‘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
 WHAT IS A CIVIL TRANSACTION?

 [Art.121] is a contract / unilateral legal act which gives rise

to, changes, or terminates civil rights and/or obligations
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 individual’s capacity to have civil RIGHTS & OBLIGATIONS

 All individual shall have the SAME civil legal capacity

 An individual’s civil capacity EXISTS from the time he/she is born

and IS TERMINATED when he/she dies
 [Ar t.15] Content of a civil legal capacity?
 Personal rights associate with or not associate with properties
 Ownership rights, inheritance rights and other rights with
respect to properties
 Rights to enter a civil relations and have obligations with such
relations
INDIVIDUALS:
CIVIL LEGAL CAPACIT Y & CIVIL ACT CAPACIT Y

 The civil act capacity of an individual is his/her capability to

establish and perform civil rights and obligations through
his/her acts ( Art 17)
 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 entity’s 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

2. It shall arise from the time it’s established and shall be

terminated from the time it ceases to be a legal entity

3. Representative at law : shall act in the name of the legal

entity in civil relations

(Ar t.86)
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

2. 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

3. 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)
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

CIVIL TRANSACTIONS

 Forms of civil transactions: (art 124)

 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?

Is the legitimate interest which the parties wish to obtain
when establishing such transactions . (art 123)
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
 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. To the meaning consistent with the objective

c. 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 that’s 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 they’ve 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 Y’S INTERESTS -
INVALID CIVIL TRANSACTION
 [Ar t.138]

 Where a civil transaction is invalid but the transacted proper ty is

“moveable” proper ty the owner ship of which is not required to be
registered and such proper ty has already been transferred to a bona
fide 3 rd par ty by way of another transaction, the transaction with the
3 rd par ty shall remain valid ( except cases in Ar t.257 of this Code )
 Owner s may reclaim movable proper ty not subject to owner ship right
registration from bona fide possessor s in cases where such bona fide
possessor s have acquired such proper ty through unindemifiable
contracts with per sons who have no right to dispose of the proper ty; in
case of indemifiable contracts, the owner s may reclaim the movable
proper ty if such movable proper ty has been stolen, lost or other cases
of possession against the owner s' will. (ar t 257)

 What about the cases where the transaction which the transacted
proper ty is required to be registered ? – Cases of Auction and Proper ty
pur suant to Cour t’s judgment(s) / decision(s)
 PART I. CONCLUSION

 Basic Principles

 Civil Legal Capacity

 Civil Act Capacity

 Legal entities (persons)

 Civil Transactions – Valid and Invalid