Decree No. 20/2006/ND-CP dated February 20, 2006 of the Government detailing the Provisions of the Commercial Law on Provision of commercial assessment services

DECREE

DETAILING THE PROVISIONS OF THE COMMERCIAL LAW ON PROVISION OF COMMERCIAL ASSESSMENT SERVICES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Commercial Law;

At the proposal of the Trade Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Governing scope

This Decree details the provisions of the Commercial Law on provision of commercial assessment services in the territory of the Socialist Republic of Vietnam.

Article 2.- Subjects of application

This Decree applies to traders providing commercial assessment services which are established under Vietnamese law.

Article 3.- Principles for provision of commercial assessment services

1. Commercial assessment services shall be provided under an agreement between involved parties or at the request of any of parties to a contract relating to goods or services which need to be assessed; or at the request of individuals, organizations or state agencies.

2. Commercial assessment services shall be provided on the principle of independence, objectivity, scientificity and accuracy.

3. It is prohibited to provide commercial assessment services in cases where such services are related to interests of assessing enterprises and assessors.

Article 4.- Competence to perform state management of provision of commercial assessment services

1. The Trade Ministry shall be answerable to the Government for unifying the state management of the provision of commercial assessment services with the following specific management contents:

a/ Promulgating according to its competence or proposing the Government to promulgate, amend or supplement legal documents concerning provision of commercial assessment services;

b/ Guiding and inspecting provincial/municipal Trade Services (Trade and Tourism Services) in registering professional stamps of traders providing commercial assessment services;

c/ Directly inspecting and examining activities of providing commercial assessment services when deeming it necessary;

d/ Building an information system for unified management of registration of professional stamps of traders providing commercial assessment services;

e/ Settling complaints and denunciations and handling acts of violating the provisions of law on provision of commercial assessment services according to its competence.

2. Ministries, ministerial-level agencies and Government-attached agencies shall, within the ambit of their powers, perform the state management over provision of commercial assessment services.

3. Provincial/municipal People's Committees of localities where traders have made their business registration shall guide the registration of professional stamps of traders providing commercial assessment services according to the provisions of this Decree.

Article 5.- Provision of commercial assessment services by foreign traders

1. Foreign traders that establish enterprises for providing commercial assessment services under the law on foreign investment in Vietnam and in compliance with the provisions of treaties to which Vietnam is a contracting party shall be permitted to conduct the assessment and issue assessment certificates according to their business lines stated in their business registration certificates or papers of equivalent validity according to current provisions of law.

2. The provision of commercial assessment services under authorization of foreign traders stipulated in Article 267 of the Commercial Law shall comply with the provisions of Section 3, Chapter II of this Decree.

Chapter II

ASSESSORS, PROFESSIONAL STAMPS AND AUTHORIZATION OF ASSESSMENT

Section 1. ASSESSORS

Article 6.- Accreditation of assessors

1. Traders (directors of enterprises) providing commercial assessment services shall issue decisions on accreditation of assessors who fully satisfy the criteria specified in Article 259 of the Commercial Law and take responsibility before law for their decisions.

2. Only persons having been accredited under decisions as assessors of traders providing commercial assessment services shall be permitted to conduct assessing activities assigned by such traders.

Article 7.- Rights and obligations of assessors

When conducting assessing activities assigned by traders providing commercial assessment services, assessors shall have the following rights and obligations:

1.  To  conduct  assigned  assessment  jobs independently and to be obliged to refuse to conduct the assessment which is related to their own interests.

2. To conduct the assessment in an honest, objective, scientific, timely and accurate manner and in compliance with reasonable requirements agreed upon with the assessment-requesting parties.

3. To request supply of necessary information and documents related to the assessment jobs assigned to them.

4. To reject interference by any individuals or organizations in assessing activities which may affect the accuracy or untruthfulness of assessment services they are providing.

5. To honestly reflect assessment results in assessment certificates and sign such certificates.

6. To be responsible for keeping confidential information and documents relating to assessment results at the request of clients.

7. To be held responsible before law and traders providing assessment services for the accuracy of assessment services.

Section 2. PROFESSIONAL STAMPS IN ASSESSMENT CERTIFICATES

Article 8.- Signatures and professional stamps

1. Signatures in an assessment certificate are stipulated as follows:

a/ The signature of the authorized representative of the trader providing commercial assessment services shall be put on the bottom right of the assessment certificate;

b/ The signature of the assessor shall be put on the bottom left of the assessment certificate;

2. The professional stamp in an assessment certificate shall have a rectangular shape of 6 cm in length and 2 cm in width. On the upper part of the stamp face is the phrase "on behalf of the company," while the lower part bears the emblem (if any) and the name of the trader providing commercial assessment services.

3. The professional stamp in an assessment certificate shall be affixed on about one third (1/3) to the left of the signature of the authorized representative of the trader providing commercial assessment services.

4. Alt professional stamps shall use blue ink.

Article 9.- Registration of professional stamps

1. Provincial/municipal Trade Services (Trade and Tourism Services) of localities where traders providing assessment services have registered their business shall have to open separate registers for registration of professional stamps for use in assessment certificates by traders providing commercial assessment services.

2. Traders providing commercial assessment services shall pay a fee upon registration of their professional stamps; the fee rates and the regime of fee management and use shall comply with the Finance Ministry's guidance.

Article 10.- Dossiers for registration of professional stamps

1. A dossier for registration of the professional stamp of a trader providing commercial assessment services comprises:

a/ An application for registration of professional stamp, made according to a form set by the Trade Ministry;

b/ A notarized copy of the business registration certificate or the investment license (for traders operating under the law on investment in Vietnam);

c/ The specimen of the professional stamp for use in assessment certificates intended to be registered by the trader.

2. In case of changes in or supplements to professional stamps, traders providing commercial assessment services shall have to re-register such stamps with provincial/municipal Trade Services (Trade and Tourism Services) of localities where such traders have registered their business. Dossiers for re-registration shall comply with the provisions of Clause 1 of this Article.

Article 11.- Time limit for making replies to dossiers for registration of professional stamps

1. Within 10 working days after receiving complete dossiers of application for registration of professional stamps specified in Clause 1, Article 10 of this Decree, provincial/municipal Trade Services (Trade and Tourism Services) of localities where traders have registered their business shall have to register professional stamps for use in assessment certificates of traders in their professional stamp registers and notify such in writing to traders.

2. Where they refuse to register professional stamps, provincial/municipal Trade Services (Trade and Tourism Services) shall, within 10 working days after receiving complete dossiers, have to reply in writing and clearly state reasons for refusal.

Article 12.- Deletion of registration of professional stamps

1. Registration of professional stamps shall be deleted from professional stamp registers by agencies in charge of registration of professional stamps in the following cases:

a/ Traders providing commercial assessment services terminate their business operation or change to other business lines;

b/ Traders have their business registration certificates or investment licenses withdrawn;

c/ Traders or their authorized representatives commit serious illegal acts in assessing activities.

2. Where the registration of their professional stamps is deleted, traders providing commercial assessment services shall have to return such professional stamps to the agency in charge of registration of professional stamps.

3. The agency in charge of registration of professional stamps shall have to withdraw professional stamps and publicly announce such withdrawal.

Section 3. MANDATE OF ASSESSMENT

Article 13.- Assessment mandate contracts

Assessment mandate contracts must be established in writing or any other form of equivalent legal validity according to the provisions of law.

Article 14.- Assessment certificates in case of mandate of assessment

In an assessment certificate issued by a mandated trader, the words "issued under mandate of (name of the mandating trader)" must be clearly inscribed and the professional stamp of the mandated trader must be affixed according to the provisions of Article 8 of this Decree.

Article 15.- Sub-mandate

1. A mandated party shall only be allowed to sub-mandate a third party if it is so consented to by the mandating party or provided for by law.

2. A sub-mandate contract must be in a form consistent with the form of the original mandate contract.

3. The sub-mandate must not go beyond the scope of the original mandate.

Article 16.- Rights and obligations of assessment-mandating parties

1. Assessment-mandating parties shall have the following rights:

a/ To request mandated parties to strictly observe agreements in assessment mandate contracts;

b/ To request mandated parties to fully notify the performance of jobs under mandate contracts;

c/ To claim damages where mandated parties breach their obligations specified in Clause 2, Article 17 of this Decree.

2. Assessment-mandating parties shall have the following obligations:

a/ To supply necessary information and documents to fulfill the assessment requirements;

b/ To be responsible for assessment results to assessment-requesting parties;

c/ To pay service charges and other expenses as agreed upon in assessment mandate contracts;

d/ To fulfill their financial obligations according to the provisions of Vietnamese law.

Article 17.- Rights and obligations of mandated parties

1. Parties mandated to conduct assessment shall have the following rights:

a/ To request assessment-mandating parties to supply necessary information and documents in service of assessment under assessment mandate contracts;

b/ To hire domestic and foreign assessment experts to perform assessment services; to temporarily import for re-export technical means to perform assessment operations;

c/ To receive service charges and other payments as agreed upon in assessment mandate contracts.

2. Parties mandated to conduct assessment shall have the following obligations:

a/ To perform jobs under assessment mandate contracts and report to mandating parties on the performance of such jobs;

b/ To preserve documents and means assigned to them for performance of mandated jobs;

c/ To keep confidential information they have acquired in the course of performing mandated jobs;

d/ To pay compensations for damage caused by breaches of obligations specified at Points a, b and c of this Clause;

e/ To provide assessment certificates under mandate contracts.

Article 18.- Assessment at the request of state agencies

1. When having requests for assessment, state agencies or organizations shall select (in writing) traders providing commercial assessment services, which fully satisfy the conditions and criteria specified in the Commercial Law and are suitable with specific assessment requirements, to realize their assessment requests.

2. State agencies or organizations which request assessment shall have to pay assessment charges to traders providing commercial assessment services as agreed upon between the two parties and based on the market price at the time of requesting assessment.

Section 4. HANDLING OF VIOLATIONS OF LAW IN PROVISION OF COMMERCIAL ASSESSMENT SERVICES

Article 19.- Illegal acts in provision of commercial assessment services

1. Traders providing commercial assessment services and assessors that commit the following illegal acts shall, depending on the nature and seriousness of their violations, be administratively sanctioned or examined for penal liability according to the provisions of law:

a/ Providing assessment services without fully satisfying the conditions required by law;

b/ Providing assessment services outside the registered business lines in their business registration certificates or investment licenses;

c/ Accrediting assessors who have not yet satisfied the criteria specified in Article 259 of the Commercial Law;

d/ Using professional stamps in assessment certificates which have not yet been registered with competent agencies defined in Article 9 of this Decree;

e/ Performing the assessment which is related to their own interests and assessors' interests;

f/ Failing to abide by requests of competent state agencies which conduct inspection or examination according to the provisions of law;

g/ Providing assessment services for foreign traders without contracts for mandate for provision of such assessment services;

h/ Violating other provisions of this Decree.

2. Where traders providing commercial assessment services or assessors commit violations, causing material damage to relevant organizations or individuals, they shall, apart from being handled for administrative, civil or penal liability, have to pay compensations for damage according to the provisions of law.

Article 20.- Competence and procedures for handling violations

Competence and procedures for handling acts of violation specified in Article 19 of this Decree shall comply with current provisions of law.

Chapter III

IMPLEMENTATION PROVISIONS

Article 21.- Implementation effect

1. This Decree takes effect 15 days after its publication in "CONG BAO."

2. This Decree replaces the Government's Decree No. 20/1999/ND-CP of April 12, 1999, on commercial provision of goods assessment services.

3. All previous stipulations on provision of commercial assessment services which are contrary to the provisions of this Decree are hereby annulled.

Article 22.- Transitional provisions

Within three months after the effective date of this Decree, traders that have provided commercial assessment services before such date shall have to register their professional stamps according to the provisions of this Decree.

Article 23.- Organization of implementation

Ministers, heads of ministerial-level agencies, heads of Government-attached agencies and presidents of provincial/municipal People's Committees shall have to implement this Decree.