Decree No. 44/2001/ND-CP dated August 2, 2001 of the Government amending and supplementing a number of Articles of the Government’s Decree No. 57/1998/ND-CP dated July 31, 1998 detailing the implementation of the Commercial Law regarding activities of goods import, export, processing and sale/purchase agency with foreign countries

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE No. 57/1998/ND-CP OF JULY 31, 1998 DETAILING THE IMPLEMENTATION OF THE COMMERCIAL LAW REGARDING ACTIVITIES OF GOODS IMPORT, EXPORT, PROCESSING AND SALE/PURCHASE AGENCY WITH FOREIGN COUNTRIES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Commercial Law of May 10, 1997;

Pursuant to the Government’s Resolution No. 05/2001/NQ-CP of May 24, 2001;

At the proposal of the Minister of Trade,

DECREES:

Article 1.-To amend and supplement a number of articles of the Government’s Decree No. 57/1998/ND-CP of July 31, 1998 detailing the implementation of the Commercial Law regarding activities of goods import, export, processing and sale/purchase agency with foreign countries, concretely as follows:

1. Article 1 is amended as follows:

"Article 1.- Scope of application

This Decree details the implementation of the Commercial Law regarding activities of goods import, export, processing and sale/purchase agency between traders established and operating under Vietnamese laws and foreign traders."

2. Article 3 is amended as follows:

"Article 3.- Import and export goods

Goods of all kinds, except those on the list of goods banned from import and/or export, can be imported and exported. Goods banned from import and/or export, goods subject to conditional import and/or export shall comply with the provisions in Articles 4 and 5 of this Decree".

3. Article 4 is amended as follows:

"Article 4.- Goods banned from import and/or export

1. The list of goods banned from import and/or export shall be issued by the Prime Minister in each period on the basis of the proposals of the Minister of Trade and the heads of the concerned ministries and branches.

2. Goods on the list of those banned from import and/or export can only be allowed to be imported and/or exported in special cases permitted by the Prime Minister".

4. Article 5 is amended as follows:

"Article 5.- Goods subject to conditional import and/or export

1. Goods subject to conditional import and/or export include:

a) Goods imported and/or exported according to quotas;

b) Goods imported and/or exported under the Trade Ministry’s permits;

c) Import and export goods subject to specialized management;

d) Goods imported or exported under separate regulations of the Prime Minister.

2. The list of goods subject to conditional import and/or export and the provisions on import and/or export thereof shall be issued by the Prime Minister for each period on the basis of the proposals of the Trade Minister and the heads of the concerned specialized management ministries.

5. Article 7 is amended as follows:

"Article 7.- Temporary suspension of goods import and/or export

In necessary cases, the Prime Minister shall decide to temporarily suspend the import and/or export activities with a particular market or the import and/or export of certain goods items so as to exercise the right of self-defense according to international laws and practices.

The Ministry of Trade shall notify the concerned international economic organizations and countries thereof according to the procedures already agreed upon (if any) when the Prime Minister issues concrete decisions on the temporary suspension of goods import and/or export".

6. Article 8 is amended as follows:

"Article 8.- Import and export business

1. For Vietnamese traders:

Traders shall, as prescribed by law, be entitled to export goods of all kinds, regardless of the business lines stated in their business registration certificates, except goods on the list of those banned from export; and to import goods according to the business lines stated in their business registration certificates.

For goods on the list of goods and commercial services restricted from business; list of goods and commercial services subject to conditional business, before conducting the import and export thereof, traders shall have to fully comply with current law provisions on trading in such goods.

Traders branches may import and/or export goods according to traders authorization.

Particularly for foreign-invested enterprises and business cooperation parties, apart from the exportation of their own products, they may export goods of other kinds, except goods on the list of goods banned from export and a number of goods categories prescribed by the Ministry of Trade for each period. For goods on the list of those subject to conditional export, foreign-invested enterprises and business cooperation parties shall export them according to the provisions of their granted investment licenses, the Law on Foreign Investment in Vietnam and other relevant legal documents.

The goods import by foreign-invested enterprises and business cooperation parties shall comply with the provisions of their granted investment licenses, the Law on Foreign Investment in Vietnam and other relevant legal documents.

2. For foreign traders Vietnam-based branches:

The Vietnam-based branches of foreign traders shall import and export goods according to the provisions of the Government’s Decree No. 45/2000/ND-CP of September 6, 2000 on representative offices, branches of foreign traders and foreign tourism enterprises in Vietnam and other relevant legal documents.

3. Before conducting import and/or export activities, the business subjects prescribed in Clauses 1 and 2 of this Article shall have to register the import/export business codes at the provincial/municipal Customs Departments".

The General Department of Customs shall build up the above-said code system and guide the registration of import/export business codes".

7. Article 9 is amended as follows:

"Article 9.- Entrusted import and export

1. Traders and their branches defined in Article 8 of this Decree may entrust or undertake the entrusted import and/or export of goods according to the scope prescribed in this Decree.

Foreign-invested enterprises, business cooperation parties and foreign traders branches in Vietnam may entrust the import and/or export of goods according to the scope prescribed in this Decree.

2. The rights and obligations of the import and/or export trustors and trustees shall be specifically agreed upon in the contracts for the entrusted import and/or export.".

8. Point b, Clause 1 of Article 15, is amended as follows:

"b) Taking back all processed products; leased and/or lent machinery and equipment; raw materials, auxiliary materials, supplies and discarded materials after the liquidation of the processing contracts (except for cases where they are permitted to be exported on-the-spot, destroyed, donated or presented as prescribed in this Decree)".

9. Clause 1 of Article 15 is supplemented with Point e as follows:

"e) Being entitled to conduct the on-the-spot export of processed products; leased and/or lent machinery and equipment; surplus raw materials, auxiliary materials and supplies, faulty products and discarded materials as prescribed in the written agreement reached between involved parties, in accordance with current regulations on the management of goods import and export in each period, and having to fulfill tax and other financial obligations as prescribed by laws".

10. Clause 2 of Article 15 is supplemented with Point e as follows:

"e) Carrying out procedures for the on-the-spot export of processed products; leased and/or lent machinery and equipment; surplus raw materials, auxiliary materials and supplies; faulty products and discarded materials according to the authorization of the processing-ordering party".

11. Article 15 is supplemented with Clause 3 as follows:

"3. Conditions for the on-the-spot export of processed products; leased and/or lent machinery and equipment; surplus raw materials, auxiliary materials and supplies; faulty products and discarded materials:

a) Strictly complying with the regulations on goods import, on tax and other financial obligations prescribed by laws;

b) Having sale/purchase contracts signed between foreign traders and importing traders".

12. Clause 3 of Article 18 is amended as follows:

"3. After the termination of a processing contract, machinery and equipment hired and/or borrowed under the contract; surplus raw materials, auxiliary materials and supplies; faulty products and discarded materials shall be dealt with as agreed upon in the processing contract and in compliance with law provisions. The procedures for re-export, sale/purchase, donation, presentation, destruction or transfer thereof for the performance of other processing contracts shall be carried out at the customs offices".

13. To add Chapter IV.1 "Hiring foreign traders to act as goods sale agents in foreign countries" as follows:

"Chapter IV.1. Hiring foreign traders to act as goods sale agents in foreign countries.

Article 26a.- Conditions for hiring foreign traders to act as goods sale agents in foreign countries

1. Traders defined in Article 8 of this Decree may hire foreign traders to act as goods sale agents in foreign countries.

2. Traders may hire agents in foreign countries to sell goods of all kinds, except goods on the list of those banned from export. For goods on the list of those subject to conditional export, traders can only sign contracts on goods sale agency in foreign countries according to the provisions in Article 5 of this Decree.

3. Traders that hire goods sale agents in foreign countries shall have to sign agency contracts with foreign traders; and must open accounts at banks to receive payment of the agency sale of goods according to guidance of Vietnam State Bank.

4. In cases where the payment of agency sale of goods is made in goods, Vietnamese traders shall have to comply with the current law regulations on import goods.

Article 26b.- Tax obligations

1. Goods under the contracts on goods sale agency in foreign countries shall be subject to taxes and other financial obligations according to the provisions of Vietnamese laws.

2. Vietnamese traders shall have to register, declare and pay assorted taxes and fulfill other financial obligations related to activities of hiring foreign traders to act as goods sale agents in foreign countries.

Article 26c.- Return of goods

1. Goods exported under the contracts on goods sale agency in foreign countries may be re-imported into Vietnam if they cannot be sold in foreign countries.

2. Goods re-imported into Vietnam stated in Clause 1 of this Article shall not be subject to import tax and shall be entitled to the refund of export tax (if any).

The Ministry of Finance shall guide the tax provisions in this Clause.

Article 26d.- Import and export procedures

The procedures for the import and export of goods under contracts on goods sale agency in foreign countries, including cases where goods are re-imported into Vietnam because they cannot be sold in foreign countries, shall comply with guidance of the General Department of Customs".

Article 2.-This Decree takes effect 30 days after its signing. Other provisions of Decree No. 57/1998/ND-CP of July 31, 1998 shall remain effective.

Article 3.-The Ministry of Trade shall assume the prime responsibility and coordinate with the concerned agencies in guiding the implementation of this Decree.

Article 4.-The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.