What Are Some New Points In The Draft Amending Land Law?

After nearly 10 years of enforcement and implementation, the 2013 Land Law has brought about remarkable achievements in land management, exploitation and use. However, with a significant increase in land use demand, especially in the city center areas, many issues have arisen that are beyond the law’s control. The requirement to amend and supplement this law, therefore, is set out to be suitable with reality and bring high results in the application process. The Draft Land Law has been recently released on the Government’s portal, and public opinions have been collected to complete the amended Land Law. This is the opportunity for people, experts, officers, real estate lawyers in Vietnam to provide opinions and comments for improvement.

In general, the Draft Land Law includes 237 articles, of which 48 articles have remained unchanged; 153 articles have been amended and supplemented; 36 new articles have been added and 8 articles have been annulled compared to the 2013 Land Law.

Some notable changes in Draft Land Law

For land use purposes, the Draft Land Law has added a provision on “multi-purpose land” (Article 184), allowing organizations and individuals to use the land for different purposes instead of just a single purpose, as long as the principles are met. Meanwhile, the 2013 Land Law does not have any provisions directly stipulating that the holders have the right to use multi-purpose land even though this situation is common nowadays, for example, land users can combine residential and business purposes in the same land plot. Therefore, adding this provision to the Draft is extremely reasonable to legalize the use of land for various purposes, increasing the efficiency of land use. At the same time, this article has also given some specific principles, ensuring that the multi-purpose land is not abused, leading to the problem of arbitrary land use.

Besides, the Draft Land Law has removed the land price frames and revised the regulations on determining land prices. As for the land price frames, Article 113 of the 2013 Land Law stipulates that: “The Government shall promulgate land price frames once every 5 years for each type of land and for each region…”. This provision has been completely deleted in the Draft. Removing the land price frames means that the State will no longer apply minimum and maximum prices for each type of land. Instead, when promulgating the land price tables of each locality, the People’s Committee of the province will base on the principles and methods of land valuation, land standards and land prices, the fluctuations in real land prices in the market to build a land price tables. After completing the construction of the land price tables, they will be submitted to the Provincial People’s Council before approval. Based on the actual situation, the land price frames issued by the Government has a huge difference compared to the real land price in the market, leading to the existence of a two-price land mechanism. That makes it difficult for the competent authorities’ management, the land investment activities of the investors and the interests of the land users. In addition, the difference in land prices also creates conditions for corruption and monopoly in auctions. Therefore, the decision to remove the land price frames in the Draft Land Law is a remarkable step forward, having a great impact on the land sector in particular and socio-economic life in general. In addition to the land price frames, the regulations related to the land price tables has also been revised and supplemented. Specifically, Article 130 of the Draft Land Law has added a basis for determining the land price list as “the common land price in the market and land price fluctuations” and changes the period of the land price tables’ construction from once every 5 years to once a year. These provisions in the Draft make it possible for the land price tables proposed by the Provincial People’s Committee to be more reasonable and less different from the actual land price.

Not only that, the responsibility for monitoring and evaluating the management and use of land is decentralized to localities according to the provisions of the Draft Land Law. The 2013 Land Law has never provided for the decentralization of land management and use. The draft has added provisions to regulate this issue. Article 223.4 stipulates responsibilities for monitoring and evaluation from high to low levels, from central to local levels, including the responsibilities of the Ministry of Natural Resources and Environment, the Provincial People’s Committees, the People’s Committees of district-level People’s Committees and People’s Committees of commune level. The above agencies are responsible for monitoring and evaluating the land management process. Accordingly, superior agencies will manage their subordinate agencies to ensure transparency and correctness in the management and use of land. The management decentralization mechanism makes management easier, faster and more effective than the centralized management of all the other agencies.

Moreover, Article 124.1 of the Draft Land Law has added financial revenues from land compared to Article 107 of the 2013 Land Law. Some new revenues are the collection of land use levy when using land in combination with other purposes; additional land use levy, land rent for projects that are behind schedule or do not put the land into use and collected from the sanctioning of administrative violations on land. At the same time, the Draft adds revenues from public land services in Article 125. These additions are necessary to avoid loss of the State’s budget for the benefits coming from the land and show obligations of land users.

Beside amending and supplementing the above-mentioned outstanding provisions, the Draft Land Law also has many other innovations. The draft is still in the process of reviewing and soliciting comments from the public, including people, industry experts and real estate law firm in Vietnam hence there will be many changes. However, the advantages and progress of the Draft compared to the current Land Law are obvious, showing the development in line with the actual situation. Therefore, it can be affirmed that, if the Draft is approved and officially takes effect, it will bring positive results.

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What Are New Points of the Law on Intellectual Property 2022

What Are New Points of the Law Amending and Supplementing The Law on Intellectual Property?

The 2005 Law on Intellectual Property (IP) was amended and supplemented twice, in 2009 and 2019, to make it more practical and to address new concerns in the area of intellectual property as they arise. However, given the rapid development and international integration of this field, the requirement for updating this law continues to be raised so that domestic law is consistent with international law. The National Assembly, therefore, promulgated the Law amending and supplementing several sections of the IP Law (referred to as the Law on Amendments and Supplements) on June 16, 2022, which will officially take effect on January 01, 2023. The new law modifies more than 100 articles of the IP Law and focuses on 7 major policy groups.

First, the IP Law updates, corrects and perfects the interpretation of terms so that they are coherent and consistent. Any statute will contain provisions defining the technical terms of the area covered. However, in the process of linking terms and regulations, inconsistencies or misunderstandings still occur, hence amendments and supplements are necessary. Specifically, some concepts in Article 4 of the IP Law such as: derivative works; published work, audio and visual fixation; reproduction; broadcasting; industrial design; integrated trademarks; well known mark; geographical indication are explained and clarified. The terms can be seen as the basis for defining and applying legal provisions related to the claims arising around it, such as copyright for derivative works or industrial property rights for geographical indications. The terms under the Law on Amendments and Supplements are not completely renewed but simply inherited and perfected from the old law, then it is reasonably possible to adapt and apply.

Second, the Law on Amendments and Supplements provides more specific provisions on copyright and related rights in Vietnam; extending the term of protection; at the same time, there is a change in the assignment or transfer of these rights. In addition to works that are protected for the life of an author, cinematographic, photographic, theatrical, and applied art works, anonymous works published for the first time, have their protection term extended from 50 years to 75 years. It can be remarked that copyright protection in Vietnam is becoming more and more important and stricter. The biggest change is that the Law on Amendments and Supplements allows the author to transfer one more moral right. Pursuant to Article 41 of the 2005 IP Law amended and supplemented in 2009 and 2019, the author may only transfer some or all of the property rights and the only moral right which is to publish the work. Until the Law on Amendments and Supplements in 2022, Article 19 allows “authors have the right to transfer the right to use the right to give titles to their works”. Besides, the previous provision in Article 47: ” Authors shall not be permitted to license the moral rights stipulated in article 19 of this Law, except for the right of publication…” is amended to “ Authors shall not be permitted to license the moral rights according to clause 2 and 4, Article 19 of this Law…”. This change means that the author is allowed to transfer two moral rights: the right to publish the work and the right to give title the work. From there, the owner who are transferred these rights can completely name or change the name, which absolutely does not affect the legitimate rights of the author.

Third, the Law on Amendments and Supplements in 2022 clarifies acts of infringing upon copyright and related rights. Article 28 stipulates the act of copyright infringement in Vietnam initially has 16 clauses, then it is condensed and concise into 8 clauses but still full and covers the content. For example, Clause 1 “appropriating copyright in literary, artistic or scientific works”, Clause 2 “impersonating an author”, Clause 3 “Publishing and distributing works without the author’s permission”, … are all included in Clauses 1 and 2 of the new law as “infringement on the moral rights and property rights of the author”. In addition, the clauses of Article 35 on related rights infringement are supplemented and explained. Both Article 28 and Article 35 add Clause 11 on the act of “failure to perform or incomplete implementation of regulations to be exempted from liability of the intermediary service provider”. Technological technology and the Internet have developed strongly, leading to the formation of intermediary service providers. The regulations about “enterprise providing intermediary services” have first appeared in the IP Law, demonstrating the development and completion of the law in order to promptly adjust new problems. For exceptions that do not infringe copyright, according to the Law on Amendments and Supplements, when using a published work, one does not have to ask for permission or pay royalties, but he/she must provide information about the author’s name and the source and origin of the work. This change is to ensure copyright for that work, to avoid misunderstanding that the user is the author of the work.

Fourth, the procedure for registration of copyright, related rights and industrial property rights in Vietnam have become simpler and more streamlined. If the unmodified Law only stipulates that the application is filed directly or through a legal IP representative in Vietnam, the application for establishment of rights can be filed in the form of a written document in paper form (submitted in person) or electronically under the online application system after the law is amended. The new regulation represents an update in line with the development of the information technology level of the digital age. This creates favorable conditions for subjects to easily submit registration IP applications in Vietnam, especially those with geographical distances without authorizing other organizations and individuals to apply. At the same time, it also helps reduce the resources required to receive applications directly.

Fifth, the use of the National Flag, National Emblem and National Anthem is regulated for the first time in the Intellectual Property Law. Specifically, “Organizations and individuals exercising intellectual property rights related to the National Flag, National Emblem and National Anthem of the Socialist Republic of Vietnam must not prevent or obstruct the dissemination and use of the National flag, National Emblem, National Anthem” (added to Article 7.2). Thus, the dissemination and use of the National Flag, National Emblem, and National Anthem is allowed without being prevented or obstructed by any organization or individual if the purpose of such use does not violate the law and not against social morality.

In conclusion, the Law amending and supplementing the IP Law 2005 has updated more than 100 provisions to be consistent with the country’s socio-economic, scientific and technological development orientations and international treaties to which Vietnam is a member. For the Law to amend and supplement to achieve good results when it comes to implementation, competent state agencies should soon issue detailed guiding regulations, focus on organizing the implementation of the Law and ensuring the following regulations. the provisions of the Law come to life. The success of the Amended Law of Intellectual Property Law in Vietnam will make an important contribution to the sustainable development of the field of intellectual property in Vietnam.

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How to Prepare and File a Lawsuit in Vietnam?

If two parties have a dispute over a commercial matter in Vietnam, they should try to resolve disputes through negotiation, or mediation before considering to file a lawsuit against the other at a court in Vietnam.

To implement their right to sue, the plaintiff must prepare and submit the claim at the competent court in Vietnam. The dispute lawyers in Vietnam with experience and understanding the litigation process should be invited at the early stage to advise, represent and prepare to defend the client. The claim filing should include the petition and the supporting documents. The petition is the most important legal document for the court to review and resolve the claim of the plaintiff, as such it should be carefully prepared to meet the requirements of the form, authority, and further contain information about the plaintiff, defendant, summary of the case and the request of the plaintiff.

The contents of the petition must be presented in full, brief, clear, and in logic. The plaintiff should provide all documents, and evidence to prove the merit of the claim including contract, purchase order, separate terms and conditions, appendixes (if any), minutes of meetings of negotiations, invoices, delivery proof, legal status of plaintiff and defendant, documents to determine the legal status of the representative of the plaintiff such as appointment decision, power of attorney. In order for the document issued in foreign country to be valid in Vietnam, the documents presented have to be original or notarized, legalized and authenticated copy and translated into Vietnamese in accordance with Vietnam laws.

When the claim has been filed at the competent court in Vietnam provided all conditions of acceptance are met, the court will notify the plaintiff or its representative know the court fees. When the applicant advance the court fee, the case will be recorded and brought into the process for settlement.

At the trial preparation process, the case will be assigned to a judge whom after studying would request parties to present additional necessary papers and documents relating to the case. Parties or their representative would then be requested to meet the judge to provide further information or testimony or attend reconciliation. If the disputing parties resolve disputes with each other, the court will make a record to acknowledge the successful reconciliation and issue the decision to recognize the agreement of the parties. Where reconciliation fails, the court records that and shall issue the decision to bring the case to trial.

Disagreements or disputes arise when parties can not agree on issues related to contract provisions, expected outcome or performance starndards…There are cases when the dispute is over a debt obligations matters which a debt recovery law firm could assist at an early stage to manage the collection process pre litigations including negotitions and managing expectations of both sides.

ANT Lawyers, a law firms in Vietnam will be available to assist the clients when required to handle dispute matters out of court, at court or through arbitration in Vietnam.

How to Prepare and File a Lawsuit in Vietnam?

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The Benefit from Protecting Invention Patent

Invention protection shall bring advantages for the owner of invention including the usage and application within the duration of 20 years. As Law on intellectual property of Vietnam, an invention patent shall be valid from the grant date until the end of twenty (20) years after the filing date.

Besides, Invention patent can bring its owner the followings:

The steady position on the market: with the invention patent, the owner of the invention shall have rights to prevent others from using their invention with commercial purpose. This will reduce the competitive capacity of competitors and bring preferred position for the owner.

Right to sell and license the invention: in case owners of inventions cannot use their invention by themselves, they can sell or license the use of their inventions to other people or companies. They can license only the right of use and sell all of their inventions. This does not only bring them a lot benefits but also avoid risks because of the competition on the market.

When your inventions have been commercialized and got the significant position on the market, other companies or people might tend to copy and use your invention illegally or sell other products which are similar to yours. If your inventions were not properly registered at competent authority, the competitors and violators can use your inventions without breaching of law.

Therefore, it is essential to register a new invention to protect the owner’s rights to avoid unfair competition on the market.

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Solutions to Identify Counterfeit Goods and IP Violations from the Experience of Korea

Currently, counterfeit products and product infringing intellectual property rights happening in Vietnam are very popular and diverse in types. This situation not only affects domestic production and trade but also has a negative impact on close business partners of Vietnam, including Korea. In many cases, the infringed parties have been seeking help from IP lawyers in Vietnam for advice.

With cultural compatibility, Korean products such as fashion, home appliances, cosmetics, and functional foods are very popular and widely consumed in Vietnam. Therefore, with the quick grasp of this trend, the products of Korean enterprises have become the subject of counterfeiting. Besides, with the development of e-commerce channels, these counterfeit products quickly reach consumers, affecting the interests of consumers in Vietnam and Korean enterprises.

Moreover, with technology, forgery is increasingly done in a very sophisticated way from the packaging, share, and the color of the counterfeit products. Therefore, without a method of comparison and inspection, it is difficult for consumers to detect the product as a fake. This causes great damage to Korean enterprises not only the market share, but also the value of reputation and intellectual property rights being violated.

Besides, the Covid-19 pandemic makes people in Vietnam more inclined to buy goods online. This is an opportunity for individuals and organizations that counterfeit products to easily reach out to consumers without being detected and punished.

In addition, although Vietnam has a mechanism to enforce intellectual property rights, these regulations have not been thoroughly applied. Therefore, many individuals and organizations making counterfeit goods and infringing intellectual property still continue to violate without being caught. Meanwhile, consumers still have to pay to use bad quality products.

With the support of Korean businesses, Vietnam authorities will continue to improve their capability in identifying counterfeit goods and goods infringing on intellectual property. Therefore, an exchange between Korean businesses and the General Department of Market Management of Vietnam is necessary in providing methods to detect counterfeit goods and intellectual property violations for Vietnam agencies to exchange support, raise awareness of intellectual property rights protection, and provide information on intellectual property rights for Korean businesses in Vietnam. It is expected that Vietnam intellectual property enforcement agencies improve their efficiency in identifying, preventing, combating and handling counterfeit and infringing goods in Vietnam to protect consumers and company in creating an encouraging investment environment in Vietnam, for Korean investors to enter Vietnam for setting up company, factory and do business in Vietnam.

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New Regulations of Intellectual Property Law in 2022

Intellectual property is currently playing a very important role in Vietnam and other countries around the world. With the participation in Trade Agreements and market expansion, the regulations on intellectual property have had many positive changes towards the protection and promotion of intellectual property rights and in line with the general trend of countries.

Intellectual property rights are the rights of organizations or individuals to trademarks, inventions, designs or other forms of creation. Currently, intellectual property rights are recognized as an asset class, which can constitute corporate assets. Popular groups of intellectual property today include: (i) Copyright; (ii) Inventions; (iii) Industrial design; (iv) Trademarks. These are objects created by thinking, mental labor, cognitive activities of people and protected by law.

Currently, intellectual property rights are governed by the 2005 Intellectual Property Law, which was amended and supplemented in 2009, and 2019. These are efforts in changing Vietnam’s legal system in raise awareness and perfect the legal system on intellectual property of Vietnam. Up to now, the Intellectual Property Law has created a legal corridor for organizations and individuals to establish and protect intellectual property rights, contributing to encouraging creative activities, and enhancing the value of intellectual property, wisdom. However, after 17 years since its promulgation, the Law on Intellectual Property has also arisen problems, inadequacies and incompatibility to ensure the implementation of commitments on intellectual property in trade agreements to which Vietnam is a member.

To implement the above guidelines and policies, the National Office of Intellectual has coordinated with relevant agencies to change and supplement regulations on intellectual property accordingly. Accordingly, the content of amendments to the Intellectual Property Law focuses on important groups of policies with about 100 amended and supplemented articles. Therefore, obstacles and inadequacies such as regulations on licensing of patents, industrial designs, layout designs and plant varieties are the result of scientific and technological tasks using the state budget; regulations relating to procedures for registration and establishment of intellectual property rights and validity of protection titles; regulations on security control for inventions before registration abroad; on compensation to patent owners for delays in marketing authorization of pharmaceutical products; on sound trademark protection; on geographical indication management; on liability for copyright and related rights for enterprises providing intermediary services.

In addition to the Draft of Intellectual Property Law, the Draft Circular is also proposed to stipulate economic – technical norms for a number of public services funded by the state budget, including training and retraining services on Intellectual Property, the service of confirming the validity of international registration of trademarks protected in Vietnam.

Moreover, the National Office of Intellectual also implemented the reform and modernization of the information technology system, reducing the burden of administrative procedures, internal processes to handle administrative procedures; actively review and evaluate administrative procedures and develop a plan for decentralization and simplification of administrative procedures in the field of intellectual property; organize the collection of fees and charges via commercial bank accounts and issue receipts of electronic fees and charges. In addition, the information synchronization for the Government’s National Public Service Portal is also interested in development.

The new Draft Law on Intellectual Property has many additions and adjustments in accordance with practical requirements and is expected to take effect, which will help solve problems that still exist. However, in order to ensure that the enforcement of intellectual property rights is effective and meets the set requirements, businesses need to pay attention and comply well with legal regulations.

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We help clients to overcome cultural barriers and achieve their strategic and financial results, and in the meantime ensure best interest protection, risk minimization, and regulatory compliance. We represent multinational and domestic clients, from industrial, commercial companies and individuals on the following areas:

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