Legal Document Updates in English (05/2011)

 SANCTIONING VND 70 MILLION AT MAXIMUM FOR BANNED GOODS

On December 01, 2010, the Government issued the Decree No. 112/2010/ND-CP amending and supplementing a number of Articles of the Government's Decree no. 06/2008/ND-CP dated January 16, 2008, on sanctioning of administrative violations in commercial activities

For violations of regulations on goods banned from business, a fine of between VND 10 million and 20 million shall be imposed for the violations involving goods valued at between over VND 50 million and 70 million. a fine of between VND 20 million and 30 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at between over VND 70 million and under 100 million; a fine of between VND 30 million and 35 million shall be imposed for the violations specified in Clause 1 of this Article involving goods valued at VND 100 million or more if violators are not subject to penal liability examination; a fine doubling the fine shall be imposed in either of the following cases: violations are committed by producers, subcontract producers, processors, manufacturers, recyclers, classifiers, assemblers, bottlers, chargers, packers or importers of goods banned

from business; goods banned from business are toxic chemicals, preventive and curative medicines for human use, veterinary drugs, plant protection drugs, food additives, food processing aids, irradiated food, genetically modified food and medical equipment not yet permitted for use in Vietnam.
Besides, the Decree also supplements some new violations: if the previous regulations only sanction violations involving imports valued under VND 100 million, the Decree 112 amends and supplements regulations on sanctioning from VND 10 million and 20 million for imports valued at VND 100 million or more. Similarly, a fine of between VND 7 million and 10 million, if involved goods trading in goods with hidden, torn or faded labels (including supplementary labels) which are wholly or partially unreadable; goods with labels which are printed with improper font sizes of Vietnamese and foreign languages, language and units of measurement are valued at over VND 100 million.

These amends and supplements takes effect on February 01, 2011, at the same time annuls Article 12 of the Government's Decree No. 107/2008/ND-CP and Articles 23, 24 and 25 of the Government's Decree No. 54/2009/ND-CP.

PRIME MINISTER DIRECTS ON STABILIZING PRICES AND MARKET TWICE

On November 30, the Prime Minister issued the Directive No. 2164/CT-TTg on further stepping up production, ensuring goods and service supply-demand balance, stabilizing prices and market on the occasion of Tan Mao Lunar New Year festival and in the first quarter of 2011. This is the second time in over one month; the Prime Minister has to issue the Directive on stabilizing prices and market in the last months of year (previously Directive 1875/CT-TTg dated October 11, 2010).

Over the past II months, the essential goods and services have basically met the demands; however, the consumer price index in this period already reached 9.58%; adversely affecting production and people's life. Such situation is attributed to the fact that a number of ministries, sectors and provincial-level People's Committees, failed to fully study the situation and not yet resolutely applied measures to curb inflation, control prices and stabilize the market as already directed. A number of organizations and individuals have not yet seriously implemented the management of prices and abided by the regulations on price control. Goods hoarding and speculation or even the spreading of rumors about the financial and monetary situation as well as prices, goods scarcity have not been controlled and checked in time, thus adversely affecting the Government's direction of inflation control and social welfare assurance.
Therefore, the Prime Minister appoints Ministries, Departments need to focus on the following major tasks: assume the prime responsibility for, and coordinate with

the Ministry of Industry and Trade. other ministries, sectors, provincial-level People's Committees and production and business enterprises in. stabilizing the prices of electricity and coal sold to households producing electricity, cement, fertilizers or paper; apply financial, monetary and tax measures to stabilize petrol and oil prices; reschedule the adjustment of the state-set prices of goods and services; control pricing elements, resolutely stopping the registration for raising prices of goods and services liable to price registration with unreasonable price levels.
The Ministry of Industry and Trade shall assume the prime responsibility for, and coordinate with such sectors as Police, Customs, Tax, the Ministry of Science and Technology, etc., in, organizing market inspection and control teams and severely handle acts of smuggling, trade frauds, goods speculation and hoarding for illegal price increase, particularly goods items liable to price stabilization; provincial-level People's Committees shall direct functional bodies in their respective localities to actively set up inspection teams to combat acts of speculating or hoarding goods, spreading false news on supply and demand, goods and sender prices in die provinces; severely handle violations according to law, including the withdrawal of business licenses or proposal to functional bodies for penal liability examination.

EXEMPT FROM IMPORT DUTY AND VALUE-ADDED TAX FOR IMPORTS VALUED AT VND 1 MILLION

On November 30, 2010, the Prime Minister signed the Decision No. 78/2010/QD-TTg on the level of value of imports sent via the express delivery service which are exempt from duty and tax

Imports valued at VND 1,000,000 (one million dong) or less which is sent via the express delivery service are exempt from import duty and value-added tax. For imports valued at over VND 1,000,000 (one million dong) which are sent via the express delivery service, import duty and value-added tax shall be paid according to law.

The Prime Minister assigns the Ministry of Finance to, based on the practical situation in each period; decide to adjust the level prescribed in Article 1 of this Decision by at most 20%, in line with the administrative reform policy and international practice. Any adjustment of the level specified in Article 1 of this Decision by more than 20% shall be submitted by the Ministry of Finance to the Prime Minister for decision.

This Decision takes effect on February 1, 2011.

 
FROM NOVEMBER 15, 2011, ENTERPRISES HAVE TO SUBMIT BASIC REPORTS

On November 30, 2010, the Prime Minister issued the Decision No. 77/2010/QD-TTg promulgating the basic statistical reporting regime applicable to state enterprises and enterprises and projects with foreign direct investment capital.

From January 15, 2011, state enterprises and enterprises and projects with foreign direct investment capital have to submit reports to the General Statistics Office and provincial-level state management agencies.
According to this Decision, reporting units include State enterprises (wholly state-owned enterprises; offices of state groups and corporations; joint-stock companies and limited liability companies in which the state capital portion accounts for over 50% of charter capital); enterprises and projects with foreign direct investment capital (including: enterprises in which foreign investors' capital accounts for 10% or more of charter capital; projects in which foreign investors' capital accounts for 10% or more of investment capital.
Monthly reports shall be made by state enterprises and enterprises and projects with foreign direct investment capital operating in such areas as mining, processing industries, electricity, natural gas, water supply, garbage and wastewater treatment, information and communications, real estate business, transportation and warehousing, trade and services.

Quarterly reports shall be applicable to state enterprises and enterprises and projects with foreign direct investment capital operating in such areas as agriculture, forestry and fisheries, construction; enterprise making or receiving payments to/from foreign parties for the provision of services; and enterprises acting as investors.

Biannual reports on employment and incomes of employees shall be made by all state enterprises and all enterprises and projects with foreign direct investment capital. Biannual reports on agricultural, forestry and fisheries activities shall be made by state enterprises and enterprises and projects with foreign direct investment capital. Annual reports shall be made by all state enterprises and all enterprises and projects with foreign direct investment capital.

This Decision takes effect on January 15, 2011, replaces the Decision No. 62/2003/QD-BKH dated January 27, 2003; the Decision No. 373/QD-TCTK of September 10, 1996 and Joint Circular No. 01/LB-TCTK-BKHDT of March 31, 1997.

REGISTRATION FEES OF THE NATIONAL DOMAIN NAME “.VN” DECREASE TO VND 350.000

On November 24, 2010, the Ministry of Finance issued the Circular No. 189/2010/TT-BTC stipulating charges for registration of use of the national domain name, maintenance of the national domain name and Internet addresses of Vietnam, and the collection, remittance, management and use of these charges

Charges and fees on the national domain name will be decreased compared to previous regulations.  For the level-2 domain name is decreased from VND 450.000 to VND 350.000 per time; Charge for maintenance of domain names for level-2 domain name with 1 character is VND 40 million and for other level-2 domain names.
For the level-3 domain names, fee for registration of use is decreased from VND 450.000/year to VND 350.000/year, charge for maintenance of domain names is VND 350.000/year for the domain Com.vn, net.vn, biz.vn; level-3 domain names under a common level-2 domain name granted by the registrar to other

organizations and individuals; lower-level domain names: edu.vn. gov.vn, org.vn, ac.vn, info.vn, pro.vn, health.vn and int.vn, and administrative boundary-based domain names (geographical name: hanoi.vn) are VND 200.000 per year.

Fee for registration of use of the domain name “name.vn” is VND 30.000 per time and level-3 domain names under a common level-2 domain: name. vn is also VND 30.000 per year. Particularly, level-3 domain names under a common level-2 domain name granted by the registrar to other organizations and individuals are VND 200.000 per year.i

Charges on internet addresses are remained as previous regulations.

This Circular takes effect on January 10, 2011, and replaces the Decision No. 28/2006/QD-BTC of May 5, 2006, and Decision No. 28/2005/QD-BTC of May 13, 2005.

NOT ALLOW OFFSHORE REMITTANCE OF PROFITS

On November 18, 2010, the Ministry of Finance issued the Circular No. 186/2010/TT-BTC guiding the offshore remittance of profits earned by foreign organizations and individuals from their direct investment in Vietnam under the Investment Law. This Circular takes effect 45 days from the date of its signing and replaces the Finance Ministry's Circular No. 124/2004/TT-BTC dated December 23, 2004.

What’s more important that foreign investors may not remit abroad profits they are shared or earn from their direct investment in Vietnam in a year of profit generation in case that year's financial statements of enterprises in which they make investment still contain accumulative losses after such losses are carried forward under the law on enterprise income tax (according to regulations in the Circular No. 124/2001/TT-BTC, the profit amounts to be temporarily transferred abroad by foreign investors quarterly or biannually right in the fiscal year mean the profit amounts distributed to the investors on the basis of the enterprises’ quarterly or biannual financial statements).

Annual profits to be remitted abroad mean profits foreign investors are shared or

REGULATION CONFORMITY CERTIFICATION FOR CONSTRUCTION MATERIAL PRODUCTS AND GOODS

On November 16, 2010, the Ministry of construction issued the Circular No. 21/2010/TT-BXD guiding regulation conformity certification and announcement for construction material products and goods.

Regulation conformity certification means the certification of construction material products' and goods' conformity with technical regulations or compulsory technical standards not yet converted into technical regulations.

A regulation conformity certification institution must possess a valid certificate of quality management system by ISO 9001 standard; and be capable of certifying construction material products' and goods' conformity with the requirements of technical regulations. An institution that has a recognized construction laboratory (LAS-XD) with testing capacity conformable with the requirements of technical regulations applicable to construction material products and goods will be regarded as capable.

A certification institution must have at least 3 evaluators on its official payroll (public employees or employees under labor contracts of 12 months or more or of indefinite term) who hold tertiary or higher degree with professional qualifications relevant to certification of construction material products and goods concerned and at least 3 years' experience in this domain.

The Ministry of Construction shall decide to designate institutions to certify regulation conformity for construction-material products and goods, based on their satisfaction of requirements on quality management systems and their laboratories' capacity. At the same time, to publicize on the websites of the Ministry of Construction and localities a list of designated regulation conformity certification institutions and their experts and a list of regulation conformity certification institutions and their experts that have been handled for their violations of current regulations on regulation conformity certification.

This Circular takes effect 45 days from the date of its signing.

4 (FOUR) CONDITIONS FOR DETERMINING THE STATE COMPENSATION LIABILITY

On November 26, 2010, the Ministry of Justice, the Ministry of Finance and the Government Inspectorate issued the Joint Circular No. 19/2010/TTLT-BTP-BTC-TTCP guiding the discharge of the state compensation liability in administrative management activities

The state compensation liability in administrative management activities arises only when all the following conditions exist: there is a document issued by a competent state agency affirming that an act of a public-duty performer is illegal; the illegal act of a public-duty performer falls within the scope of compensation liability defined in Article 13 of the Law on State Compensation Liability (below referred to as the Law); an actual damage is caused; there is a cause-effect relationship between an actual damage and an illegal act of a public-duty performer.
The Circular also explains that actual damage means a real damage caused to a sufferer by an illegal act of a public-duty performer. Actual damage includes material damage and damage due to mental suffering. Within that material damage under the state compensation liability in administrative management includes damage due to asset infringement; damage due to loss of or decrease in actual incomes; material loss due to the death of the sufferer; and material loss due to harm to health.

Damage due to mental suffering under the state compensation liability in administrative management includes damage due to mental suffering during the administrative custody or confinement to a reformatory, re-educational or medical establishment; damage due to mental suffering in case of death of the sufferer; damage due to mental suffering in case of harm to. 

Besides, the State will not compensate for damage caused by sufferers who are totally at fault. In case the public-duty performer and sufferer are both at fault, the State shall compensate for part of damage caused by the public-duty performer's fault.

Within 2 years after obtaining a competent agency's document confirming a public-duty performer's act illegal, a claimant may send a dossier of compensation claim to the compensation-liable agency. A sufferer may institute a lawsuit to request a court to settle compensation when he/she/it disagrees with a compensation settlement decision; upon the expiration of the time limit for issuance of a compensation settlement decision. the compensation-settling agency fails to issue a compensation settlement decision.

This Circular takes effect 45 days from the date of its signing and annuls the Ministry of Finance's Circular No. 49/2008/TT-BTC of June 12, 2008.