legal updates

Monthly Newsletter March,2021

In this issue, we would like to bring to your attention the following:

  • Our prominent legal articles;
  • The remarkable news;
  • The remarkable legislation take effect in February, 2021.

1. Our prominent legal articles 

In February, our personnel had some remarkable articles, specifically: 

Associate Tran Chau Hoai Han with the Article “Amending Law on Intellectual Property: Protecting copyright in the context of Platform Economy” published in website of Saigon Economic Times dated January 29th, 2021. This article provides companies with detailed knowledge related to copyright in the development of platform economy. To read the entire article, please visit here.

Attorney Dinh Quang Long and Paralegal Cao Duy Khoi with the Article “Law on Enterprise 2020 – Some remarkable changes” published in Saigon Economic Times No. 04-2021 on January 21st, 2021. The article helps investors, as well as companies, have a general background related to the changes of new Law on Enterprise of Viet Nam. To read the entire article, please visit here.

Moreover, Clients can visit https://apolatlegal.com/category/articles to refer to more legal articles suitable to your demand. 

2. The remarkable news 

  • The Government issued Decree No. 152/2020/ND-CP on December 30th, 2020 about cases of work permit exemption for foreign employees in Vietnam. 
  • The Prime Minister issued Official Dispatch No. 185/TTg-CN on February 09th, 2021 about reviewing issues related to the development of solar energy. 
  • Decree 148/2020/NĐ-CP comes into effect from February 08th, 2021 regulating 03 new points related to the Certificate of Land Use Rights (“LURCs”), including: 
    • Allowing branches of land registration offices to receive dossiers grating LURCs.
    • Citizens are entitled to carry out the procedures for granting LURCs at home as negotiation.
    • The consolidation and swap of land parcels are no longer granted new LURCs. 

Please refer the detailed information at here.

3. The remarkable legislation take effect in February 2021

 

No.  DOCUMENT TITLE  EXECUTION DATE  EFFECTIVE DATE
1.      Decree 145/2020/ND-CP detailing and guiding the implementation of the Labor Code on working conditions and labor relations. 14/12/2020 01/02/2021
2.      Decree 148/2020/ND-CP amending and supplementing to serveral Decrees providing detailed regulations on the implementation of the Land Law.  18/12/2020 08/02/2021
3.      Decree No. 152/2020/ND-CP on foreign workers working in Vietnam and recruitment, management of Vietnamese workers working for foreign organizations and individuals in Vietnam.  30/12/2020 15/02/2021
4.      Circular 40/2020/TT-BTTTT regulating criteria for determination of goods and the domestic manufactured information technology service that are given priority in investment, hire and procurement.  30/11/2020 15/02/2021
5.      Circular 118/2020/TT-BTC guiding on several contents about making an offer, issuing securities, public offers to acquire, redemption of shares, registration of public company and rescission of status as a public company.  31/12/2020 15/02/2021
6.       

Circular 121/2020/TT-BTC regulating the activities of a securities company.

 

31/12/2020 15/02/2021
7.      Circular 02/2021/TT-BTC regulating on levels and regimes of collection, payment, management and use of the fees for inspection of fire-fighting equipment.  08/01/2021 22/02/2021
8.      Circular 01/2021/TT-BTC regulating on levels and regimes of collection, payment, management and use of fees for appraisal of issuance the karaoke, discotheque business certificate.  07/01/2021 25/02/2021

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Official Dispatch No. 185/TTg-CN about inspecting and reviewing issues related to the development of solar energy

1. The Government issued Decree No. 152/2020/ND-CP on December 30th, 2020 about cases of work permit exemption for foreign employees in Vietnam 

On December 30th, 2020 the Government issued Decree No. 152/2020/ND-CP on foreign workers working in Vietnam and recruitment, management of Vietnamese workers working for foreign organizations and individuals in Vietnam. Accordingly, from February 15th, 2021 onwards, one of notable points of this Decree is regulations on cases of work permit exemption for foreign employees in Vietnam, specifically as follows: 

In addition to cases prescribed in Articles 154.3, 154.4, 154.5, 154.6 and 154.8 of Labor Code 2019, Article 7 of Decree No.152/2020/ND-CP provides 14 additional cases of work permit exemption for foreign employees in Vietnam, typical cases are as follows: 

  • Being the owner or capital contributor of a limited liability in which his or her capital contribution is at least 3 billion dongs. 
  • Being the Chairman or member of the Board of Management of a joint-stock company in which his or her capital contribution is at least 3 billion dongs. 
  • Entering into Vietnam to work as the position of a manager, executive, expert or technical worker in the course of work of fewer than 30 days and no more than 03 times per year. 
  • Being certified by the Ministry of Education and Training as a foreign employee entering into Vietnam for teaching and researching purposes; etc. 

2. The Prime Minister has issued Official Dispatch No. 185/TTg-CN on February 09th, 2021 about reviewing issues related to the development of solar energy 

On February 9th, 2021 the Prime Minister issued Official Dispatch No. 185/TTg-CN to implement the Development Strategy for renewable energy in Vietnam in 2030 with a vision of 2050 under the Decision No. 13/2020/QD-TTg issued by the Prime Minister on April 6th, 2020. Specifically, the Prime Minister requested the Ministry of Industry and Trade to be responsible for leading and organizing, to cooperate with the province-level People’s Committees, Vietnam Electricity Corporation, and other relevant authorities to urgently implement the following contents:

  • To overall review the execution of existing ground mount and rooftop solar energy projects; to instruct related-parties to implement in accordance with principles and regulations under Official Dispatch No. 414/TTg-CN and other relevant documents; 
  • To scrutinize, inspect, correct, and strictly discipline recent infringements of developing rooftop solar energy at localities and electricity companies in accordance with the laws; 
  • To research and propose effective management measures for renewable energy sources; direct instruct and implement measures to minimize economic losses of investors and waste of the country’s renewable energy sources; 
  • To be responsible for overall reviewing and inspecting currently working electric sources, to update and balance the supply and demand in the forthcoming period in order to strengthen the best planning management; simultaneously to urgently perfect procedures of VIII Electricity Planning Projects and submit to the Prime Minister on schedule. 

3. 03 new regulations pertaining to the Certificate of Land Use Rights have been prescribed in Decree No. 148/2020/ND-CP issued by the Government taking effect as of February 8th, 2021 

On December 18th, 2020 the Government issued Decree No. 148/2020/ND-CP amending and supplementing to several Decrees providing detailed regulations on implementation of the Law on Land. From February 08th, 2021 onwards, many amendments and supplements pertaining to the Certificate of Land Use Rights (“LURCs”) have been of full force and effect, specifically: 

a. Branches of land registration offices are lawfully permitted to receive dossiers granting LURCs:

Article 1.19 of Decree No. 148/2020/ND-CP amending Article 60 of Decree No. 43/2014/ND-CP provides that competent authorities receiving dossier and rendering results of procedures for registration of land and other land-attached property; of granting, renewing or reissuing the LURCs are as follows:

  • Land Registration Offices; 
  • Branches of Land Registration Offices (new regulations).

b. Citizens are entitled to carry out the procedures for granting LURCs at home as negotiation:

Citizens are legally permitted to negotiate with the authorities to conduct the procedures for granting LURCs at home, provided that the timeline limit set by the province-level People’s Committees is satisfied.

c. The consolidation and swap of land parcels are no longer granted new LURCs 

Article 1.24 of Decree No. 148/2020/ND-CP provides that one of the cases of the re-issuance of LURCs as well as homeownership certificates and certificates of ownership of construction works is “because of the resurvey of areas and dimensional sizes of land plots”. 

Whereas, in the previous, Article 76.1.c of Decree No. 43/2014/ND-CP provided the above case also occurred due to the “consolidation and swap of land parcels”.

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Letter of quick legal updates 202012

1. On December 18th, 2020, The Supreme People’s Court issued Official Dispatch No. 199/TANDTC-PC announces the results of online answers to some problems in bankruptcy settlement 

According to the Official Dispatch, the Supreme People’s Court has answered the issues that the courts need to pay attention when settling the bankruptcy procedure as follows: 

Firstly, the status of an insolvency enterprise or cooperative must fully satisfy the following conditions:

  • Have a specific, clear debt recognized, agreed upon by the parties or determined through a legally effective judgment or decision of a court, ruling of commercial arbitration, or determined in a decision of the competent authority, and the parties don’t have any dispute over this debt.
  • The debt is due for payment. Maturity debt means a debt with a clearly defined payment term, by which time the enterprise or cooperative must be obliged to repay the debt. This payment time limit is acknowledged, agreed upon by the parties or determined by a legally effective judgment or decision of a court, a judgment of a commercial arbitration or decision of a competent authority.
  • The enterprise or cooperative fails to fulfill the debt payment obligation within 3 months from the due date, because it has no assets to pay the debt or has assets but does not pay the debts.

Secondly, if the Court issues the decision to open the bankruptcy proceedings, the deposit of bankruptcy expenses paid by the applicant is not enough. The court can request the applicant to continue to submit the deposit. Suppose the applicant does not pay the supplement deposit of bankruptcy expense as requested, the Judge, at his discretion or according to the request of asset administrators, can decide on the sale of assets of the enterprise or cooperative after opening the bankruptcy procedure to ensure the payment of bankruptcy expense; the selling of assets is assigned to the asset administrators or the asset administration enterprises to ensure the bankruptcy expenses is paid in full.

Thirdly, in case the “Decision to open bankruptcy proceedings” is canceled by a superior court, the deposit of bankruptcy expense shall be refunded to the applicant, except for the case the applicant submits the dishonest bankruptcy claims.

2. The Ministry of Justice issued Circular No. 06/2020/TT-BTP dated December 17th, 2020, amending and supplementing a number of articles of Circular No. 08/2018/TT-BTP dated June 20th, 2018 guiding a number of issues on registration, providing information on security, contracts and information exchange on registered security, which comes into effects on January 01st, 2021 

According to the Circular, collateral registered at the Asset Trading Registration Center as required from February 1st, 2021, has the following changes:

Firstly, separating the registration of security and the registration of contract at the registration center. Accordingly, the registration of contract is intended to publicize information and it does not give effect to the contract.

Secondly, supplementing provisions on online registration in case of not requiring a code to use the datebase of security measures.

Thirdly, amending, supplementing, and abolishing provisions on property which must be registered the security transaction, including:

  • Supplementing objects of property rights with respect to objects of copyright, industrial property rights, rights to plant varieties; Property rights arising from results of scientific research, technological development, technology transfer or other property rights of monetary value in the fields of science, technology, and information technology; the right to exploit natural resources.
  • Cancellation of “Property rights arising from shipbuilding leases; the right to compensate for damage arising from the contract of purchase and sale of aircraft or seagoing ships; the right to enjoy insurance under the insurance contract for aircraft and ships”.
  • Supplementing property rights arising from a contract include the right to collect debt, the right to demand payment, the right to enjoy the benefits formed from the contract, the right to exploit, manage the project, the right to compensate for damage under the contract. or other property rights of monetary value arising from the contract (except for land use rights, ownership of property on land, ownership or other rights which must be registered with respect to aircraft or seagoing ships according to regulations. regulations of the law on aviation and maritime).

The Circular No. 06/2020 / TT-BTP takes effect from February 01st, 2021.

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The new regulation on the age of retirement and the health care for female employee

1. The new regulation on the age of retirement and the health care for female employee 

The Government promulgated two Decrees guiding the implementation of some contents of the Labor Code 2019, specifically the Decree No. 135/2020/ND-CP dated November 18th, 2020 regulating the retirement ages and the Decree No. 145/2020/ND-CP dated December 14th, 2020 defining and providing guidance on the implementation of many contents of the Labor Code on working conditions and industrial relations.

1.1 The Decree No. 135/2020/ND-CP dated November 18th, 2020 regulates the retirement ages

1.1.1 The age of retirement     

According to the Decree No. 135/2020//ND-CP, from January 01st, 2021, employee working in normal working conditions shall retire from work at the age of 60 and 03 months for male and 55 and 04 months for female. In the following years, the age of retirement of each year shall be increased by 03 months for male until they reach at the age of 62 in 2028 and by 04 months for female until they are 60 years old in 2035. Therefore, comparing with the current regulation, the age of retirement for male shall increase from 60 to 62 by 2028 and from 55 to 60 by 2035 for female. 

1.1.2 Retirement before or after reaching the specified age of retirement 

Depending on the circumstances, the employees can retire earlier or later than the age of retirement regulated. Specifically, the employees doing heavy lifting or working in hazardous environments can retire sooner, while working in highly-skilled jobs or the private sector can retire later. Generally, the maximum extension will be five years.

1.2 The Decree No. 145/2020/ND-CP dated December 14th, 2020 defines and provides guidance on the implementation of several contents of the Labor Code on working conditions and labour relations, details as follows:     

In this Decree, the key points on health care for female employees are the regulations about the break of female employees during menstruation and female employees during the period of nursing a child under 12 months, specifically:

The female employee is entitled during her menstruation to a 30-minute break every day and during the period of nursing a child under 12 months is entitled to a break of 60 minutes every day which shall be included in the number of working hours and shall still receive the same wages as stated in her labour contract. In case a female employee does not want to take a break and employer allows her to work, a female employee is entitled to receive an additional salary for the work performed in the break, in addition to the salary pursuant to her labour contract. 

Besides, the Decree No. 145/2020/ND-CP has the new provision on requiring employers who have more than 1000 female employees must install lactation and storing breastmilk rooms in the workplace. 

The Decree No. 145/2020/ND-CP will take effect from February 1st, 2020. 

2. The Government promulgated the new project on supporting to reduce the electricity price, electricity bills (the second time) for customers using electricity 

The above project is approved when the Government promulgated Resolution No. 180/NQ-CP on the new project on supporting to reduce the electricity price, electricity bills (the second time) for customers using electricity on December 17th, 2020 based on proposal of the Industry and Trade Ministry. Specifically, according to the report of the Industry and Trade Ministry sent to the Prime Minister of the Socialist Republic of Viet Nam to propose the project on supporting to reduce the electricity price, electricity cost (the second time): 

  • The retail price of domestic electricity from level 1 to level 4 shall be reduced by 20%; 
  • To decrease electricity price from the retail level applied to business by retail price applied to the manufacturing industry for the customer that is tourist accommodation establishments or customer having warehouse during circulation; 
  • Establishments use for isolating, centralized medical examination for patients with suspected infection, already infected with COVID-19 shall receive a 100% reduction in electricity bill; 
  • Medical establishments used for examination, testing and treating the suspected and infected patients with COVID-19 are entitled to a 20% discount on their electricity bill; and 
  • Customers shall be assisted to reduce electricity price, electricity bills for 03 months with invoices in October, November, December 2020. 

The Government assigned the Ministry of Industry and Trade to cooperate with the Ministry of Finance and related agency for implementing, ensuring strictness, right subject, and not allowing the policy to be abused for bad purposes.

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Letter of quick legal updates 201210

1. On November 23rd, 2020, the Intellectual Property Office of Vietnam issued Notice No. 13822/TB-SHTT regarding the application of regulations concerning persons with legal status to sign documents on behalf of the applicant in the registration procedure for establishment of industrial property rights and the related procedures

a. For individual applicant: The representative for the applicant is the legal representative or one who is authorized by the applicant through a power of attorney. The sigining of the power of attorney is done by that individual himself/herself and the authorized party.

b. For institutional applicant:

  • The representative for the applicant is the legal representative of the applicant.

(i) With the titles as Chairman of the Members’ Council, Chairman of the Board of Directors, President, General Director, Director, the signer shall certify that he/she is the legal representative of the applicant through his/her signature and seal.

(ii) With other titles, the applicant must provide a document which proves that the signer is authorized by the legal representative of applicant.

  • The representative for the applicant is a person belonging to an organization authorized by the legal representative: in addition to complying with the provisions in Point (a), the applicant must also provide a document to prove such authorization.
  • The representative for the applicant is an industrial property agent: The authorized party must be the legal representative of the applicant or the person of the industrial property agent who is authorized by the legal representative.

2. Minister of Industry and Trade issued Circular 30/2020/TT/BTC instructing on the implementation of the Free Trade Agreement between Viet Nam and EU on trade remedies

On November 26th, 2020, Minister of Industry and Trade issued Circular 30/2020/TT/BTC instructing the implementation of the Free Trade Agreement between Viet Nam and European Union on trade remedies.

The Circular guide application bilateral trade remedies, anti dumping measures and countervailing measure to implement EVFTA.

The anti dumping measures and anti countervailing measure are guided as following: 

a. Considering economic – social benefits:

(i) Minister of Industry and Trade makes decision not to enforce anti dumping measure, anti subsidy measure if, based on available information in investigation process, investigation agency concludes that applied measures are not suitable for economic – social benefits.

(ii) When evaluating economic – social benefits, relying on relevant information provided, investigation agency will take into account the status of domestic production, importers, relevant associations, organizations, individuals using, consuming investigated products.

b. Lower tax rate principle:

(i) Anti dumping duties or countervailing duties are not higher than dumping margin or subsidized level;

(ii) Relying on the conclusion of investigation agencies, Minister of Industry and Trade will consider to apply anti dumping duties or countervailing duties which are lower than dumping margin or subsidized level if this lower tax is enough to remove damages affected domestic production.

The Circular 30/2020/TT-BCT will come in to effect from January 11th, 2021.

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