Decree No. 128/2007/ND-CP dated August 02, 2007 of the Government on delivery services

DECREE

ON DELIVERY SERVICES

THE GOVERNMENT

Pursuant to the Law on the Organization of the Government dated 25 December 2001;
Pursuant to the Ordinance on Posts and Telecommunications dated 25 May 2002;
Having considered the proposal of the Minister of Posts and Telematics,

DECREES: 

Chapter I

GENERAL PROVISIONS 

Article 1 Governing scope 

1. This Decree regulates business activities and use of services of delivering information in the form of written documents and services of delivering goods parcels and packages in Vietnam, hereinafter referred to as delivery services.

2. This Decree does not regulate business activities and use of postal services; logistic services; international multi-mode transport services; and forwarding services by air, sea, inland waterway, rail or road. 

Article 2 Applicability 

This Decree applies to organizations and individuals related to business activities and use of delivery services in Vietnam.

Article 3 Applicability of international treaties

Where any international treaty which Vietnam has signed or acceded to contains provisions which are different from this Decree, the provisions of such international treaty shall prevail. 

Article 4 Interpretation of terms 

In this Decree, the following terms shall be construed as follows:

1. Delivery services means the performance of one phase, a number of phases or all phases of collection, selection and classification, transportation and delivery by material facilities of information in the form of written documents and of goods parcels and packages.

Services of delivering information in the form of written documents shall include combined delivery services (combined with electronic means) and services of direct delivery of advertising information (publications with advertising contents sent to numerous addresses).

2. Express delivery means delivery services with a quick factor in terms of time and a high degree of reliability. Express delivery shall also include other value added elements such as collection from a sender's address; delivery in person to the receiver, discovery of current addresses and locations for receipt in person; the capability of changing the place and address for receipt during transportation; reporting on delivery and other value added elements.

3. Information in the form of written documents means information expressed on any material facilities including letters, and written documents (other than letters).

4. Letter means information in the form of a written document which is packed or sealed, each letter with a weight not exceeding 2 kilograms and which has an address for receipt. General instructions about the address for receipt shall also be deemed to constitute an address for receipt.

5. Enterprise engaged in delivery services business means an enterprise providing delivery services for clients and which is liable for the services provided. An enterprise engaged in delivery services business may itself perform, or hire other organizations and individuals to perform, one phase, a number of phases or all phases of such services.

6. Exclusive services means the scope of services only permitted to be conducted by Vietnam Post, the sole State owned enterprise for posts established by law in order to ensure the discharge of responsibilities in the public interest. 

Article 5 Exclusive services of Vietnam Post 

1. The exclusive services of Vietnam Post shall comprise provision of delivery services of information in the form of written documents with addresses for receipt on the basis of volumes and charges stipulated by the Ministry of Posts and Telematics from time to time. These exclusive services shall not include provision of delivery services of books, newspapers, magazines and periodical publications.

2. Other delivery enterprises shall be permitted to provide delivery services of information in the form of written documents with addresses for receipt outside the volumes and charges reserved exclusively for Vietnam Post.

3. The Ministry of Posts and Telematics shall announce the schedule for opening the delivery services market in compliance with Vietnam's commitments on delivery services made on Vietnam's accession to the World Trade Organization (WTO). 

Article 6 State management of delivery services [shall comprise]: 

1. Drafting and promulgating legal instruments, policies and master planning on business and use of delivery services.

2. Guiding and organizing implementation of regulations on business activities and use of delivery services.

3. Conducting checks and inspections, and dealing with breaches during business and use of delivery services.  

Article 7 Authority to undertake State management of delivery services 

1. The Government shall undertake uniform State management of business activities and use of delivery services on a nationwide basis.

2. The Ministry of Posts and Telematics shall be responsible to the Government for presiding over and co-ordinating with relevant ministries and branches to undertake State management of business activities and use of delivery services.

3. Ministries, ministerial equivalent bodies and people's committees of provinces and cities under central authority shall, within the scope of their respective duties and powers, be responsible for coordinating with the Ministry of Posts and Telematics to undertake State management of business activities and use of delivery services.

4. Departments of Posts and Telematics shall be the professional bodies assisting people's committees of provinces and cities under central authority in undertaking the function of State management of business activities and use of delivery services within their respective localities. 

Article 8 Applicability of procedures for import and export during international delivery services 

1. Upon import or export, information in the form of written documents and goods parcels and packages must be subject to customs, cultural and quarantine procedures and other procedures stipulated by law.

2. An enterprise engaged in international delivery services business as the legal representative of service users shall be permitted to perform the procedures referred to in clause 1 of this article and to collect a charge for such service from service users.

3. Service users shall be obliged to reimburse duties, fees and charges which the enterprise engaged in delivery services business has paid [on their behalf] to the authorized State body upon performance of the procedures referred to in clause 1 of this article. 

Article 9 Safety and security in delivery services 

1. All organizations and individuals shall be responsible for ensuring safety and security during delivery services.

2. Delivery service users shall be responsible for complying with the law on, and regulations of the enterprise engaged in delivery services business relating to, safety and security during delivery services.

3. Enterprises engaged in delivery services business must take measures to ensure safety and security during delivery services.

4. Enterprises engaged in delivery services business shall be responsible for co-operation and for satisfying requisite conditions so that authorized State bodies may take professional measures as stipulated by law to protect national security and to ensure social order and safety.

When any authorized State body discharges its duty to protect national security and to ensure social order and safety in accordance with law, it shall facilitate enterprises engaged in delivery services business to ensure their business activities and the quality of their services. 

Article 10 Ensuring confidentiality of private information 

1. The confidentiality of private information relating to the use of delivery services shall be guaranteed.

2. Information in the form of written documents (excluding letters), and goods parcels and packages shall only be opened and inspected in the following circumstances:

(a) They may be opened for the purpose of dealing with them and repacking them when they are damaged or the wrapping is torn;

(b) They may be opened for presentation to authorized State bodies on conduct of procedures for import or export in accordance with clauses 1 and 2 of article 8 of this Decree;

(c) They may be opened for the purpose of dealing with them in accordance with the joint regulations of the Ministry of Posts and Telematics and the Ministry of Finance on abandoned items. Information in the form of written documents, and goods parcels and packages shall be deemed to be abandoned when there is adequate proof that the receiver refuses receipt and that the sender also refuses return, or if upon expiry of twelve (12) months from the date of sending the item has not been delivered to the receiver and is not returnable to the sender.

3. Information in the form of written documents, and goods parcels and packages shall only be permitted to be examined and/or seized pursuant to a decision in accordance with law of the authorized State body. 

Article 11 Prohibited sending in delivery services: 

1. Publications, articles or goods the circulation, import or export of which is prohibited by Vietnam; and publications, articles or goods the import of which is prohibited by the recipient country.

2. Objects or substances causing explosion, fire or danger.

3. Objects or substances causing unhygienic conditions or environmental pollution.

4. Vietnamese currency and valuable papers with a value in Vietnamese currency.

5. Foreign exchange and valuable papers with a value in foreign currency. 

Chapter II

DELIVERY SERVICES BUSINESS, ISSUANCE OF LICENCES FOR MAIL2 DELIVERY SERVICES BUSINESS, AND OTHER PROVISIONS

Section I. DELIVERY SERVICES BUSINESS

Article 12 Enterprises engaged in delivery services business 

1. Enterprises established under the law of Vietnam shall be permitted to engage in delivery services business when they have a business registration certificate for delivery services in the case of enterprises with domestic invested capital or when they have an investment certificate for the delivery sector in Vietnam in the case of enterprises with foreign invested capital with a ratio of capital contribution by foreign party(ies) at a maximum of up to 51%.

2. Enterprises with foreign invested capital with a ratio of capital contribution by foreign party(ies) over 51% and enterprises with 100% foreign owned capital shall be permitted to engage in delivery services business as from 11 January 2012.

3. Enterprises engaged in mail delivery services business must have a business licence for mail delivery services issued by the authorized body specified in article 15 or 17 of this Decree. 

Article 13 Notification of delivery services business activities 

1. An enterprise engaged in delivery services business shall be responsible for notifying its business activities to the following relevant State authority:

(a) The Department of Posts and Telematics (in the case of delivery services business only conducted within a province);

(b) The Ministry of Posts and Telematics (in other cases).

2. A file for notification of business activities shall comprise:

(a) Written notification of delivery services business activities;

(b) Valid copy of the business registration certificate for delivery services or investment certificate for the delivery services business sector in Vietnam;

(c) Standard form of contract for provision and use of services;

(d) Tariff, quality of services and limits of liability to pay compensation when loss occurs.

3. An enterprise engaged in delivery services business shall give notification by way of submitting the file for notification specified in clause 2 of this article to the relevant authority specified in clause 1 of this article no later than thirty (30) days from the first day of provision of the services.

4. Initial notification of business activities shall be conducted when the enterprise engaged in delivery services business commences to provide services, and re-notification shall be conducted when the enterprise engaged in delivery services business changes any item stipulated in clause 2(c) and (d) of this article. The file and procedures for re-notification shall be the same as the file and procedures for initial notification specified in clause 2 of this article. 

Article 14 Certification of notification of delivery services business activities 

1. The relevant State authority specified in article 13.1 of this Decree shall deliver its certification in writing to the enterprise engaged in delivery services business within ten (10) working days from the date of receipt of the complete file for notification of business activities.

2. Where a file for notification is incomplete or any item in the notification is incorrect, the relevant State authority specified in article 13.1 of this Decree shall provide guidelines to the enterprise engaged in delivery services business for amendment or addition within ten (10) working days from the date of receipt of the file for notification of business activities.

3. During the period of performance of the procedures for notification of business activities, the enterprise engaged in delivery services business [shall be permitted] to continue to provide services pursuant to its business registration certificate for delivery services or its investment certificate in the delivery sector in Vietnam. 

Section II. ISSUANCE OF BUSINESS LICENCES FOR MAIL DELIVERY SERVICES

Article 15 Conditions for issuance of business licences for mail delivery services 

An enterprise shall be issued with a business licence for mail delivery services upon satisfaction of all of the following conditions:

1. Having a business registration certificate for delivery services or an investment certificate in the delivery sector in Vietnam in accordance with the provisions of article 12.1 of this Decree.

2. Having a business plan.

3. Taking measures and having conditions to guarantee safety and security in delivery services business activities.

4. The legal representative of the enterprise engaged in delivery services business has at least one year’s experience in the postal or delivery sector. 

Article 16 Procedures for issuance of business licences for mail delivery services 

1. Any enterprise satisfying all the conditions specified in article 15 of this Decree shall submit an application file for issuance of a business licence for mail delivery services to the relevant State authority specified in article 17 of this Decree. The file shall comprise:

(a) Application for issuance of a business licence for mail delivery services;

(b) Valid copy of the business registration certificate for delivery services or of the investment certificate in the delivery services business sector in Vietnam;

(c) Business plan;

(d) Standard contract for provision and use of services;

(dd) Tariff, quality of services and limits on liability to pay compensation when loss occurs.

2. Where an application file for issuance of a licence is incomplete or contains incorrect items, the relevant State authority specified in article 17 of this Decree shall provide guidelines to the enterprise for amendment or addition within ten (10) working days from the date of receipt of the application file for issuance of a business licence.

3. Within a time-limit of thirty (30) days from the date of receipt of the complete file specified in clause 1 of this article, the relevant State authority shall carry out an assessment and issue a licence. In a case of refusal to issue a licence, the relevant State authority specified in article 17 of this Decree must specify in writing the reasons therefor within the above-mentioned period.

4. The Ministry of Posts and Telematics shall issue detailed regulations on conditions, procedures for assessment of files and issuance of business licences for mail delivery services.

5. Enterprises which are issued with a business licence for mail delivery services shall be obliged to pay relevant fees and charges stipulated by law. 

Article 17 Authority to issue business licences for mail delivery services 

1. The Department of Posts and Telematics shall issue licences in the case of mail delivery services business within its province.

2. The Ministry of Posts and Telematics shall issue licences in other cases. 

Article 18 Revocation of business licences for mail delivery services 

1. The relevant State authority specified in article 17 of this Decree shall have the right to revoke such licence if the enterprise engaged in mail delivery services business commits a breach in one of the following circumstances:

(a) Failure to ensure conditions in relation to safety and security during provision of delivery services;

(b) Failure to commence the provision of services within a time-limit of one year from the date of issuance of the licence;

(c) Other cases of revocation as stipulated by law.

2. An enterprise engaged in delivery services business which has had its licence revoked shall not be permitted to apply for re-issuance of a licence for a period of two years from the date the authorized State body issued the decision revoking the licence. Upon expiry of the period of two years, if the enterprise wishes to apply for re-issuance of a licence, it must carry out procedures for application for issuance of a new business licence.

Section III. OTHER PROVISIONS 

Article 19 Form of execution of contracts for provision and use of services 

1. The provision and use of delivery services shall be implemented on the basis of a written contract or other form of establishing a relationship as agreed by the parties.

2. Valid remittance orders, source documents, bills of lading and other documentary forms expressing the relationship between the enterprise engaged in delivery services business and the service user shall be the basis for determining the rights and obligations of the contracting parties.

3. The main terms of a contract for provision and use of delivery services shall comprise:

(a) Contracting parties;

(b) Type of services;

(c) Time, place and method of provision of services;

(d) Quality, charge rates and method of payment;

(dd) Rights and obligations of the parties;

(e) Liability and penalties for breach of contract.

4. Contracts for provisions and use of delivery services must be written in Vietnamese. 

Article 20 Rights and obligations of enterprises 

1. Enterprise engaged in delivery services business shall be entitled to:

(a) Request the sender to check the contents of the information in the form of written documents (except for letters), or goods parcels and packages which are required to be transferred and delivered;

(b) Refuse to provide delivery services in respect of information in the form of written documents, goods parcels and packages which fails to satisfy the requirements and conditions for delivery set out by the enterprise engaged in delivery services business or which are in breach of the provisions of article 11 of this Decree.

2. Enterprise engaged in delivery services business shall be obliged to:

(a) Provide users with full information on services, including quality standards, charge rates, liability to pay compensation and other relevant information in the following ways: by displaying it at their transaction place, by directly notifying users, by printing the information in leaflets, by advertising services and in other ways;

(b) Provide users with guidelines on the method of packing information in the form of written documents, goods parcels and packages in order to ensure safety during the process of transfer and delivery;

(c) Publish clear options for resolution and measures for dealing with cases of failure to deliver;

(d) Ensure quality standards of delivery services in accordance with the quality standards declared by the enterprise;

(dd) Ensure safety of delivery services: protect the safety of information in the form of written documents, goods parcels and packages, and the safety of staff and of the delivery network;

(e) Ensure security of delivery services: keeping confidential private information of service users; not opening or conducting any unauthorized exchange of contents of information in the form of written documents, goods parcels and packages unless otherwise stipulated by the law or agreed by the two parties;

(g) Receive and resolve complaints from service users;

(h) Pay compensation to service users as agreed in the contract for provision and use of services and in accordance with law;

(i) Pay duties, charges and fees (if any) on behalf of service users. 

Article 21 Rights and obligations of service users 

1. Delivery service users shall be entitled to:

(a) Require the enterprise engaged in delivery services business to provide full information on its services;

(b) Be guaranteed the confidentiality of private information and safety of information in the form of written documents, goods parcels and packages;

(c) Require the enterprise engaged in delivery services business to resolve complaints regarding services which the user has used;

(d) Be paid compensation as agreed in the contract for provision and use of services and in accordance with law.

2. Delivery service users shall have the following obligations:

(a) Be legally liable for the contents of information in the form of written documents, goods parcels and packages;

(b) To comply with the provisions of the law on prohibition from or restriction on circulation of information in the form of written documents, goods parcels and packages;

(c) To use their true name and address when using delivery services and only use the name or address of another person when the latter so authorizes;

(d) To pay in full the charges for services used;

(dd) To pay compensation to a party suffering loss in accordance with law where the loss was due to fault of the service user. 

Article 22 Quality standards of services 

1. An enterprise engaged in delivery services business shall formulate and declare quality standards of its delivery services.

2. The quality standards of delivery services shall include at least the following criteria:

(a) Total delivery duration being the duration calculated from the time of receipt of information in the form of a written document, goods parcel or package for sending to the time when such article is delivered to the address for receipt;

(b) Level of safety being the level at which information in the form of a written document, goods parcel or package is delivered to the address for receipt, and preserved intact without any damage or tear;

(c) Time-limit for resolving complaints;

(d) Liability to pay compensation.

3. The enterprise engaged in delivery services business shall be responsible for performing its declared quality standards of delivery services. 

Article 23 Service charges 

1. Charge rates for delivery services shall be determined by the enterprise engaged in delivery services business.

2. With respect to delivery services for information in the form of written documents with addresses for receipt, enterprises engaged in delivery services business shall be permitted to determine charge rates other than the charge rates that the Ministry of Posts and Telematics provides for exclusive services of Vietnam Post. 

Chapter III

RESOLUTION OF COMPLAINS AND DISPUTES, COMPENSATION 

Section I. RESOLUTION OF COMPLAINTS AND DISPUTES 

Article 24 Complaints and resolution of complaints between parties 

1. Complainants must provide relevant papers, source documents and evidence and shall be liable for the contents of their complaint.

2. The maximum time-limit for lodging a complaint about domestic and international delivery services shall be six (6) months from the date on which such item was sent for delivery.

3. Upon expiry of the time-limit for lodging a complaint as stipulated in clause 2 of this article, the enterprise engaged in delivery services business shall not be liable to resolve the complaint.

4. The time-limit for resolution of a complaint shall be:

(a) Two months from the date of receipt of the complaint in the case of domestic delivery services;

(b) Three months from the date of receipt of the complaint in the case of international delivery services.

5. Upon expiry of the time-limit for resolution of a complaint as stipulated in clause 4 of this article, the enterprise engaged in delivery services business must resolve compensation (if loss occurred) payable to the service user in accordance with the provisions on compensation of Section 2 of Chapter III of this Decree.

6. Complaints regarding an administrative decision or administrative breach by an individual an authorized body shall be resolved in accordance with the law on complaints and denunciations.

Article 25 Resolution of disputes

Any dispute arising from the provision and use of delivery services must first be resolved by negotiation between the parties. Where agreement is unable to be reached, the non-breaching party shall have the right to take legal action in accordance with law. 

Section II. COMPENSATION 

Article 26 Responsibility of enterprises to pay compensation 

1. When loss occurs, the enterprise engaged in delivery services business shall be liable to pay compensation to the service user, except in the cases of exemption from liability to pay compensation stipulated in clause 2 of this article.

2. An enterprise engaged in delivery services business shall be exempt from liability to pay compensation in the following cases:

(a) Types of services which do not have proof of the sending;

(b) [The item] was delivered in accordance with the agreement in the contract for provision and use of services and the service user did not make any complaint at the time of receipt;

(c) [The item] was damaged or lost due to the fault of the service user or because of the natural characteristics of such information in the form of a written document, goods parcel or package;

(d) [The item] was confiscated or destroyed in accordance with law;

(dd) [The item] was confiscated pursuant to the laws of the recipient country and such country provided written notice thereof (in the case of international delivery);

(e) Cases of force majeure as stipulated by the law. 

Article 27 Responsibility of users to pay compensation 

1. Service users shall be liable to pay compensation for loss caused to parties suffering such loss as a result of the sending of publications, articles or goods the sending of which is prohibited in accordance with the provisions of article 11 of this Decree.

2. The liability of service users to pay compensation in the circumstances stipulated in clause 1 of this article shall not exceed the limit on the liability of the enterprise engaged in delivery services business to pay compensation in similar circumstances. 

Article 28 Principles for payment of compensation 

1. Enterprises engaged in delivery services business shall be permitted to make their own rules on the limit on liability to pay compensation for loss, but the limit shall not be less than that stipulated in the regulations of the Ministry of Posts and Telematics.

2. Compensation shall be paid in Vietnamese currency.

3. Compensation shall be paid to senders. If information in the form of a written document, goods parcel or package was partially damaged or lost and the recipient agrees to receive it, compensation may still be paid to the recipient. The level of compensation shall be determined on the basis of actual loss, calculated on the basis of the market price of the article or of goods of the same type in the locality in which and at the time when the article or goods were accepted, but the level of compensation shall not exceed the level of compensation in a case where a goods parcel or package is completely damaged or lost.

4. Enterprises engaged in delivery services business shall not be liable to pay compensation for indirect loss or for loss of profits arising from provision of services for which quality was not guaranteed. 

Chapter IV

REPORTING, INSPECTION, EXAMINATION AND DEALING WITH BREACHES 

Article 29 Reports of enterprises engaged in delivery services business 

1. In the case of delivery services business within a province, enterprises engaged in delivery services business shall be obliged to submit annual business operational reports to the Department of Posts and Telematics. In other cases, enterprises engaged in delivery services business shall be obliged to submit annual business operational reports to the Ministry of Posts and Telematics.

2. Reports shall be submitted no later than by 10 January of the following year.

3. Contents of a report shall comprise the following: number of transaction places; number of complaints and compensation paid for loss; results of business and production activities. Where necessary, the relevant State authority specified in clause 1 of this article may request enterprises to submit one-off reports. 

Article 30 Inspection and examination 

Organizations and individuals engaged in activities relating to the business and use of delivery services in Vietnam shall be subject to inspection and examination by the Postal, Telecommunications and Information Technology Inspector and by authorized State bodies in accordance with law. 

Article 31 Dealing with breaches 

Any organization or individual in breach of the law during business activities and use of delivery services shall be subject to a penalty for an administrative breach or prosecution for criminal liability in accordance with law. 

Chapter V.

IMPLEMENTING PROVISIONS 

Article 32 Effectiveness 

1. This Decree shall be of full force and effect fifteen (15) days from the date of its publication in the Official Gazette.

2. The whole of Sections 2 and 3 of Chapter V and clauses 2 and 3 of article 40 of Chapter VII of Decree 157-2004-ND-CP of the Government dated 18 August 2004 making detailed regulations for implementation of a number of articles of the Ordinance on Posts and Telecommunications in relation to posts and implementing guidelines on the basis of the provisions referred to in this clause are hereby repealed. 

Article 33 Grandfather clause 

1. Enterprises which were engaged in the business of delivery services before this Decree has effect shall be responsible for performing the procedures for notification of such delivery services to the relevant State authority specified in article 13 of this Decree, within a time-limit of three months from the date of effectiveness of this Decree.

2. Enterprises which were engaged in the business of mail delivery services before this Decree has effect shall be responsible for performing procedures to request the relevant State authority specified in article 17 of this Decree to issue a business licence for mail delivery services in accordance with the provisions of the Ordinance on Posts and Telecommunications and this Decree, within a timelimit of six months form the date of effectiveness of this Decree. 

Article 34 Responsibility for implementation 

Ministers, heads of ministerial equivalent bodies and Government bodies and chairmen of people's committees of provinces and cities under central authority shall be responsible for the implementation of this Decree.