did not research future developments and reforms of the Vietnamese legal system

in general to promote the market economy as well as the right to market entry

+ "Current law on business registration in Vietnam," Doctoral

dissertation of Law by Nguyen Thi Thu Thuy, Academy of Social Sciences,

2016

Dr Nguyen Thi Thu Thuy deeply analyzed the concept, characteristics and meaning of business registration; the conditions for business registration; factors that influence and govern business registration However, the dissertation only mentioned the administrative procedures for market entry and not the contents of market access rights as well as the legal guarantees to implement the market access rights, business establishment in practice

+ "The bottleneck of economic institutions: Licenses and business conditions - abolition and new approach" by Huy Duc and Nguyen Quang

Dong, Institute for Policy Research and Communication Development, June

2017

In this policy discussion, the authors said that in order to completely solve the problem of 'sub-licenses', the Government needs to implement a comprehensive and systematic reform of administrative regulations (Regulatory reform) The work proposed reductions of administrative procedures in general, such as the reduction of business conditions,

licenses…, which were the suggestions on administrative procedure reform in market registration for this dissertation

+ "Enforcing regulations on prohibited business lines and conditional business lines under the 2014 Law on Investment," Dr Nguyen Thi Dung,

Jurisprudence Journal 8/2016

The author concluded that the new points of conditional business investment industries and occupations under the provisions of the 2014 Investment Law were: The list of these industries and occupations was specified in a legislative document, thus, law enforcement agencies could not optionally add more conditional industries or trades; The 2014 Investment Law also specified the authority to promulgate business conditions as well as set targets to ensure publicity, transparency and objectivity when issuing business conditions

2 Evaluation of related researches

2.1 Overall assessment of the research

Firstly, the researches all agreed that: the role of institutional reform

and recognition of market economy rules had a great influence on the investment, business environment and the right to freedom of business

Secondly, the researches all acknowledged that the law on right to

freedom of business, including market access rights, was implemented in most countries regardless of the differences in political, economic, cultural and society

Thirdly, a number of researches did mention market access rights but

only considered the rights of business entities in: Selecting business type, business model, business lines, place of business, entering the market, withdrawing from the market … and had not synthesized, summarized, or generalized about the right to market entry

Fourthly, the researches on the right to freedom of business could

generalize and cover the contents of it, but could not carefully, independently research one area, which is the right to market entry

2.2 Issues that the dissertation continued to study

Firstly, the dissertation proposed new perspectives on the concept and

content of the right to market entry

Secondly, the dissertation analyzed the role of market access rights

simplification in Vietnam nowadays

Thirdly, on the basis of theoretical research and legal status, practical

implementation of the law on market access rights, the dissertation presented the requirements and solutions to improve the law on market access rights in Vietnam

3 Theoretical basis and research questions, hypotheses

3.1 Theoretical basis

Some theories used in the thesis

Firstly, the dissertation used the K Marx - Lennin doctrine on

government and law, especially the system of theoretical knowledge about law implementation In addition to that, the dissertation was also based on the views and guidelines of the Communist Party of Vietnam on judicial reform, economic legal system improvement in the integration and completion of market-oriented socialism economic institution in Vietnam

Secondly, the theory of market economy

Thirdly, the theory of the right to business freedom: (i) The theory of

individual liberty: The views of the "enlightenment" movement thinkers such

as John Locke, Rousseau, Mongtesquieu Freedom of will as the views of Aristotle, Kant, Hobbe (ii) Theoretical views on the right to business freedom - human economic rights

Fourthly, the theory of democracy and responsibility in a market

economy in which State power is limited by the spirit of the rule of law

3.2 Research questions, research hypotheses, expected research results

Research question 1: What does the right to market entry mean?

Research question 2: Why must Vietnamese laws specify the right to market entry?

Research question 3: Does the current Vietnamese law on the right to market entry respect the nature of the market economy, freedom of business and could it meet the practical needs and the requirements about the compatibility of the general economic legislation system?

Research question 4: What does the State need to do to improve the law

in order to ensure the implementation of the right to market entry in Vietnam?

CONCLUSION OF THE OVERVIEW

CHAPTER 1

THEORETICAL ISSUES OF THE RIGHT TO MARKET ENTRY AND THE LAW ON MARKET ACCESS RIGHTS

1.1 Theoretical issues of the right to market entry

1.1.1 The basis of the right to market entry

1.1.1.1 Human economic right

From the perspective of an objective philosophy, freedom in general and the right to market entry in particular are objective, indispensable natural human rights The right to market entry and doing business are aimed at improving living conditions, which is a natural right and still exists in the Law of Nature regardless of whether or not the Law has recognized it

1.1.1.2 Freedom of business

Freedom of business is an integral part of an individual's rights It is inevitable and is a human self-value that is recognized and guaranteed by the State The division of freedom of business into separate rights groups is only relative

Based on the analysis of the authors presented above, the dissertation approached freedom of business under the following three groups of rights: right to market entry, freedom of contract, and freedom to resolve business disputes with the focus on right to market entry

1.1.1.3 The principles of the market economy

Market economies can be practical, but they are also based on the basic principles of individual freedom On the basis of such free market economy, arising the need for creating a commercial law industry in general and regulations to ensure freedom of business, including the right to market entry

in particular

1.1.2 Concept and characterization of market entry rights