DECREE

GUIDING THE IMPLEMENTATION OF THE REGULATIONS OF THE CIVIL CODE CONCERNING CIVIL RELA-TIONS INVOLVING FOREIGN FACTORS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Civil Code of October 28, 1995;
Pursuant to the Resolution of October 28, 1995 of the National Assembly on the implementation of the Civil Code;
At the proposal of the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation of the Decree

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"Civil relations involving foreign factors" stipulated in the Vietnam Civil Code are civil relations happening in one of the following conditions:

- With the participation of a foreigner or foreigners or a foreign legal person or foreign legal persons;

- The basis for their establishment and changes or termination is located in foreign countries;

- The properties related to these relations are located in a foreign country;

"Foreigners" stipulated in this Article are persons without Vietnamese nationality. They are foreign citizens or persons without nationality.

"Foreign legal person" stipulated in this Article is an organization having legal person status as defined by foreign law.

Article 2.- Application of the Vietnam civil legislation

Provisions of the Vietnam civil legislation shall apply to the civil relations involving foreign factors, unless they are regulated by international treaties as stipulated in Article 3, or international practice as stipulated in Article 4, or come under the juridistion of foreign laws as stipulated in Article 5 of this Decree.

Article 3.- Application of international treaties

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Article 4.- Application of international practice

In case the Vietnam Civil Code, other legal documents of Vietnam or the international treaty which the Socialist Republic of Vietnam has signed or acceded to have no relevant provisions, or there are no provisions in the civil contract for a juridical agreement on the application of the law concerning the civil relations involving foreign factors, the international practice on the choice of the law to be applied shall prevail. In case the application of international practice or the consequence of such application is contrary to the provisions of from Article 2 to Article 11 of the Vietnam Civil Code and other fundamental principles of Vietnam law, Vietnam law shall apply.

Article 5.- Application of foreign laws

1. Foreign laws shall apply to the civil relations involving foreign factors in the following cases:

a/ It is stipulated in the Vietnam Civil Code and other legal documents of Vietnam;

b/ It is stipulated by the international treaty which the Socialist Republic of Vietnam has signed or acceded to;

c/ It is agreed upon by the parties to the contract unless such agreement is contrary to the provisions of the Vietnam Civil Code and other legal documents of Vietnam.

2. Where the application of foreign laws or the consequence of such application is contrary to the stipulations from Article 2 to Article 11 of the Vietnam Civil Code and the other fundamental principles of Vietnam law, Vietnam law shall apply.

3. Where the law of a foreign country as provided for in Clause 1 of this article is applied and such a law refers to the law of Vietnam, Vietnam law shall apply. Should the law of that country refers to the law of a third country, the law of the third country would apply.

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CONCRETE STIPULATIONS

Article 6.- Civil legal capacity of the foreigner or foreigners

A foreigner shall have the same civil legal capacity in Vietnam as a Vietnamese citizen unless the Vietnam Civil Code and other legal documents of Vietnam stipulate that foreigners do not have the civil legal capacity or do not have the full civil rights and obligations as Vietnamese citizens.

Article 7.- Civil act capacity of a foreigner

1. The civil act capacity of a foreigner shall be determined according to the law of the country of which he/she is a citizen.

The civil act capacity of a person without nationality shall be determined according to the law of the country where he/she resides; in the absence of a permanent residence, it shall be determined according to Vietnam law. The civil act capacity of a foreigner having two or more foreign nationalities shall be determined according to the law of the country where he/she has his/her nationality and residence at the time when the civil relation arises; if he/she does not reside in one of the countries where he/she has his/her nationality, it shall be determined according to the law of the country of which he/she has his/her nationality and with which he/she has the closest relations in terms of personality or property.

2. In case the foreigner establishes and carries out his/her civil transactions in Vietnam, his/her civil act capacity shall be determined according to the provisions from Article 19 to Article 25 of the Vietnam Civil Code.

Article 8.- Civil legal capacity of foreign legal persons

1. The civil legal capacity of a foreign legal person shall be determined according to the law of the country where he/she has his/her nationality.

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Article 9.- Property ownership right

1. The establishment and termination of the property ownership right, the contents of the property ownership right shall be determined according to the law of the country where this property is located except for the following cases:

a/ The establishment and termination of the property ownership right, the contents of the property ownership right over a sea-going ship shall be determined according to the law of the country of which this ship carries the flag;

b/ The property ownership right over an airplane shall be determined according to the laws of the country where the plane is registered;

c/ The ownership right over a movable property on the way of its transportation shall be determined according to the law of the country where this property is being moved to unless otherwise agreed upon by the parties;

2. The differentiation between a movable property and an immovable property shall be determined according to the law of the country which has this property.

3. The property of the State of the Socialist Republic of Vietnam shall enjoy the right to legal immunity unless it is used for business purposes, except otherwise provided for by Vietnam law.

Article 10.- Civil contract

1. The form of a civil contract shall comply with the law of the country where the contract is signed.

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2. The rights and obligations of the parties to a civil contract shall be determined according to the law of the country where the contract is carried out unless otherwise agreed upon by the parties. In case the contract does not specify the place of implementation the determination of this place shall have to comply with Vietnam law.

3. A civil contract committed in Vietnam and entirely carried out in Vietnam shall comply with the provisions of articles from Article 394 to Article 420 of the Vietnam Civil Code.

4. A civil contract related to an immovable property in Vietnam or to a Vietnamese airplane or sea-going ship shall comply with provisions of the Civil Code, the Maritime Code and the Civil Aviation Law of Vietnam and other legal documents of Vietnam.

Article 11.- Out-of- contract compensation for damage

1. Out-of-contract compensation for damage shall be determined according to the law of the country where the damaging act takes place or the place where practical consequences of this act happen.

In case a foreign organization or individual causes damage to the Vietnamese State or a Vietnamese organization or individual or a Vietnamese organization or individual causes damage to a foreign organization or individual in an air space and sea area under the jurisdiction of the Socialist Republic of Vietnam, compensation for the damage shall be determined according to the provisions from Article 609 to Article 633 of the Vietnam Civil Code.

2. The law to be applied to the compensation for the damage caused by airplanes and sea-going ships in the airspace and in the open sea shall be determined according to Vietnamese law on civil aviation and maritime navigation.

3. In case the damaging act takes place outside the territory of the Socialist Republic of Vietnam and the person causing the damage and the victim of the damage are both citizens or legal persons of Vietnam the compensation for the damage shall be determined according to the stipulations from Article 609 to Article 633 of the Vietnam Civil Code.

Article 12.- Copyright

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2. An author who is a foreigner or foreign legal person who has his/her copyright protected under Clause 1 of this Article shall also have his/ her copyright stipulated from Article 750 to Article 766 of the Vietnam Civil Code.

3. Where an international treaty on copyright which the Socialist Republic of Vietnam has signed or acceded to provides otherwise than the stipulations in Clause 1 and Clause 2 of this Article the stipulation of such international treaty shall prevail.

Article 13.- Industrial property right

1. The State of the Socialist Republic of Vietnam protects the industrial property right of foreigners and foreign legal persons over the objects of industrial property right which have already been issued the protection certificate by the competent agency or agencies of Vietnam.

2. The protection of the industrial property right of foreigners and foreign legal persons in Vietnam shall comply with the stipulations from Article 788 to Article 805 of the Vietnam Civil Code.

3. In case the international treaty on the protection of industrial property right which the Socialist Republic of Vietnam has signed or acceded to stipulates otherwise than the provisions in Clause 1 and Clause 2 of this Article, the provisions of the international treaty shall prevail.

Article 14.- Transfer of technology

1. The transfer of technology in Vietnam between a Vietnamese individual or legal person and a foreigner or a foreign legal person and the transfer of technology from a foreign country to Vietnam or from Vietnam to a foreign country shall comply with the provisions from Article 806 to Article 825 of the Vietnam Civil Code and the other legal documents of Vietnam on technological transfer.

2. In case the international treaty on technological transfer which the Socialist Republic of Vietnam has signed or acceded to provides otherwise than the provisions in Clause 1 of this Article, the international treaty shall prevail.

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IMPLEMENTATION PROVISIONS

Article 15.- Implementation effect

1. This Decree takes effect 15 days after its signing.

2. The Ministers, the Heads of the ministerial-level Agencies, the Heads of the Agencies attached to the Government and the Presidents of the Peoples Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

ON BEHALF OF THE GOVERNMENT
FOR THE PRIME MINISTER
DEPUTY PRIME MINISTER




Phan Van Khai