Giới hạn tự do hợp đồng trong hoạt động thương mại theo quy định của pháp luật Việt Nam tt

MINISTRY OF EDUCATION & TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

LIMITATIONS ON FREEDOM OF CONTRACT
IN COMMERCIAL ACTIVITIES UNDER
VIETNAMESE LAW

Major: Economic Law
Number Code: 938.01.07

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI – 2022


The thesis was completed at:
Hanoi Law University

Academic supervisors:

Dr. Nguyen Van Cuong
Assoc. Prof. Dr. Tran Ngoc Dung

Examiner 1:
Examiner 2:
Examiner 3:

The thesis will be defended before the University-level Thesis Assessment

Council gathered at Hanoi Law University at …, on … / … / …
(dd/mm/yyyy).

The thesis can be found at:
1) National Library
2) Library of Hanoi Law University


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A. INTRODUCTION
1. NECESSITY OF RESEARCH

Limitations on the freedom of contract in general and limitations on
the freedom of contract in commercial activities in particular have been
addressed in some research studies. However, research on these issues
remains insignificant, inorganized, and small-scale.
Limitations on the freedom of contract in commercial activities are
currently provided for in a number of legal documents and their
implementation guidelines. Nevertheless, such provisions are inconsistent
with each other as there exist contradictions and overlaps between them.
With the above reasons, the issue of “Limitations on the freedom of
contract in commercial activities under Vietnamese law” has been chosen
to be presented in this doctoral thesis in law.
2. RESEARCH OBJECTIVES

The purpose of the study is to clarify the theoretical issues, assess
the legal situation, the implementation of the law on the limitation of
freedom of contract in commercial activities; propose directions and some
specific solutions to improve the law on limitation of freedom of contract
in commercial activities in Vietnam; concurrently, contributing to

improving the efficiency of law enforcement on the limitation of freedom
of contract in commercial activities in Vietnam in the upcoming time.
To achieve the above purpose, the PhD student sets out and
performs the following important tasks:
- Researching theoretical issues on regarding limitations on the
freedom of contract in commercial activities;


2
- Analyzing and assessing the pros and cons and the
implementation of regulations concerning limitations on the freedom of
contract in commercial activities in Vietnam.
- The PhD students proposes some solutions as to the improvement
of related rules in Vietnamese law in the upcoming time.
3. OBJECTS AND SCOPE OF THE RESEARCH

The research objects are the theoretical issues as well as existing
regulations on limitations on the freedom of contract in commercial
activities and the implementation of them in Vietnam.
Scope of the research:
- With respect to the substance.
- Regarding the space
- With respect to time frame
4. RESEARCH METHODOLOGIES

To carry out the research, the Marxist-Leninist materialist
dialectics, comparative method, synthetic method, analytical method, and
statistical method have been applied.
5. SIGNIFICANCE OF THE RESEARCH

First, the thesis systemizes some parts of the theoretical
knowledge about limitations on the freedom of contract in commercial
activities:
Second, the thesis analyzes and assesses some drawbacks in
current law and the implementation of law on limitations on the freedom
of contract in commercial activities.
Third, the thesis puts forward suggestions and solutions to improve
the law on limitations on the freedom of contract in commercial activities
and the implementation of that law in Vietnam.


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6. STRUCTURE OF THE THESIS

The thesis comprises of the Preamble, Literature Review,
Reference List and three chapters.
B. LITERATURE REVIEW
1. RELATED RESEARCH STUDIES

1.1. Research studies concerning theoretical questions on
limitations on the freedom of contract and law on limitations on the
freedom of contract in commercial activities
First,

research

studies

concerning

the

concepts

and

characteristics of the contracts in commercial activities
Some notable research studies dealing with the above topic are:
Nguyen Thi Dung (2012), "Some specific contracts in commercial
activities and negotiation and drafting skills", People's Public Security
Publishing House); Nguyen Viet Ty and Nguyen Thi Dung (2017)
"Vietnamese Commercial Law - volume 2", Judicial Publishing House; Vu
Thi Lan Anh (2008), "Commercial contracts and the law on commercial
contracts of some countries in the world", Jurisprudence journal No.11);
Vu Quang (2016), "Some basic issues about commercial contracts to meet
the requirements of international economic integration", Hanoi
Polytechnic

Publishing

House);

Попондопуло

В.

SP

(2005)

“Коммерческое право зарубежных стран” (Foreign Commercial Law).
Second, research studies concerning the concepts and
characteristics of law on limitations on the freedom of contract in
commercial activities
Notable research studies dealing with the above topic are:
Raymond Youngs (2000), “Constitutional Limitations on Freedom of
Contract: What can the German teach us, Anglo – American Law Review


4
29; Peter Cserne (2003); “Reasons for limiting freedom of Contract:
Questions of philosophy and policy”; Maria Rosaria Marella, “The old and
the new Limits to Freedom of Contract in Europe”; Bui Thi Dao (2014),
"Renovation of the Constitution in 2013 in the similarity with international
law on human rights" by the author, Journal of Jurisprudence- Constitution
Special Journal of the Socialist Republic of Vietnam South of September);
Nguyen Thi Dung (2015), "Freedom of business in industries and
professions that are not prohibited by law - Some comments from the
perspective of law enforcement", Journal of Jurisprudence No.6.
Third, research studies concerning các cơng trình nghiên cứu
liên quan đến nội dung pháp luật điều chỉnh giới hạn tự do hợp đồng
trong hoạt động thương mại
Typical related research works are: Nguyen Thi Thu Trang (2018),
“Human rights and limitations on freedom of contract”, Electronic Journal
of law and development); Do Ngoc Diem Phuong, Nguyen Thi Thanh Lan,
Do Thi Tram (2010), “Freedom of contract and limitation of freedom of
contract”, organized by Center for Science and Technology Development
- Ho Chi Minh City Youth Union); Pham Hoang Giang (2007) “Freedom
of contract in commercial activities in Vietnam – Theoretical and practical
issues”, Doctoral Thesis in Law, Hanoi Law University); Nguyen Thi Van

Anh (2004), "Some exchanged ideas to improve the legal regulations on
traders", Journal of Jurisprudence No. 2; Michael J. Trebilcock (1993),
“The limits of Freedom of Contract” (tạm dịch: Những giới hạn tự do hợp
đồng), Harvard University Press; Tran Thi Bao Anh and Nguyen Thi Yen
(2012), “Law on conditional business lines and recommendations for
improvement”, Journal of Jurisprudence No. 4; Nguyen Thi Tinh (2020),
“Competition Law and Consumer Rights Protection Law, Statistical


5
Publisher; Nguyen Thi Tinh (2015) “Legals restricting competition in
franchising activities in Vietnam today”, Doctoral Thesis in Law, Hanoi
Law University; Nguyen Thi Thuy (2017), "Some legal issues on foreign
currency control from current transactions", Vietnam Legal Science
Journal, No. 3 (106)
1.2. Research studies related to the assessment of the legal
status of the limitation of freedom of contract in commercial activities
Some scientific works can be mentioned below: Nguyen Thi Van
Anh (2004), "Some ideas exchanged to improve the legal regulations on
traders", Journal of Jurisprudence No. 2; Nguyen Trong Diep (2018) "The
current practice of law enforcement on trade in Vietnam from a reference
point of view with the requirements of new-generation free trade
agreements (FTAs)", University of Science and Technology Journal
National School, Hanoi: Law School No. 2 ; Le Thi Hoang Thanh (2021),
"Some inadequacies of the law on contracts and the direction of
improvement" in the conference "Some problems and inadequacies of the
law on contracts and settlement of contract disputes in Vietnam in the
context of the Covid-19 epidemic: Recommendations for businesses and
complete solutions" of the Ministry of Justice on December 24, 2021;
Nguyen Minh Tuan (2014) "Scientific commentary on the Civil Code",

Judicial Publishing House, Hanoi; Report “OECD Review of Competition
Law and Policy” 2018 by the Secretary-General of the Organization for
Economic Cooperation and Development – OECD); Nguyen Thi Hang
Nga (2012), "Some inadequacies of the law on registration of model
contracts and general transaction conditions", Journal of the Law
Profession, No. 4; Ministry of Industry and Trade (2020) “Summarizing
report on the implementation of the Law on Protection of Consumer Rights


6
and guiding documents – Appendix 05 Controlling model contracts and
general transaction conditions for the period 2012 - 2019 and some
problems"; Nguyen Thi Van Anh, Tran Dieu Loan (2020), "Controlling
contracts according to the provisions of the Law on Protection of
Consumer Rights of Vietnam" published in the Journal Jurisprudence No.9.
1.3. Research studies related to the improvement of the law on
the limitation of freedom of contract in commercial activities
Firstly, the research studies are related to the principle of
perfecting the law on the limitation of freedom of contract in commercial
activities.
The following are some typical studies on this issue: Marco P.
Falco (2016) “Good Faith and Reasonanbleness: Two limits on Canadian
Freedom of Contract”, Business Law Today (pp.1 – 3); Matthias E.
Storme (2005) “Freedom of Contract: Mandatory and Non – mandatory
Rules in European Contract Law”, The Conference European legal
harmony: goals and milestones, 10th anniversary Juridica international, in
Taru; Lukasz Romanski (2016) “The Principle and limits of Freedom of
Contract from the perspective of the Roman law tradition”, Internettowy
Przeglad; Tran Kien and Nguyen Khac Thu (2019) “Concept of contract
and basic principles of Vietnamese contract legal system”, Journal of

Legislative Studies, No. 2 + 3); Ngo Huy Cuong (2008) “Freedom of will
and acceptance of will in current Vietnamese law”, Journal of Legislative
Studies, No. 115, February.
Secondly, the research studies related to some specific solutions
to perfect the law on limitation of freedom of contract in commercial
activities.


7
- On the limitation of freedom of contract related to the contract
subject. Nguyen Thi Thu Trang (2018) “Human rights and limitations on
freedom of contract”, Journal of Law and Electronic Development); Me
Liang (2009) “Trends of formation and development of Chinese contract
law” published in Jurisprudence No.11.
- On limitation of freedom of contract related to contract content.
Pham Hoang Giang (2007) “Freedom of contract in commercial activities
in Vietnam – Theoretical and practical issues”, Doctor of Law Thesis,
Hanoi Law University ; Do Van Dai (2018) “Vietnam Contract Law –
Judgment and Commentary”, Vietnam Lawyers Association - Hong Duc
Publishing House, Hanoi; Nguyen Thi Van Anh (2010) "The current state
of Vietnamese law on consumer rights protection" by Nguyen Thi Van
Anh, Jurisprudence Journal No.11
- On the limitation of freedom of contract related to the form of the
contract. Some scientific works can be mentioned below: Le Thi Bich Tho
(2002), “Form of an economic contract and conditions for its validity”,
Jurisprudence Journal dated March 1, 2002;); Do Van Dai (2013)
“Compulsory form of contract in Vietnamese civil law – Inadequacies and
directions for improvement”, Jurisprudence Journal No. 2.)
Third, research studies related to specific solutions to improve
the efficiency of law enforcement on limitation of freedom of contract in

commercial activities.
Related research studies include: Harold C. Havighurst (1979);
“Limitations Upon Freedom of Contract”; Nguyen Duc Minh (2008)
"State responsibilities in protecting consumer interests", Jurisprudence
No. 12; Nguyen Thi Van Anh (2010), "The current state of Vietnam's law
on consumer rights protection", Journal of Jurisprudence No.11 ; Melvin


8
Aron Eisenberg (1995), “The limits of Cognition and the Limits of
Contract”, Stanford Law Review.
2. EVALUATION OF THE EXISTING RESEARCH STUDIES’ RESULTS

2.1. Results inherited and promoted by the thesis
- Limitations on the freedom of contract are under the umbrella of
limitations on the freedom to conduct a business.
- With certain conditions, human rights might be restricted.
- Basic theoretical arguments on contracts in commercial
activities.
- Practical assessment of limitations on the freedom of contract in
commercial activities in some related aspects.
- Some solutions to improve the law on limitations on the freedom
of contract and legal enforcement efficiency.
2.2. Unsettled matters that need further researching
- The necessity of limitations on the freedom of contract in
commercial activities in particular.
- Concept and characteristics of limitations on the freedom of
contract in commercial activities and law on limitations on the freedom of
contract in commercial activities.
- Content of law on the freedom of contract in commercial

activities.
- Practical assessment of law on limitations on the freedom of
contract in commercial activities in Vietnam.
- Suggestions and solutions to improve the law and legal
enforcement efficiency.


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3. THEORETICAL BASIS, RESEARCH QUESTIONS, AND
RESEARCH HYPOTHESIS
3.1. Theoretical basis
- First, the doctrine of human rights.
- Second, the doctrine of free will.
- Third, positional abuse theory.
3.2. Research questions and research hypotheses
The following research questions are raised: What can limitations
on the freedom of contract in commercial activities be defined as? What
do limitations on the freedom of contract mean for the society? What can
law on the freedom of contract in commercial activities be defined as? Why
should there be a law on limitations on the freedom of contract and how
can this be done? How has Vietnam’s regulating of limitations on the
freedom of contract played out? What positives and negatives has the
implementation of the regulations on limitations on the freedom of contract
brought about in Vietnam? What suggestions and solutions to improve the
law on limitations on the freedom of contract in commercial activities
should be considered?
Research hypotheses presented in the thesis:
- Limitations on the freedom of contract are legal limitations by
state, having effect on some agreements in the contractual relationship in
favor of the commonwealth and the interests of the community and other

related entities.
- The law on limitations on the freedom of contract sets out certain
requirements parties have to follow while establishing, implementing and
terminating a contract.


10
- Limitations on the freedom of contract should be made into law,
which should be recognized in the Constitution and legal documents of
various societal areas.
- Regulations on the matter in question are scattered in different
legal documents. Inconsistencies, contradictions, and overlaps exist.
- The improvement of the law on limitations on the freedom of
contract in commercial activities requires the amending of some related
legal documents.
CONCLUSION OF THE LITERATURE REVIEW
Limitations on the freedom of contract have been addressed in
some research studies. However, there have not been in-depth and allinclusive discussion on the matter.
C. CONTENT
CHAPTER 1. THEORETICAL ISSUES ON LIMITATIONS ON THE
FREEDOM OF CONTRACT IN COMMERCIAL ACTIVITIES AND
LAW ON THE FREEDOM OF CONTRACT IN COMMERCIAL
ACTIVITIES
1.1.

THEORETICAL

ISSUES

ON

LIMITATIONS

ON

THE

FREEDOM OF CONTRACT IN COMMERCIAL ACTIVITIES.

1.1.1. An overview of contracts in commercial activities.
1.1.1.1. Concept.
Contracts in commercial activities are the agreements between
merchants and merchants or merchants and other entities to establish,
modify or terminate parties’ rights and obligations in commercial
activities.
1.1.1.2. Characteristics.


11
- Subjects participating in commercial activities are merchants or
at least one party to a contract in commercial activities is a merchant.
- Contracts in commercial activities can be compensated.
- At least one party to a contract in commercial activities has intent
to make profits.
- Commercial contractual relationships emerge in the sale and
purchase of goods, provision of service, investment, trade promotion, etc.
1.1.1.3. Classification
- First, contracts for the sale and purchase of goods
- Second, contracts for the provision of service
- Third, contracts relating to the investment activities

- Fourth, contracts relating to intellectual properties.
1.1.2. The concept and characteristics of limitations on the
freedom of contract in commercial activities.
1.1.2.1. Concept.
Limitations on the freedom of contract in commercial activities are
the restriction (control or general requirement) by state applied to the
agreements between contracting parties in the form of legal regulations to
keep such agreements in line under certain circumstances for the sake of
legitimate rights and interests of parties to a contract and other related
parties.
1.1.2.2. Characteristics.
- First, limitations on the freedom of contract are made by the
state.
- Second, limitations on the freedom of contract contribute to the
social order and balance involved entities’ interests.


12
1.2.3. The principle of limiting the freedom of contract in
commercial activities
- First, limitations on the freedom of contract in commercial
activities must be for the protection of human rights
- Second, limitations on human rights, of which limitations on the
freedom of contract in commercial activities are a part, must not go against
the Constitution and the law.
- Third, limitations on the freedom of contract in commercial
activities must be established on specific grounds.
1.2. LEGAL THEORETICAL ISSUES ON LIMITATIONS ON THE
FREEDOM OF CONTRACT IN COMMERCIAL ACTIVITIES

1.2.1. Necessity of the regulating limitations on the freedom of
contract in commercial activities.
- For contracting parties: Regulations on limitations on the
freedom of contract guide the parties’ behaviors, enabling them to choose
to act properly; uphold equity, especially when there is an imbalance in
bargaining power.
- For the state and the society: Regulations on limitations on the
freedom of contract contribute to the social order and stability. In addition,
they assist the authorities in determining the validity of contractual
relationships, deter parties in a contractual relationship from making
arbitrary agreements and enhance the state administration of commercial
activities.
1.2.2. The concept and characteristics of the law on limitations
on the freedom of contract in commercial activities.
The law on limitations on the freedom of contract in commercial
activities is the accumulation of legal rules enacted by state to regulate the


13
matters concerning limitations on the freedom of contract to maintain
social order and balance involved parties’ interests.
The law on limitations on the freedom of contract possesses the
following characteristics:
- First, it requires contracting parties not to do what is banned by
law.
- Second, parties have to do as the law requires.
- Third, it allows parties to choose to act properly in accordance
with the law.
1.2.3. Body structure of the law on limitations on the freedom
of contract in commercial activities.

1.2.3.1. Structure of the form of law on limitations on the
freedom of contract in commercial activities
The system of Vietnamese legal documents containing legal
regulations on the limitation of freedom of contract in commercial
activities:
- Constitution
- The Civil Code
- Specialized legal documents and other legally effective guiding
documents
1.2.3.2. Structure of the substance of law on limitations on the
freedom of contract in commercial activities
- First, relating to the subjects of the contract.
- Second, relating to the content of the contract.
- Third, relating to the form of the contract.
1.2.4. The establishment and development of the law on
limitations on the freedom of contract in commercial activities.


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CONCLUSION OF CHAPTER 1
In chapter 1, basic theoretical issues regarding limitations on the
freedom of contract in commercial activities in particular are researched
and analyzed comprehensively
CHAPTER 2. THE LAW ON LIMITATIONS ON THE
FREEDOM OF CONTRACT IN COMMERCIAL ACTIVITIES

2.1. The law on limitations on the freedom of contract in
commercial activities regarding the subjects of the contract.
2.1.1. Legal regulations on limitations on the freedom of contract
regarding the requirements in order to become the subjects of the

contract.
2.1.1.1. Subjects of the contract must have legal personality and
legal capacity
Legal personality and legal capacity of natural persons are
prescribed fully in the Civil Code 2015. Nonetheless, those of legal persons
are lacking.
2.1.1.2. At least one party to a contract is a merchant
Article 6 of Law on Commerce 2005 has some defects:
- First, the requirement of “conducting commercial activities in an
independent and regular manner” no longer fits reality.
- Second, the requirement that merchants have to register business:
+ Inconsistent with international practice
+ Article 6(1) of Law on Commerce 2005 is redundant and
contradicts Article 7 of Law on Commerce 2005.
2.1.2. Legal regulations on limitations on the freedom of contract
regarding the selection of contracting partners.


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- First, give priority to certain subjects under certain
circumstances. Laws currently in force contain no regulations to ensure the
enforcement of priority right of the above subjects in reality.
- Second, refusing to form contracts with certain subjects under
certain circumstances is not allowed. This is responsive to the reality.
2.2. The law on limitations on the freedom of contract in
commercial activities regarding the content of the contract.
2.2.1. The agreements must not be contrary to the law
- Contradictions and overlaps exist between the provisions on this
matter as provided for in the Civil Code 2015 and the provisions in other
legal documents such as Article 11(1) of Law on Commerce 2005, Article

138(2)(a) Law on Construction 2014, and Article 4(1) Law on Real Estate
Trading 2014.
- Different courts in Vietnam have applied these provisions
differently.
2.2.2. The agreements must not be contrary to social morals
Different courts have solved disputes relating to social morals
differently.
2.2.3. The agreements on the object of the contract
- First, goods and services banned from business are not objects
of the contracts. Arguments appeared when the Law on Investment 2020
withdrew the debt collection service from the list of conditional businesses
to put it in the list of banned business.
- Second, some goods and services can become objects of the
contracts only when they meet conditions set out by the law. Some goods
and services in this category do not satisfy criteria provided in Article 7(1)
of Law on Investment 2020.


16
- Third, some goods and services are under state monopoly or
organizations and individuals authorized by state, should be moved to the
list of conditional business.
2.2.4. The agreements relating to the disadvantageous parties
(consumers) in standard form contracts, general transaction conditions.
- First, as to the standard form clauses.
+ The concept of standard form contracts in the Civil Code 2015,
the concept of standard form contract provided for in Article 3 of Law on
Protection of Consumers’ Rights 2010.
+ The term “drafting party” as used in Article 404(6) of Civil Code
2015 is not appropriate.

- Second, as to the general transaction conditions.
+ The matter of disclosure is yet to be prescribed by law
+ Besides, both the Civil Code 2015 and the Law on Protection of
Consumers’ Rights 2010 contain no provisions to guide the explanation of
the general transaction conditions in the case that such conditions are
unclear.
+ Have no regulations dealing with the discrepancies between
general transaction conditions and clauses agreed on by parties.
2.2.5. The agreements on anti-competition.
The regulations on sanctioning of anti-competitive agreement
violations remains inappropriate:
- The penalty rates under Competition Law 2018 and Decree
75/2019/NĐ-CP on sanctioning of administrative violations against
regulations on competition are low and not deterrent enough.
-

That the penalty rates are determined with the respective

amounts of money is inappropriate.


17
- That Article 111(1) of Competition Law 2018 prescribes that the
maximum fine for violations of anti-competitive agreements shall not be
“less than the minimum fine imposed on violations prescribed by the Penal
Code” is also inappropriate.
2.2.6. The agreements on payment in foreign currency units.
Currency conversion is yet to be provided for:
- In the case that parties to a contract agree on the exchange rate
between a foreign currency and Vietnamese currency or to use the listed

exchange rate of any bank.
- In the case that parties have no agreements or choose no listed
exchange rate of any bank as a converting base.
2.3. The law on limitations on the freedom of contract in
commercial activities regarding the form of contract.
2.3.1. The contract must be made in writing.
Inconsistencies between Article 119(2) of Civil Code 2015 and
Law on Commerce 2005 make the provisions requiring the forms of some
types of contracts in commercial activities be in writing meaningless.
2.3.2. The contract must be notarized, certified.
+

Whether

to

transform

the

requirement

to

have

contracts/transactions notarized and certified into the right to have
contracts/transactions notarized and certified.
+ Regulations on the procedure of notarizing electric documents
are lacking.

2.3.3. The contract must be registered.
- Conflicting opinions on the meaning of registering a contract
- The regulating of the list of essential goods and services for
which standard form contracts must be registered is inappropriate


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- Contradictions exist in state administration of registering
standard form contracts between the Competition and Consumer
Protection Agency and Departments of Industry and Trade.
CONCLUSION OF CHAPTER 2
Chapter 2 of the thesis concentrates on researching current legal
regulations on limitations on the freedom of contract in commercial
activities regarding the subjects, content, and form of contracts.
CHAPTER 3. DIRECTIONS, SOLUTIONS TO COMPLETE LAW
AND

IMPROVE

LAW

EFFICIENCY

ON

LIMITATIONS

ON

CONTRACTS IN COMMERCIAL ACTIVITIES IN VIETNAM

3.1. DIRECTIONS FOR COMPLETING LAW ON LIMITATION OF
CONTRACT IN COMMERCIAL ACTIVITIES IN VIETNAM

- Firstly, inherit the appropriate contents and overcome the
existing limitations in the legal regulations on the limitation of freedom of
contract in commercial activities.
- Second, establish the consistency of the legal system on the
limitation of freedom of contract in commercial activities
- Third, ensure the compatibility of Vietnamese law on the
limitation of freedom of contract in commercial activities with the laws of
other countries in the world.
3.2. SPECIFIC SOLUTIONS TO COMPLETE LAW ON LIMITATIONS OF
FREEDOM OF CONTRACT IN COMMERCIAL ACTIVITIES IN VIETNAM

3.2.1. A need to amend and supplement regulations on the limitation of
freedom of contract in commercial activities related to contract subjects
- Firstly, Chapter IV - Legal entities in the Civil Code (2015) needs
to supplememnt regulations on subject capacity of legal entities. A legal
entity can be expressed in the direction that "the subject capacity of a legal
entitiy is limited in the framework of necessary acts to fulfill the purpose


19
of operation of the legal entity in accordance with the law and additional
acts for these purposes, in accordance with the rules applicable to each
legal entity.”
- Second, amend and supplement the provisions in Article 6,
Clause 1, Law on Commerce 2015 on traders, specifically, the "regular"
and "registered" regulations for traders should be removed.
- Third, Article 7, Law on Commerce 2015 should be abolished

- Fourth, supplement the mechanism to ensure the right of priority
in some current regulations.
3.2.2. A need to amend and supplement regulations on limitation
of freedom of contract in commercial activities related to contract
content
- Firstly, amend and supplement the provisions on the limitation
of freedom of contract related to the clause that violates the prohibition of
the law.
+ Article 11, Clause 1, Law on Commerce 2005 should be
amended to "Parties have the right to freely negotiate not contrary to the
provisions of the law”.
+ Article 4, Clause 1, Law on Real Estate Business (2014), should
also be amended to "Equality before the law, freely agree on the basis of
respecting the legitimate rights and interests of the parties by the contract,
not contrary to the provisions of the contract the law".
- Second, limiting freedom of contract related to the subject of the
contract.
+ Article 6, Clause 1 of the Law on Investment (2020) should be
amended in the direction that change “debt collection service” are


20
prohibited to the conditional business lines specified in Article 7, Law on
Investment 2020.
+ Appendix IV, Law on Investment 2020 on conditional business
lines needs to be further reviewed to conform to the criteria specified in
Article 7, Clause 1 of the Law on Investment (2020).
+ Regarding goods and services under state monopoly: Some
activities should be considered and removed from the list of state
monopoly goods and services.

- Third, amend and supplement the legal provisions on the
limitation of freedom of contract related to the disadvantaged party
(consumer) in the model contract, general transaction conditions.
+ Regarding the concept of a model contract, Article 405, Clause
1, Civil Code 2015 and Article 3, Law on Protection of Consumer Rights
2010 need to be elaborated in a way that shows more clearly the nature of
a model contract, namely: (i) The subject matter of a model contract is
presented by a subject and the other subject of the contract cannot agree on
such terms; (ii) Model contracts must be made in writing and public; (iii)
Model contract offered by one party to be used many times for many
partners and customers.
+ Regarding the list of goods and services subject to registration
of form-based contracts and general transaction conditions: it is necessary
to add to the list of essential goods and services for which contract-based
registration is required, and general transaction conditions attached to
Decision No. 02/2012/QD-TTG; Decision No. 35/2015/QD-TTg
amending and supplementing Decision No. 02/2012/QD-TTG and
Decision No. 25/2019/QD-TTG amending and supplementing Decision
No. 02/2012/QD- TTG and Decision No. 35/2015/QD-TTg added


21
“Transporting passengers by road” and removed “Purchase and sale of
apartments, living services provided by apartment management units”
+ Article 406, Clause 2, Civil Code 2015 should be specifically
guided in order to publicize the general transaction conditions in the
following direction: (1) The party setting the general transaction conditions
must instruct the other party on the transaction conditions explicitly
general; (2) To create conditions for them to be able to recognize the
content of the general trading conditions is acceptable, even if that person

is disabled, the party setting the general trading conditions must take note
of the following: prominently, the ways in which the customer can
perceive, understand the content of such general trading conditions; (3)
Emphasizing that if customers do not carefully read the general trading
conditions, it will affect their interests; (4) clearly define the responsibility,
if not disclosed to the customer, the general transaction conditions will not
become the content of the contract.
+ Article 404, Clause 6, Civil Code 2015 should also be amended
in the direction of “where one party to a contract introduces into the
contract the content that is unfavorable to the other contract subject, when
interpreting the contract must be in the direction of favor to the other
contract subject".
+ Article 406, Clause 4, Civil Code (2015) should be
supplemented in the direction: “In case the general transaction conditions
are not straightforward, it should be explained in favor of the party who is
not allowed to offer general transaction conditions. In case the general
transaction conditions with the terms agreed by the parties are in conflict,
the interpretation of the contract shall be based on the terms agreed by the
parties.”


22
- Fourthly, amend and supplement regulations on sanctioning of
violations of competition restriction agreements.
+ Article 111, Clause 1, Competition Law 2018 removes the
phrase "but lower than the lowest fine for violations specified in the Penal
Code”
+ Article 217, the Penal Code 2015 should be revised in the
direction of eliminating the provisions on the form of fines for violations
or may introduce provisions that refer back to the regulations on the level

of fines in the provisions of the Competition Law 2018.
- Fifth, amend and supplement regulations on the limitation of
contract freedom related to the terms of using foreign currency in contract
payment.
- The parties disputing the contract can reach an agreement on the
exchange rate between foreign currency and Vietnamese currency, the
agreement will be recognized by law. The recognition of this selfagreement needs to be based on the exchange rate of foreign currency to
Vietnamese currency announced by the State Bank.
- The disputing parties cannot agree on the exchange rate for
converting foreign currency to Vietnamese currency, the legal document
on foreign currency should be specified in the direction of "the conversion
of foreign currency into Vietnamese currency will be at the exchange rate
at the time of payment”
3.2.3. A need to amend and supplement regulations on the
limitation of freedom of contract in commercial activities related to the
form of contract
- Firstly, Article 119, Clause 2, Civil Code (2015) needs to be
amended and supplemented in the direction: “Where the law stipulates that


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civil transactions must be expressed in writing, the document must be
notarized, authenticated or registered, then must comply with that rule”.
- Second, the Law on Land 2013, the Law on Real Estate Business
2014, the Law on Housing 2014… is necessary to review the case of any
type of contract that really needs to be made in writing and notarized and
authenticated; and type of contract needs to be made only in a regular
written form.
Besides, it is necessary to soon add in the Law on Notarization
2014 the electronic notarization method; Notarization of electronic

contracts.
- Third, the current law on contract registration should stipulate in
the following direction: The registration of a contract is only valid for a
third party from the time the contract is registered at a competent state
agency.
For the registration of model contracts: the current law needs to
add more sanctions to sanction violations on this issue in the near future,
which is important and necessary.
3.3. SPECIFIC SOLUTIONS TO IMPROVE THE EFFICIENCY OF
LAW ON LIMITATION OF CONTRACT IN COMMERCIAL ACTIVITIES IN
VIETNAM

3.3.1. The group of solutions is implemented by competent state
agencies.
3.3.2. The solution group is implemented by the contracting
parties and contracting parties.
CONCLUSION OF CHAPTER 3