Summary of the doctoral dissertation in law capital contribution to establish companies by intellectual property right under the vietnamese law nowadays

By analyzing and clarifying theoretical issues and the reality of the law on capital contribution to establish companies by IPR, the dissertation aims to propose solutions to improve the

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

-

L

NGUYEN THI PHUONG THAO

CAPITAL CONTRIBUTION TO ESTABLISH COMPANIES

BY INTELLECTUAL PROPERTY RIGHT UNDER THE

VIETNAMESE LAW NOWADAYS

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisor: Assoc Prof Dr TRAN DINH HAO

Reviewer 1: Prof Dr Nguyen Thi Mo

Reviewer 2: Assoc Prof Dr Nguyen Thi Thuong Huyen Reviewer 3: Assoc Prof Dr Nguyen Thi Que Anh

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences,

Time: ………… date ……… month …… …year 2021

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social Sciences Library

INTRODUCTION

1 The necessity of the research topic

Capital plays a very important role to the existence and development of an enterprise in order for enterprise may form and operate Capital is formed since enterprise establishment and as a premise for the enterprise activities Traditionally, assets for capital contribution are often tangible assets such as money, factories and machines However, the more development society, the higher the human needs, the people themselves are aware of the great value of intangible assets in general and intellectual property in particular Despite of intangible assets, intellectual property is able to create immense material value, a solid strength and competitive advantage for owner Today's intangible asset is increasingly asserting the role

as the basic factor that creates the enterprise's value and its competitiveness in the market Therefore, in the current period, enterprises are paying special attention to creating intellectual property, as well as exploiting intellectual property (IP) business through capital contribution to establish companies by this asset Bringing intellectual property right (IPR) into capital contribution has taken place for a long time and become a common thing in developed countries Meanwhile, in Vietnam capital contribution to establish companies by IPR was recognized by the enterprise law since the 1990s, but for a long time, the number of enterprises receiving capital contribution by this asset is very little, they are mainly foreign enterprises in Vietnam In the past 10 years, however, capital contribution to establish companies by IPR in Vietnam has had positive changes In fact, the use of IPR to establish companies is increasingly developing However, it is undeniable that capital contribution to establish companies by IPR in Vietnam is also facing many inadequacies such as difficulties of determining the legality of capital contribution and to assess IPR In addition, in many cases,

individuals, organizations, businesses as well as state management agencies are very confused when contributing capital as well as solving problems arising from capital contribution to establish companies by IPR For a long time, the managers and state agencies have struggled to find out solutions for capital contribution with the brand “Song Da” or “Vinashin” The settlement has sometimes fallen into a deadlock due to the lack of legal basis for capital contribution

to establish companies by this asset

In the context of knowledge economy, the need for capital contribution by IPR in Vietnam is increasing However, capital contribution to establish companies by IPR has always legal risks for both capital contributor and receiver Therefore, with the distinct characteristics of IPR, compared to other types of capital contribution, regulations on capital contribution are general adjustment for all unsuitable assets Therefore, with an incomplete, unclear and non-specific legal corridor, the subjects will face many difficulties in capital contribution to establish companies by this asset and face with a lot of risks In Vietnam, capital contribution to establish companies by IPR is concerned by many people in both economic and legal aspects but there are not many research works related to this issue There are still many theoretical and practical issues about capital contribution to establish companies by IPR that need to further clarify to serve as the basis for capital contribution to establish companies by this asset as well as helping state management agencies to solve problems from this activity

From the above analysis, the author has conducted the research titled “Capital contribution to establish companies by intellectual property right under the Vietnamese law nowadays” as her doctoral dissertation in law

2 Research purpose and tasks

By analyzing and clarifying theoretical issues and the reality of the law on capital contribution to establish companies by IPR, the dissertation aims to propose solutions to improve the law and the efficiency of law enforcement on capital contribution to establish companies by IPR in Vietnam in the coming years

To address the above research purpose, the dissertation has the

following tasks: First, review literature and clearly define theoretical basis, thereby determining the issues need to further examine

Second, it analyzes and clarifies theoretical and legal issues on capital

contribution to establish companies by IPR Third, it seeks to analyze

and assess the reality of the law and practice of law enforcement on capital contribution to establish companies by IPR in Vietnam nowadays and points out the advantages, limitations and causes

Fourth, it presents directions and solutions to improve the law and

the efficiency of law enforcement on capital contribution to establish companies by IPR in Vietnam

3 Research subject and scope

3.1 Research subject

The research subject of the dissertation is theoretical issues on capital contribution to establish companies by IPR, the reality of the law and practice of law enforcement on capital contribution to establish companies by IPR in Vietnam, and the law of some countries on this issue

3.2 Research scope

In terms of content: The dissertation examines the previsions of the law and the practice of law enforcement on capital contribution to establish companies by IPR in Vietnam

Spatially: the dissertation examines the reality of the law and practice of law enforcement on capital contribution to establish companies by IPR in Vietnam on the basis of comparing with some countries around the world

In term of time: the dissertation just frames up from 2006 up to now (since the 2005 IP law was issued)

4 Methodology and research methods

To clarify the research contents, the dissertation utilizes the Marxist-Leninist methodology on dialectical materialism and historical materialism; Ho Chi Minh's thoughts on the state and law; the Party and State's views on economic development in the period of renovation, building a socialist-oriented market economy, including legal development and protection of intellectual property

Additionally, the dissertation also uses the following traditional and reliable research methods: (i) Synthetic and analytical research methods; (ii) comparative method; (iii) systematization method; (iv) Systematic, multidisciplinary and interdisciplinary approach to social sciences and humanities

5 New contributions of the dissertation

On the basis of selective inheritance of previous studies related to the issue of capital contribution to establish companies by IPR, the dissertation has new contributions as follows:

First, the dissertation contributes to forming and clarifying the

theoretical basis on capital contribution to establish companies by IPR and the law on capital contribution to establish companies by IPR The dissertation presents the concept and points out the nature

of capital contribution to establish companies by IPR; clarifying the legal theoretical issues such as the concept, contents of law on capital contribution to establish companies by IPR

Second, the dissertation systematically assesses the reality of the

law and practice of law enforcement on on capital contribution to establish companies by IPR in Vietnam The dissertation tries to analyze fully and comprehensively the current state of the provisions

of the law on capital contribution to establish companies by IPR in terms of forms, subject, object, company establishment contract and

capital contribution agreement, and valuating IPR and capital contribution Especially, the dissertation seeks to analyze and assess the impact of new points of the 2020 Enterprise Law on capital contribution to establish companies by IPR Additionally, the study tries to assess the advantages and difficulties in the process of enforcing law on capital contribution to establish companies by IPR

Third, the dissertation provides general directions and specific solutions to improve the law and the efficiency of law enforcement on capital contribution to establish companies by IPR in Vietnam The

dissertation updates and proposes recommendation to improve the law on capital contribution to establish companies by IPR in Vietnam nowadays Thenceforth, it proposes specific solutions to improve the law and efficiency of law enforcement on capital contribution to establish companies by IPR

6 Theoretical and practical significance of the dissertation

Theoretically, the dissertation findings contribute to consolidating

and completing the theoretical basis on capital contribution to establish companies by IPR, as well as completing the legal theory on this issue

Practically, the dissertation can be seen as reference for building

and implementing the law on capital contribution to establish companies by IPR of the state agencies, individuals, organizations and enterprises Additionally, the dissertation is also useful material source for researching, teaching and learning about this issue

7 Structure of the dissertation

Besides the introduction and conclusion, and references, the dissertation includes 4 chapters:

Chapter 1: Literature review

Chapter 2: The theory of capital contribution to establish companies by IPR and the law on capital contribution to establish companies by IPR

Chapter 3: The reality of the law and practice of enforcing law on capital contribution to establish companies by IPR in Vietnam nowadays

Chapter 4: Directions and solutions to improve the law and efficiency of law enforcement on capital contribution to establish companies by IPR in Vietnam

Chapter 1 LITERATURE REVIEW AND THEORETICAL BASIS 1.1 Literature review

1.1.1 Theoretical issues on capital contribution to establish companies by IPR

1.1.1.1 Studies on the concept of capital contribution and capital contribution to establish companies

So far there are many research works mentioned capital contribution and capital contribution to establish companies and capital contribution in different forms Most of research works argue that capital contribution and capital contribution to establish companies from economic and legal aspects Regarding the concept

of capital contribution to establish companies, Pham Tuan Anh said that contributing capital to establish a company is to establish the company through transferring assets, knowledge or effort of the capital contributor to make the company’s capital According to Doan Thu Hong, “from an economic perspective, capital contribution

to establish enterprises is contributions that the total of these contributions become the representative signs of the enterprise’s capital In essence, it is the “dowry” of each member when establishing the company Legally, capital contribution to establish companies means an individual or an organization transfers its ownership or the right to use asset into an enterprise to enjoy benefits from such enterprise It may be the right to enjoy income or the right

to operate the enterprise’s operation

1.1.1.2 Studies on the concept, characteristics, and role of capital contribution to establish companies by IPR

Previous research works mainly approached to the concept of capital contribution to establish companies and the concept of IPR Not many authors present directly the concept of capital contribution

to establish companies by IPR such as Doan Thu Hong, Doan Thi Dung, Nguyen Quang Huy

Characteristics of capital contribution to establish companies by IPR: some research works point out some characteristics of capital contribution to establish companies by IPR including the characteristics of capital contributors, order and procedure, term, subjects, to asses IPR and form of capital contribution

Regarding the role of capital contribution to establish companies

by IPR: the role of IP in enterprise has been mentioned by many researchers However, what is the role and meaning of capital contribution and capital contribution to establish companies by IPR for capital contributor and receiver have not been examined and explained intensively so far

1.1.1.3 Studies on capital contribution to establish companies by IPR and forms of commercialization of IPR

Studying on commercial forms of IPR including Andrew J Sheman, Gordon V Smith and Russel L Parr, World Intellectual Property Organization (WIPO), The European IPR Helpdesk, Nguyen Ba Binh, Le Net, Phan Quoc Nguyen Basically, domestic and foreign research works have compared and evaluated the advantages and disadvantages of various forms of commercialization of IPR

1.1.1.4 Studies on the legal contents of capital contribution to establish companies by IPR

In this dissertation, the legal content of capital contribution to establish companies by IPR mainly focuses on some basic aspects such as form of capital contribution, capital contributors, subjects,

contracts, to assess IPR and implement capital contribution There are many domestic and foreign research works examine the legal contents of capital contribution to establish companies by IPR, including some studies by authors such as Carlos M Correa, Kamil Idris, Richard H Kjeldgaard and David R Marsh, Keith E Maskus,

Le Net, Nguyen Ngoc Xuan Thao, Pham Van Tuyet and Le Thij Kim Gain, Kieu Thi Thanh, Farok J Contractor, European IPR Helpdesk, John Tuner, David H.Luthy, Vo Linh Giang, Doan Van Truong, Herry N Butler, Michael Klausner, Ngo Huy Cuong It can be seen that previous research works often focuse on some aspects of the legal content on capital contribution to establish companies by IPR

1.1.2 Studies on the legal status and the law enforcement on capital contribution to establish companies by IPR

1.1.2.1 Studies on the legal status of capital contribution to establish companies by IPR

Regarding forms of capital contribution to establish companies by IPR:

Although previous research works have not clearly mentioned and assessed the forms of capital contribution, it can be found that there are two basic forms of capital contribution including IPR transfer and transfer the right of using IPR

Regarding capital contributor to establish companies by IPR:

Currently, for research works examine the content of capital contribution to establish companies by IPR still have not the unity of content related to the capital contributor to establish companies by IPR Some authors argue that, only IPR owner has right to use IPR to contribute capital Additionally, another author argues that not only IPR owner has right to use IPR to contribute capital but also other entities such as transferee, subjects with prior use rights of industrial property and subjects receiving license to use IPR

Regarding capital contributor to establish companies by IPR

There are still disagreements on capital contributor to establish companies by IPR Some authors argue that IPR to contribute capital can only be property rights, personal rights cannot contribute capital Additionally, some people argue that not only property rights but also personal record right associated with property (the right to publish works) can be used to contribute capital However, most authors agree that IPR can only contribute capital when it can be transferred Thus, IPR is not transferred or restricted from being transferred, it is not able to contribute capital or the capital contribution must ensure conditions of transferring IPR

To assess IPR to contribute capital to establish companies

There are many methods of assessing IPR given by researchers and organizations such as WIPO, David H Luthy, Kelvin King In addition, the issues related to fix a price such as the right to assess and liability when assessing wrongly IPR that mentioned by some authors such as Vo Linh Gain, Nguyen Quang Duy, Hoang Lan Phuong and Duong Thi Thu Nga

Regarding the implementation of capital contribution to establish companies by IPR

Most of research works on capital contribution have mentioned the order and procedures, including the issue of capital contribution

to establish companies in general and capital contribution to establish companies by IPR in particular

Regarding the contract of establishing company and capital contribution agreement by IPR

Contracts of capital contribution to establish companies by IPR are mentioned in some studies Basically, the studies have pointed out the necessary contents of the company establishment contract and capital contribution agreement by IPR including basic information of the assets to be contributed capital, the term for the capital contribution, value of assets, rights and obligations of parties

1.1.2.2 Studies on the law enforcement on capital contribution to establish companies by IPR in Vietnam

According to Pham Duc Quang, the Enterprise Law and Intellectual Property Law have recognized capital contribution by IPR value In fact, however, guiding documents, especially documents issued by tax authorities do not recognize capital contribution by the IPR value According to Ta Thi Thanh Thuy, many famous brands have been relatively decided easily but not following any rule and it is often approved by authorities According

to Doan Thu Hong, in Vietnam, capital contribution to establish companies by ownership and the right to use trademarks is increasing Meanwhile, capital contribution to establish companies

by the ownership for objects is technical solutions or processes have not been disseminated yet Hoang Lan Phuong emphasized issues that businesses should pay attention to capital contribution by IPR In which, she pays special attention to the possibility that the enterprise may lose its trademark when contributing capital by trademark and problem that the enterprise will face if it wants to reduce its charter capital

1.1.3 Studies on directions and solutions to improve the law on capital contribution to establish companies by IPR

In order to provide solutions to improve the law on capital contribution to establish companies by IPR, it is necessary to identify the overall orientations in accordance with the institutions, policies,

as well as the socio-economic development in Vietnam today However, previous research works almost not mentioned this issue Most of domestic research works have proposed solutions to improve the law on capital contribution to establish companies by IPR These research works mainly focused on the following basic contents:

First, capital contributor to establish companies by

Second, to assess IPR for contributing capital

Third, implementing capital contribution by IPR

1.1.4 General assessment

By reviewing literature relating to “capital contribution to establish companies by IPR under the Vietnamese law nowadays”, the author has some assessment as follows:

First, there have been a large number of research works related to

the dissertation in many different aspects and approaches

Second, a number of issues have been studied fully and

comprehensively, and reaching high consensus that the dissertation can absorb without analyzing and clarifying again

Third, although there are a huge number of relevant research

works, so far, there has not been any comprehensive, profound and systematic research work on capital contribution to establish companies by IPR in both theoretically and practically

1.1.5 The issues need to be further examined in the dissertation

The dissertation continues to examine and clarify theoretical and practical issues on capital contribution to establish companies by IPR under the law, including:

(i) Examining theoretical issues on capital contribution to establish companies by IPR including present the concept of capital contribution to establish companies by IPR in accordance with nature and characteristics of assets; identifying the nature of capital contribution to establish companies by IPR through comparing capital contribution by other assets and commercialization of IPR (ii) clarifying the legal content of capital contribution to establish companies by IPR including forms, capital contributor; objects; contract of establishing company and capital contribution agreement; valuating IPR and make capital contribution

(iii) Analyzing and evaluating the current situation of Vietnamese law and the practice of enforcing the Vietnamese law on capital