Author: Phạm Huyền

Mediation in civil procedure – an effective solution

Written by Phạm Huyền on 15 September, 2022. Posted in Legal newsletter.

The lawsuit in Court is often the last solution to resolve disputes and debt recovery. The court will resolve the case based on the facts, documents, and requests of the parties, as well as apply the law appropriately to make a judgment/ decision. However, even after accepting the petition, the Court will also conduct mediation before bringing the case to trial. This creates conditions for the parties to reach an agreement without opening a trial. In this article, we will review the Mediation stage in the legal process – an effective solution that is often ignored.

1. What is mediation in the civil procedure?

Mediation in legal proceedings as prescribed in the Civil Procedure Code 2015 is a procedural activity conducted by the Court under the civil procedure law to assist the involved parties to reach an agreement and negotiate with each other on the settlement of civil, marriage and family, business, trade and labor cases; contribute to protecting the legitimate rights and interests of agencies, organizations, and individuals that are disputing parties through the intermediary role of the Court.

Thus, Mediation in civil proceedings is a procedure conducted by the Court to help the parties understand their legitimate rights and interests, and agree on the settlement of disputes to save costs and time for the parties and also the prosecuting agencies.

2. Order and procedures for conducting mediation in legal proceedings

After accepting the lawsuit petitions by the plaintiff, for mediated cases, the Court will plan to hold a meeting for checking the handover of, access to and disclosure of evidence and mediating (“The Meeting“).
Before conducting the meeting, the judge will notify the parties, their lawful representatives, and defense counsels of the rights and interests of the involved parties about the time, place and content of the meeting.
In cases where any of the involved parties is absent but involved parties who attend agree to conduct the meeting and such meeting does not affect the rights and obligations of absent involved parties, the Judge shall conduct a meeting between involved parties who attend; if involved parties request to postpone the mediation meeting until all involved parties attend, the Judge must follow their request. The Judge must notify the involved parties of such postponement and the resuming of the meeting.
At the meeting, The Judge disseminates to involved parties the provisions of laws related to the resolution of the cases so that involved parties can relate them with their rights and obligations and analyzes the legal consequence of the success of the mediation then voluntarily reach agreements with each other about the resolution of the cases.
After that, the Judge shall direct the plaintiff, defendant, persons with relevant interests and duties, defense counsels of their legitimate rights and interests, and other participants in the mediation meeting (if any) to express their opinions.
After the involved parties and defenders of their legitimate rights and interests have presented all their opinions, the judge shall determine the issues that the involved parties have agreed upon or have not yet agreed upon and request the involved parties to make an additional presentation about unclear and not agreed contents. The Judges shall make a conclusion on those which involved parties have agreed or not agreed about.
At the end of the meeting, the Court Clerk shall be in charge of formulating the minute of the meeting. In case the parties agree on a solution to the case, the Judge will request to make a Minute of successful mediation, which will include all the issues agreed upon by the parties and the signatures of the parties.
In case the involved parties can reach an agreement on the settlement of the whole case, upon the expiry of the 07-day time limit after making the records on successful mediation, no involved parties change their opinion on that agreement, The judge issues a decision recognizing the agreement of the involved parties. This decision will take legal effect from the date of its issuance and will not be appealed or protested according to appellate procedures and shall be subject to judgment enforcement.

3. Pros and Cons of mediation in the legal process

3.1 Pros:

Can save a lot of time compared to the trial because the process from the beginning of the mediation to the decision recognizing the agreement of the involved parties can only last for 1 month.
Before opening the court session, the Court conducts mediation; if the involved parties can reach an agreement on the settlement of the case, they will only have to bear 50% of the first-instance court fee. In this case, the plaintiff may agree with the defendant that the defendant bears this fee. Therefore, the plaintiff has the right to request the civil judgment enforcement agency to refund the court fee advances immediately after the decision recognizing the agreement of the involved parties takes legal effect.
The decision recognizing the agreement of the involved parties will take legal effect from the time it is issued and will not be appealed or protested according to appellate procedures, and at the same time, the judgment will be executed according to regulations. This can save a lot of time because the case is not protracted, moreover, the enterprise has the right to request the judgment enforcement agency to force the obligor to be responsible for the implementation of this Decision.

3.2 Cons:

Mediation can only be made if both parties agree to come up with a mediation plan and have good faith.
Mediation is not possible if either party has been duly assembled a second time but is still absent.
Due to the need to agree to come up with a mediation plan, the plaintiff may have to share a part of the benefits with the defendant.
If the mediation has been agreed upon and the Court has issued a decision recognizing the agreement of the involved parties, the parties will not be able to initiate a lawsuit against the claims already settled by the court.

The above is the legal opinion of TNTP on the method of Mediation stage in the legal process. TNTP hopes this article will be valuable and useful for businesses.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

What should Chinese enterprises do when having uncollectible debts in Vietnam?

Written by Phạm Huyền on 8 September, 2022. Posted in Legal newsletter.

In the trend of globalization, it has become very common for Chinese enterprises to do business with suppliers in Vietnam. However, many suppliers in Vietnam incur debts with Chinese enterprises because suppliers have received deposits but have not delivered or delivered goods incorrectly and sufficiently, etc. In this article, we will analyze and offer solutions for Chinese enterprises when uncollectible debts arise in Vietnam.

1. What should Chinese enterprises do when uncollectible debts arise in Vietnam?

1.1 Authorize a law firm to provide debt collection support services in Vietnam

To carry out the collection of uncollectible debts in Vietnam, Chinese businesses need to seek the help of law firms with experience in debt collection in Vietnam. Based on the address of the supplier’s office with the debt, Chinese businesses should research and choose a law firm with its address in the same city as the suppliers to make debt collection more convenient.

1.2 Conduct consular legalization of documents

According to Vietnamese law, in order to authorize a law firm in Vietnam or request the competent authorities in Vietnam to settle the case, Chinese enterprises need to consular legalize the necessary documents for these documents to be legally valid and usable in Vietnam. The consular legalization of documents can take from 01 to 03 months.

1.3 Send information, and documents related to debts arising from suppliers in Vietnam

When working with a law firm in Vietnam, Chinese enterprises need to submit the following information and documents:

Documents related to establishing commercial transactions with suppliers in Vietnam: Contracts, Agreements, Commitments, exchanged messages, emails, etc.;
Documents related to transaction execution: Goods handover minutes, Value-added invoices, Debt reconciliation minutes, Goods distribution minutes, etc.;
Documents related to the costs incurred by the Chinese enterprises due to the fault of the supplier in Vietnam when delivery is delayed or not delivered;
Other documents related to the debt (if any).

2. The main works that a law firm in Vietnam will perform when assisting Chinese enterprises in debt collection for debtors who are suppliers in Vietnam

The works that law firms in Vietnam often perform to collect debt include:

Search for information about suppliers in Vietnam: name, tax code, legal representative, current address, operation status, business, etc.
Contact directly suppliers in Vietnam by phone, messages, and email to request the suppliers pay the debts for the Client.
Attend meetings with suppliers in Vietnam to agree on the debt payment plan and a debt settlement plan.
Draft and adjust Official Dispatch requesting payment and send suppliers in Vietnam after the Client agrees with the contents of the Official Dispatch.
Monitor the payment of suppliers in Vietnam and report progress and results to the Client.
Proceed to initiate a lawsuit at a competent Court/Commercial Arbitration.
Support Client in the process of enforcing effective judgments/decisions of competent Courts/Commercial Arbitration.

3. Legal services to support debt collection of TNTP

With a team of experienced legal experts, TNTP is confident in assisting customers in collecting uncollectible debts. With the motto of always protecting the legitimate rights and interests of the Clients, TNTP tries and ensures to support the Clients and deploy the work in the fastest, most timely, and most effective way, regularly reporting the progress of the case. work as well as giving the next action plan so that the Client can easily monitor and evaluate the work results. Clients can completely trust and feel secure when using TNTP’s debt collection support legal services.

Above is the article “What should Chinese enterprises do when uncollectible debts arise in Vietnam?”. We hope this article was useful to you.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Assets for capital contribution and their valuation

Written by Phạm Huyền on 31 August, 2022. Posted in Legal Newsletter.

Valuation of contributed assets is an important and mandatory stage if enterprise members contribute capital with contributed assets other than Vietnam Dong, convertible foreign currencies, and gold. In this article, TNTP will analyze the provisions of the law on “assets for capital contribution and their valuation” to help enterprise members and founding shareholders limit possible disputes about the valuation of contributed assets.

1. Assets for capital contribution

According to the current Vietnamese law, a capital contribution is defined as individuals and organizations that contribute assets to form the company’s charter capital, including capital contribution to establish a company or additional charter capital contribution after the company has been established. Thus, a capital contribution can be made at two specific times, when establishing the business and during the operation of the enterprise.

Under Article 34 of the Law on Enterprises 2020, contributed assets include VND, convertible foreign currencies, gold, land use right (LUR), intellectual property rights, technologies, technical secrets, and other assets that can be converted into VND.

Under Article 35 of the Law on Enterprises 2020, members of limited liability companies, partnerships, and shareholders of joint stock companies must transfer ownership of assets contributed to capital to the company. Therefore, depending on the type of asset contributed capital, it is necessary to meet some or all of the following conditions:

Assets for capital contribution must be under the lawful right to ownership or right to use of capital contributors and are not disputed, not restricted from the right to disposition by agreement or by law;
Assets for capital contribution can transfer ownership or use rights to the company;
Must have all documents certifying ownership of the property subject to ownership registration; certificate of land use rights and ownership of houses and other land-attached assets if the assets are land use rights, ownership of houses, and other land-attached assets.

2. Valuation of contributed assets

Methods of valuation of contributed assets to the company are regulated in Enterprise Law 2020. For capital contribution upon establishment of an enterprise, the valuation method will be chosen by members/partners/founding shareholders. For capital contribution during the operation of an enterprise, the valuation method will be selected by the owner or the Board of Members/Partners (for limited liability companies and partnerships) or the Board of Directors (for joint stock companies) and the contributor:

Self-valuation according to the principle of consensus; or
Valuation by a valuation organization.

To ensure objective valuation results, enterprises can consider hiring an agency or organization as a third party to carry out valuation activities for assets contributed in both stages of capital contribution: capital contribution to establish by the enterprise and capital contribution to increasing charter capital.

Regardless of which valuation method is chosen, the valuation of assets contributed must be based on the principle of “consensus”:

In case of valuation of contributed assets upon establishment of an enterprise: Assets contributed upon establishment of an enterprise shall be valued by members/partners/founding shareholders by consensus or by a valuation organization. In the latter case, the value of contributed assets must be accepted by more than 50% of the members/partners/founding shareholders.
In case of valuation of contributed assets during the operation of an enterprise: Assets contributed during the operation shall be valued by the owner or the Board of Members/Partners (for limited liability companies and partnerships) or the Board of Directors (for joint stock companies) and the contributor or by a valuation organization. In the latter case, the value shall be accepted by the contributor and the owner, the Board of Members/Partners/Directors.

Enterprises must be responsible for the value of contributed assets in case the value of contributed assets is higher than the actual value of assets.

In case a contributed asset is valued at a value higher than its actual value at contribution time (overvalued), the members/partners/founding shareholders (at the time of the establishment of the enterprise), capital contributors, the owner and members of the Board of Members/Partners/Director (when the enterprise is operating) jointly contribute an amount equal to the difference and are jointly responsible for the damage caused by the overvaluation.

Above are our analysis of assets for capital contribution and valuation of contributed assets, hope the article helps you.

Sincerely,

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Confidentiality information in some types of contract

Written by Phạm Huyền on 25 August, 2022. Posted in Legal newsletter.

As analyzed in the previous article, confidentiality plays an important role in protecting rights and binding obligations to the contracting parties. In order to support clients to flexibly apply confidentiality clauses, in this article, TNTP will share with you some provisions on confidentiality clauses in some types of Contracts.

1. Provisions on confidentiality in some types of Contracts

Some content about confidentiality clauses/agreements in some typical types of contracts, specifically:

1.1 Confidentiality clause in the Labor Contract

According to Clause 2, Article 21 of the Labor Code 2019, If the employee’s job is directly related to the business secret, or technology secret as prescribed by law, the employer has the right to sign a written agreement with the employee on the content and duration of the protection of the business secret, technology know-how, and on the benefit and the compensation obligation in case of violation by the employee.

Employers need to list clearly and in detail about confidentiality such as:

What kind of information and documents are considered business secrets or technology secrets in the confidentiality clause. If it is not possible to list them all, the employer can provide criteria to determine which information and documents are considered business secrets or technology secrets.
The principles that employees must follow to keep business and technology secrets confidential are as follows: Do not disclose, copy and distribute Confidential Information in any form to anyone inside or outside the Company; Not to bring any documents containing Confidential Information out of the scope of the Company without the written permission of the legal representative of the enterprise; …
Stipulate the effective time and geographical scope of the clause depending on the industry, and position of the employee.
Stipulate the forms of disciplinary action and compensation for damage when employees violate.

1.2 Confidentiality clause in the Economic Contract

In commercial contracts, confidentiality is also focused on, especially in some important areas that greatly affect the interests of enterprises such as: legal, intellectual property, …

For example, in franchising activities, the obligation on confidentiality is specified in Clause 4, Article 289 of the 2005 Commercial Law:

“Unless otherwise agreed, franchisees shall have the following obligations:

To keep secret the franchised business secret even after the expiration or termination of commercial franchise contracts.”

Hence, the obligation on confidentiality is not only complied with during the performance of the contract but is also valid when the contract is terminated. The parties when performing commercial franchising need to stipulate on confidentiality as of the time the parties start negotiating because, in this stage, the parties must exchange confidential information such as business advantages, revenue, etc. for the parties to consider the implementation of the franchise.

1.3 Confidentiality clause in the intellectual property contract

Some common contracts in this field include technology transfer contracts, trademark transfer contracts, work use contracts, scientific research contracts, etc. Deriving from the important nature of this field, confidentiality is always regulated in the contract.

Accordingly, in an intellectual property contract, the parties need to clearly stipulate and explain confidential information, legal terms, and specialized terms so that the parties have grounds to deal with when disputes appear, including disputes over trade secrets. The parties may consider stipulating some of the following contents in the confidentiality clause:

On the basis of the confidential information provided, the receiving party undertakes absolutely not to provide confidential information to any third party unless there is the prior written consent of the information provider. Neither party may disclose the contents of the Contract without the prior written consent of the other party, except in cases where it is required by law.
The party receiving the information undertakes to compensate the information provider for any damage arising from the breach of confidentiality commitments under the Contract.

2. Consulting services, drafting contracts

In order to minimize risks for businesses when entering into contracts, TNTP is currently providing drafting and reviewing services of documents and contracts for businesses. For detailed information about the service, please see details here.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

To learn more about legal knowledge, please click on the following link:

https://dsdc.com.vn/en/category/legal-newsletter/

To learn more about the legal services of TNTP and Associates International Law Firm, lease click on the following links:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Mediation at court – an effective and potential dispute resolution method

Written by Phạm Huyền on 19 August, 2022. Posted in Dispute Settlement, Giải quyết tranh chấp.

When mentioning dispute resolution options between enterprises, we often think of suing at a Court or Suing at a Commercial Arbitration Center. However, in addition to the above two options, enterprises can choose another option, which is mediation in court. In this article, TNTP will introduce to enterprises an effective dispute resolution method, which is pre-procedural mediation.

1. What is pre-procedural mediation?

Pre-procedure mediation under the Law on Mediation or Dialogue at Court 2020 is an activity held at the Court before the Court accepts civil cases to assist the parties involved in the mediation of civil cases. Mediation will be conducted by Mediators who are qualified to be appointed by the Chief Justice of the Provincial People’s Court to conduct mediation. Pre-procedure mediation is not a procedure that must be carried out before the Court proceeds to accept the civil case; however, the Court will notify and request the plaintiff to accept the pre-procedural mediation or not.

2. Pre-litigation mediation stages

– If the plaintiff does not agree to pre-procedure mediation, the court will take note of the opinion and not conduct the mediation to carry out further proceedings.

– If the plaintiff agrees to mediation, the next stages are as follows:

Stage 1: Plaintiff writes information in the Statement of Opinion of the Plaintiff/Requester on the selection of mediation and mediator. The court will advise the plaintiff to choose the right mediator for the case.

Stage 2: After filling in all information in the Statement of Opinions, Plaintiff returns to the Court the Minutes of Opinion.

Stage 3: The court will assign the case to the selected mediator and arrange the mediation schedule, the information about the mediation schedule will be arranged by the mediator and notified to the plaintiff and the respondent.

Stage 4: After arranging the mediation schedule, the Mediator will conduct the Mediation session at the Court.

Stage 5: If the parties agree on a mediation plan, the mediator will set a time to open a meeting to record the results of the mediation. At the end of the Session, the Court Judge will sign and confirm the Minutes of mediation results.

Stage 6: Within 15 days from the date on which the Minutes of recording the results of mediation are issued, if the parties have no opinion on changes, additions, or objections to this Minutes, the court will issue the Decision on recognition of successful mediation. This Decision will take legal effect from the date of issuance and will not be appealed or protested according to appellate procedures and shall be subject to judgment enforcement.

Note: The cost of mediation at the Court is covered by the state budget. The parties will have to bear the mediation fee if the case falls into one of the following cases: (i) Disputes on business and trade related to the monetary claim; (ii) When the parties agree to select a place for mediation or dialogue outside the court’s headquarters; when the mediator examines the current state of assets related to the civil case or administrative lawsuit which are outside the administrative boundaries of the province where the competent court is located; (iii) Foreign language interpretation costs.

3. Pros and cons of Pre-procedure mediation

a) Pros

– Can save a lot of time compared to the adjudication procedure because the process from the beginning of the medication to the Decision to recognize the successful mediation results.

– Cost savings because the mediation in court is guaranteed by the state budget, so if it is not in the cases where the costs are incurred, the parties may not have to bear any costs at all.

b) Cons

– The mediation can only be made if both parties agree to come up with a mediation plan and have good faith in mediation.

– Due to the need to agree to come up with a mediation plan, the plaintiff may have to share a part of the benefits with the defendant.

– If the mediation has been agreed upon and the Court has issued the Decision to recognize the successful mediation results, the party will not be able to initiate a lawsuit against the claims already resolved by the court.

Above is the legal opinion of TNTP on the method of dispute resolution Pre-procedure Mediation at Court. TNTP hopes this article will be valuable and useful for enterprises

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Confidentiality information – necessary agreement for signing contract

Written by Phạm Huyền on 12 August, 2022. Posted in Legal newsletter.

During the negotiation, signing, performance, and even after the termination and cancellation of contracts, confidential information plays an important role in protecting the rights and binding obligations to the parties to the contracts. In this article, TNTP will share with you the confidential information and its importance.

1. Definition of confidential information and the legal grounds

Confidential information is specified in some of the following legal documents:

Civil Code No. 91/2015/QH13;

Labor Code No. 45/2019/QH14;

Law Comercial No.36/2005/QH11;

Law on Intellectual Property No. 50/2005/QH11 (amended to some articles by with Laws No. 36/2009/QH12, No. 42/2019/QH14);

Competition Law No. 23/2018/QH14.

Confidential information is understood as when a party receives any secret information from the other party during the process of entering into the contract, this party must protect that information and documents.
Forms of expression: Confidential information can be expressed in the form of a contract clause (confidentiality clause) or a non-disclosure agreement.

2. What information is generally considered confidential information?

The information that needs to be kept confidential usually includes:

Trade secrets, technical and scientific decisions: product formula, the technical structure of the product, design,…
Commercial information: customer list, distributor system, business plan, advertising strategy,…
Financial information: price structure, capital, the value of enterprise assets,…
Details about customers, suppliers, and information relating to the managers, directors, or employees of the information provider,…
Other information that enterprises suppose needs to be kept confidential.

Confidential information can be in the form of text, speech, electronic data, and other forms.

3. Role of confidentiality clause or a non-disclosure agreement

As mentioned above, we can see that the information that needs to be kept confidential is all important information or especially important. There is information that directly affects the existence and development of the business or affects the provision of products of the enterprises,… Therefore, the obligation of protecting confidential information is extremely necessary, even if this obligation is applied right from the pre-contractual stage, during the performance of the contract, and after terminating the contractual relationship.
When drafting a confidentiality clause or a non-disclosure agreement, the information provider usually specifies the information that is considered to be confidential, as well as the obligation to fine or damage arising from the breaching party. This is considered a legal barrier that contributes to the maximum prevention of acts of disclosing confidential information by the party receiving the information.

4. Validity of confidentiality clause or a non-disclosure agreement when the contract is terminated, canceled, invalid

Confidentiality clauses are usually agreed upon by the parties and undertake to remain in effect even if the contract is terminated or canceled. However, the Civil Code only recognizes the maintenance of validity for some terms including agreements on fines, damages, and settlement of disputes (Article 427 of the Civil Code). Commercial Law only recognizes the maintenance of validity for rights and obligations on settlement of disputes in case of cancellation of the contract.
In case the contract is invalid, the confidentiality clause is not guaranteed in effect. Currently, the law only recognizes the arbitration agreement is independent. It means when the contract is invalid, the clause on the arbitration agreement remains valid (except the arbitration agreement itself is declared invalid by the court). Therefore, if the whole contract is declared invalid, all of the agreements (including the confidentiality clause) in the contract are also declared invalid except for the arbitration agreement clause. This results in the absence of any rights and obligations arising from the contract, but only rights and obligations arising from compensation for damages. In other words, the parties have no obligation to keep confidential information arising from the contract.
To limit the aforementioned risks, the contracting Parties may enter into a separate agreement on confidential information. This option will reduce the risk to the information party provides when a dispute occurs. This agreement can be signed before, with, or after signing the contract. In some cases, it is extremely important to sign an information security agreement during the negotiation stage (pre-contract).

Above are some views on confidential information agreement, you can refer to apply when drafting a confidential information agreement.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Disciplinary dismissal of employees who repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved or fails to go to work without a plausible reason

Written by Phạm Huyền on 4 August, 2022. Posted in Luật Lao động.

Dismissal is the heaviest form of labor discipline, which not only directly affects the current source of income but can also seriously affect the career of employees. Therefore, in the spirit of protecting employees, Vietnam’s labor law strictly regulates the cases in which employers are allowed to apply the form of dismissal.

In the last article of the topic “In some circumstances when employers can dismiss an employee for disciplinary reasons”, TNTP analyzes the last two circumstances in which employers can apply the form of disciplinary dismissal to employees, specifically: (i) The employees repeat a violation during the period when they have not cleared the employee’s discipline; (ii) The employee fails to go to work without a plausible reason.

2. An employer may dismiss an employee for disciplinary reasons in the following circumstances:

2.5 The employees repeat a violation during the period when they have not cleared the employee’s discipline and fails to go to work without a plausible reason

a. The employees repeat a violation during the period when they have not cleared the employee’s discipline

Pursuant to Clause 3, Article 125 of the 2019 Labor Code, employers may handle employees in the form of dismissal if the employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved.

Recidivism is a case in which an employee repeats an offense that has been disciplined without being cleared of discipline, which is specified in Article 126 of the Labor Code as follows:

– An employee who commits a violation that is disciplined by reprimand, deferment of pay rise or demotion will have the previous violation absolved after 03 months, 06 months or 03 years respectively from the day on which the disciplinary measure is imposed if he/she does not commit any violation against internal labor regulations.

– Where an employee who is disciplined by deferment of wage increase has completed half of the duration of the disciplinary measure and has demonstrated improvement, the employer may consider a remission.

Similar to Clause 2, Article 125 of the 2019 Labor Code on employees committing acts that cause serious damage or threaten to cause particularly serious damage to the property and interests of the employer, Clause 3, Article 125 of the 2019 Labor Code also creates a certain openness for employers to handle employees by dismissal. Accordingly, laws and guidance documents that do not clearly provide for violations, the extent and nature of the acts are disciplined in the form of dismissal or extension of the salary increase period.

This also shows that Vietnam’s labor law always emphasizes voluntary agreements between employees and employers, employers are actively specified in the Labor Regulations or agreements in the Labor Contract with Employees to serve as a basis for handling labor unions. establish and strengthen labor force, increase the operational efficiency of the enterprise.

b. Employees fail to go to work without a plausible reason

According to Point e, Clause 1, Article 36 of the Labor Code 2019, The employee is not present at work without acceptable excuses for at least 05 consecutive working days or more, the employer has the right to unilaterally terminate the labor contract. In this case, when unilaterally terminating the labor contract with the employee, the employer does not have to notify the employee in advance.

According to Section 4 Article 125 of the Labor Code 2019, the form of disciplinary dismissal is applied by the employer in case the employee The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.

Unlike the case of unilateral termination of the labor contract, as long as the employee voluntarily quits without a plausible reason enough days as prescribed by law (does not require the “continuous” factor of the act) then the employer may apply the form of dismissal disciplinary action against the employee.

Also, in Clause 4 Article 125 of the 2019 Labor Code, “plausible reasons” are prescribed as natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations. The Labor law also lists incomplete and detailed cases that are considered a good reason, employers can specify in detail in the labor regulations dynamic on cases where plausible reasons are considered, e.g. who the employee’s relatives include, which are the competent medical examination and treatment establishments; …

The above are the last two circumstances that employers can base on to handle labor discipline in the form of dismissal for employees. I hope TNTP’s article helps readers, see you in the legal analysis articles on the next topics .

Sincerely,

For more information and to receive the latest articles of TNTP International Law Firm and Associates, please join our Facebook Fanpages at:

To update the legal knowledge, please find out the following link:

https://dsdc.com.vn/category/chia-se-kien-thuc-phap-ly-ban-tin-phap-ly/

To know more about the legal services of TNTP International Law Firm and Associates, please find out the following links:

Dispute Resolution Service: https://dsdc.com.vn/dich-vu-giai-quyet-tranh-chap-cua-cong-ty-luat-tntp/
Corporate legal consulting services: https://dsdc.com.vn/dich-vu-tu-van-phap-ly-doanh-nghiep-cua-cong-ty-luat-tntp/
Debt collection service: https://dsdc.com.vn/dich-vu-thu-hoi-no-cua-cong-ty-luat-tntp/

For more information, please contact us at the following information:

TNTP International Law Firm and Associates Ltd.

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Disciplinary measure for dismissal for the employee who commits sexual harassment in the workplace against the internal labor regulations

Written by Phạm Huyền on 28 July, 2022. Posted in Luật Lao động.

Continuing the topic of “Disciplinary measures for dismissal for employees”, in this article, we refer to the case of employees who were disciplined for dismissing when there was sexual harassment in the workplace – one of the sensitive issues receiving a lot of attention from society

and is a new point specified in the Labor Code 2019.

2. Cases in which employers are allowed to apply the form of dismissal labor discipline

2.4 Employees engage in sexual harassment in the workplace

According to Clause 9, Article 3 of the Labor Code 2019, sexual harassment in the workplace is an act of a sexual nature by any person towards another person at the workplace that is not desired or accepted by that person. A workplace is any place where an employee works as agreed or assigned by the employer (including a place or space related to the work).

a) Types of sexual harassment

Actions, gestures, physical contact with the body of a sexual or suggestive nature;
Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone, or through electronic media;
Non-verbal sexual harassment: body language; display, description of sex or sexual activities whether directly or through electronic media.

b) Manifestations of sexual harassment

Offer work conditions, promise promotion, provide benefits, employment benefits in exchange for the sexual submission of the other;
Taking advantage of the other person’s weaknesses, shortcomings, bad work results, etc. to threaten and force this person to obey and meet his/her sexual behaviors and needs;
Oral sex, offensive comments, sexual slander about someone’s appearance, clothes, body;
Intentionally touching the body or taking advantage of the circumstances to be able to touch the body, or sensitive parts of others (for example, taking advantage of a crowded elevator to touch sensitive parts,…);
Assault, sexual abuse;
Pornography provocative sex, filming secretly taking pictures of other people’s sensitive parts (for example, installing a camera in the toilet to monitor,…).

c) Legal consequences of sexual harassment in the workplace

When the employer has sufficient grounds to prove the existence of sexual harassment at the workplace and the Labor Regulations contain provisions on disciplinary handling of employees, dismissal when the employee commits such behavior, the employer can be disciplined for dismissal based on Clause 2, Article 125 of the Labor Code 2019. Besides, sexual harassment at the workplace can be administratively sanctioned from 15,000,000 VND to 30,000,000 VND according to the provisions of Clause 3, Article 11 of Decree No. 12/2022/ND-CP penalties for administrative violations against regulations on labor, social insurance, and Vietnamese guest workers. In addition, employees who commit this act may be examined for penal liability for related crimes as prescribed in the 2015 Criminal Code.

The above is the fourth case that the employer can base to handle labor discipline in the form of dismissal for the employee. Hope this article is helpful to you. We will continue to analyze cases in which employers are allowed to apply the form of dismissal to employees in the next article.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Disciplinary measure for dismissal for the employee who commits acts that are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer

Written by Phạm Huyền on 21 July, 2022. Posted in Luật Lao động.

In the previous two sections, TNTP analyzed 02 cases in which employers can apply the form of dismissal discipline to employees, specifically: employees who commit acts of theft, embezzlement, gambling, intentionally causing injury, drug use in the workplace, and employees who disclose business secrets, technology secrets, infringing on the intellectual property rights of employers. In this article, we will continue to discuss the case of employees who are disciplined for dismissal when committing acts that cause serious damage or threaten to cause particularly serious damage to the assets and interests of employers.

2. Cases where employers are subject to the form of disciplining labor dismissal

2.3 Employees who commit acts of causing serious damage or threatening to cause particularly serious damage to assets and interests of employers

Article 125 of the Labor Code 2019 provides for two acts that may cause employees to be disciplined in the form of dismissal, namely (i) acts causing serious damage to assets and interests of employers and (ii) acts has not caused actual damage but is likely to cause particularly serious damage to assets and interests of employers.

Currently, the Labor Code 2019 does not specify the acts considered to cause serious damage and threaten to cause particularly serious damage to the assets and interests of employers. Therefore, employers should prescribe these acts in the internal labor regulation to have grounds for handling violations of employees. The act of “threatening to cause particularly serious damage to the assets and interests of employers” is understood as an act that has not yet caused actual damage but has the potential to cause particularly serious damage to the assets and interests of employers. For example, employees have smoking behavior in warehouses containing garments, discharging water leading to flooding in the warehouse of electronic components products,…

To handle the dismissal discipline for the employee, the employer needs to base on the extent of the damage of the employee’s violation. The Labor Code 2019 does not specify the extent of damage when it is considered serious and especially serious, so the determination of the extent of damage should be based on the labor regulation. Depending on the characteristics of the enterprise, business model, and business lines, each enterprise determines the level of “serious damage”, and “especially serious damage” differently.

However, enterprises need to specify the level of serious damage, especially serious damage in accordance with reality because, for the labor regulation to take effect, the labor regulation should be approved by the Department of Labor, Invalids, and Social Affairs in the locality. Moreover, if there is a dispute between employees and businesses about this dismissal and the dispute is settled in court, each party must

prove its claim. At this time, the employer cannot only rely on the provisions of the labor regulation, which should be based on the conformity between labor regulation, legal regulations, and real-life practices.

According to the guidance of local labor authorities and the view of adjudicating labor dispute cases in court, the determination of the extent of serious damage is usually understood as from 10 months’ region-based minimum wage or more applied at the place where the employee works. This is an indirect inference from the provisions on material responsibility in Article 129 of the Labor Code 2019. Accordingly, if the employee causes “non-serious damage” due to negligence with a value of no more than 10 months’ region-based minimum wage announced by the Government applied at the place where the employee works, the employee must pay as much as 03 months of salary.

Thus, enterprises may stipulate serious harms valued at more than 10 months’ region-based minimum wage announced by the Government applied at the place where employees work; ii) particularly serious damages valued at more than 15 months of 10 months’ region-based minimum wage announced by the Government applied at the place where employees work.

Regarding the monthly region-based minimum wage, Decree No. 38/2022/ND-CP stipulates that from July 1, 2022, the monthly region-based minimum wage shall be implemented as follows: Zone I is VND 4,680,000/month; Zone II is VND 4,160,000/month; Zone III is VND 3,640,000 per month; Zone IV 3,250,000 VND/month. For example, for enterprises operating in the area of Zone I, the damage is considered serious when more than VND 46,800,000, and the damage is considered especially serious when more than VND 70,200,000.

Thus, when handling disciplinary dismissal of employees in case the employee commits acts of causing serious damage or threatening to cause serious damage to the assets, the interests of the employer should ensure: (i) The employee commits acts causing serious damage or threatening to cause particularly serious damage to assets and interests of employers; (ii) The labor regulation specifies the extent to which serious damages and particularly serious damages are determined; (iii) The labor regulation stipulates acts deemed to cause serious damage or threaten to cause particularly serious damage to assets and interests of employers; (iv) The employer can prove the employee’s violation.

The above is the third case in which employers can base to handle labor discipline in the form of layoffs for employees. I hope the article helps readers. We will continue to analyze the cases of employers applying the dismissal to employees in the next articles.

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

Disciplinary measure for dismissal for the employee who discloses technological or business secrets or infringes the intellectual property rights of the employer

Written by Phạm Huyền on 14 July, 2022. Posted in Luật Lao động.

Successively Part 1 on the case of employees being disciplined for Employees committing acts of theft, embezzlement, gambling, deliberate infliction of injuries, and using drugs at work, in this week’s article, we will continue to share in cases Employees are disciplined for dismissal when disclosing business secrets, technology secrets, infringing on the intellectual property rights of employers.

2. Cases in which an employer is allowed to apply the dismissal labor disciplinary measure

The Employee discloses technological or business secrets, infringing on the intellectual property rights of employers

As well as the violations in section 2.1, when there is evidence that the employee performs one of the above acts at the workplace (workplace is any place where the employee works as agreed or assigned by the employer), the employer only needs to base on the employee’s behavior to dismiss the employee, there is no need to base on the consequences of the damage caused by such behavior because these are acts that seriously affect the order in the enterprise.

Considering disclosing business secrets:

According to Clause 23 Article 4 of the Intellectual Property Law 2005, ” Business e secret means information obtained from activities of financial or intellectual investment, which has not yet been disclosed and which is able to be used in business.” Business secrets are not registered but in order to be protected, business secrets must satisfy the following conditions:

It is neither common knowledge nor easily obtainable;
When used in business activities, the business secret will create for its holder advantages over those who do not hold or use it;
The owner of the trade secret maintains its secrecy by necessary means so that the secret will not be disclosed nor be easily accessible.

In order to dismiss an employee for disciplinary reasons, employers need to stipulate what is the business secret in the labor regulations, from which the employer has grounds to determine whether the employee has disclosed this information or not.

Considering disclosing technological secrets:

Firstly, we need to understand what do “technological secrets” mean? Currently, according to the Labor Code 2019 and related laws do not stipulate what “Technology Secrets” means. However, we can refer to the concept of “Technology” as stipulated in the Law on Technology Transfer 2017, according to which we can understand that technological secrets are information about solutions, processes, know-how with or without accompanying tools instruments, and facilities to convert resources into products.

Each enterprise will have different technological secrets, and not all solutions, processes, and know-how are considered technological secrets. Therefore, employers also need to clearly specify which solutions, processes, and know-how are technological secrets in order to have grounds to determine whether the employee has violated or not.

Considering infringing on the intellectual property rights :

According to Article 4 of the Law on Intellectual Property 2005, “Intellectual property rights means the rights of organizations and individuals to intellectual assets comprising copyright and copyright-related rights, industrial property rights and rights to plant varieties “.

Intellectual property rights are protected when employers have one of the papers and documents:

A patent, Certificate, or Protection title Includes an invention patent, utility solution patent, industrial design patent, certificate of registered design of semi-conducting closed circuits, certificate of the registered mark, and certificate of the registered geographical indication, Protection title of Protected Plant Varieties; Protection title Copyright and Related Rights
An Extract of the National Register of Industrial Property; on Copyright and Related Rights; of Protected Plant Varieties
For has an internationally registered mark, evidence proving that the rights holder is the Certificate of International Registration Trademark protected in Vietnam issued by the State administrative body for the industrial property;
For other intellectual property objects, evidence proving that the rights holder is documents, samples, and information on the basis of arising rights, establishing corresponding rights as prescribed in Clause 1, Clause 2, Point b, Point c Clause 3 Article 6 of the Law on Intellectual Property 2005.

Acts of infringement of intellectual property rights are specified and detailed for each type of intellectual property rights in Articles 28, 35, 126, 126, 127, 129, and 188 of the Law on Intellectual Property 2005.

For infringing on the intellectual property rights, the employer has the right to dismiss an employee for disciplinary reasons, and besides, depending on the nature and seriousness of the violation, the employee who commits the violation may also be held administrative penalties or criminal prosecution and shall pay compensation for any damage caused as prescribed by law

Above is the second case that employers can base on to apply dismissal labor disciplinary. In addition to legal consulting activities, we will continue to analyze the next dismissal cases in the next week’s articles. We kindly invite your attention to the following articles

Best regards,

For additional information and the newest articles from TNTP and Associates International Law Firm, please join our Facebook Fanpages at:

Please click on the following link to learn more about legal knowledge:

https://dsdc.com.vn/en/category/legal-newsletter/

Please click on the following links to learn more about the legal services of TNTP and Associates International Law Firm:

Dispute resolution services: https://dsdc.com.vn/en/the-dispute-resolution-services-from-tntp-law-firm/
Legal consulting services: https://dsdc.com.vn/en/legal-consulting-services-from-tntp/
Debt collection services: https://dsdc.com.vn/en/debt-collection-services-from-tntp/

For additional information, please contact us at:

TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

TNTP International Law Firm and Associates

Lawyer Nguyen Thanh Ha

Phone number: 0931 798 818

Email: ha.nguyen@tntplaw.com

Author: Phạm Huyền

Mediation at court – an effective and potential dispute resolution method

1. What is pre-procedural mediation?

2. Pre-litigation mediation stages

3. Pros and cons of Pre-procedure mediation

a) Pros

b) Cons

Disciplinary dismissal of employees who repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved or fails to go to work without a plausible reason

2. An employer may dismiss an employee for disciplinary reasons in the following circumstances:

2.5 The employees repeat a violation during the period when they have not cleared the employee’s discipline and fails to go to work without a plausible reason

Disciplinary measure for dismissal for the employee who commits sexual harassment in the workplace against the internal labor regulations

2. Cases in which employers are allowed to apply the form of dismissal labor discipline

Disciplinary measure for dismissal for the employee who commits acts that are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer

2. Cases where employers are subject to the form of disciplining labor dismissal

2.3 Employees who commit acts of causing serious damage or threatening to cause particularly serious damage to assets and interests of employers

Disciplinary measure for dismissal for the employee who discloses technological or business secrets or infringes the intellectual property rights of the employer

2. Cases in which an employer is allowed to apply the dismissal labor disciplinary measure

Considering disclosing business secrets:

Considering disclosing technological secrets:

Considering infringing on the intellectual property rights :

TNTP & ASSOCIATES INTERNATIONAL LAW FIRM

More about TNTP