Vietnam Law & Legal Forum 2014 ARCHIVES ARTICLE TITLE (BY SECTION) FOCUS Salient provisions of the new Constitution Putting the Constitution into life Conflict resolution and dispute settlement in the South China Sea region (Continued from issue 231-232) By Assoc. Prof. Ramses Amer 1 and Assoc. Prof. Nguyen Hong Thao 2 NA Standing Committee mulls expansion of the right to buy and own homes Land Law in the light of new Constitution By Nguyen Van Giau, Member of the Standing Committee, Head of the Economic Committee of the National Assembly Important land policy changes under revised Land Law By Le Thanh Khuyen, Deputy Director General General Department of Land Administration Rights for foreigners under new Land Law By Assoc. Prof. LL.D. Nguyen Quang Tuyen 3, and Do Viet Cuong, LL.M. 4 Islands and maritime claims in the South China Sea: Illusions of or intentional dilution of international law By Nguyen Thi Lan Anh 5, Ph.D. Reforming administrative procedures to lure more investment Major orientations for revision of Penal Code By Tran Van Dung, LL.D, Criminal and Administrative Law Department Ministry of Justice Islands and maritime claims in the South China Sea: Illusions of or intentional dilution of international law By Nguyen Thi Lan Anh 6, Ph.D. Nation protests China s actions in the East Sea ISSUE NUMBER 1 PhD and Associate Professor in Peace and Conflict Research, is Associated Fellow, Institute for Security & Development Policy, Sweden (ramsesamer@gmail.com ). 2 PhD and Associate Professor in Law, Hanoi National University, Hanoi, Vietnam (nguyenhongthao57@gmail.com ). 3 Head of the Land Law Subject, Economics Law Faculty, Hanoi Law University. 4 Lecturer at the Law Faculty, Economics School, Da Nang University. 5 Institute for East Sea (South China Sea) Studies, Diplomatic Academy of Vietnam. The opinions expressed in this paper are those of the author and do not necessarily represent any official position of the Diplomatic Academy of Vietnam. 6 Institute for East Sea (South China Sea) Studies, Diplomatic Academy of Vietnam. The opinions expressed in this paper are those of the author and do not necessarily represent any official position of the Diplomatic Academy of Vietnam. Vietnam Law & Legal Forum 1
Foreign Policy under the 2013 Constitution By Ngo Duc Manh, LL.D, Vice Chairman National Assembly External Relations Committee Renewal of market economy institutions in Vietnam By Dr. Tran Du Lich, National Assembly Economic Committee NA passes law on entry, exit, transit and residence of foreigners in Vietnam Development of fundamental rights and freedoms of citizens in the constitutional history of Vietnam By Hoang Van Nghia 7, LL.D and Le Thi Thu Mai 8, LL.M Firm evidence proves Vietnam s sovereignty over archipelagoes Leaders outline tasks and lessons for diplomacy A Tale of Five Cities: How centrally governed municipalities fair in citizens assessment of governance performance By Do Thanh Huyen 9, UNDP Vietnam Oil rig HD 981 incident: from the angle of the international law By Tran Si Vy, Lawyer at Leadco Legal Counsel New entry-exit rules for foreigners Decree guides enforcement of the Land Law By Le Thanh Khuyen, Deputy Director General General Department of Land Administration Vietnam Bar Federation poised to develop the pool of lawyers By Do Ngoc Thinh, LL.D, Vice Chairman Secretary General Vietnam Bar Federation Local administrations under the 2013 Constitution By Assoc. Prof., Dr. Hoang The Lien Standing Committee sets agenda for National Assembly session 2013 Constitution advances children s rights By Hoang Minh Khoi, Administrative Academy, Ho Chi Minh City Public investment restructuring: problems and solutions By Dr. Tran Du Lich, Member of the National Assembly s Economic Committee National Assembly sets growth targets for 2015 Vietnam - 20 years of implementation of 1982 UNCLOS By Nguyen Hong Thao 10 2013 Constitution upholds nation s duty to observe treaties By Ngo Huu Phuoc 11 Top three changes of the new Enterprise Law By Phan Duc Hieu, Head the Business Environment and Competitiveness Board The Central Institute for Economic Management 7 Deputy Director of the Human Rights Research Institute, Ho Chi Minh National Politics Institute 8 Postgraduate student of the Politics Institute, Ho Chi Minh National Politics Institute 9 Policy Analyst, Public Administration Reforms and Anti-corruption Policy Advisory Portfolio, United Nations Development Program (UNDP) in Vietnam. The author thanks the PAPI Research Team (i.e., Mr. Jairo Acuña-Alfaro, UNDP Policy Advisor and PAPI team leader, Dr. Edmund J. Malesky, Dr. Dang Ngoc Dinh and Dr. Dang Hoang Giang) for their inspiration and analytical work done for PAPI, and Mr. Jairo Acuña-Alfaro in particular for his review of and substantive contribution to the article. Views expressed in this article are my own. 10 Associate Professor at the Diplomatic Academy of Vietnam and the Hanoi National University, Vietnam. His views are strictly his own and do not reflect any official stance. 11 Doctor of law, lecturer of the Ho Chi Minh City Law University s International Law Faculty. Vietnam Law & Legal Forum 2
State Audit Office - A constitutional institution to guarantee democracy By Dr. Nguyen Huu Van, State Auditor General Top 10 legal documents issued in 2014 By VLLF based on its reader inquiries Vietnam s tariff commitments in concluded FTAs BUSINESS Law and practice: Procedures for changing accounting mode of company branches confusing By Dang Van Vuong, YKVN Associate Mortgage over a future building By Vu Thi Hong Yen 12 and Bui Duc Giang 13 Is guarantee by third party in a loan contract to be revoked? By Dang Van Vuong, YKVN Associate Government resolves to improve business environment Revised Enterprise Law to boost business New regulations aim to tightly manage multi-level marketing SOEs must operate under the market mechanism New rules on registration of security over movable assets: a view from practice By Bui Duc Giang, Ph.D in law and associate at Audier and Partners Vietnam LLC Contractor selection with simpler administrative procedures Metro-BJC deal: a lesson of immediate relevance for policymakers and domestic businesses The new Law on Bankruptcy at a glance By Bui Duc Giang, Ph.D in law and associate at Audier and Partners Vietnam LLC Party and trade union organizations must be set up at businesses Enterprise seals no longer required Overview of the employment aspects of bankruptcy By Bui Duc Giang, Audier and Partners Vietnam LLC New regulations enhance safety in banking operations FORUM Security interests over marketable securities under Vietnamese law: an overview By Bui Duc Giang 14 Criminalizing illicit enrichment: A chance to fight corruption and recover Vietnam s stolen assets 15 By Alan Bacarese, Hoang Manh Chien, Nguyen Tuong Dung and Phan Thi Lan Huong 16 12 Senior lecturer at Hanoi Law University 13 PhD candidate at l Université Paris 2 Panthéon Assas, France. 14 PhD candidate at l Université Paris 2 Panthéon Assas, France. Vietnam Law & Legal Forum 3
Commercial arbitration - increasing confidence in foreign direct investment By Alex T. Larkin 17 and Tran Si Vy 18 Monitoring Performance and Equality in Governance and Public Administration in Vietnam Jairo Acuña-Alfaro, Edmund J. Malesky, Đặng Ngọc Dinh, Đặng Hoàng Giang and Đỗ Thanh Huyền 19 The 3 rd draft Law on bankruptcy at a glance Nguyen Minh Hang 20 and Bui Duc Giang 21 Haiyang Shiyou 981 chess move and consequences in the East Sea By Viet Long Suggestions on standard terms in draft amendments to the 2005 Civil Code By Do Giang Nam, LL.M, School of Law, Vietnam National University Content and roadmap for a legally binding Code of Conduct in the East Sea By Nguyen Thi Lan Anh 22 East Sea: Why not examine the historical evidences? By Nguyen Hong Thao 23 Vietnam seeks to join Hague Service Convention next year 15 Extracted from Alan Bacarese, Hoang Manh Chien, Nguyen Tuong Dung and Phan Thi Lan Huong (2013). Criminalizing Illicit Enrichment to Fight Corruption: International Experiences and Lessons Learnt for Vietnam draft commissioned by the Department for International Development (DFID) of the United Kingdom and the United Nations Development Program (UNDP). Hanoi, Vietnam. 16 Alan Bacarese is a UK lawyer and specialises in white-collar crime and, in particular, transnational bribery and corruption. Hoang Manh Chien is a retired investigator and was Deputy Director of the Police Investigation Department on Corruption Related Crimes. Phan Thi Lan Huong is a lecturer of law in Hanoi and has in-depth knowledge of local government, decentralization and public administration reform and legal frameworks for public officials. Nguyen Tuong Dung worked for the UN for over 20 years and was the Programme Officer at the United Nations Office on Drugs and Crimes (UNODC), and participated in Vietnam s self-assessment of the implementation of the UNCAC in 2011. 17 Senior Adviser, Head of Dispute Resolution, DFDL, email: alex.larkin@dfdl.com Alex s experience includes more than 10 years of corporate and commercial law, litigation and arbitration, as well as intellectual property law, labor law, among others. Alex has acted for clients in relation to civil litigation and arbitration in the United States and arbitration at the Singapore International Arbitration Center. His experience also includes corporate transactions and advising, mergers and acquisitions and due diligence. He holds a Bachelor of Science degree in Mechanical Engineering from the University of Washington and a Juris Doctor degree from Seattle University School of Law. 18 Partner, Leadco Legal Counsel, email: vy.ts@leadcolawyers.com Vy is a partner with Leadco Legal Counsel, a Hanoi based international law firm. He obtained a Masters Degree majoring in International Law in TLBU Graduate School of Law in Seoul and graduated from Hanoi Law University with a Bachelor of Economics Law. His practice is focused on foreign direct investment, cross-border transactions, corporate matters and commercial litigation. 19 Jairo Acuña-Alfaro, Policy Advisor from UNDP Vietnam; Dr. Edmund J. Malesky, Associate Professor of Political Economy from Duke University; Dr. Đặng Ngoc Dinh, Director and Dr. Đặng Hoàng Giang, Vice Director from the Centre for Community Support and Development Studies, and Đỗ Thanh Huyền, Policy Analyst from UNDP Vietnam. 20 Senior lecturer at the Faculty of Law, Foreign Trade University. 21 PhD candidate at l Université Paris 2 Panthéon Assas, France and associate at Audier and Partners Vietnam LLC. The authors thank Prof John Gillespie from the Department of Business Law and Taxation, Monash University for his invaluable comments and suggestions in regards to the article. All errors remain the authors own. 22 Institute for East Sea/South China Sea Studies, Diplomatic Academy of Vietnam. The view expressed in this paper is her own. 23 Associate Professor at the Diplomatic Academy of Vietnam and the Hanoi National University, Vietnam. His views are strictly his own and do not reflect any official stance. Vietnam Law & Legal Forum 4
On transparency and accountability: What role for local governments? By Jairo Acuña-Alfaro và Đỗ Thanh Huyền 24 Restructuring the economy and renewing the growth model for national sustainable development By Ass. Prof., Dr. Hoang Sy Dong Development Strategy Institute, Ministry of Planning and Investment COURTS Adversarial process in criminal proceedings: Shortcomings and solutions By Nguyen Quang Hien, LL.D People s Court of Thu Duc district, Ho Chi Minh City Extenuating circumstances By Thai Chi Binh, LL.M, People s Court of Chau Doc Town, An Giang province Exclusion of penal liability in criminal justice By Nguyen Tuyet Mai, LL.D, Criminal Law Faculty, Hanoi Law University Revising the Criminal Procedure Code in light of the new Constitution By Nguyen Hoa Binh, LL.D, Procurator General, Supreme People s Procuracy Criminal organizations in Vietnam s criminal justice By Dang Van Thuc and Le Xuan Luc, Hanoi Procuratorate University New Constitution lays a firm legal foundation for judicial reform By Dr. Ha Hung Cuong, Minister of Justice Revised Law on Courts: Why term of office of judges should be extended By Dinh Thanh Phuong, LL.M and Nguyen Thi Hang Diem Mi Law Faculty, Can Tho University Improving summary procedures in criminal justice By Thai Chi Binh, LL.M, People s Court of Chau Doc city, An Giang province Penal Code revisions needed to protect human rights and citizens rights guaranteed by new Constitution Hoang The Lien, LL.D. Former Deputy Minister of Justice Decriminalization: the need to abolish some crimes in the Penal Code By Tran Dinh Hai, LL.M, Hanoi Procuratorate University LAW GUIDE Law on Bidding Law on Employment Law on Plant Protection and Quarantine Land recovery and compensation under the new Land Law Land price under the new Land Law Revised Law on Construction Law on Customs 24 Jairo Acuña-Alfaro (Policy Advisor on Public Administration Reforms and Anti-corruption) and Đỗ Thanh Huyền (Policy Officer on Public Administration Reforms and Anti-corruption), United Nations Development Program (UNDP) in Vietnam. Viewpoints and opinions herein are the authors and do not necessarily those expressed by the United Nations (UN) or United Nations Development Program (UNDP). Vietnam Law & Legal Forum 5
Law on Notarization Revised Law on Environmental Protection New Law on Marriage and Family LEGAL TIPS FOR EXPATS Methods of tax calculation Unilateral termination of labor contracts Adopting Vietnamese children Inter-country marriage registration Unilateral divorce from abroad Settlement of labor disputes Import of cars for use by expats Divorce in Vietnam Citizenship of applicants for Vietnamese nationality Transfer of house ownership to foreigners SOCIETY & LAW Declaration required for assets worth VND 50 million Child labor first reviewed on national scale Transfer pricing unbridled at FDI enterprises Tourism authority heightens alert over illegal foreign guides Finance Ministry steps in to control formula milk prices Finance Ministry moves to reduce tax payment time Draft law on beer trading draws public criticism Right to silence under hot debate Enterprise naming rules stir public displeasure Legality of Uber taxi service in Vietnam under scrutiny HISTORY & LAW Intellectual property institutions in Vietnamese law Special features of feudal law in Vietnam Ethos of the feudal mandarin regime in Vietnam Ethos of state power supervision in feudal Vietnam Vietnam Law & Legal Forum 6
Peculiarities of the justice system in feudal Vietnam Administrative reforms under Vietnamese feudal dynasties 45 years of President Ho Chi Minh s Testament Human rights in Vietnam s ancient feudal law By Do Danh Huan, M.Sc, History Institute PROFILE Can Tho city seeks investment to tap tourism potential Hai Phong strives to attract more FDI for development Da Nang determined to tap growth opportunities Hanoi - promising land for investment and tourism Tra Vinh shrugs off drawbacks to become a hotbed of investment TRADITIONS By Ta Thi Tam, Ethnology Institute Buffalo sacrifice ceremony in Xo Dang new year festival Wedding of Kho Mu ethnic group Hair washing ceremony of the Thai New rice ceremony of the Thai Matrilocality challenges Thai grooms An original Cham wedding Forest belief of the smallest ethnic group The Xo Dang Unique cultural customs of Chu Ru ethnic group Buffalo stabbing, an essential Bahnar ritual Muong attire is a work of art NEW LEGISLATION Decision No. 72/2013/QD-TTg of November 26, 2013, prescribing mechanisms and financial policies applicable to border-gate economic zones Decree No. 219/2013/ND-CP of December 26, 2013, on management of enterprises borrowing of foreign loans and payment of foreign debts without government guarantee Decree No. 03/2014/ND-CP of January 16, 2014, detailing a number of articles of the Labor Code on employment Decision No. 45/QD-TTg of January 8, 2014, approving the master plan on the master plan on biodiversity conservation in the whole country through 2020, with orientations toward 2030 Vietnam Law & Legal Forum 7
Circular No. 19/2014/TT-BTC of February 11, 2014, prescribing procedures for temporary import, re-export, destruction and transfer of automobiles and motorbikes of subjects entitled to privileges and immunities in Vietnam Decision No. 879/QD-TTg of June 9, 2014, approving the Strategy on Vietnam s industrial development through 2025, with a vision toward 2035 Decree No. 67/2014/ND-CP July 7, 2014, on a number of fisheries development policies Circular No. 19/2014/TT-NHNN of August 11, 2014, guiding the foreign exchange management of foreign direct investment in Vietnam Decree No. 87/2014/ND-CP of September 22, 2014, on attraction of scientists and technologists who are overseas Vietnamese and foreign experts to participate in scientific and technological activities in Vietnam Decree No. 91/2014/ND-CP of October 1, 2014, amending and supplementing a number of articles of the decrees on taxes Decree No. 97/2014/ND-CP of October 17, 2014, amending and supplementing a number of articles of Decree No. 78/2009/ND-CP of September 22, 2009, detailing and guiding a number of articles of the Law on Vietnamese Nationality Decree No. 111/2014/ND-CP of November 20, 2014, providing the useful life of inland waterway vessels and the useful life of vessels permitted for import Resolution No. 77/NQ-CP of October 24, 2014, on pilot renovation of the operation mechanism of public tertiary education institutions during 2014-2017 20 th ANNIVERSARY Letter of congratulation to Vietnam Law and Legal Forum on its 20 th anniversary Letter from the Editorial Board ----------------------- * * * * * ----------------------- Vietnam Law & Legal Forum 8