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On August 13th , 2021, Apolat Legal is honored to become a cooperation unit in the online training session ‘’Startup and Brand protection’’ organized by Startup Wheel – designed as an Accelerator Program for international businesses to expand business in Southeast Asia. Every year, Startup Wheel attracts more than 2,000 startups from 20 countries on 5 continents.
Lawyer Pham Thi Thoa – Founding Lawyer of Apolat Legal shared with Top 60 Vietnamese track – Startup Wheel 2021 about knowledge and case studies around brand protection, relationships with founding team and investors, notes on shares when working with co-founder and investor.
Apolat Legal hopes that by sharing experiences, Startup Wheel Vietnam candidates will be able to confidently share their projects without fear of being “afraid of stealing ideas/business models” while still “recording” a “score” with the Jury Council.
On August 21st , 2021, The Faculty of Law, University of Economics and Finance collaborated with the Integrity Law Club – ILC to organize a webinar on the topic “Intellectual property rights in business operations”. Apolat Legal is honored to be invited to be the speaker of the webinar, Lawyer Pham Thi Thoa – Founding Lawyer of Apolat Legal accompanies the program.
In the discussion, the lawyer provided students with 3 issues: an overview of the enterprise’s intellectual property, intellectual property rights in business operations, the knowledge and skills needed to practice in the field of intellectual property law.
Lawyer Thoa also guided UEFers to courses to further their expertise at the end of the program.
Apolat Legal hopes that by sharing, students will gain more information and enthusiasm for future vocations.
Webinar series “Intellectual property of enterprises – identification, exploitation, and protection”admin
Apolat Legal collaborated with the Saigon High-Tech Park Incubation Center in July 2021 to host a series of webinars on “Intellectual property of enterprises – identification, exploitation, and protection.” The series consists of three sessions designed to update information and assist small and medium-sized businesses in identifying, exploiting, and protecting intellectual property.
At sessions on July 3, July 9, and July 10, 2021, Lawyer Pham Thi Thoa and Mr. Tran Chau Hoai Han provided an overview of intellectual property types of enterprises, some options for monetizing intellectual property, and detailed and specific sharing on intellectual property protection methods, law enforcement practices to protect intellectual property rights as well as case studies and direct interaction with speakers about some real-life situations that enterprises face.
At the end of the program was a Q&A session to answer questions from enterprises along with speakers.
Apolat Legal is pleased to be a part of the program and hopes to have the opportunity to cooperate in the next programs.
According to Clause 1, Article 99 of the current Law on Intellectual Property, depending on the nature and extent of the violation of intellectual property rights, the person who infringes may be dealt with civil, administrative, or criminal remedies. The application of civil and criminal remedies is subject to the jurisdiction of the Court, the application of administrative remedies is subject to the jurisdiction of the Inspection Agency, Police Office, City Market Management Office, Customs Office, People’s Committees at all levels.
Within the scope of this essay, the writer focuses on civil remedies that an individual, organization, legal entity can do at the People’s Court to protect their intellectual property rights. When a dispute related to intellectual property occurs, the intellectual property owner shall base on the provisions of the civil litigation law to initiate a lawsuit to the court to protect their legitimate rights and interests. Civil remedies applied to handle organizations and individuals that engaged in acts of infringing upon intellectual property rights specified in Article 202 of the Law on Intellectual Property 2005, including: forced to apologize, public correction; forced to perform a civil obligation; forced to compensate for damages; forced to destroy or distribute of the non-commercial use of goods, raw materials, materials, and method mainly used for production and trading of goods infringed upon intellectual property rights provided that they do not affect the ability to exploit the rights of the intellectual property right holder.
Enforcement mechanism at the People’s Court
1. Competence to settle the Intellectual Property dispute of the People’s Court.
According to the provisions of the Civil Procedure Code 2015, competence to settle the Intellectual Property dispute of the People’s Court is determined as follows:
- If the Intellectual Property dispute is purely a civil dispute, it is subjected to the jurisdiction of the District People’s Court;
- If the Intellectual Property dispute is purely a civil dispute, but the civil parties or the Intellectual Property object are abroad, it is subjected to the jurisdiction of the Provincial People’s Court;
- If an Intellectual Property dispute arises between individuals, organizations and has the purpose of making a profit, it is considered as a commercial and business dispute and falls under the jurisdiction of the Provincial People’s Court.
2. Civil remedies to handling intellectual property right infringement at the People’s Court
As mentioned above, civil remedies specified in Article 202 of the Law on Intellectual Property 2005, including:
- Forced to stop the infringement;
- Forced to apologize, public correction;
- Forced to perform a civil obligation;
- Forced to compensate for damages;
- Forced to destroy or distribute the non-commercial use of goods, raw materials, materials, and methods mainly used for production and trading of goods infringed upon intellectual property rights, provided that, they do not affect the ability to exploit the rights of the intellectual property right holder.
The civil remedies mentioned above are remedies that the People’s Court may enforce on a party if that party engaged in acts of infringing upon the Intellectual Property Rights of which the petitioner is the subject of that right.
3. Evidence and prove
According to the provisions of Clause 4, Article 1 of Decree 119/2010/ND-CP, to prove the holder status of Intellectual Property Rights, the party requesting protection of Intellectual Property Rights must provide one of the following documents:
- A copy of the invention, utility solution or industrial design patent; the layout design, mark or geographical indication registration certificate; the plant variety protection title; the copyright or related right registration certificate; enclosed with the original for comparison, unless the copy has been duly authenticated;
- An excerpt from the national register of industrial property; an excerpt from the national register of copyright and related rights; an excerpt from the national register of rights to protected plant varieties, issued by a competent agency that has registered those subject matters;
- For an internationally registered mark, the evidence to prove the right holder status is a copy of the certificate of protection in Vietnam of such internationally registered mark issued by the state management agency in charge of industrial property, enclosed with the original for comparison, unless the copy has been duly authenticated.
After proving the holder status of Intellectual Property Rights, the requesting party must provide evidence and prove that its requests for enforcement of civil remedies are grounded and lawful under the provisions of the Civil Procedure Code. Where evidence is under the control of the requested party and the requested party refuses to provide, the People’s Court shall have the right to force the requested party to provide such evidence. In case the civil remedy that is requested is the compensation for damage, in addition to the general principles of law related to compensation for damage, the Law on Intellectual Property also clearly provides provisions on determining acts of infringement and determine the extent of damage, because Intellectual Property is a specific field and the factors mentioned above are not always clearly defined.
4. Applying injunctive relief
The injunctive relief may be applied when a requesting party has grounds to believe that the evidence or the current state of the object is likely to be changed or because of a genuine urgent need, a party shall have the right to request for an application of injunctive relief under the provisions of the Law on Intellectual Property, including: Retention; Seizure; Sealing; prohibiting any alteration of the original state; prohibiting any movement; Prohibiting the transfer of ownership, other measures as prescribed by the Civil Procedure Code.
The proceedings for the enforcement of injunctive relief must comply with the provisions of Articles 208, 209 and 210 of the Law on Intellectual Property, and will generally comply with the provisions of the Civil Procedure Code.
During the past few years, legal enforcement activities relating to credit and banks have remained a conundrum as, despite great effort and unfaltering determination of legal enforcement authorities to solve the problem, the results of enforcing judgements and decisions of Courts have fallen short of expectations when enforcement ratio is still low, the money and work have yet to be done stay huge, and the enforcement process remains lengthy.
To boost the legal enforcement efficiency in this sector, the National Assembly has issued Resolution No. 42/2017/QH14 (“Resolution 42”) as a legal instrument to assist legal enforcement agencies and credit institutions in dealing with bad debts. The issuance of Resolution 42 ensures proper handling of bad debts and prevents cases where the bailiff distrains collateral, which acts as security for loans at credit institutions or branches of foreign banks, of the person against whom enforcement is sought, to execute other obligations not in accordance with the Resolution’s provisions and thus affect the ability of credit institutions to recover debts.
Within the scope of this article, the author will focus on analyzing and providing real-life scenarios relating to the act of distraining assets of a person against whom enforcement is sought where such assets have already been pledged or mortgaged at credit institutions.
1. In case credit institutions are the beneficiaries
The act of distraining collateral at credit institutions is a specific case of distraining assets – this is a method of coercive enforcement of judgements and decisions of civil courts; therefore, certain conditions must exist before this method can be applied. As prescribed in Article 70 of the Law on the Enforcement of Civil Judgements, the grounds for coercive enforcement of judgements are: (1) The judgement, decision; (2) The decision on enforcing the judgement; (3) The decision on coercively enforcing the judgement, unless the judgement, decision have decided on distraining or freezing the assets, accounts and the case of enforcing preliminary incentives of the Court.
When one of the above grounds exists, the bailiff will enact the distrainment. However, special attention should be paid to ensuring the judgements, decisions mentioned in item (1) have already taken legal effect or have not taken legal effect but must be implemented right away.
Apart from the aforementioned grounds, to carry out the distrainment of collateral in case the beneficiary is a credit institution, the following conditions must also be satisfied:
Firstly: The enforcee has the ability to enforce the judgement but is not willing to do so
“Having the ability to enforce the judgement” is the case where the enforcee has the assets or incomes to perform their property obligations; on their own or through other people implement their obligation to enforce the judgement. Whether or not the enforcee has the ability to enforce the judgement will be determined by the bailiff via the process of validating judgement enforcement conditions. However, in reality, in case of distraining collateral, the bailiff always deems the enforcee capable of enforcing the judgement based on the fact that the enforcee has collateral at credit institutions.
Secondly: The distrainment of collateral can only be carried out if after the period allowed for voluntary enforcement, the enforcee is still not willing to enforce the judgement
The deadline for voluntary enforcement is 10 days, from the day the enforcee receives the decision on enforcement or a valid notification of such decision. The determination of deadlines for voluntary enforcement is a mandatory and first procedure of the bailiff in charge of organizing the judgement enforcement. Only when the deadline had passed but the enforcee has not carried out at all or has not carried out the full of their obligations shall the bailiff coerce the enforcee to perform their obligations in accordance with the judgement, decision.
Consequently, a bailiff shall distrain collateral if one of the grounds prescribed in Article 70 of the Law on the Enforcement of Civil Judgements exists and shall only do so if after the time allowed for voluntary enforcement, the enforcee, although having the ability to enforce the judgement, has not voluntarily carried out such judgement.
2. In case an enforcee’s assets are pledged, mortgaged at a credit institution but the credit institution is not the beneficiary
Pursuant to Article 90 of the Law on the Enforcement of Civil Judgements guiding on distraining and handling assets being pledged, mortgaged, a bailiff can only distrain this type of asset if:
- The enforcee does not have any other asset apart from the asset being pledged, mortgaged at the credit institution, or if they have other assets but those assets are not enough to enforce the judgment.
- The asset being pledged, mortgaged at the credit institution is greater in value than the obligation it is secured for and the expense of coercive judgement enforcement.
On December 1st, 2014, Mr. A mortgaged a 5-billion-dong house to the bank to take out a loan of 3 billion dongs, the term of which is 12 months starting from December 1st, 2014. On March 1st, 2015, Mrs. B filed a lawsuit demanding Mr. A to pay the debt of 1 billion dongs, in the Judgement No. 01/DSST dated May 1st, 2015, the People’s Court of District T ordered Mr. A to pay Mrs. B the debt of 1 billion dongs. On May 15th, 2015, Mrs. B requested the enforcement of that judgement. The legal enforcement agency determined the house which Mr. A had mortgaged to the bank is, at the time, worth 3,5 billion dongs both originally and additionally with interest; the expense of coercive judgement enforcement is approximately 300 million dongs. Apart from the aforementioned house, Mr. A did not have any other valuable asset to enforce the judgement. In this case, the legal enforcement agency had the right to distrain and handle Mr. A’s house for judgement enforcement, although the mortgage loan agreement between Mr. A and the bank was not due yet (December 1st, 2015).
When distraining pledged or mortgaged assets at a credit institution, bailiffs must immediately inform that institution and in this case, the amount of secured debt owed to that institution shall be paid for first.
Clause 3, Article 21 of Decree No. 62/2015/ND-CP also stipulates: “As regards an asset which has been legally pledged, mortgaged, if the result of verification at the time of enforcing the judgement shows that the asset is worth equally or smaller than the obligation due according to the pledge, mortgage agreement, the bailiff has to notify the lender of the enforcee’s obligations and request them to inform the civil judgement enforcement agency when all the contractual obligations are carried out or when the pledged, mortgaged asset is dealt with”. In this case, the civil judgement enforcement agency is only allowed to distrain, handle the asset after the mortgage has been released or after the credit institution has dealt with the asset to pay for the signed aggrement (if any) and the leftover money has been discounted.
However, if while the civil judgement enforcement agency is organizing the enforcement and finds out the enforcee as collateral for bad debt at credit institutions, not only Article 90 of the Law on the Enforcement of Civil Judgements but also Article 11 of Resolution 42 guiding the handling of bad debts at credit institutions has to be applied. Article 11 of Resolution 42 stipulates: “Assets used as collateral for bad debts of the enforcee which secure the payment of debt owed to credit institutions, branches of foreign banks, organizations that exchange or handle bad debts shall not be distrained to perform other obligations prescribed in Article 90 of the Law on the Enforcement of Civil Judgements, except for the implementation of judgements, decisions on alimony, compensation for loss of life, health and cases where there are written approvals from the credit institutions, branches of foreign banks and organizations that exchange or handle bad debts.” The combined application of Article 90 of the Law on the Enforcement of Civil Judgements and Article 11 of Resolution 42 ensures the satisfaction of both necessary conditions (the implementation of judgements, decisions on alimony, compensation for loss of life, health and cases where there are written approvals from credit institutions, branches of foreign banks, organizations that exchange and handle bad debts) and sufficient condition (the asset’s value is greater than the secured obligation and the expense of coercive enforcement and there are no other assets that can be used to enforce the judgement) during the process of settlement.
The civil judgement enforcement agency is enforcing a court’s judgement ordering Mr. A to pay his debt of 300 million dongs to Mrs. B. According to the verification result, Mr. A’s only asset is a land lot comprising of 500m2 being mortgaged at Bank X for a loan of 400 million dongs. The result also suggests that this asset is worth approximately 1 billion dongs and Bank X states that this is a type-3 bad debt, the bank has not handled the asset yet and does not agree to let the legal enforcement agency handle it either. If determined on Article 90 of the Law on the Enforcement of Civil Judgements, the civil judgement enforcement agency has the right to distrain this asset to ensure Mr. A’s will perform his obligation towards Mrs. B. However, in light of Article 11 of Resolution 42, the civil judgement enforcement agency cannot distrain the asset because it is collateral for the bad debt at a credit institution; the obligation being enforced from Mr. A is a usual debt paying obligation, it does not fall into the category of alimony, compensation for loss of life, health and bank X also did not agree to let the civil judgement enforcement agency to handle the asset.
The civil judgement enforcement agency of Tien Giang province is organizing the enforcement of Judgement No. 32/2015/HSST compelling Mr. Hai to compensate Mrs. Ha an amount of 120 million dongs (for murder). During the enforcement, it was determined that Mr. Hai’s only property is a land lot and house attached thereto currently being mortgaged at Vietnam Joint Stock Commercial Bank for Industry and Trade – Tien Giang branch to secure a loan of 200 million dongs. The verification result suggests the value of this asset is approximately 800 million dongs. In this case, according to Article 11 of Resolution 42, the bailiff has the right to distrain and handle the asset as provided for. However, if the Bank for Industry and Trade issues a document determining this is bad debt and attains the asset to handle according to Resolution 42, together with Clause 2, Article 4 of Multidisciplinary Circular No. 11/2016/TTLT-BTP-TANDTC-VKSNDTC, the Bailiff cannot distrain Mr. Hai’s asset to enforce the court’s judgement because this asset is being handled by the bank.
However, in case the Civil judgement enforcement agency had started the distrainment in accordance with Article 90 of the Law on the Enforcement of Civil Judgements prior to August 15th, 2017, the distrainment shall be continued according to provisions of the law on the enforcement of civil judgements.
From the two examples above, it can be seen that the authority of Bailiffs when handling collateral of enforcees according to Article 90 of the Law on the Enforcement of Civil Judgements has been somewhat limited by provisions of Resolution 42.
In addition to that, Article 13 of Resolution 42 further stipulates that credit institutions can sell bad debts currently being distrained to organizations that exchange and handle bad debts or debt exchanging enterprises. Before carrying out the sale of bad debt, a credit institution is obliged to provide full and authentic information about the collateral’s status of being distrained. The buyer will assess and determine the risk of purchasing this debt on their own.
Notes for developing and applying the evaluation regulation of employees’ duty fulfillment under labor code 2019 (Part 2)admin
Part 2: notes for developing, promulgating and applying the evaluation regulation of employees’ duty fulfillment
Some factors to note and consider when developing the regulation for evaluating employees’ fulfillment of duties:
According to the regulations of the Labor Code 2019 and guiding documents, the regulation for evaluating employees’ fulfillment of duties has no specified and mandatory provision in terms of form as well as the necessary primary contents. This is an obstacle but also an advantage for employers when they can build these criteria according to their intention and management desire. However, in order for the regulation for evaluating employees’ fulfillment of duties to be approved by the competent authority, easy and practical, employers need to pay attention and consider the following factors, which are proposed and drawn from practical experience in the process of developing and promulgating in writing:
1. First, any document containing contents that violate the law’s prohibition will not be recognized by the competent authority, unenforceable, or canceled by the competent authority if a dispute arises even if the document is issued under the correct procedure. Therefore, the preconditions for the regulation for evaluating employees’ fulfillment of duties to be fully effective is that it does not contain any content that violates the prohibition of the law or is restricted by the law or even doesn’t have content that is not permitted by law and not regulated when not fully satisfying statutory conditions.
2. In addition, as “the law” directly regulates the behavior, activities, the process of performing work of the employee and a legal management tool of the employer towards the employee, the Labor Regulations and the Collective Bargaining Agreement (if any) will first prevail to adjust incurred labor-related issues. Therefore, to meet legal regulations, the regulation for evaluating employees’ fulfillment of duties must also be appropriate, consistent and can supplement the provisions of the Labor Regulations, the Collective Bargaining Agreement (if any). Developing appropriate internal employee management documents, consistent and have no conflicting terms and with other regulations issued before by the employer as well as following the business development plan/orientation of the employer is also an important issue to be considered.
3. Also, as mentioned, the regulation for evaluating employees’ fulfillment of duties is not bound in terms of form and content. This is considered an advantage that is “rarely” given to employers in the labor law. Therefore, employers should take advantage of this to develop criteria for evaluating employees with the most appropriate measures with the peculiarity and distinctive characteristics in the business field and the culture of their enterprises.
4. For a group of jobs with quantifiable characteristics such as selling, production activities, taking care of customers, the employer should concretize the criteria for assessing the level of work completion of the employee in specific numbers and proportions for each position and title held by the employee. However, the above method will cause more difficulties for employers when evaluating employees doing jobs with qualitative characteristics such as tourism, accounting, legal, design, art, service, etc… At that time, the employer should consider job performance, processing time, workload or creativity, customer feedback/evaluation for employees, etc… to develop accurate evaluation criteria. These evaluation criteria should be summarized in the process of the actual operation of the enterprise to reflect the level of work completion of the employees most accurately.
5. “The frequency of not fulfilling duties” is a factor that needs to be focused on and clarified in the regulation for evaluating employees’ fulfillment of duties. If the employee is not achieved, fulfill duties, and how often and how long will be regarded as repeatedly fails to perform the job are issues that need clarifying. If these issues are unclear and not specific, the regulation will be difficult to apply or disputes with employees in real situations. Employers are recommended that identifying employees who regularly fail to complete work to take any action should only be considered if the employee fails to meet the work standard, at least for the second time or more within a reasonable limit period.
6. For each position, a different job title should have its criteria and level of evaluation instead of “same criteria” to create objectivity. In addition, in the process of developing these criteria, the employer should collect and consult opinions and suggestions of the employees, the manager and representative organizations of employees (including the internal trade unions or a representative organization of employees at the enterprise) to have an objective, multi-dimensional assessment and reach the consensus of the employees in the process of application and implementation.
7. For the regulation for evaluating employees’ fulfillment of duties to optimize the functions, employers need to classify the groups and levels of behavior corresponding to certain forms of labor discipline prescribed in the legally registered Labor Regulations. In this case, the Labor Regulations must mention and refer to the regulation for evaluating employees’ fulfillment of duties as an integral and indispensable part of the Labor Regulations.
8. For your further information, other factors that employers should also pay attention to improve these criteria such as refer to more criteria for evaluating employees in the equivalent labor market to create consistent, harmonious in its assessment criteria; it is advisable to clearly define the work completion levels associated with the corresponding form of reward and discipline for easy monitoring and implementation; factors of working attitude, discipline compliance, creativity and relationship with superiors and colleagues can also be considered as an assessment criterion.
Developing and completing the regulation for evaluating employees’ fulfillment of duties thoroughly, appropriately and receiving the consent of the employees will create many values for the employer, including (i) it will be a tool for the employer to assess and determine the employee’s capacity on a factual basis when necessary, without affecting the general psychology of other employees and the employer’s business activities; (ii) motivate employees to work effectively so as not to be screened or be recognized and rewarded; (iii) protect and minimize the risk of legal consequences in disputes, complaints and lawsuits of employees.
Some notes when promulgating and applying the regulation for evaluating employees’ fulfillment of duties:
To apply the right to unilaterally terminate the labor contract because the employee repeatedly fails to complete the work, in addition to developing a clear and specific regulation for evaluating employees’ fulfillment of duties, the employer also has to promulgate and publicly apply these criteria according to specific procedures. One of the procedures that the employer must perform is to consult internal representative organizations of employees for the draft of assessment regulation of the fulfillment of duties before promulgating it for application. The consultation procedure with internal representative organizations of employees is carried out through dialogue at the workplace. Participants in the dialogue at the workplace will include representatives of the employer, employees or employees representative organizations. Usually, internal representative organizations of employees participating in the dialogue are internal labour unions. If the enterprise has not yet established internal trade unions, the immediate superior labour unions (also known as the district labor confederation) will act as a substitute.
To start the dialogue phase, the employer is responsible for sending a written proposal and the draft of assessment regulation of the fulfillment of duties to the representative organization of the employee for consultation. At that time, the representative organization of employees will hold dialogue under the law to collect opinions of the employees on the draft and aggregate it in writing to send to the employer. Based on these aggregated opinions, the employer and employee will discuss, exchange and unify contents. However, for companies that have not yet established internal labour unions, the employer will usually collect opinions or record confirmations from the employee directly to propose the immediate superior trade union to consider and approve the criteria draft to assess the fulfillment of duties.
After receiving the employee’s consent and the approval of the representative organization of the employee, the employer will promulgate complete the regulation for evaluating employees’ fulfillment of duties. At the same time, the regulation for assessing employees’ fulfillment of duties is notified to each department in the company for public and uniform application.
Although the Labor Code 2019 has taken effect to replace the 2012 Labor Code and amended and supplemented with many regulations to protect better the interests of the employer, in which the legalization of “the regulation for evaluating of employees’ fulfillment of duties” to clarify the employer’s right to unilaterally terminate the labor contract when the employee repeatedly fails to perform the work the labor contract is an important change. However, the labor law in general and the judicial practice in Vietnam, in particular, are still developed and applied in the spirit of protecting the weaker party in labor relations – the employee. Therefore, we recommend that in all actions and decisions related to the development and application of these criteria in the management and administration or termination of the labor relationship, the employer should consider carefully, be cautious and ensure to fully meet conditions prescribed by the law and strictly comply with procedures for implementation. In case of necessity, the employer should consult a lawyer before proceeding to minimize the damage incurred.