PART 1: LAW & PRACTICE
THE CONTRACT IN THE FORM OF DATA MESSAGE AND PRACTICAL APPLICATION
“Data contract, popularly known as electronic contract, has been gradually introduced into our country and become more and more popular, as a trend of the new era. It is no longer a surprise that a person in a country can conclude a contract with another person in another country without having to meet face to face to negotiate. Through the Internet, businesses in different localities and countries can quickly find partners to establish business relationships and expand their market share. With an Internet-connected computer, we can feel comfortable to survey the market at any time of the day, right from our homes. When we need to buy an item, we just need to surf the web and contact the store through the internet, someone will bring the item to the place upon request. The strong development of electronic transactions leads to the appearance of a new form of contract: electronic contracts - contracts are concluded via electronic means in the form of data messages."
1. LAW PROVISIONs ON DATA MESSAGE CONTRACT
According to Clause 1, Article 119 of Civil Code 2015: “Civil transactions by way of electronic means in form of data messages prescribed in law on electronic transactions shall be deemed to be written civil transactions." However, civil transactions by way of electronic means like data message are considered written transactions when complying with the provisions of the laws on electronic transactions.
According to Civil Code 2015, civil contract means an agreement between parties in relation to the establishment, modification or termination of civil rights and obligations. Article 33 of the Law on Electronic Transactions 2005 defines on the e-contract as follows: "E-contracts mean contracts established in the form of data messages provided for in this Law". Clause 1, Article 36 of this Law also defines: "Entry into e-contracts means the use of data messages to execute part or whole of transactions in the process of entering into contracts". Hence, it can be defined and implied that: Electronic contract means an agreement between parties in relation to the establishment, modification or termination of civil rights and obligations through an internet in the form of data message.
Many people believe that it is impossible to have a form of contract that can truly replace the traditional written contract with full legal validity. However, the development of technology also contributes to the development and the improvement of the laws. Thus, as a new trend, a modern contract can also replace the traditional contract in the near future. It can be seen that electronic contracts have some outstanding features in comparison with traditional contracts:
First, electronic contracts are performed through electronic means. Besides, the signature can be encrypted and conveniently used, also known as a digital signature. All content and agreements are conveyed through data messages and connect the parties in the contract.
- Second, electronic contracts are established through a virtual world but still have legal validity. People appear in the virtual world with encrypted data and information. We cannot grasp and “feel” electronic contracts in the virtual world visually as with traditional contracts. However, these contracts create real legal obligations and are recognized by law.
- Third, the signing of the contract becomes flexible. For data message contracts, the parties only need to have tools to support the network connection, no matter how far away they are, they can sign the contract quickly and promptly.
- Fourth, the subjects participating in the contract are identified. E-contracts are concluded via data messages with encrypted signatures. So, the third party who is the network and the digital signature provider will always appear in the process of signing the electronic contract. This third party plays a role in confirming the reliability of information and archiving transaction information between the parties.
In order to attract investors and improve Vietnam’s position in the world arena, the economy needs to be developed in parallel with modern technologies and techniques. Electronic contract is one of the typical representatives showing human intelligence and digital technology, converging many outstanding features and advantages such as fast speed, low cost, not obstructed by distance or language of communication... In the context of the Covid-19 epidemic, which is spreading to many countries and having complicated developments all over the world, taking advantage of information technology in signing contracts contributes solving economic and market difficulties when the involved parties are limited in direct contact with each other.
Today, electronic contracts are formed when the parties use data messages and are expressed in many different forms. In which, the most popular forms of electronic contract are traditional contracts posted on website, webpage; Contracts are formed through automatic transactions; contracts formed by email (most commonly email); electronic contracts using digital signatures.
2. The LEGAL validity as evidence of E-contracts:
According to Article 14 of Law on Electronic Transactions 2005: “A data message cannot be disclaimed in terms of its validity as evidence for the sole reason that it is a data message.”. Article 34 of this Law also states that: “The legal validity of an e-contract cannot be disclaimed for the sole reason that it is expressed as a data message.”. 
Besides, according to Article 93 of Code of Civil procedure 2015, “Evidences in civil cases are factual things which are handed to Courts by involved parties, agencies, organizations or individuals or gathered by Courts according to the order and procedures prescribed by this Code and are used by Courts as bases to determine objective details of the cases as well as to determine whether the involved parties' claims or protests are well grounded and lawful or not.”. For a data message, “The validity as evidence of a data message shall be determined based on the reliability of the method by which the data message was generated, stored or communicated; the method to ensure and maintain the integrity of the data message; the method by which its originator was identified, and on other relevant factors.” .
Therefore, an E-contract has full legal value and can be used as evidence when it meets the reliability conditions of the establishment and storage.
At the same time, according to Article 95 of Civil Procedure Code 2015, electronic data in form of “exchange of electronic data, electronic invoices, electronic mails, telegram, telegraphy, facsimile and other similar forms according to legislation on electronic transactions identified as evidence.” Therefore, electronic contracts have legal value and evidence value if there are civil disputes or other disputes. There are statements about the electronic contracts’ legal validity as evidence in Law on E-transactions and the Civil Procedure Code. However, currently, there is no exact definition of electronic evidence. With the above analysis, the author humbly introduces the concept of electronic evidence as follows: Electronic evidence means a data message created, stored, transmitted, audible or visible by electronic means and ensurable the legal requirements on the establishment and storage of the information. Involved parties in e-commerce relationships keep and collect the electronic evidence, then provide it to the Court, or the Court and competent agencies collect to prove the requests of these parties when settlement of commercial business cases by different methods, including via a proceedings.
3. LAW APPLICATION iN USING E-CONTRACTS IN PURCHASE AND SALE TRANSACTIONS
It can be seen that since 2005 when the Law on E-transactions was approved, the Government has issued about 10 Decrees to amend and guide activities related to e-commerce, banking, digital signature and digital signature authentication service. However, with the rapid development of technology 4.0, these documents are old fashioned. In particular, the conclusion and performance of an electronic contract is not clearly specified in any law or sub-law document.
When choosing the method of concluding and implementing the contract, in the case of small value contract, we are willing to take risks so that signing the contract is convenient and fast. However, for a large-value deal, the involved parties need to consider many aspects carefully and it is difficult to accept the ambiguity. That is the reason why the internet has been introduced to Vietnam since 1997, the form of electronic contract has been known and regulated since 2005, but the use of them is still not popular and has not caught up the trend in the world.
Electronic contracts evolve from small transactions such as buying a shirt on Shopee, a phone on Lazada, a book on Tiki or some housewares on Jack Ma's famous e-commerce website. However, shoppers often do not care about the rules when ordering. In case they get troubles, most will take risks because the procedure of dispute settlement is complicated, lengthy and sometimes ignored by system administrators. In reality, “big deals” in our country are considered being “midrange” and still has not caught up with the speed of development of technology 4.0.
After nearly 15 years of implementation, the Law on Electronic Transactions has been considered shortcomings, outdated and not suitable with the social development such as lacking of detail regulations of data messages about format and time to send, receive, store, convert, ect…, causing many difficulties in interconnecting and recognizing each other among systems; lacking of regulations on electronic identity authentication for individuals and organizations in electronic transactions; lacking of regulations on signing and ensuring the legality of e-contracts, ... For example, from Article 33 to Article 38 of Law on electronic transactions 2005, there is no specific provisions on the legal value of e-contracts, the case which e-contract is invalid or the consequences when the e-contract is invalid, in addition, the method of settling disputes related to this form of contract has not been completed…
In fact, most electronic contracts are signed based on the trust between the parties and there is no protection mechanism when there is a dispute, leading to fear of parties when they do not know each other or when they are in different countries. For example, recently, Law Firm F has signed a contract via email with an LLC T. in Tyumen - a city in the Federation of Russia. The persons directly signing the above contract are the legal representatives of the two parties. The scope of work in the contract is to provide monthly legal advice services. With such a very long geographical distance, all contract execution and liquidation are done via electronic means. Similarly, the payment requests are also made via email. After the parties complete the work, the contract will be liquidated automatically. Up to now, Law Firm F has performed many contracts with foreign partners in different countries such as Russia, Germany, Hong Kong... From Law Firm F’s side, in terms of international vision, in order to reach out to the world, we need to step out of our own safe and low-risk areas.
Usually, in order to create valid evidence from data messages when resolving disputes, the parties use the service of establishing the written minutes via an organization of bailiff. Bailiff’s certified report refers to any written minutes prepared by bailiffs recording events and behaviors and used as an evidence in court hearing and other legal relationships, it verifies evidence related to electronic data, e-contract. However, preparing bailiff’s written minutes cost a large amount and sometimes larger than the dispute’s value.
In the process of dispute resolution, the Court usually give priority to documents such as written and notarized contracts, and clearly established evidences in real life. Evidence related to the data message often only serves as a supplement to other evidence. In the event of a dispute related to contracts and electronic evidence, it is certain that it will be difficult to assess the issue to resolve the dispute because of the unclear regulations.
The court has judged a number of commercial business cases which a part of the offering process, proposing to conclude contracts and arising agreements performed by electronic means. The plaintiff (company A headquartered in Vietnam) and the defendant (Company B - a joint venture between Vietnam and Korea, headquartered in Hanoi) signed a contract to provide goods for a long time. After the notice of terminating the services under the contract, the two parties liquidated this contract and closed the debt, whereby Company B owed Company A VND 8,980,000,000 ( Eight billion nine hundred eighty million dong) with a payment time of 01 year. During this time, Company B did not fulfill the payment obligation as committed for the reasons of not receiving enough goods, the delivery documents without signed of the legal representative of Company A …
Because the two parties couldn’t resolve the dispute by themself, Company A sued a lawsuit at the People's Court of TH city and was accepted for the settlement. In the process of resolving the case, Company A made a copy of and provided electronic evidences to the Court such as email, text message, list of phone calls, statement of payment via Bank. The defendant supposed that they did not receive information exchanged via email, the phone number was not the legal representative's one and authorization documents was invalid. Besides, they did not accept the commercial practices that the two parties have made because there was no agreement.
In order to fully resolve the case, the People's Court of TH City has collected and checked the authenticity of the evidence provided by the plaintiff. However, due to several reasons such as the contract execution was prolonged, the servers were not located in Vietnam, a party couldn’t provide the Court with the appropriate evidence…, the evidence provided by the plaintiff was not accepted. Therefore, the People's Court of TH City conducted a trial and issued a verdict on rejecting petition of Company A.
So, the resolution of contract disputes with data messages is still very limited. If a dispute occurs and is resolved by the court, it is certain that this matter will be difficult to be thoroughly resolved because there is no solid and complete legal frame.
4. PROPOSALS TO IMPROVE THE LAW PROVISIONS
Electronic contracts are one of the issues that will continue to expand widely and become popular in Vietnamese social life. Therefore, in order to integrate and develop with the trend of the new era, we need to take timely steps for the law to keep up with the reality of life. In our opinion, we need to further improve the legal system related to electronic contracts as follows:
- Firstly, it is necessary to assess and review the shortcomings from the old-fashioned legal provisions and propose more complete options. It is necessary to have detailed regulations on the form of data message contracts to ensure that the legitimate interests of the parties in e-contract transactions are protected, aiming to help entrepreneurs and investors feel confident when applying a data message contract in concluding a contract.
- Secondly, it is necessary to overcome and improve the legality of digital signatures; issue documents and instructions of using digital signature, electronic contracts, and encourage the development of this form of contracts.
- Third, it is necessary to improve the legal provisions on dispute settlement related to contracts by data messages, professional instruction documents, and improve the professionalism in resolving disputes.
Hopefully, life with strong strides and endless demands will touch the mind of lawmakers so that they can make appropriate adjustments to receive valuable benefits from technology, especially the e-contract.
LIST OF REFERENCES:
. Civil Code No. 91/2015 / QH13, dated November 24, 2015;
 Civil Procedure Code No. 92/2015 / QH13, dated November 25, 2015;
. Law on Electronic transactions No. 51/2015 / QH11, dated November 29, 2005;
 ArticleElectronic evidence in commercial business dispute resolution of Lawyer Le Van Thiep, Procuracy Magazine No. 05/2016
 The National Assembly (2015), Civil Code No. 91/2015/QH13, dated 24/11/2015
 The National Assembly (2005), Law on Electronic Transactions No. 51/2015/QH11, dated 29/11/2005
 The National Assembly (2005), Law on Electronic Transactions No. 51/2015/QH11, dated 29/11/2005
 The National Assembly (2015), Code of Civil procedure No 92/2015/QH13, dated 25/11/2015
 Lawyer Le Van Thiep (2016), Electronic evidence in settlement of commercial business disputes, Journal of Supervision No. 05/2016
 Lawyer Le Van Thiep (2016), Electronic evidence in settlement of commercial business disputes, Journal of Supervision No. 05/2016
Nguyen Thi Thanh Thanh Tra
FDVN Law firm
PART 2: RESEARCH & EXCHANGE
I. CAN I HAVE A BANK TRANSACTION WHILE LOSING MY citizen’s identity cards?
A few days ago, my citizen’s identity cards, which was used for opening my account, was lost. Currently, I am working in Da Nang, my permanent residence is in Hanoi, because of the Covid-19, I cannot go home and have my citizen’s identity cards re-granted. My citizen’s identity card was granted in 2019, my passport was granted in 2018 which based on the old ID number. However, I still keep a confirmation of citizen identity cards and the old ID number when I was be granted the citizen’s identity cards. Could I use this passport and the confirmation for banking transactions? Thanks for your consultation. Sincerely!
Under Clause 3, Article 4 of Decree 136/2007/ND-CP, amended and supplemented by Decree No. 94/2015 / ND-CP on entry and exit of Vietnamese citizens, the national passport ( including official passports, diplomatic passports and ordinary passports) used to replace citizen's identity cards.
Pursuant to Clause 4, Article 15 of Circular No. 07/2016 / TT-BCA detailing a number of articles of the Law on Citizen's Identification, amended and supplemented by Decree No. 40/2019 / TT-BCA:
“When citizens carry out the procedures to granted, renewed and
re-granted the citizen's identity card, the citizen identification management agency received the application responsible for issuing the confirmation to all cases that transfer Identification Number from 9-digit ID card to Citizen's identity card. ”
Thus, the confirmation of citizen’s identity cards is used to confirm the old ID number and the number on the citizen's identity card are the same person. This confirmation can be used with a citizen's identity card to verify the old ID number when performing civil transactions.
In case you lose your citizen's identity card, you can use your passport to make transactions at the bank. When making the transaction, the confirmation of the identity card will show the old ID number used on the passport and the number on the citizen's identity card are the same person..
Therefore, according to the above regulations, you could make transactions when using your passport and the confirmation of identity card number.
Nguyen Thi Thanh Thanh Tra
FDVN Law firm
II. DO I HAVE TO PAY LAND USED LEVY WHEN LAND WAS ALLOCATED ultra vires
In 1984, Mr. A was granted 01 plot of land by Provincial Military headquarters No. 837 / SDD with an area of 400m2, but the actual area was 681.3m2. In 1992,
Mr. A built a house which is not in use, until 2003 he has returned to live in that house.
On February 21, 2017, he applied for a Certificate Land Use Right (CLUR) for all area. Then, the Registration Office of City X determined that his household had to pay 50% of the land use levy for residential land within the limit of 300m2.
Disagreeing with Notice No. 8498, He has complained to the Head of Tax Department of City X but it was not satisfactorily resolved, so Mr. A sued and requested the Court to cancel notice No. 8498 of Tax Department X.
There are 03 views to solve this problem, in your opinion which one is correct?
Number 01: Land use permit No. 837/SDD dated October 15, 1984 that the Military headquarters of province D issued to Mr. A's household is one of the papers specified at point g, Clause 1, Article 100 of the Land Law 2013. Mr. A's household is not required to pay land use levy.
Number 02: Determining the time Mr. A's stable land use is since building a house in 1992, It shall apply the provisions at point c, Clause 1, Article 8 of Decree No. 45/2014/ND-CP dated May 15, 2014, He needs to pay 40% of land use levy.
Number 03: Determining the time Mr. A's stable land use term is since 2003, so according to point c, Clause 1, Article 8 of Decree No. 45/2014 / ND-CP dated May 15, 2014, Mr. A pays 50% of land use levy.
1. According to Clause 2, Section V of Decree No. 201-CP dated July 1, 1980 on the unified land management and strengthening the land management in the whole country, the provincial Military headquarter D allocating land to Mr. A according to the land use permit No. 837/SDD dated October 15, 1984 is ultra vires.
According to Article 18 of Decree 43/2014/ND-CP amended and supplemented by Clause 16 and Clause 17, Article 2 of Decree 01/2017 ND-CP, the guidance for point g, Clause 1, Article 100 of the 2013 Land Law, listed other documents on the land use right, the certificate of land use right issued by provincial Military Headquarter D is not included in these papers. Therefore, the provisions at Point g, Clause 1, Article 100 of the 2013 Land Law cannot be applied, Mr. A is not in the case of being granted the Certificate without having to pay land use levy.
2. Regarding the time Mr. A use land stably to calculating land use levy, Mr. A's started building the house in 1992, it was a stable land use term, He has had no land disputes, has not been sanctioned for land administrative violations. Therefore, Mr. A's stable land use term should be determined from 1992, not based on whether Mr. A lives in that house or not. Notice of learning from experience No. 19 / TB-VC2-V3 of the Supreme People's Procuracy in Da Nang on applying the law in the inspection and settlement of administrative cases on "Lawsuit tax notice" which has guided in this spirit.
Mr. A has been using land stably since 1992, it needs to apply Point c, Clause 1, Article 8 of Decree No. 45/2014 / ND-CP dated May 15, 2014 stipulates: “For land used in a stable manner since before October 15, 1993, 40% of land use levy calculated based on the residential land price for the land area within the allocation quota for residential land in the locality specified in the Land Price Table at the time of issuance of a decision on recognition of land use rights by a competent state agency, shall be collected ”, Mr. A only pays 40% of the land use levy as prescribed, so view number 02 is legal.
Hoang Thuy Quynh
FDVN Law firm
III. CONDITIONS FOR OPENING DIRECT AND INDIRECT INVESTED ACCOUNT
Our company is the Joint Stock Company with 100% Vietnamese capital, we transferred 49% of the shares to foreign investors. We do not have an investment certificate but we have a decision on investment policy for the project. Should we open a directly invested capital account or indirectly invested capital account?
Pursuant to Clause 1, Article 5 of Circular 06/2019 / TT-NHNN guiding the foreign exchange management for the foreign direct investment in Vietnam, entities shall open and use direct investment accounts include:
(i) Any enterprise established in the form of investment of establishing a business organization whose members or shareholders are foreign investors and granted the investment registration certificate in accordance with law on investment;
(ii) Any enterprises other than those prescribed in point a of this clause and at least 51% of charter capital of which is owned by foreign investors as follows:
- Any enterprises (operating in conditional business lines or without conditions applicable to foreign investors) at least 51% of charter capital of which is held by foreign investors through contribution purchase of shares/stakes;
- Enterprises derived from division, acquisition, consolidation whose 51% of charter capital is owned by foreign investors after such events.
- New enterprises established in accordance with relevant laws;
(iii) Project enterprises established by foreign investors to implement PPP projects in accordance with law on investment..
Foreign investors participate in BCC or directly implement PPP projects without establishing project enterprises
Regarding indirectly invested activities in Vietnam, foreign investors implementing indirectly invested activities in Vietnam are specified in Article 5 of Circular 05/2014/TT-NHNN guiding the opening and use of indirectly- invested capital accounts for implementation of foreign indirect investment activities in Vietnam, amended and supplemented by Circular 06/2019 / TT-NHNN as follows:
(i) Capital contribution, purchase or sale of shares or stakes of Vietnamese enterprises which are not yet to be listed or registered for transactions on stock exchanges of Vietnam and not in the cases specified in clause 2 Article 3 of Circular No. 06/2019/TT-NHNN dated July 26 2019 guiding the foreign exchange management for the foreign direct investment in Vietnam and other amended documents (if any)
(ii) Capital contribution, purchase or sale of shares or stakes of Vietnamese enterprises which have been listed or registered for transactions on stock exchanges of Vietnam.
(iii) Sales and purchase of bonds and other types of stocks on the securities market of Vietnam.
(iv) Sale and purchase of other valuable papers in Vietnam Dong which are permitted to issue within the territory of Vietnam by organizational residents.
(v) Investment trust in Vietnam Dong through fund management companies, securities companies and organizations are permitted to conduct the investment trust operation under the legal provisions on securities; investment trust in Vietnam Dong through credit institutions and branches of foreign banks are allowed to conduct the investment trust operation under the provisions of the State Bank.
Capital contribution, transfer of contributed capitals of foreign investors (do not directly participate in management) in securities investment funds and fund management enterprises according to legal provisions on securities.
Pursuant to the above provisions, your company is not entitled to open a directly invested capital account in Vietnam. For a foreign investor buying 49% shares of Vietnamese enterprises, He will be allowed to open a directly invested capital account in Vietnam, in order to carry out procedures for buying shares in Vietnamese companies.
Hoanh Thuy Quynh
FDVN Law firm
IV. WOULD THE WIFE face THE criminal prosecution when the husband TAKE COMMON CAR TO TRANSPORT DRUGS?
My husband and I have bought a truck for transporting goods but only my name on all document. Recently, he was discovered in the car with meth while he was driving and the car was being kept. I would like to know if my husband uses a car registered by my name to transport drugs, will I face criminal prosecution? Can I redeem the car for business? sincerely!
Thank you for trusting FDVN Law Firm (FDVN). Regarding your question, after studying the relevant provisions, FDVN has some discussions as follows:
1. Determining your criminal liability in relation to your husband's illegal acts
To determine whether you will be incurred criminal liability for your husband's violations or not, it is important to clarify that you believe your husband used that car for transport goods, business transactions and you did not know your husband uses a car to transport or store drugs, in this case you are not at fault. However, in case there is evidence to prove you know your husband uses the vehicle to carry out drugs, at the same time you facilitate and assist your husband to transport drugs, you will be incurred criminal liability for the role of an accomplice.
2. Handling the car used for the commission of the crime;
Article 86 of the 2015 of Criminal Procedure Code provides evidences as follows:: “Evidences are de facto and collected as per the sequence and formalities defined by this Law. Evidences are grounds for the determination of a crime, perpetrators of such crime and other valuable facts for the settlement of the case.”
Article 106 Handling of exhibits of Criminal Procedure Code:
“1. Investigation authorities and units assigned to investigate make decisions on the handling of exhibits if the case is dismissed at the stage of investigation. The procuracy decides the handling of exhibits if the case is dismissed at the stage of prosecution. The court president governs the handling of exhibits if the case if dismissed at the preliminary stage of adjudication. The Trial panel make decisions on the handling of exhibits if the case is heard.
The enforcement of decisions on the handling of exhibits must be executed in writing.
2. Exhibits are handled as follows:
a) Exhibits including tools or means of crime, objects prohibited from storage and trading shall be seized, confiscated into the state budget or disposed;
b) Exhibits including money or property gained through criminal acts shall be seized and confiscated into the state budget.
c) Exhibits that are not valuable and usable shall be seized and disposed.
3. During the processes of investigation, prosecution and adjudication, the competent authorities and individuals as stated in Section 1 are entitled to
a) Return property seized and detained but not deemed as evidences to legitimate owners or managers of such in promptly manner;
b) Return evidences to legitimate owners or managers if such return is deemed not to affect the settlement of the case and the enforcement of sentences;
c) Evidences susceptible to damage or subject to strenuous preservation may be sold as per the laws. If they are not salable, disposal shall occur;
d) Evidences including wild animals and exotic plants shall be handled by competent specialized control units immediately after the release of findings of expert examinations as per the laws.
4. If disputes over the ownership of exhibits exist, the settlement of such shall be governed by the Civil procedure code. 4. Trường hợp có tranh chấp về quyền sở hữu đối với vật chứng thì giải quyết theo quy định của pháp luật về tố tụng dân sự.”
In this case, the judicial authorities can determine your car is used to transport prohibited goods and drugs, if there is no car, the crime can not happen, so the judicial authorities can apply the provisions of Point a, Clause 2, Article 106 of the 2015 Criminal Procedure Code, the car is means of crime, it shall be confiscated.
In case, judicial authorities determine your vehicle is not an evidence, it may be returned to you. At that time, you can file a petition to the prosecuting agency for asking them to return your car. Base on the petition, the proceeding agencies will consider to return your car or not.
Ngo My Tram
FDVN Law firm
PART 3: KNOW THE RULES
186 violation acts of the driver and the administrative sanctions
Link for download: LEGAL NEWSLETTER NO.09 - 9/2020
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