Decree No. 57/2006/ND-CP dated June 09, 2006 of the Government on e-commerce

DECREE

ON E-COMMERCE

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

Pursuant to the June 14, 2005 Commercial Law;

Pursuant to the November 29, 2005 Law on E-Transactions;

At the proposal of the Minister of Trade,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree regulates:

1. The use of e-documents in commercial activities and trade-related activities within the territory of the Socialist Republic of Vietnam.

2. The use of e-documents in commercial activities and trade-related activities conducted outside the territory of the Socialist Republic of Vietnam in cases where parties agree to apply the Commercial Law and this Decree.

3. This Decree’s provisions shall not apply to the use of e-documents being bills of exchange, promissory notes, bills of lading, goods consignment invoices, warehousing or ex-warehousing bills or any negotiable documents which entitle their holders or beneficiaries to receive goods, services or certain sums of money.

Article 2.- Subjects of application

This Decree applies to:

1. Traders that use e-documents in commercial activities and trade-related activities.

2. Other organizations and individuals that use e-documents in trade-related activities.

Article 3.- Interpretation of terms

In this Decree, the terms below are construed as follows:

1. “Document” means a contract, offer, notice, statement, invoice or another document made by parties, which is related to the entry into or performance of a contract.

2. “E-document” means a document in the form of a data message.

3. “Data message” means information which is generated, sent, received or stored by electronic means.

4. “Originator” means a party or its representative that has generated or sent an e-document before storing it. Originators exclude parties acting in the capacity as intermediaries relating to e-documents.

5. “Addressee” means a party that receives an e-document in the originator’s intention. Addressees exclude parties acting in the capacity as intermediaries relating to e-documents.

6. “Information system” means a system which is established for sending, receiving, storing, displaying or otherwise processing data messages.

7. “Automated information system” means a computer program, electronic or automated means which is used for initiating an action or responding to data messages without human interference or inspection each time an action is initiated or a response is made by the system.

8. “Place of business” means a fixed establishment for carrying out business activities, excluding temporary goods or service provision establishments.

Article 4.- Parties’ places of business

1. The place of business of each party shall be a place indicated by such party, unless the other party clearly states that such party has no business establishment at such place.

2. Where a party has many places of business but fails to indicate any of them, its place of business shall be the place which has the closest relationship with the relevant contract, in the light of all circumstances before and at the time of entry into a contract.

3. Where an individual has no place of business, the place of business shall be his/her place of residence.

4. A place shall not be regarded as a place of business if it is merely a place for installing machinery and technological equipment of an information system used by a party for entry into contracts, or merely a place where other parties may access such information system.

5. A place name associated with a domain name or email address of a party is not necessarily related to the place of business of such party.

Article 5.- Contents of state management of e-commerce

The state management of e-commerce shall cover:

1. Promulgating, and organizing the implementation of, e-commerce development strategies, plans, plannings and policies.

2. Promulgating, and organizing the implementation of, legal documents on e-commerce.

3. Promulgating standards on e-commerce.

4. Training, propagating and raising awareness about e-commerce, and carrying out activities in support of e-commerce application.

5. Inspecting and examining the observance of law on e-commerce; settling complaints and denunciations, and handling violations of law on e-commerce.

6. Organizing and managing international cooperation on e-commerce.

Article 6.- State management of e-commerce

1. The Trade Ministry shall be responsible before the Government for the performance of state management of e-commerce.

2. Ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal People’s Committees shall, within the ambit of their respective tasks and powers, coordinate with the Trade Ministry in performing the state management of e-commerce.

Chapter II

LEGAL VALIDITY OF E-DOCUMENTS

Article 7.- Legal validity

Documents shall not have their legal validity denied for the sole reason that they are e-documents.

Article 8.- E-documents being as valid as written documents

E-documents shall be as legally valid as written documents if information contained in such e-documents is accessible for use when necessary.

Article 9.- E-documents being as valid as originals

1. E-documents shall be as legally valid as originals if they simultaneously satisfy the following two conditions:

a/ Ensuring reliability of the integrity of the information contained in e-documents from the time the information is generated in its final form as an e-document or otherwise.

b/ Information contained in e-documents is accessible and usable in its integrity when necessary.

2. Criteria for assessing integrity are that whether information remains complete and unaltered, except formal changes in the course of interchange, storage or display of e-documents.

3. The standard of reliability is assessed in the light of purpose for which the information is generated and in the light of all relevant circumstances.

Article 10.- Legal validity of e-signatures

An e-document shall be regarded as having a signature of a party if:

1. A method has been applied for identifying the signatory to the e-document and indicating such signatory’s approval of the information contained in the signed e-document.

2. The above-said method is sufficiently reliable for the purpose of creating and interchanging e-documents, in the light of all relevant circumstances and agreements.

Chapter III

E-DOCUMENTS IN COMMERCIAL ACTIVITIES

Article 11.- Time and place of sending and receiving e-documents

1. The time of sending an e-document shall be the time such e-document leaves the information system under the control of the originator or his/her representative. Where an e-document does not leave the information system under the control of the originator or his/her representative, the sending time shall be the time of receiving such e-document.

2. The time of receiving an e-document shall be the time the addressee can access such e-document at an e-address indicated by the addressee. The time of receiving an e-document at the addressee’s another e-address shall be the time the addressee can access such e-document at this address and he/she knows well that the e-document has been sent to this address.

An addressee shall be deemed able to access an e-document when such e-document reaches his/her e-address.

3. The originator’s place of business shall be regarded as the place of sending e-documents while the addressee’s place of business shall be regarded as the place of receiving e-documents.

4. Clause 2 of this Article applies also to cases where the place of the e-address supporting information system may be different from the place at which e-documents are deemed received according to Clause 3 of this Article.

Article 12.- Notice on proposal to enter into a contract

An e-notice on the proposal to enter into a contract without specific addressee shall not be considered a proposal to enter into a contract, unless the notice maker clearly defines in such notice his/her responsibility in case of receiving a reply on approval.

Article 13.- Use of automated information systems

Contracts entered into by an interaction between an automated information system and an individual or between automated information systems shall not have their legal validity denied for the sole reason that there is no human inspection or interference in each specific action taken by automated information systems or in contracts which are entered into.

Article 14.- Provision of contractual terms

Where, through information systems, a party makes a proposal to enter into a contract and its partner may access such proposal, within a reasonable period of time, the proposal maker must provide the partner with e-documents or other relevant documents containing contractual terms. These documents must be storable and usable.

Article 15.- Errors in inputting information to e-documents

1. Where an individual makes an error in inputting information to an e-document, which is used for interchange with another party’s automated information system while this system fails to support such individual to correct the error, such individual or his/her representative may cancel erroneous part of the e-document if he/she abides by the following two conditions:

a/ Right upon becoming aware of the error, the individual or his/her representative shall notify the other party of such error and clearly state that he/she has made an error in this e-document.

b/ The individual or his/her representative still does not yet use or get any material benefits or value from the goods or service received from the other party.

2. The right to cancel erroneous parts of e-documents shall not affect the application of legal provisions on consequences of arising errors, not provided for in Clause 1 of this Article.

Chapter IV

HANDLING OF VIOLATIONS

Article 16.- Acts of violating law on e-commerce

1. Obstructing or restricting organizations’ or individuals’ ability to use e-documents.

2. Obstructing or restricting organizations’ or individuals’ ability to select technologies or electronic means for carrying out commercial activities.

3. Illegally modifying, deleting, canceling, copying, disclosing or removing, counterfeiting, or appropriating part or whole of, e-documents.

4. Encroaching or damaging information systems used for e-commerce activities.

5. Originating, sending, transmitting, receiving or processing e-documents for the purpose of committing illegal acts.

6. Other illegal acts related to the use of e-documents as provided for by law.

Article 17.- Handling of violations of law on e-commerce

1. Traders or organizations that commit illegal acts in the use of e-documents in commercial activities shall, depending on the nature and severity of their violations, be administratively sanctioned or suspended from operation; and, if causing damage, they must pay compensations therefor.

2. Individuals that commit illegal acts in the use of e-documents in commercial activities shall, depending on the nature and severity of their violations, be disciplined, administratively sanctioned or examined for penal liability; and, if causing damage, they must pay compensations therefor.

Chapter V

IMPLEMENTATION PROVISIONS

Article 18.- Implementation effect

This Decree takes effect 15 days after its publication in “CONG BAO.” All previous regulations on e-transactions in commercial activities and trade-related activities, which are contrary to this Decree, are hereby annulled.

Article 19.- Implementation guidance

1. The Trade Ministry shall assume the prime responsibility for, and coordinate with ministries and ministerial-level agencies in, providing detailed guidance on the use of e-documents in commercial activities and trade-related activities in accordance with the provisions of this Decree and current law.

2. 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.