Legal Document Updates in English (36/2011)

FORMALLY PASSED THE LAW ON AMENDING, SUPPLEMENTING THE CIVIL PROCEDURE CODE
 

The National Assembly passed the Law No. 65/2011/QH12 amending and supplementing some articles of the Civil Procedure Code, and one of the most important amends and supplements is the statute of limitations for initiating civil lawsuits.

The statute of limitations for initiating civil lawsuits complies with law. In case the law does not prescribe a statute of limitations for initiating civil lawsuits, the following provisions shall be complied with: no statute of limitations is applied to disputes over property ownership; disputes over claim back of properties under others’ management or in others’ possession; disputes over land use rights in accordance with the land law. For disputes other than those, the statute of limitations for initiating a civil lawsuit is two years, counting from the date individuals, agencies or organizations become aware that their rights and legitimate interests are infringed upon as previous regulations.

The Law also amends some regulations to the open direction under the courts’ jurisdiction on  civil requests, accordingly, the request for declaration of notarized documents to be invalid and the request for determination of property ownership and use rights; division of common properties for enforcement of judgments in accordance with the law on enforcement of civil judgments.

Civil disputes falling under the courts’ jurisdiction are supplemented two types such as disputes related to requests for declaration of notarized documents to be invalid; disputes related to assets forfeited to enforce judgments in accordance with the law on enforcement of civil judgments.

When participating in civil procedures, the involved parties have the rights to make questions to other persons on matters related to the cases when so permitted by the courts or to propose to courts matters which need to be questioned on other persons; to confront each other or witnesses (the previous regulations only allowed involved parties to make questions to the court on matters needed to make questions to other persons; to confront each other or witnesses).

As also in this Law on amending and supplementing, there are some detailed regulations on procedures for receiving and considering petitions for review of legally effective court judgments or decisions according to cassation procedures, besides, a new procedure is added as “Special procedures for reviewing decisions of the Judges’ Council of the Supreme People’s Court”

STRATEGIC INVESTORS IN EACH EQUITIZED ENTERPRISE MUST NOT EXCEED 3
 

On July 18, 2011, the Decree No. 59/2011/ND-CP was issued by the Government on transformation of enterprises with 100% state capital into joint-stock companies.

Enterprises to be equitized are single-member limited liability companies in which the State holds 100% of charter capital and which are parent companies of state economic groups or corporations (including state-owned commercial banks); single-member limited liability companies in which the State holds 100% of charter capital and which are enterprises of ministries, ministerial- level agencies, government-attached agencies or provincial-level People’s Committees; enterprises with 100% state capital which has not yet been transformed into single-member limited liability companies.

There are three forms of equitization such as keeping unchanged existing state capital portions in enterprises, issuing additional stocks to increase their charter capital; selling part of existing state capital portions in enterprises or in combination with issuing additional stocks to increase their charter capital; selling all existing state capital portions in enterprises or in combination with issuing additional stocks to increase their charter capital.

The Decree also regulates that strategic investors are domestic investors and foreign investors that have an adequate financial capability and written commitments made by their competent persons to being attached to enterprises in long-term interests and providing enterprises with post-equitization supports in transferring new technologies, training human resources, raising financial capability, managing enterprises, supplying raw materials and materials and developing product outlets.

The number of strategic investors allowed to purchase shares of each equitized enterprise must not exceed 3. Strategic investors may not transfer their purchased shares within 5 years from the date the joint-stock company is granted the first-time business registration certificate under the Law on Enterprises. In special cases, if they wish to transfer their shares within this period, approval of the shareholders’ general meeting is required.

Besides, equitized enterprises shall make public and transparent information on themselves, their equitization plans and land and labor management and use in accordance with the Law on Enterprises and other laws. equitized enterprises whose financial status fully meets the listing conditions specified by the securities law shall work out plans and roadmaps for listing on a stock exchange in accordance with law. Agencies competent to decide on equitization plans shall determine the equitization simultaneously with the listing on the securities market in these equitization plans and disclose them to investors before the initial offering of shares.

THE PRIME MINISTER APPROVED THE MASTER PLAN ON DEVELOPMENT OF
VIETNAM’S HUMAN RESOURCES DURING 2011-2020
 

On July 22, 2011, the Prime Minister signed to issue the Decision No. 1216/QD-TTg approving the master plan on development of Vietnam’s human resources during 2011-2020.

The master plan’s specific objectives are to rapidly increase the rate of trained human resources in the economy in various forms and at different levels from 40% in 2010 to 70% by 2020, of which the rate of trained human resources in agriculture-forestry-fishery, industry, construction, and service sectors will increase from 15.5% to 50%, from 78% to 92%, from 41% to 56%, and from 67% to 88%, respectively; comprehensively develop human resources with increasing quality and strong in all sectors, giving priority to sectors in which Vietnam has the competitive edge; build a contingent of quality teachers to train qualified human resources for the country.

Regarding the structure of training grades, by 2015, the number of laborers receiving  elementary, intermediate, collegial, tertiary and postgraduate vocational training will be around 18 million (some 59% of the total trained human resources), 7 million (around 23%), nearly 2 million (around 6%), 3.3 million (around 11%), and 200,000 (around 0.7%), respectively. By 2020, these figures will be around 24 million (some 54% of the total trained human resources), 12 million (around 27%), 3 million (around 7%), 5 million (around 11%), and around 300,000 (around 0.7%), respectively.

To increase the number of laborers in the industrial and construction sector from 10.8 million in 2010 (accounting for 22% of the total human resources in the whole economy) to around 15 million by 2015 (27%) and around 20 million by 2020 (31%), of which the number of laborers in industries will rise from 7.9 million by 2010 to around 10 million by 2015 and 11-12 million by 2020. - The number of laborers in the service sector will rise from 13 million in 2010 (accounting for around 26.8% of the total human resources) to around 15-16 million by 2015 and 17-19 million by 2020 (27-29% of the total human resources). The number of laborers in the agriculture, forestry and fishery sector will be reduced to 24-25 million by 2015 (45-46%) and 22-24 million by 2020 (35-38%).

Besides, the Prime Minister has the plan that by 2015, the number of civil servants and public employees nationwide will be around 5.3 million, including 2.8 million employees having a bachelor, master or doctoral degree, accounting for some 52% of the total. By 2020, these figures will be 6 million, 3.8 million and 63%, respectively; the rate of civil servants and public employees who need training for raising their professional qualifications will be 20% and 15% of the total civil servants and public employees during 2011-2015 and 2016-2020, respectively.

To 2020, there will be 2.5-3 million entrepreneurs nationwide, with 80% of whom holding a bachelor, master or doctoral degree; there will be around 154,000 scientists and technologists, with around 40,000 of whom holding a postgraduate degree; the numbers of teachers and lecturers of professional secondary schools, colleges and universities will be around 48,000 with 38.5% of whom holding a master or higher degree; 44,200 with 8% of whom holding a doctorate; and 75,800, with 30% of whom holding a doctorate, respectively.

There are some targets and directions of human resources development on regions and some specialized industries such as transport, natural resources, environment, tourism, banking, finance, information technology; nuclear energy; and human resources to work abroad.

Total investments in human resource development during 2011-2020 are estimated at VND 2,135 trillion, accounting for 12% of the total investment of the whole society. Total investments in education-training and vocational training during 2011-2020 are estimated at VND 1,225-1,300 trillion.

FROM 2011 TO THE END 2014, PILOTING THE IMPLEMENTATION OF
NATIONAL ONE-STOP SHOP (OSS) CUSTOMS MECHANISM
 

On August 31, 2011, the Prime Minister issued the 48/2011/QD-TTg on piloting the implementation of National One-Stop Shop (OSS) customs mechanism applied for exports, imports, goods in transit or transport means of exit, entry, or transit.

Mechanism of national OSS customs is the permitted system of integration: the parties participating in the export or import file or submit information and standardized documents to a single receiving place; the State agencies process data, information and make the decisions based on system of processes and united and synchronous procedures; make the decisions and send them to the system agreed the supply and the unified exchange of information between state agencies.

At the same time, the mechanism of national OSS must ensure that the customs authorities shall make a final decision on the clearance, release of exports, imports, goods in transit or transport means of exit, entry, or transit based on the decisions of the concerned State agencies that are promptly delivered by the system in accordance with the provisions of supply of public services.

The contents of piloting implementation of mechanism of national OSS customs, including selecting and publishing the list of administrative procedures applying the pilot of mechanism of national OSS customs; declaring and receiving declaration information of the administrative procedures through electronic means; providing feedback of information and returning the results to the agencies, the units implementing administrative procedures through electronic means together with returning paper records (for procedures not recognized electronic records); exchanging information on the agencies and the units implementing administrative procedures and outcomes of decision-making of agencies and units through electronic means; making electronic payment for taxes, fees and charges through the commercial banking system based on exchange agreements and processing

 of information of collection, payment of taxes, charges and fees between the concerned State agencies and the commercial banks; electronic documents exchanged between state agencies together on the system of national OSS customs in implementing the administrative procedures have legal validity as paper documents; preparing the necessary conditions to implement the exchange of information on certificates of origin (C/O) under the ATIGA Agreement in ASEAN and toward recognizing electronic C/O between the Member countries of ASEAN and so on.

To the time, route of piloting implementation, the Prime Minister has plan that from October 2011 to December 2012: making legal documents, processes and procedures; preparing conditions on information technology infrastructure and building systems of information technology of national OSS customs; from January to December 2013: piloting the implementation in ministerial-level agencies and units; from January to December 2014: expanding the pilot of implementation in related ministerial-level agencies and several local state agencies .

In principle, capital raising and investment mechanisms to implement the mechanism of national OSS customs is fully utilized and harmonious combination of resources including: ODA funds, non-refundable aid funds, the state budget funds and other funds, including funds mobilized from the private sector in the form of public – private cooperation.

MORE OBJECTIVES TO IMPLEMENT PROCEDURE FOR
EXPORTING AND IMPORTING PETROL AND OIL
 

The Ministry of Finance issued the Circular No. 126/2011/TT-BTC dated September 07, 2011 amending, supplementing some Articles of the Circular No. 165/2010/TT-BTC dated October 26, 2010 of the Ministry of Finance guiding customs procedures for export, import, temporary import for re-export and border-gate transfer; import of materials for production and mixture; and import of materials for export processing of petrol and oil.

The Circular supplements 01 more implementation objective who are traders that possess petrol and oil export and import licenses for enterprise’s businesses and productions in export processing zone, tax-suspension warehouses, commercial and industrial zone and other border economic zones which are all established in accordance with Prime Minister’s Decision, within that, it regulates that the trading relationships among regions are import – export relationships, customs procedure for petrol and oil trading will be implemented in the forms of temporary import and re-export; in particular, petrol and oil trading enterprises will make procedure for importing petrol and oil into Vietnam in accordance with temporary import and sale regime for enterprises in above regions  due to petrol and oil re-export regime.

Petrol and oil already temporarily imported but neither re-exported nor fully re-exported may be put into domestic consumption is defined in accordance with % petrol and oil volumes temporarily imported, re-exported and put into domestic consumption instead of applying 01 agreed time as previous regulations. In particular, petrol and oil volumes that are less than or equal to 10% temporary imported volumes will have time-limit for tax payment prescribed at sub-clause (d), clause 3 and clause 4, Article 42 of the Law No. 78/2006/QH11 on Tax Administration. If petrol and oil volumes temporarily imported, re-exported and put into domestic consumption over 10% temporarily imported volume, time-limit for tax payment for volume over 10% temporarily imported volume complies with sub-clause (dd), Clauses 3 and 4, Article 42 of Tax Administration Law No. 78/2006/QH11.

Besides, the Circular also issues new regulation on customs procedures for re-export and export of petrol and oil for aircraft and the customs dossier to export petrol and oil includes: 02 originals of registered customs declaration; 01 copy of purchase contract of petrol and oil produced in country or having import original; 01 copy of purchase contract of petrol and oil for aircraft and annex (if any); 01 original of sale invoice or ex-warehousing bill and so on.

TO REDUCE CONDITIONS IN PILOT APPLICATION OF THE CUSTOMS PRIORITY REGIME
 

The Ministry of Finance issued the Circular No. 105/2011/TT-BTC dated July 12, 2011 amending and supplementing a number of articles of the Ministry of Finance’s Circular No. 63/2011/TT-BTC of May 13, 2011, providing the pilot application of the priority regime in the state management of customs to eligible businesses.

Within that, A business having a record of the law observance means the one which has never been handled by customs agencies and other state management agencies defined in Clause 3 of this Article for any violations; or the one which, during the period specified in Clause 2 of this Article, has been handled for not more than 3 (three) times by the aforesaid agencies for administrative violations (excluding fine for late tax payment) with a fine of over VND 20 million each time without any additional sanction (deprivation of the right to use permits or practice licenses; confiscation of material evidence and means involved in violations; forcible destruction or transportation out of Vietnam of goods; forcible payment of money amounts equal to the value of material evidence involved in violations);

At the same time, Businesses eligible for priorities in export and import of all goods items and in all forms of export and import (including also exported, imported or domestically purchased and sold goods and services), The export or import turnover must be around USD 350 million/year instead of  USD 500 million/year as previous regulations. And Businesses eligible for priorities in export of fisheries products, farm produce and crude oil purely originating in Vietnam, The export turnover must be around USD 70 million/year instead of USD 100 million/year as previous regulations

Businesses which cooperate well with customs offices; customs offices which believe in and can control the law observation by businesses.

It is known that the pilot application of the priority regime in the state management of customs to eligible businesses has been applied from June 27, 2011 in accordance with regulations prescribed at the Circular No. 63/2011/TT-BTC.

COLLECTION OF LAND RENTS IS 1,5% LAND PRICE ON USING PURPOSE
 

On June 26, 2911, the Ministry of Finance issued the Circular No. 94/2011/TT-BTC amending and supplementing the Finance Ministry’s Circular No. 120/2005/TT-BTC of December 30, 2005, guiding the Government’s Decree No. 142/2005/ND-CP of November 14, 2005, on collection of land rents and water surface rents

For cases of land rent with annual rent payment, the annual land rent rate is 1.5% of the land price based on the use purpose of the rented land which is prescribed, or decided under Point 1.6 of this Clause, by provincial-level People’s Committees.  For land in urban areas, trade or service centers, traffic hubs or populous areas, which can yield special profits or be used as ground for production, business, trade or service activities, provincial-level People’s Committees shall, based on the local situation, decide on the percentage for calculating the land rent rate which must not exceed two (2) times the rate.

For land rent to be paid in lump sum for the whole rent duration, the payable land rent amount is equal to the payable land use levy amount for land allocation with land use levy payment for the same use purpose and land use duration.

The remaining amount may be accounted as investment expenses of the project. The cleared amount may not be accounted as investment expenses of the project.

 In case of land rent with annual rent payment, the amount advanced (if any) for compensation, support, resettlement and organization of compensation and ground clearance under the approved plan may be cleared against the payable land rent converted into the corresponding land rent payment time at the rate applicable at the time of determining the first payable land rent amount which is determined as the time of completing the annual land rent.

When using land, if a land lessee changes the land use purpose from that indicated in the land lease contract, he/she/it shall request the natural resources and environment agency to modify the land lease contract. Based on the modified contract, the tax agency shall re-determine the land rent corresponding to the use purpose of the rented land under regulations.

FROM AUGUST 15, LAND USE LEVY COLLECTION IS ADJUSTED
 

In case business organizations, households or individuals are allocated land by the State with land use levy collection not through land use right auction, land prices used for land use levy collection will be adjusted.This is new regulations that the Ministry of Finance issued in the Circular No. 93/2011/TT-BTC dated June 29, 2011, amending and supplementing Circular No. 117/2004/TT-BTC of December 7, 2004, guiding the implementation of the Government’s Decree No. 198/2004/ND-CP of December 3, 2004, on land use levy collection.

In particular, in case business organizations, households or individuals are allocated land by the State with land use levy collection not through land use right auction, land prices used for land use levy collection are those based on land use purposes at the time of issuance of land allocation decisions of competent state agencies; in case the time of land hand-over does not coincide with the time of allocation indicated in the land allocation decision, the land price used for land use levy calculation is that based on the land use purpose at the time of actual land hand-over.

Land prices for land use levy calculation are those prescribed by provincial-level People’s Committees. In case land prices prescribed by provincial-level People’s Committees fail to match actual market land use right transfer prices under normal circumstances, provincial-level People’s Committees shall base on actual market prices to decide on specific land prices as appropriate. Particularly, in case a household or an individual has been granted a residential land use right certificate (written recognition) for a land area which is currently in use within the use (allocation) limit of residential land or is permitted for land use purpose change within the use (allocation) limit of residential land, the land price for land use levy calculation is that prescribed by the provincial-level People’s Committee at the

 time of declaration and submission of a complete and valid dossier of application for a land use right certificate or for permission to change land use purpose to the natural resources and environment agency.

The allocation of land use levy for construction works being high rises, apartment buildings, houses with mixed use purposes (excluding the cases specified at Point 2.2 of this Clause), land use levy shall be allocated to each user according to the allocation co-efficient multiplied by the housing area of each user as the allocation co-efficient shall be determined to be the ratio between house construction land area and total house area of users. For houses with basements, 50% of the basement area shall be added to the total house area of users for calculating the allocation co-efficient.

In case land users are permitted to shift from land lease to land allocation with land use levy collection and have paid land rents, they are allowed to subtract land rent amounts already paid for the remaining duration (if any) from payable land use levies on the principle of preservation of paid sums of money, the unsubtracted sum of money (mentioned above) shall be converted into a percentage (%) of paid land use levy at the time a land user paid land rent to the State, which, however, must not exceed the payable land use levy.

GUIDING THE GRANT OF EXIT AND ENTRY PERMITS FOR FOREIGNERS
PERMANENTLY RESIDING IN VIETNAM
 

The Ministry of Public Security issued the Circular No. 45/2011/TT-BCA guiding the grant of exit and entry permits for foreigners permanently residing in Vietnam without passports.

Foreigners applying for exit and entry permits must fully meet the following conditions: Having a permanent residence card granted by the Vietnam Immigration Management Department; Having no passport granted by foreign competent authorities; Not being subject to exit postponement under Vietnamese law.

Exit and entry permits are granted individually and have a validity duration at least one month shorter than that of permanent residence cards and are not extendable and they cannot replace passports and do not indicate the nationality of permit holders. Persons who hold exit and entry permits together with permanent residence cards are exempt from visas when they enter or exit Vietnam during the permit validity duration.

Foreigners permanent residing in Vietnam shall submit their dossiers of application for exit and entry permits to immigration management offices of police departments of provinces or cities where they reside or to the Ministry of Public Security’s Immigration Management Department. Within 2 working days after receiving valid dossiers, immigration management offices of provincial-level police departments shall consider and transfer dossiers of application for entry and exit permits to the Ministry of Public Security’s Immigration Management Department. Within 4 working days after receiving valid dossiers, the Ministry of Public Security’s Immigration Management Department shall consider and grant exit and entry permits. Persons who request re-grant of entry and exit permits which are expired or damaged shall prepare new application dossiers according to a set form and submit them together with declaration of loss of the exit and entry permits, if these permits are lost.

VIETNAM TRAVEL OR TOURISM PERMITS FOR IN-TRANSIT FOREIGNERS
IS GRANTED WITHIN 1 DAY

On June 29, 2011, the Ministry of Public Security issued the Circular No. 44/2011/TT-BCA guiding the grant of Vietnam travel or tourism permits for in-transit foreigners.

In-transit foreigners wishing to enter Vietnam for travel or tourism shall reach agreements with international travel companies on travel programs (the agreement can be reached before or upon their arrival at border gates). International travel companies wishing to organize tours in Vietnam for in-transit foreigners shall submit dossiers evidencing their legal entity status to the Vietnam Immigration Management Department under Vietnam legal provisions.

International travel companies shall carry out procedures for granting travel or tourism permits at the Vietnam Immigration Management Department. A dossier comprises: a written request for the grant of a travel or tourism permit; a program on travel or tourism in Vietnam.

Within one working day after receiving a written request, the Vietnam Immigration Management Department shall issue a written reply to international travel companies. In case of refusal, it shall clearly state the reason. Exit and entry control offices at border gates shall grant Vietnam travel or tourism permits to eligible foreigners.

A Vietnam travel or tourism permit has a validity duration corresponding to the transit time and the Vietnam travel or tourism program, but not exceeding 15 days.