Author: TNTP LAW

Some issues with the prenuptial agreement (part 1)

Written by TNTP LAW on 9 January, 2023. Posted in Legal newsletter.

The agreed marital property regime allows husband and wife to freely dispose of each individual’s property while ensuring the common interests of the family. Depending on the customs, practices, and laws of each country, the agreement on the property pre-marriage regime of husband and wife is called by many different terms, but the most common is “The Prenuptial Agreement”. In recent years in Vietnam, this agreement has an increasing need for access. Therefore, within the scope of this article, we mention and analyze some issues about the prenups to improve its effectiveness.

I. The definition of the prenups

Currently, the Vietnamese legal system does not have specific provisions on the definition of a prenuptial agreement. The law on marriage and family has only provided several provisions, but not enough, on the right to choose to apply the property regime as agreed upon by the husband and wife (Clause 1, Article 28 of the Law on Marriage and Family 2014).

According to the opinion of some jurisprudence researchers, the prenups is a written agreement made before marriage about the property ownership relationship of husband and wife including the origin of establishing community and separate property and principles of property division of husband and wife.

II. Regulations on the basis for establishing and raising effect to the prenuptial agreement

According to Article 47 of the Law on Marriage and Family 2014, the conditions for husband and wife to choose and apply a prenuptial agreement include:

Firstly, in terms of time, a prenuptial agreement must be made before marriage. This provision is also applied by many countries with an agreed property regime. The prenuptial agreement cannot be established after the time of marriage registration.
Secondly, the prenuptial agreement takes effect from the date of marriage registration. In other words, marriage registration is a mandatory condition if the parties want to choose this mode. Cases of illegal marriage or marriage registration at an improper agency, in principle, will not be able to apply the prenups, even though a written agreement has been established in advance.
Thirdly, the prenuptial agreement must be made in writing and notarized, and authenticated. The process and procedures for signing the prenuptial agreement are carried out by the Law on Notarization 2014 and regulations of competent state agencies.

III. Basic content of the prenuptial agreement

Article 48 of the Law on Marriage and Family 2014 stipulates the basic contents of a prenuptial agreement, including:

Terms on determining community property and separate property of husband and wife

This content is important because determining the rights of husband and wife to each specific type of property is the basis for property division after the termination of the prenuptial agreemeninv. The determination of community property and separate property of husband and wife is guided in detail in Article 15 of Decree No. 126/2014/ND-CP detailing several articles and measures to implement the Law on Marriage and Family (“Decree No. 126/2014/ND-CP”). Specifically, husband and wife may agree on property determination according to one of the following contents:

a) Matrimonial property includes community property and separate property of husband and wife;

b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is community property;

c) Husband and wife have no community property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;

d) Property is determined as otherwise agreed by husband and wife.

Therefore, the parties can freely agree on any method of determining community property or separate property, as long as such agreement is not contrary to the provisions of law and customs. In case some issues have not been agreed upon by the spouses or are unclear, these issues will be applied similarly to the property regime according to law.

Terms on rights and obligations of husband and wife toward community property, separate property, and related transactions; property to meet the family’s essential needs

For this clause, the parties can freely agree, however, the content of the agreement must be consistent with the provisions of law and ensure the fulfillment of obligations and responsibilities of the husband and wife.
Husband and wife must ensure conditions to meet the family’s essential needs (Essential needs means ordinary needs for food, clothing, accommodation, learning, medical care, and other ordinary needs which are indispensable in the life of each person and family). If the prenuptial agreement violates this content, it may be declared invalid. Therefore, the parties need to agree on the property to ensure the essential needs of family members, especially in cases where the parties agree to only have separate property, no community property.
When husband and wife agree on the determination of rights and obligations concerning property, property relations with related third parties must be based on and implemented by such agreement. When establishing and performing property transactions with a third party, husband and wife are obliged to provide this person with relevant property information; if the husband or wife violates this obligation, the third party is considered to be in good faith and has their interests protected according to the provisions of the Civil Code.

Above is the post: “Some issues with the prenuptial agreement (Part 1)”. We hope this post was useful to you.

Best regards,

Average time for debt collection

Written by TNTP LAW on 4 January, 2023. Posted in Thu hồi nợ, Thu Hồi Nợ.

“How long does it take to recover the debt?”, this is the question that many individuals or organizations ask when having difficulty because the debtor does not pay. It is not easy to give an exact answer about the guaranteed time to fully recover a debt. However, in the following article, TNTP will give the average time to debt collection based on our experience in debt collection.

1. Debts which are recoverable under 1 year

The condition for a debt to be recoverable in one year is that it must be a debt that the debtor is able to pay and has a good faith to pay. This is extremely important, because the debt collection process can only be done quickly when the debtor is willing to pay the debt and has enough assets to make this payment.

The debtor’s solvency depends on their financial situation, in case the debtor has good financial capacity but has too many debts to pay at once, usually the creditor having a stronger impact will be “priority” to be paid by the debtor.

However, to ensure that the debt can be recovered in a short time, as soon as it is determined that the debtor still has assets, or is currently able to pay, the creditors should immediately take measures to recover the debt. such as calling, sending official letters, or meeting in person to discuss and request the debtor to fulfill the debt payment obligation. If the creditor does not influence the debtor at these “golden” times, the debt collection period may be prolonged or the debtor is no longer able to pay, leading to the debt becoming more difficult to recover.

2. Debts with a recovery period of 3 to 5 years

These are difficult for debt collection when the debtor is almost unable to immediately pay the entire debt. The reason is usually due to the current debtor’s financial capacity which is no longer able to pay the creditor, or the debtor has too many debts and no longer has enough money to pay the creditor. In addition, it is possible that the creditor’s debt has generated interest, but the debtor has not fully paid the principal, leading to the prolonged interest.

In these cases, the solution for this case is to file a lawsuit with a competent agency such as a Court or an Arbitration Center to be able to use the power of the state to force the debtor to perform its payment obligations. The process from filing a lawsuit to enforcement can take anywhere from 3 to 5 years depending on the value of the debt, financial resources, or remaining assets of the debtor.

3. The debtor is unable to pay the debt.

This is the worst-case scenario that creditors never want, when the debtor is insolvent, meaning the debt will never be able to be paid in full, or not be paid, leading to the creditor will lose his loan forever. Usually this happens when the debtor’s finances are no longer available to pay, or the debtor has gone bankrupt, dissolved, suspended operations, and do not generate any additional revenue or assets to pay the debt.

However, the debtor’s insolvency usually does not occur in the first time when lending, the debtor’s insolvency usually occurs only when the creditor does not take measures to collect the debt, not long-term contact with the debtor. Therefore, if the creditor regularly takes measures to monitor and understand the financial capacity of the debtor, as well as regularly reminds the debtor to make debt payment, it is completely possible to take necessary measures. to avoid the situation where it is too late when the debtor becomes insolvent and has no assets to repay the debt.

In case the creditor has sufficient grounds to determine that the debtor is still able to pay but deliberately fails to make the payment, or intentionally evades to not pay the debt, the creditor has the right to make a criminal denunciation about the crime of “abuse of trust to appropriate property” to the competent investigating police agency. At that time, the investigating police agency will take professional measures to determine the debtor’s illegal behavior in case the investigating police agency determines that the debtor has committed the act that a violation the law and infringing upon the interests of creditors.

The debtor will be prosecuted and tried in accordance with the Criminal Procedure Code. At that time, the debtor will be forced to fulfill the obligation to pay the debt to the creditor along with the sanctions in accordance with the provisions of the Penal Code.

Above are the sharing of TNTP about the average time to collect debts. Hope this article is useful to the readers.

Best regards.

What is the debt collection service?

Written by TNTP LAW on 2 January, 2023. Posted in Thu hồi nợ, Thu Hồi Nợ.

Bad debts greatly affect the company’s financial resources. These debts can be in form of the payment that the purchasing partner does not make in due course, or the money to perform the service under the contract, etc., and when the partner refuses to make the payment, it will cause the company’s cash flow to be in deficit, which even directly affects the company’s business strategy. Therefore, the debt collection service is a solution to solve the above problem.

1. Reasons why many companies cannot resolve bad debts – debt collection by themselves

In fact, many companies encounter the bad debts situation but fail to solve this problem due to the lack of experience and professional debt collection methods. Some “traditional” debt collection methods are: Making a written request to debtors for payment; sending an employee or an accountant to negotiate and request payment on behalf of the company; Requesting the competent authority to resolve the problem, etc.

In general, without professional skills, the debt collection’s results are rather unsatisfactory, leading to the prolonged debts because:

Unprofessional debt handling staff
Lack of skills to prepare and complete debt collection documents in favor of companies
Debt collectors do not have experience in communicating, handling and negotiating with debtors
Lack of legal understanding and understandings of regulations in debt collection to acknowledge and secure the company’s rights.

2. What is the debt collection service?

The debt collection service means a service where a third party takes on requesting the debtor to pay the creditor for due/overdue amounts and other assets under the signed contract or upon the agreement between the creditor and the debtor or under a decision of a competent State agency.

Debts may inevitably arise in the course of business operations of each company. In fact, when having outstanding debts, companies have to carry out the procedures through arbitration and court, which take a long time and high costs. Only 36% of the cases are received, which is rather low based on the total number of cases. Moreover, even if the effective judgment is issued, the execution in reality is rather challenging, etc. Therefore, the debt collection service is often used by many companies and individuals thanks to its convenience, efficiency and reasonable cost.

3. Debt collection stages

a) Debt collection via negotiation

It is a form of debt collection by influencing debtors psychologically and emotionally but still ensures a good relationship with customers at the same time.

This is the first step of debt collection, whereby companies rely on the contract/agreement terms signed between the parties to force the debtor to fulfill the debt repayment obligation. Negotiation is primarily proceeded by the company employees, accounting or corporate legal departments. If such negotiation is not effective, company can use the debt collection services provided by law firms.

b) Debt collection via dispute settlement agencies

In case the debtor is not willing to pay the debt, companies may base on the content of the contract/agreement to select an appropriate dispute settlement agency. Dispute settlement agencies include: Courts and Commercial Arbitration.

The settlement at a dispute settlement agency often comes with costs in accordance with the law and requires careful preparation of records, documents and evidence to prove that the companies’ claim is grounded. In addition, depending on the complexity of the debt-related transaction, the time for debt collection may vary from a few months to many years.

While debt collection through dispute resolution agencies can be costly and time consuming, it is guaranteed by state authority. If the judgment takes into effect, it will force the debtor to make the payment. If the debtor is uncooperative, the competent judgment enforcement agency will use the state power to take appropriate legal measures to force the debtor to pay the debt, even to coerce or freeze the debtor’s assets and accounts to force the debtor to perform their obligation.

Debt collection is very important, not only to ensure the financial health and profits of organizations, individuals, and companies, but also to determine the survival of the business. After the economy has just gone through a difficult time due to the prolonged impact of the Covid pandemic, the debt collection matter becomes more urgent for companies and individuals when the cash flow is becoming exhausted and can even cause the companies to go bankrupt. Therefore, the debt collection service is now an extremely important and necessary solution to solve the debt problem.

Above is an analysis article about the debt collection service of TNTP, hope this article is useful to readers.

Sincerely,

What should a content of debt collection letter should contain?

Written by TNTP LAW on 30 December, 2022. Posted in Thu Hồi Nợ.

Debt recovery is a necessary step to ensure the financial resources of the enterprise. Accompanying the necessary activities to force the debtor to pay, the enterprise also needs to send debt collection letter with clear content and can facilitate the debt recovery stage period later can achieve the best results. Let’s find out with TNTP in the following article.

1. Summary of the case

Before starting to offer the debtor to pay, the enterprise needs to clearly present the content from the beginning of the contract/agreement to the arising of the current debt. This is very necessary in case a debt has been protracted and the parties do not regularly exchange and reconcile debts, because each party has many different partners and customers, so the detailed management of debts, as well as the amounts incurred and deducted, if not listed in full and in detail, it may lead to confusion about the amount required by the debtor to pay.

At the same time, the summary, and statistics of the entire process of contract performance as well as debt arising easily bring the goodwill of the debtor when realizing that the other side has had details and clarity in requesting payment.

2. Provide specific and accurate data with evidence

A debt collection letter but giving figures without evidence will hardly have any value to make the debtor “concern”. One of the important principles is that when giving any money, enterprise need to provide enough information and documents to ensure accurate and grounded data. The fact that the enterprise makes a payment request with sufficient grounds for payment, as well as with clear evidence, will prevent the debtor from giving reasons for refusing the payment or reasons for not admitting it. In addition, giving full information and data of the debt also helps the debtor to easily compare their data, thereby helping the debtor to make the payment without taking much time to re-check the debt.

3. Provide a timeline to request the debtor to pay

In a dialogue, when one party has asked a question, the other party must also respond or respond before the two parties can actually conduct the exchange. Similarly, in the case of a business sending a debt collection letter with the purpose of asking the debtor to pay, it will also need the debtor to also have a specific response. But in debt situations, the debtor will often take a “silent” attitude or try to prolong the response time as long as possible to delay payment of the debt. Therefore, in a debt collection letter, there must be a specific timeline to request the debtor to give a response, or to make the payment of part or all of the debt value. Giving a specific time will make the debtor be forced in terms of time and at the same time help the creditor be proactive in terms of time instead of passively waiting for the cooperative attitude with the unfaithful debtor. payment.

4. Take necessary legal measures if the debtor fails to pay on time

In order for the enterprise’s debt collection letter to have weight, in addition to the content of the request must be clear and precise, the enterprise must also show pressure on the debtor when giving a specific time to force the debtor to have to pay. And informing the debtor that the business will absolutely take the necessary legal measures is a must.

Legal measures include: Sending a Complaint to a competent dispute settlement agency; or use debt collection services from law firms. These are measures to ensure the provisions of the law and have a deterrent value, forcing the debtor to consider and under pressure if he does not pay in full and on time.

Initiating lawsuits at competent agencies will ensure the rights and interests of enterprises when agencies can use state power to force debtors to perform payment obligations. At that time, in addition to pressure from creditors, the debtor will have to face state power and be forced to choose to properly perform its payment obligations or will be subject to sanctions in accordance with the law.

If enterprise use professional debt collection services from law firms, it will also bring a lot of benefits and even help save time and costs to collect debts. Law firms with a team of knowledgeable lawyers can conduct negotiation or other legal measures much more effectively than enterprise conducting debt collection on their own.

Above are TNTP’s advice on what enterprise need in a debt collection letter. Hope the above content brings value to enterprise.

Negotiation method of dispute resolution advantages and disadvantages

Written by TNTP LAW on 29 December, 2022. Posted in Legal newsletter.

Negotiation is a method of dispute settlement whereby the disputing parties will jointly contact, learn, settle, and make concessions to remove disagreements arising to eliminate disputes without the assistance or judgment of any third party. So, what advantages and disadvantages does this method have? Let’s find out about TNTP through the article below.

I.The concept of Negotiation method for dispute resolution

Under Article 317 of the 2005 Commercial Law, negotiation between the parties is one of the forms of commercial dispute settlement, along with other forms such as mediation, arbitration, or court.

Accordingly, it can be understood that negotiation is one of the methods of resolving disputes through the fact that the disputing parties will contact and learn together., mediation, and concessions to resolve disagreements arising to eliminate disputes without the assistance or judgment of any which third-party period. Among the methods of resolving trade disputes, negotiation is considered the most popular and effective method today.

II.Features of the negotiation method of dispute resolution

The method of negotiation for dispute resolution has the following characteristics:

The disputing parties have known each other, have gone through a process of business and commercial cooperation, and have had binding legal relations. Before the dispute occurred, the parties may have had a negotiation process to reach an agreement. Disputes are possible events that the parties do not want, so it is beneficial to negotiate for the resumption of cooperation. for both
In case the dispute arises from a contractual relationship, the agreement of the parties depends on the provisions of the contract and related laws. The agreement of the parties is mainly related to the contractual relationship the parties have established and arising The agreement reached by the parties must be by the provisions of the law, and must not violate the prohibitions of the law on the content settlement of that dispute.
The disputing parties will agree on their own to seek solutions in the spirit of voluntariness, goodwill, and
If an agreement is reached, the parties usually voluntarily enforce that agreement to resolve the dispute. If the negotiation fails or the negotiation is successful but the two parties do not voluntarily enforce it, the parties may continue to choose other forms of dispute resolution that are suitable for resolving disputes arising between them, such as initiating a lawsuit at a competent dispute settlement agency.

III. Advantages and drawbacks of dispute resolution negotiation method

1. Advantages

The negotiation method of dispute resolution has the following advantages:

Negotiation is a common form of dispute resolution, which demonstrates the parties’ right to freedom of agreement and disposition.
This method of resolving disputes is extremely popular among traders because it is simple, and not bound by complicated legal procedures. This method saves time and costs of dispute resolution for the parties. In particular, the bargaining method also does not harm the inherent snobbery between the parties as well as the secrecy and business reputation.
When participating in the negotiation method, the disputing parties do not need to worry about early disclosure of legal arguments and could control the arguments. His argument and evidence are related to the handicap. Because no individual or organization forces the parties to provide evidence or substantiate their arguments, only the two parties settlement and agreement to find a dispute settlement solution that meets the interests of the parties.
In many cases, the bargaining method is a “lifesaver” for the breached party when the statute of limitations has expired. Accordingly, through negotiation, the breaching party acknowledges part or all of the obligation that will be the basis for starting to recalculate the time the effect of initiating lawsuits specified at Point a Nuin 1, Article 157 of the Code of Civil Procedure

2.Disadvantages

Negotiation first of all requires goodwill, honesty, and cooperation. The agreement reached in the bargaining method is not enforceable but depends on the willingness of the parties. Therefore, an unwilling party may take advantage of the negotiation method to prolong and delay the fulfillment of obligations. This makes the advantage of the negotiation method, which saves time and costs cannot be achieved if one party does not voluntarily implement the negotiated solution.

Above is the content of the article “Advantages and Disadvantages of dispute resolution negotiation method”. Hope the above TNTP’s sharing is useful for those who are interested in this issue.

Respect.

Provide evidence when resolving contract disputes in court

Written by TNTP LAW on 27 December, 2022. Posted in Dispute Settlement, Kiến Thức Pháp Luật.

Evidence and proof are both rights and obligations of the parties when resolving contractual disputes in court. Litigants have the right to actively collect and hand over evidence to the Court, not to prove that their lawsuit request is valid just and legal. In this article, TNTP will mention and analyze some documents and evidence that businesses need to provide when resolving contract disputes in Court.

1. Group of documents on the legal status of the subject – Legal entity records

The group of documents on the legal status of the subject is the first type of document that needs to be collected and studied when participating in the settlement of contract disputes at the Court. In particular, legal entity records are mandatory evidentiary documents, which have a general meaning of the legal status of the parties in the disputed relationship and prove the litigant’s status and the enterprise’s legal representative when participating in the proceedings.

The legal entity profile of each enterprise is not the same because it depends on the type of business, business lines, etc. but consists of the following documents:

Certificate of business registration.
Charter
Investment certificate (for enterprises, an investment certificate is required by the provisions of law).
List of capital contributors for limited liability companies, partnerships, and register of members for joint stock companies.
The power of attorney of the legal representative of the enterprise and the authorizations of shareholders and owners in the enterprise (if any).
Certificate of registration of tax code and customs code.
Account number of the enterprise at the bank, seal form and signature form of the chief accountant, and power of attorney if any.

Attached to the legal entity dossier are documents and records proving the legal status of the representative of the enterprise participating in the proceedings such as identity card/citizen identity card/passport.

2. Group of documents and evidence related to the process of entering into contracts

Contracts are legal corridors in the process of civil and commercial transactions. For settlement of disputes related to contracts, including but not limited to disputes over invalid contracts; disputes over the terms of the agreement on rights and obligations; disputes over the contract term, etc. the contract that the parties have signed is a key document for the agency conducting the proceedings to delineate the trial, based on the content of the rights and obligations agreed upon by the parties.
In case the parties sign multiple contracts to agree on the implementation of a commercial relationship, the enterprise only needs to provide a contract containing the disputed relationship. In case the parties sign subcontracts, and contract annexes attached to the main contract, the enterprise provides both subcontracts and annexes to the accompanying contract.
Besides the main object of the contract, documents related to the process of entering into a contract should also be reviewed and collected as it relates to the existence, and validity of the contract, how to understand the contract and the practice of entering into it. Some documents can be listed such as Power of Attorney, Memorandum of Understanding, Letter of Request, etc.

3. Group of documents and evidence related to the contract performance process

Accounting for the majority of disputes from or related to contracts are disputes arising during the performance of contracts by the parties. Accordingly, records and documents that the parties store and exchange during the performance of the contract are valid for verifying the exercise of rights and obligations of each party in the contractual relationship. However, depending on the type of contract and the way the contract is performed, documents and evidence related to the contract performance process are often a group of documents that are not focused on establishing and backing up. This omission, whether derived from objective causes or subjective reason, is detrimental to the dispute settlement process due to insufficient grounds to prove and validate the performance of each party’s rights and obligations or verify whether there is a breach of contractual obligations.
Depending on the contract type, the contract’s performance will be accompanied by different documents. In addition to the legal documents required to be established during the performance of the contract such as acceptance minutes for construction contracts, and documents related to goods for contracts for international sale and purchase of goods; To proactively prevent disputes arising from contracts, each party in the process of contract performance needs to complete a system of documents and documents verifying the performance of specific rights and obligations.
The determination of evidence and the handover of evidence when settling contract disputes at the Court must be based on the basic principles specified in Articles 94 to 97, Chapter VII of the Code of Civil Procedure 2015.

Above is the article “Provide evidence when resolving contract disputes in court”. We hope this article is useful to you.

Respect.

note to the plaintiffs when participating in disspute resolution by arbitration

Note to plaintiffs when resolving disputes by commercial arbitration

Written by TNTP LAW on 26 December, 2022. Posted in Legal newsletter.

[et_pb_section admin_label=”section”]
[et_pb_row admin_label=”row”]
[et_pb_column type=”4_4″][et_pb_text admin_label=”Text”]Currently, dispute settlement by commercial arbitration is increasingly popular and popular in Vietnam. Instead of suing in Court, the plaintiff will file a petition and ask the Arbitration Center to settle. However, what should the plaintiff keep in mind when participating in a dispute resolution lawsuit using the commercial property? Let’s follow TNTP’s article below to find the answer.

I. Disputes are resolved by Commercial Arbitration when the parties have an arbitration agreement

According to Clause 1, Article 5 of the Law on Commercial Arbitration 2010, disputes are resolved by arbitration if and only if the parties have an arbitration agreement Arbitration agreements may be made before or after a dispute.

At the same time, according to Clause 1, Article 16 of the Law on Commercial Arbitration 2010, the arbitration agreement can be established in two forms: First, the arbitration clause; or two is a separate agreement. In particular, the arbitration clause is usually defined in the contract signed between the parties or between the annexes to the contract. As for a separate agreement, the parties can establish at the time of the dispute that there is no provision in the contract about the material clause talent.

In addition, to resolve disputes in commercial arbitration, the parties also need to ensure that the arbitration agreement is not invalidated as prescribed in Article 18 of the 2010 Law on Commercial Arbitration; or that the arbitration agreement cannot be implemented as prescribed in Article 4 of Resolution 01/2014/NQ-HDTP.

2. Disputes are resolved by Commercial Arbitration when the statute of limitations remains

In principle, arbitration proceedings only begin when there is a petition filed by the plaintiff and the application must be filed when the dispute has a statute of limitations.

Currently, the statute of limitations for disputes resolved by Commercial Arbitration is determined by specialized law. If there is no specialized law or specialized law that does not provide for the statute of limitations for initiating lawsuits, the statute of limitations for initiating lawsuits under arbitration procedures is 02 years from the time of infringement of legitimate rights and interests.

3. Plaintiffs make and file Petitions

The petition must fully state the contents as prescribed in the procedural rules of the arbitration center; ensure a sufficient number of copies of the Petition and other required documents in the petition (03 copies if the agreement chooses the Arbitration Committee) single account, 05 sets if agreed The arbitral tribunal consists of 03 arbitrators)

Documents and evidence accompanying the Petition, the application must be submitted in addition to the arbitration agreement, evidence, and related documents. During arbitration proceedings, applicants may be asked to provide additional evidence and documentation to the public.

Regarding the arbitrator, the petitioner must choose an arbitrator or ask the arbitration center to appoint an arbitrator. Choosing a talent should consider several factors such as appropriate discipline, experience, prestige, and conflict benefit or not ?

4. Plaintiffs take note when deciding the value of the lawsuit

According to the provisions of arbitration proceedings, when participating in the case, the plaintiff must pay the arbitration fee for the suit’s merits. Where the plaintiff gives the too high and unreasonable value of the lawsuit. After the arbitral award, if the plaintiff does not win the case or does not win the full value of the lawsuit, the plaintiff must bear the arbitration fee for that non-winning part.

Therefore, when initiating a lawsuit at the arbitration center, the parties need to calculate and give a reasonable initiation value, avoiding the situation of being subject to arbitration fees more than the value of winning the case.

With the nature of speed, flexibility, efficiency, and finality along with other advantages, dispute resolution by Arbitration trade is increasingly chosen by more and more people. However, the plaintiff should note the TNTP contents analyzed above to effectively use.

Above is the content of the article “Note to the plaintiff when resolving disputes by Commercial Arbitration”. Hope this article on TNTP will be useful to readers.

Best Regards.[/et_pb_text][/et_pb_column]
[/et_pb_row]
[/et_pb_section]

Techniques for drafting a rental contract

Written by TNTP LAW on 25 December, 2022. Posted in Pháp luật Hợp đồng.

According to the development trend of society, capital and labor will be concentrated in large urban areas, which leads to the increasing demand for housing of individuals, households and businesses. However, when entering into a rental contract, the parties often do not anticipate possible risks and lacks of the important agreement and necessary provisions, leading to the parties’ interests not being guaranteed. In this article, TNTP will provide readers with some issues to keep in mind when drafting and reviewing rental contracts.

1. Determine the authority of the lessor

One of the most important issues that the lessee needs to determine before entering into a tenancy agreement is who has the authority to perform the lease. In order to determine whether the lessor has the right to lease the house, the lessee should ask the lessor to provide documents proving the lessor’s right to lease such as the certificate of land use right, house ownership, residence and other properties attached to the land; Tenancy agreement with a third party; Certificate of business registration; Authorization letter; …
For individuals, the lessor’s contract signatory can be the owner or an authorized representative. The lessee should note that in case the house is owned by more than one person, the signatures and personal information of all co-owners are required. For example, a house that is a common property of a husband and wife or a household must have full signatures and personal information of all members of the co-owner.
For legal entities, the lessor can sign the contract of the lessor as the legal representative or the authorized representative. At the same time, the lessee needs to determine whether the leasing legal entity has the right to lease the house (in the business line). Because only when the business line has the real estate business, it has the right to rent houses, except for the case of small-scale and irregular real estate rental organizations, it is not necessary to have a business line of: real estate business. Cases considered as small-scale and irregular house rental specified in Article 5 of Decree 02/2022/ND-CP include:

i) House rental is a public property.

ii) Lease house, land use right under their lawful ownership.

iii) Renting out houses built by them but not real estate investment projects for business. In particular, construction investment activities are specifically explained in Clause 20, Article 3 of the Law on Construction 2014 as follows: “20. Construction investment activities means a process of conducting construction activities including construction, repair and renovation of a construction work”

2. Information about rental houses

The rental contract should clearly state information about the rental house such as address, usable area, etc as well as the condition of the house and accompanying equipment.

3. Purpose of renting

Because the purpose of renting a house is quite diverse, the parties need to specify a specific and clear rental purpose such as renting a house to live in, renting for business, renting as a warehouse, etc.

4. Rental contract period

The contract should clearly state how long the lease is, when the contract begins and when it terminates, when it is handed over and when to return the house. The parties should also clearly agree in the contract on the extension of the rental period (if any).

5. Rental price

The parties should stipulate the rental deposit level and the conditions for receiving the deposit back after the contract is terminated. The lease contract should clearly stipulate the rental price, the obligation to pay the rent and the payment of fees incurred during the use period, including taxes and fees as prescribed by law and electricity, water, environment, etc. Beside, the lessor also needs to stipulate the method of handling when the lessee does not pay the rent, taxes and fees in full and on time such as unilateral termination of the contract, and how to handle it. equipment of the lessee in case of unilateral termination of the contract, etc.

6. Cases of unilateral termination of the rental contract

The parties can refer to the provisions of law to stipulate in the contract the cases of unilateral termination of the contract. According to Article 132 of the Law on Housing 2014, during the lease term as agreed in the contract, the lessor may not unilaterally terminate the lease contract and withdraw the house being leased, except in the following cases:

The lessor lease out the state-owned houses or social houses ultra vires and not satisfying requirements as prescribed in this Law;
The lessee has not paid the rent for 3 months or more without reasonable explanation;
The lessee uses the house for improper purposes as agreed in the agreement;;
The lessee expands, renovates, or demolishes the house under lease agreement without the consent of the homeowner;
The lessee exchanges, lends, sublets the house under lease agreement without consent of the lessor;
The lessee still creates disorder or breaches hygiene an environment conditions causing negative effects on activities of the neighborhood although he/she is warned for the third time by the lessor or the chief of neighborhood, the chief of village;
If the lessor renovates the house with consent of the lessee although the lease term does not expire, the lessor is entitled to adjust the housing rents. The new rent shall be agreed by contracting parties; if not, the lessor is entitled to unilaterally terminate the lease agreement and pay compensation to the lessee as prescribe

7. Obligations of the parties when unilaterally terminating the contract

The parties may consider stipulating the following contents in the contract:

Penalties when one party unilaterally terminates the contract not according to the provisions of law and not according to the provisions of the contract.
Time to notify the other party of the termination of the contract.
Refund of rent.

Above are the tips of TNTP when drafting and reviewing the rental contract. Hope this article was useful to you.

Best regards.

Civil liability cases of legal entities

Written by TNTP LAW on 21 December, 2022. Posted in Legal newsletter.

Civil liability is an adverse consequence that a competent state agency applies to an entity that commits acts of civil law violation. Therefore, regardless of whether the subject is an individual or a legal entity, they are liable for civil liability when there is an infringement. In which case must the legal entity bear civil liability? In this article, we will analyze and present cases of civil liability of the legal entity.

According to the provisions of the Civil Code 2015, the civil liability of a legal entity is outlined in the following cases:

1. When the representative of the legal entity establishes and performs on behalf of the legal entity

In principle, a legal entity only has to bear civil liability for the exercise of its civil rights and performance of its civil obligations established and performed by its representative in the name of the legal entity. The representative of the legal entity may be a legal representative or an authorized representative. Conversely, in cases where the representative does not have the authority to represent or exceeds his/her authority to represent a legal entity, causing damage to another entity, the legal entity has no civil liability for that act. However, the law provides for several exceptions where the legal entity is still liable in these two cases, specifically under Articles 142 and 143 of the Civil Code 2015.

A civil transaction entered into and performed by an unauthorized person representative shall not give rise to rights and obligations of the principal, except for any of the following cases:

a) The principal recognizes the transaction;

b) The principal knows it without any objection within an appropriate time limit;

c) It is the principal’s fault that the other party does not know or is not able to know that the person entering and performing the civil transaction therewith was unauthorized.

A civil transaction entered into and performed by a representative beyond his or her scope of representation shall not give rise to rights and obligations of the principal concerning that part of the transaction which exceeded the scope of representation, except for any of the following cases:

a) The principal gives consent;

b) The principal knows it without any objection within an appropriate time limit;

c) It is the principal’s fault that the other party does not know or is not able to know that the person entering into and performing the civil transaction therewith was beyond his/her scope of representation

For example, A is the sales manager of Company B and is not authorized by the legal representative of the company to sign a purchase and sale contract with a customer, but A takes advantage of his position to sign a contract on behalf of B with the customer. In this case, A is liable for civil liability arising from the contract, and company B is not responsible for the contract that A has signed with the customer.

Therefore, it is necessary to distinguish an individual’s act from that of a legal entity to determine the legal liability arising from that act, to limit damage to the legal entity as well as to determine the right object to compensate the damage sufferer.

2. When a founder or a founder’s representative establishes, performs to establish, and register a legal entity

A legal entity shall bear civil liability for obligations established and performed by a founder or a founder’s representative in order to establish or register a legal entity unless otherwise agreed upon or otherwise provided by law.

Therefore, after a legal entity is established, if the establishment or registration of a legal entity by the founder or the founder’s representative causes damage to other entities, the legal entity must bear civil liability and compensate the infringing entities.

3. When a worker or trainee of a legal entity causes damage while performing the work assigned by the legal entity

In the course of performing the work assigned by the legal entity, if a worker or trainee of it causes damage to another entity directly related to the work assigned, the legal entity must compensate the damage sufferer. Because in this case, the behavior of the worker or trainee is understood as the act of the legal entity, the civil liability first belongs to the legal entity.

However, if the above damage-causing act is proven to be partly the fault of the worker or trainee, the legal entity has the right to request this person to compensate for the damage according to the extent he/she caused it in accordance with the law. Therefore, determining the extent of the fault when causing damage to another entity is the cornerstone for determining the amount of compensation for the damage of the worker or trainee to the legal entity.

Above is the post “Civil liability cases of legal entities”. We hope this post was useful to you.

Best regards,

Right to claim interest on delayed payment under the provisions of Commercial Law

Written by TNTP LAW on 20 December, 2022. Posted in Legal newsletter.

In the process of entering into and performing the contract, issues related to payment such as payment terms, and method of payment are necessary matters of the parties. However, it is not always the case that the party obligated to pay also makes the payment in accordance with the agreement previously agreed. The delayed payment in the performance of the contract will give rise to certain legal consequences, including right to claim interest on delayed payment. Who has the right to claim an interest in case the obligor is late for payment? Here is our answer on this matter.

1. Interest due to delayed payment

Interest due to delayed payment is the interest arising that the contract-breaching party must pay to the aggrieved party when the payment term is due but the contract-breaching party fails to perform the payment obligation as agreed;
The obligation to pay arises from the agreement of the parties in the contract and from the provisions of law. Accordingly, when one party participates in the purchase, sale, and use of services, this party will be obliged to pay the other party an amount previously agreed upon, in case there is no agreement or unclear agreement on the amount to be paid, the amount to be paid will be determined according to the market price at the time the parties enter into and perform the contract;
In case the parties have agreed on the payment term but the party obligated to pay does not make payment on time, the other party will have the right to demand the party that has not performed the payment obligation to pay interest for delayed On the other hand, in case the parties do not have an agreement on the payment term, then the payment term will be determined from when the obligee notifies the obligor within a reasonable period of time.

2. Right to claim interest on delayed payment

According to the provisions of Article 306 of the Commercial Law 2005, amended and supplemented in 2019, the right to claim interest on delayed payment is determined as follows:

About the entity: The entity that has the right to claim interest on delayed payment is the party in breach of the contract. In case the aggrieved party authorizes another individual or organization to exercise the right to claim interest on delayed payment on his/her behalf, then that individual or organization will be identified as the entity of this right.

In case the aggrieved party being an individual dies, the heir of this party has the right to claim interest on delayed payment of the breaching party from the time of opening the inheritance as prescribed in Article 614 of the Civil Code 2015.

People entitled to claim delayed payment interest are the heirs of the aggrieved party under the will or at law.

About the basis of arising: The contract-breaching party is late in paying the goods or paying the service fee and other reasonable expenses due to the aggrieved party. Late payment of goods, service fees, and other reasonable expenses is understood as the aggrieved party’s failure to make the payment on time as agreed by the parties in the contract.

For example, Limited Liability Company A signed a contract to buy 300 tons of rice from Joint Stock Company B for 255.3 million. The parties agree that the payment term is after 30 days from the date of delivery by Party B. However, on the 60th day, company A still has not paid party B. In this case, party A has breached the contract and delayed payment to party B by 30 days compared to the previously agreed payment time limit.

Other reasonable expenses are expenses that the aggrieved party has spent to ensure the performance of the contract and the legitimate rights and interests of the parties. Which can be mentioned such as the cost of buying raw materials, materials, allowances, and bonuses … Interest due to delayed payment is the right of the aggrieved party, so the breaching party will only have to pay the amount of interest when the aggrieved party request.

Delayed payment interest rate: is the interest rate calculated on the delayed payment principal amount according to the market average overdue debt interest rate at the time of payment corresponding to the delayed payment period, unless otherwise agreed or otherwise provided by law.

Principally, the parties will have the right to agree on the interest rate due to delayed payment, however, the interest rate must not exceed the rate specified in Clause 1, Article 468 of the Civil Code 2015. In case the parties do not agree on interest on delayed payment, the delayed payment interest rate is calculated according to the average overdue debt interest rate in the market specified in Article 11 of Resolution 01/2019/NQ – HDTP, the average overdue debt interest rate in the market is determined by the overdue interest rate of at least 03 commercial banks whose headquarters, branch or transaction office is located in the same province or central-affiliated city where the headquarters of the Court in charge of the case is located at the payment date. The amount of interest due to delayed payment will be determined at the time of payment and corresponds to the period of delayed payment. The delayed payment time will be based on the agreement of the parties on the payment term in the contract.

In the above example, the Limited Liability Company A was 30 days delayed in paying to the Joint Stock Company B, in this case, 30 days will be determined as the delayed payment period.

Above is the post “Right to claim interest on delayed payment under the provisions of Commercial Law”. We hope this post was useful to you.