CIRCULAR

GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF DECREE NO.34/2008/ND-CP DATED MARCH 25, 2008 OF THE GOVERNMENT AND DECREE NO.46/2011/ND-CP DATED JUNE 17, 2011 OF THE GOVERNMENT AMENDING, SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO.34/2008/ND-CP DATED MARCH 25, 2008 OF THE GOVERNMENT DEFINING RECRUITMENT AND MANAGEMENT OF FOREIGNERS WORKING IN VIETNAM

Pursuant to the Decree No.186/2007/ND-CP dated December 25, 2007 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Labor, Invalids and Social Affairs;

Pursuant to the Decree No.34/2008/ND-CP dated March 25, 2008 of the Government defining recruitment and management of foreigners working in Vietnam;

Pursuant to the Decree No.46/2011/ND-CP dated June 17, 2011 of the Government amending, supplementing a number of Articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government defining recruitment and management of foreigners working in Vietnam;

The Ministry of Labor, Invalids and Social Affairs guides the implementation of a number of Articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government and Decree No.46/2011/ND-CP dated June 17, 2011 of the Government amending, supplementing a number of Articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government defining recruitment and management of foreigners working in Vietnam (hereinafter referred to as Decree No.34/2008/ND-CP amended, supplemented) as follows:

Chapter 1.

GENERAL PROVISIONS

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Scope and subjects of application of this Circular is the scope and subjects of application defined in Article 1 of Decree No.34/2008/ND-CP amended and supplemented, the foreign investors and contractors. Subjects of application according to the provisions at points a, and I clause 2 of Article 1 of Decree No.34/2008/ND-CP amended and supplemented, are guided the implementation as follows:

1. Enterprises operating under the Enterprise Law, Investment Law as stipulated in point a, clause 2 of Article 1 of Decree No.34/2008/ND-CP amended and supplemented, including:

a) State-owned enterprises operating under the State Enterprise Law in 2003 and now continuing to operate under the provisions of Article 166 of the Enterprise Law dated November 29, 2005;

b) Limited liability companies, shareholding companies, private enterprises and partnerships established under the provisions of the Enterprise Law in 1999 and now continuing to operate as prescribed in clause 1 of Article 170 of the Enterprises Law dated November 29, 2005;

c) Enterprises with foreign investment that have been granted investment licenses under the Law on Foreign Investment in Vietnam, including:

- Joint venture;

- Enterprises with 100% foreign capital;

- Shareholding companies with foreign investment were established under Decree No.38/2003/ND-CP dated 15/4/2003 of the Government on the conversion of a number of enterprises with foreign investment capital to operate under the form of shareholding companies;

- Investment projects in the form of business cooperation contracts already granted investment licenses under the provisions of the Law on Foreign Investment in Vietnam.

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a) The associations of enterprises established and operating under provisions of Decree No.45/2010/ND-CP dated 21/4/2010 of the Government defining the organization, operation and management of associations;

b) The associations of foreign enterprises established and operating under provisions of Decree No.8/1998/ND-CP dated 22/01/1998 of the Government promulgating the Regulation on the establishment of foreign enterprises associations in Vietnam.

Chapter 2.

RECRUITMENT AND MANAGEMENT OF FOREIGNERS WORKING IN VIETNAM

Article 2. Recruitment of foreigners working in Vietnam under the form of labor contracts

1. Registration form for labor recruitment of foreigners under the provisions in point a, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented shall comply with Form No.1 issued together with this Circular.

2. Certifications of qualifications and technical skills of foreigners under the provisions at point d, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented are the written certifications of the professional and technical skills of foreigners, including diplomas or certificates graduated from university or higher in accordance with the positions that foreigners are expected to undertake.

For some occupations, jobs, the certification of qualifications and technical skills of foreigners shall comply with the provisions at point d, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented.

3. The employer notifying the labor recruitment demand to be Vietnamese into the positions expected to recruit foreigners as stipulated in point a clause 4 of Article 4 of Decree No.34/2008/ND-CP, which was amended, supplemented, is instructed to implement as follows:

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Where the employer has notified for at least 02 (two) numbers of central newspaper and 02 (two) numbers of local newspaper of the recruitment of Vietnamese labor in accordance with provisions but still can not be recruited, within 36 (three thirty six) months since the last notice, the employer shall be entitled to recruit foreigners and not required to notify the labor recruitment demand in the central and local newspapers.

b) Dossier request for granting work permits to foreigners who are employed in the form of labor contracts as prescribed in Article 4 of Decree No.34/2008/ND-CP amended and supplemented and for foreigners who were granted work permits under the provisions of point b, clause 3 of Article 9 of Decree No.34/2008/ND-CP amended, and supplemented shall be accompanied documents to prove that the employer has notified the labor recruitment demand to be Vietnamese into the positions expected to recruit foreigners as stipulated in point a clause 3 of this Article.

4. The papers prescribed at the points b, c and d, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented, are instructed to implement as follows:

The papers prescribed at points b, c and d, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented in foreign language must be translated into Vietnamese, notarized or certified. The consular legalization of foreign documents is done in accordance with the laws of Vietnam.

5. The conclusion of labor contracts as prescribed at point d, clause 4, Article 4 of Decree No.34/2008/ND-CP amended and supplemented is instructed to implement as follows:

After the foreigner was granted work permit, the employer and foreigner must sign the labor contract in writing in accordance with provisions of labor legislation of Vietnam before the date expected to work for the employer. Within 05 (five) days calculated by working days from the date of contract labor, the employer shall send a copy of labor contract signed and a copy of a work permit granted to the authority where issued the work permit for foreigner there. The contents of labor contract are not contrary to the contents of their work permit issued.

Article 3. Foreigners entering Vietnam to carry bidding packages or projects of foreign contractors won the bidding in Vietnam

1. The plan to use labor in the tendering documents, requiring records of the investors as stipulated in clause 1, Article 6a of the Decree No.34/2008/ND-CP amended and supplemented, shall comply with Form No.2 attached to this Circular.

2. Foreign contractors report and propose in writing to the Chairmen of the People's Committees of provinces and cities directly under the Central Government under provision in clause 3, Article 6a of the Decree No.34/2008/ND-CP amended, supplemented, is guided to implement as follows:

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Where foreign contractors wish for adjusting and supplementing the number of employees determined in the tendering dossier, proposal dossier, they must report to the local Department of Labour - Invalids and Social Affairs, where the foreign contractors made the bidding package or the project won the bidding on the plan of adjustment and supplementation for the demand using labor and with certification of the investor according to form No.4 issued together with this Circular.

3. Introduction, supply of Vietnamese labor at the request of foreign contractors as stipulated in clause 4, Article 6a of the Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

Within a maximum period of 60 (sixty) days from the date that Presidents of Committees of provinces and cities under central authority receive the written requests to recruit from 500 (five hundred) Vietnamese employees or more and 30 (thirty) days for the written requests to recruit under 500 (five hundred) Vietnamese employees but may not introduce or supply Vietnamese labor for foreign contractors according to the above the written requests, the Presidents of the People's Committees of provinces and cities under central authority shall consider and permit the foreign contractors to recruit foreigners into the jobs which may not be recruited Vietnamese employees including: job titles, number, professional qualifications and experience, the job duration.

4. For foreign contractors that are carrying out the projects or the successful bidding packages prior to the Decree No.46/2011/ND-CP dated 17/6/2011 of the Government (01/8/2011) takes affect, within 30 (thirty) days from the effective date of this Circular, foreign contractors shall report on the current state of Vietnamese labor and foreigners working in the bidding packages or the projects won bidding including: the number, nationality, qualifications, job titles, number of people granted work permits, number of people not subject to work permits and the number of people who have not yet done the grant of work permits, stating clearly the reasons and remedies; report the plans to use foreigners and Vietnamese labor until the end of the project or package to the Chairman of People's Committee of province or city under central authority where the bidding package or successful bidding project is implemented, which clearly state the need for Vietnamese labor recruitment to replace workers as foreigners who are working and the positions expected to recruit foreigners. Where it is unable to introduce or supply Vietnamese labor to the foreign contractors, the President of the People's Committee of province, city under central authority shall consider and decide on permitting the foreign contractors to use foreigners into the jobs that may not be recruited Vietnamese labor.

Article 4. Foreigners entering into Vietnam to work, offer services

Foreigners Foreigners entering into Vietnam to work, offer services as stipulated in Article 7 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

At least 07 (seven) working days before the foreigners come to offer services, they must notify in writing through forms of sending directly or sending via mail, fax to the local Department of Labor - Invalids and Social Affairs where the foreigners are expected to offer services with details: full name, age, nationality, passport number, starting date and ending date of work, specific work of the foreigners according to Form No.5 issued together this Circular.

Article 5. Foreigners working in Vietnam not required having work permits

1. A duration of less than 03 (three) months as stipulated in point a clause 1 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

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Foreigners entering Vietnam to work for a duration of less than 03 (three) months must comply with the provisions of the points a and b, clause 4, Article 4 of Decree No.34/2008/ND-CP amended, supplemented.

2. Foreigners as Chiefs of Representative Offices, Chiefs of Project Offices or foreigners who are authorized by foreign non-governmental organizations to be representatives for the operations in Vietnam as stipulated in point h, clause 1, Article 9 of Decree No.34/2008/ND-CP amended and supplemented are the foreigners to be determined in the licenses of establishing representative offices, licenses of establishing project offices, operation licenses of foreign non-governmental organizations permitted to establish and operating in accordance with the laws of Vietnam.

3. Foreigners as prescribed at points b, c and d, clause 1, Article 9 of Decree No.34/2008/ND-CP amended and supplemented shall not make procedures for work permits when working in the enterprises and organizations. In case foreigners mentioned above work in the other enterprises and organizations in Vietnam from adequate three months or more, must make procedures for work permits.

Article 6. Form of work permit

1. Form of work permit under the provisions of clause 2 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

a) The formality of work permit:

Work permit is A4 size (21 cm x 29.7 cm), consisting of four pages; pages 1 and 4 are green of peace, coated with plastic; page 2 and page 3 have white font, pattern is light blue star-shaped in the center.

b) Contents of work permit shall be applied to Form No.6 attached to this Circular.

2. Work permit shall be printed and issued uniformly by the Department of Employment under the Ministry of Labour - Invalids and Social Affairs.

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1. A written request for a work permit of the employer, Vietnam side partner or representative of foreign non-governmental organization in the dossier as prescribed in point a clause 3 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented shall comply with Form No.7 issued together with this Circular.

2. A slip of justice record and health certificate as provided for in points b and c, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented granted by the competent agency within a period of 180 (one hundred eighty) days, from the date of the application for grant of work permit.

3. The places where foreigners often work as stipulated in point a, clause 5 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented are defined as the places where foreigners have full-time work for the employers or Vietnam side partner, representatives of foreign non-governmental organizations in a province or city under central authority.

4. Foreigner who has been granted work permit, but it has expired or is invalid under the provisions of point b, clause 3 of Article 9 of Decree No.34/2008/ND-CP amended, supplemented has the need to work for other enterprise in the same position as stated in the work permit, within 30 (thirty) days from the date the work permit expires or is invalid, it must have papers as prescribed at points c and d, clause 2 of Article 4 of Decree No.34/2008/ND-CP amended and supplemented and work permit issued or a copy of a work permit issued.

Article 8. Renewal of work permit

1. Dossier of application for renewal of work permit for foreigner working in the form of labor contract as stipulated in point a, clause 2 of Article 10 of Decree No.34/2008/ND-CP amended, supplements, including:

a) A written request for extension of work permit of the employer by Form No.8 attached to this Circular;

b) A copy of the vocational training contract signed between enterprise and Vietnamese workers to train Vietnamese Labor for replacing jobs that foreigners are undertaking or documents to prove the implementation of program and plan to train Vietnamese workforce in accordance with clause 1 of Article 132 of the Labor Code to replace the jobs that foreigners who are in charge of. Contents of program, training plan include: the number of people should be trained in each position, time and form of training, place of training and the implementation of training and training results;

c) A copy of labor contract;

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2. Dossier of application for renewal of work permit for foreigner to move internally within the enterprise, includes:

a) A written request for extension of work permit of the representative of foreign enterprise established a commercial presence in the territory of Vietnam in accordance with Form No.8 attached to this Circular;

b) Documents to prove foreigner to move internally within the enterprise continuing to work in Vietnam;

c) The work permit has been issued.

3. Dossier of application for renewal of work permit for foreigner under the provisions of point b, clause 2 of Article 10 of Decree No.34/2008/ND-CP amended and supplemented, includes:

a) A written request for extension of work permit of the Vietnam side partner by Form No.8 attached to this Circular;

b) A copy of the contract signed between the Vietnam side and foreign side;

c) The work permit has been issued.

Article 9. Re-issuance of work permit

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Article 10. Use of work permit

1. Use of work permit as prescribed in clause 1 of Article 13 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

Foreigner shall be responsible for keeping work permit granted when it is still valid. Not later than 02 (two) days after the work permit has expired or is invalid, the foreigner must submit the work permit to the employer or Vietnam side partner, representative of foreign NGO.

2. The notice in writing for the case foreigners come to work as prescribed in clause 3 of Article 13 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

When the foreigner comes to work in the provinces and cities under central authority (not the province or city where foreigner often works) from 10 (ten) consecutive days or more or 30 (thirty) days accumulated in 01 (one) year, the employer or Vietnam side partner, representative of non-governmental organization shall notify in writing of foreigner coming to work, with the contents: full name, age, nationality, passport number, number of work permit granted, the starting and finishing date of work, the undertaken work and the place to work of foreigner by the form No.10 attached to this Circular and enclosing the copy of work permit granted to the Department of Labour - Invalids and Social Affairs where foreigner comes to work.

Article 11. Foreigners who are wives, husbands of members of diplomatic missions, foreign consulates, representatives of intergovernmental international organizations; pupils and students coming to practice at the enterprises, agencies and organizations in Vietnam

1. For foreigners who are wives, husbands of those who are enjoyed consular, diplomatic privileges and immunities working for the enterprises, organizations in Vietnam as stipulated in clause 1 of Article 20 of Decree No.34/2008/ND-CP amended and supplemented, is guided to implement as follows:

a) In case agreement between Vietnam and the concerned country does not define the exemption from granting work permits for the objects as the husbands, intergovernmental wives of members of diplomatic missions, representatives of international organizations working in Vietnam, the application dossiers for recruitment of such persons include the papers prescribed at points c, d and đ, clause 2 of Article 4 of Decree No.34/2008/ND -CP amended, supplemented and attached the copies of documents of the Ministry of Foreign Affairs (Department of State Protocol) answering the diplomatic missions, foreign consulates, representatives of , intergovernmental international organizations for the foreigners permitted to work in Vietnam under the relevant international agreements, and to present the originals for comparison.

b) The duration of work permit issued shall not exceed the duration of stay of wife, husband and for a maximum period of not exceeding 36 (thirty six) months;

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d) Where a foreigner granted a work permit is no longer subject to permission for working under an agreement between Vietnam and concerned country, the Ministry of Foreign Affairs (Department of State Protocol) sends a written notice to the Department of Labour - Invalids and Social Affairs where has issued the work permit for withdrawing the person’s.

2. For foreigners as students, students studying in foreign schools, training institutions coming to Vietnam to practice as prescribed in clause 1 of Article 20 of Decree No.34/2008/ND-CP amended and supplemented, it is instructed to implement as follows:

Enterprises, agencies and organizations in Vietnam having the foreigners as pupils and students studying in foreign schools, training institutions coming to practice, before the 7 (seven) days (working days), from the date pupils, students come to practice, the enterprises, agencies and organizations are responsible for reporting the brief list under Form No.11 issued with this Circular.

Chapter 3.

IMPLEMENTATION ORGANIZATION

Article 12. Responsibilities of People's Committees of provinces and cities directly under the Central Government

1. To direct the local functional agencies to organize the propagation, dissemination of law; examination, inspection; and handling of violations of regulations on the recruitment and management of foreigners working in the area.

2. To direct the local Departments of Labour - Invalids and Social Affairs and concerned agencies and organizations to introduce and supply the Vietnamese employees to the foreign contractors under the provisions of clause 4 of Article 6a of the Decree No.34/2008/ND-CP amended and supplemented.

3. To consider and decide the permission of foreign contractors to be recruited foreigners into the jobs that may not be recruited Vietnamese employees as stipulated in clause 4, Article 6a of the Decree No.34/2008/ND-CP amended and supplemented.

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1. To organize the propagation and dissemination of the provisions of Vietnam labor law to the enterprises, organizations, investors, contractors and workers in the area.

2. To receive dossiers and grant work permits, extend work permits, regrant work permits for foreigners in accordance with the law provisions. Upon receipt of dossiers requesting for issuance of work permits, dossiers requesting for the extension of work permits, dossier requesting for re-grant of work permits, it must record into the monitoring book and give receipts to the employers or Vietnam side partners, representatives of foreign nongovernmental organizations. The receipt must be stated clearly the date, month, year of receipt of dossier, the documents attached to dossier and the reply period. To keep dossiers of issuance of work permits, dossiers of the extension of work permits, dossiers of re-issuance of work permits.

3. To implement the introduction and supply of labor for foreign contractors under the direction of the Presidents of the People's Committees of provinces and cities under central authority.

4. To guide, supervise and inspect the implementation of the provisions of law regarding the recruitment and management of foreigners working in Vietnam of the enterprises, agencies, organizations, projects and bidding packages won by the foreign contractors in the area; the case of expiry or invalidity of work permits.

5. Periodically before the 5^th (fifth) every month, the Department of Labour - Invalids and Social Affairs shall send a list of foreigners who have been granted, extended and regranted work permits to the management agencies of local immigration under the Form No.12 issued together with this Circular.

Article 14. Responsibilities of the employers, Vietnam side partner and foreign non-governmental organizations

1. Strictly comply with the provisions of labor law of Vietnam and other related laws of Vietnam.

2. The recruitment of foreigners through job placement organizations is made with Job Placement Centre of the local Department of Labour - Invalids and Social Affairs under the labor contract by form No.13 issued together with this Circular.

3. To cunduct the procedures for grant of work permits, extension of work permits and re-granting of work permits to foreigners working in Vietnam.

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5. To manage registration dossiers for recruitment of foreigners working in Vietnam, and must often supplement papers related to foreigners during the working process in Vietnam.

6. To manage foreigners working at the enterprises and organizations.

7. Within 15 (fifteen) days for the cases the work permit has expired or was invalid under the provisions of Article 12 of Decree No.34/2008/ND-CP amended and supplemented, the employer or Vietnam side partner, representative of foreign nongovernmental organization must submit written reports to the Department of Labour - Invalids and Social Affairs where has issued work permit on the cases the work permit has expired or was invalid and enclosed work permit expired or invalid, in case of not enclosed work permit, it must state clearly the reason.

8. To report the brief list for foreigners working in Vietnam not required for work permit as prescribed in clause 1 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented by Form No.11 issued with this Circular and enclosed the papers of foreigners in accordance with clause 6 of Article 9 of Decree No.34/2008/ND-CP amended and supplemented to the Department of Labor - Invalids and Social Affairs where its headquartered is located or place where foreigners often work.

9. To pay fees for grant of work permits, extension of work permits and regrant of work permits under the provisions of law on charges and fees.

10. Every year on December 15, the employer shall register demand of recruitment and use of foreigners of the the following year as stipulated in clause 7 of Article 19 of Decree No.34/2008/ND-CP amended and supplemented on the number, qualifications, experience, salary, working hours (starting and ending) according each job with the local Department of Labour - Invalids and Social Affairs in accordance with Form No.14 issued together with this Circular. In case of changing the demand of using foreigners, the employer must register to supplement demand of using foreigners prior to at least 30 (thirty) days from the date the employer inform the demand to recruit foreigners to the local Department of Labour - Invalids and Social Affairs under Form No.15 issued together with this Circular.

Article 15. The liability of the foreigners

1. To research sufficiently provisions of the law of Vietnam provided for by the employers or Vietnam side partners, representatives of foreign nongovernmental organizations, and to prepare the necessary papers and comply with the law provisions on recruitment and management of foreigners; to fully implement the provisions of the law of Vietnam.

2. To apply for registration for recruitment, prepare the necessary papers in the dossiers requesting for issuance of work permits, the extension of work permits and regrant of work permits under the regulations. After being granted work permits, the foreigners and the employers must sign the labor contracts in writing in accordance with provisions of the labor law of Vietnam.

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1. Investors are responsible for implementing the regime of periodic report before the 5^th of first month, quarterly to the Department of Labour - Invalids and Social Affairs on the recruitment and management of foreigners working for the foreign contractors of the preceding quarter as specified in clause 6 of Article 6a of the Decree No.34/2008/ND-CP amended and supplemented shall comply with Form No.16 issued together with this Circular.

2. Department of Labour - Invalids and Social Affairs is responsible for implementing the regime of periodic report before January 15 every year to the Ministry of Labour - Invalids and Social Affairs (Employment Department) on the registration of recruitment demand and use of foreigners of employers, Vietnam side partners, foreign non-governmental organizations in the area under Form No.17 issued together with this Circular. To make the regime of report every six months, before July 15 and annually, before January 15 and annually to the Ministry of Labour - Invalids and Social Affairs (Employment Department) on the situation of foreigners working in the enterprises, organizations and foreigners working for the foreign contractors in the management area by Form No.18 attached to this Circular.

3. The employers, Vietnam side partners, foreign non-governmental organizations are responsible for implementing the regime of report every six months, before July 5, and every year, before January 05 to the Department of Labor - Invalids and Social Affairs where the enterprises, organizations locate their headquarters or operate regularly on the use of foreigners under the form No.19 attached to this Circular. And make extraordinary reports at request of the State management agency of labor on the use situation of foreigners.

Article 17. Effect

1. This Circular takes effect from December 18, 2011.

2. This Circular replaces the Circular No.08/2008/TT-BLDTBXH dated June 10, 2008 of Ministry of Labour - Invalids and Social Affairs guiding the implementation of some Articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government defining the recruitment and management of foreigners working in Vietnam.

In the implementation process if any problems arise, the concerned bodies should reflect to the Ministry of Labour - Invalids and Social Affairs for guidance, timely supplementation./.

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FOR MINISTER
DEPUTY MINISTER




Nguyen Thanh Hoa