Vietnam Civil Code 2005

CONTENTS
Basic Principles Civil Legal Capacity & Civil Act Capacity Legal Persons (Entities) Civil Transactions
Effectiveness Conditions Forms Interpretation

Invalid Civil Transactions

Requesting Court to Declare Invalid Civil Transactions Legal Consequences of Invalid Civil Transactions Protection of Interests of a bona fide 3 rd party in Invalid Civil Transactions

BASIC PRINCIPLES
Free & voluntary undertaking & agreement Equality Goodwill & Honesty Bearing civil liability Respect for - protection of - civil rights Compliance with law Conciliation

INDIVIDUALS: CIVIL LEGAL CAPACIT Y & CIVIL ACT CAPACIT Y

[Ar t.14] What is a civil legal capacity?
An individuals capacity to have civil RIGHTS & OBLIGATIONS All individual shall have the SAME civil legal capacity An individuals civil capacity EXISTS from the time he/she is born and IS TERMINATED when he/she dies

INDIVIDUALS: CIVIL LEGAL CAPACIT Y & CIVIL ACT CAPACIT Y

Civil Act Capacity of an Individual:
Adults: persons who are 18 yrs old Minors: persons who are < 18 yrs old

An adult shall have FULL civil act capacity ( Ar t.19), except for cases in Ar t.21 and 22 Representatives at law : for persons who are between full 6 to < full 18 yrs old

Persons between full 15 to < full 18 yrs old : no need of representatives at law if he/she has his/her own proper ty to ensure the obligations

LEGAL PERSONS (ENTITIES)

[Art.84] Legal entitys conditions:
Being established lawfully Having a well-organized structure Possessing property independent & bearing its own liability with such property

Independently entering into legal relations in its own name

Establishment of a legal person(entity)?

LEGAL PERSONS: CIVIL LEGAL CAPACIT Y

1. Civil legal capacity: its capacity to have rights and obligations with the purpose of its operation It shall arise from the time its established and shall be terminated from the time it ceases to be a legal entity Representative at law : shall act in the name of the legal entity in civil relations (Ar t.86)

2.

3.

LEGAL PERSONS: CIVIL LIABILITY

1. Shall bear civil liability for the exercise of its civil rights and performance of its civil obligations and performed by its representative in the name of the legal person Shall bear civil liability with its own proper ty ; shall NOT bear civil liability for its members with respect to civil obligations established and performed by such members not in the name of the legal person Members of a legal person shall NOT bear civil liability for the legal person with respect to civil obligations established and performed by the legal person (Ar t.93)

2.

3.

CIVIL TRANSACTIONS
[Art.121] is a contract / unilateral legal act which gives rise to, changes, or terminates civil rights and/or obligations
Civil transactions becoming effective?
Participated persons have civil act capacity Participated persons act completely voluntarily Purpose/content do not violate legal provisions and social ethics

Condition as for forms of civil transactions?

CIVIL TRANSACTIONS
Forms of civil transactions:
Shall be expressed verbally, in writing / through a specific acts (What about electronic means?)

Where it is provided by law that a civil transaction must be expressed in writing, notarized, authenticated, registered or permitted, such provisions must be followed

Objectives of civil transactions?

CONDITIONAL CIVIL TRANSACTIONS

[Art.125] 1. Where the parties have agreed on the conditions which shall give rise to / cancel a civil transaction, the civil transaction shall arise / be cancelled upon the occurrence of such conditions

2.

Act of intentional hindrance of one party / third person on the occurrence conditions OR the deliberately promotion on the occurrence of conditions?

INTERPRETATION OF CIVIL TRANSACTIONS

[Art.126] Cases where a civil transaction may be understood in dif ferent ways?

Interpretation must follows these orders:

a. To the true aspirations of the parties

b.
c.

To the meaning consistent with the objective

To the practices of the locality

INVALID CIVIL TRANSACTIONS

Invalid civil transactions:
fail to satisfy one of the conditions set out in Art.122 of this Code (Art.127)

What did Ar t.122 say?

Participated persons have civil act capacity Participated persons act completely voluntarily Purpose/content do not violate legal provisions and social ethics

INVALID CIVIL TRANSACTIONS

Purposes & Contents - violating prohibitor y provisions of law
mean the provisions of law which do not permit subjects to perform certain acts

Purposes & Contents - violating social ethics ?

common standards of conduct among people in social life which are recognized & respected by the community (Art.128)

INVALID CIVIL TRANSACTIONS

Civil transactions invaid due to falsity
When the parties falsely establish a civil transactions to conceal another, it shall be invalid while the concealed one remains valid , except cases where it is also invalid under provisions of this Code Where false transactions is established with a view to shirking the responsibility toward a third party, such transaction also invalid (Art.129)

INVALID CIVIL TRANSACTIONS

[Art.130]
due to establishment / performance by minors or persons having lost or had their civil act capacity restricted
The Court shall, at the request of the representative of that person, declare such transactions invalid, if it is provided for by law that such transaction must be established and performed by the representative of that person

Examples?

INVALID CIVIL TRANSACTIONS

[Art.131] due to Mistakes? With a transaction thats been established due to its misunderstanding of the contents (unintentionally mistakes) made by the other party..
1. It shall have the right to request the other party to change the contents of such transaction 2. If not being accepted by the other party, the mistaken party shall have the right to request the Court to declare invalid transaction

What about cases where a par ty has intentionally made mistakes making the other par ty misunderstanding the contents?

INVALID CIVIL TRANSACTIONS

[Art.132] due to Deception / Threat?
Deception means an intentional act of a party / 3 rd party for the purpose of misleading the other party as to the subject, nature of the entity, or contents of the transaction which has caused the other party to enter into the transaction Threat means an intentional act of a party / 3 rd party which compels the other party to implement the transaction to avoid danger to life, health, honour, reputation, dignity / property or that of its parents, spouse, children Any party participating in a civil transaction as a result of deception / threat has the right to request a Court to declare such transaction invalid

INVALID CIVIL TRANSACTIONS

[Art.133] due to establishment by persons incapable of being aware of and controlling their acts
A person who has the capacity for civil acts BUT has entered into a transaction at a time when he/she was incapable of being aware of / controlling his/her acts has the right to request a Court to declare such civil transaction invalid

INVALID CIVIL TRANSACTIONS

[Art.134] due to non-compliance with the prescribed forms
Where the law provides that the form of a civil transaction is a CONDITION for its validity BUT the parties fail to comply with the form, at the request of one or all parties, a Court / an authorised State body may make a DECISION compelling the parties to implement the formilities as provided for the transaction WITHIN A SPECIFIED PERIOD OF TIME; (If such formalities are not complied with within such period of time, the transaction shall be deemed invalid)

PARTIALLY INVALID CIVIL TRANSACTIONS

A civil transaction shall be PARTIALLY INVALID when ONE part of the transaction is invalid BUT such invalidity does not af fect the validity of the remaining parts.

(Art.135)
Examples?

REQUESTING COURT TO DECLARE INVALID CIVIL TRANSACTIONS

[Art.136] The Time Limit to request Court to declare invalid civil transaction(s):
Two (02) years for invalid civil transactions pursuant from Art.130 to Art.134 in this Code from the date the civil transaction is entered into. There is no restriction on time limit for request to be made for invalid civil transactions under the provisions in Art.128 & 129 of this Code.

INVALID CIVIL TRANSACTIONS LEGAL EFFECT

[Art.137] An invalid civil transaction shall NOT give rise to civil rights & obligations of the parties or to changes and termination of such rights & obligaitons as from the time the transaction is entered into. Where a civil transaction is invalid, the parties shall restore everything to its ORIGINAL STATE and shall return to each other what theyve received.

If restitution is not able to be made in kind, it may be paid in money, except where the transacted property, benefits & income which had been received are confiscated in accordance with law.
The party AT FAULT must compensate.

PROTECTING 3 RD PART YS INTERESTS INVALID CIVIL TRANSACTION

[Art.138] Where a civil transaction is invalid but the transacted property is moveable property the ownership of which is not required to be registered and such property has already been transferred to a bona fide 3 rd party by way of another transaction, the transaction with the 3 rd party shall remain valid (except cases in Ar t.257 of this Code ) What about the cases where the transaction which the transacted property is required to be registered ? Cases of Auction and Property pursuant to Courts judgment(s) / decision(s)

PART I. CONCLUSION
Basic Principles
Civil Legal Capacity

Civil Act Capacity

Legal entities (persons)

Civil Transactions Valid and Invalid