Question:
Dear lawyer, I have a question regarding the following issue and I would like to receive legal advice. Thank you in advance.
If the court decides to suspend the settlement of civil matters regarding the recognition of consent to divorce, agreement on child-rearing, and division of children, as well as removing the records of civil case settlement and handling divorce and division of marital property, how will the paid court fee advance and civil matter settlement fee be settled?
Reply to consultant:
The question you asked me, I would like to answer as follows:
Clause 5, Article 397 of the 2015 Civil Procedure Code provides:
“ Article 397. Reconciliation and recognition of consent to divorce, agreement on child rearing, property division upon divorce
In case the conciliation and reunification is unsuccessful and the involved parties cannot reach an agreement on the division of property, the custody, rearing, care and education of the children, the Court shall suspend the settlement of civil matters regarding the recognition of consent. divorce, child custody agreement, divorce property division and accept the case for settlement. The court does not have to notify about the acceptance of the case, and does not have to reassign the judge to handle the case. The settlement of the case shall be carried out according to the procedures prescribed by this Code.
Clause 5, Article 25 of Resolution No. 326/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee stipulates:
“ Article 25. Obligation to pay first-instance civil court cost advances
Based on the above provisions, when settling the case, the Court must determine the procedural status of the involved parties, accordingly, the plaintiff must pay a court fee advance as prescribed in Clause 1, Article 146 of the Ministry of Justice. Civil Procedure Law 2015 :
“ Article 146. Obligation to pay court cost and fee advances
In case the involved parties must pay the court fee advance, the paid civil matter settlement fee advance will be deducted; if it is not enough, the deficit must be paid; in case the involved parties do not have to pay the court cost advance, the paid civil matter settlement fee advance will be settled when the court decides the court cost.
Question:
Dear lawyer, I have a question regarding the following issue and would like to receive a lawyer’s advice. I sincerely thank you!
My father had a piece of land but passed away without leaving a will. On the land use right certificate, there is a note that reads: “The inheritance has not been divided, and no land use rights transactions have been performed.” So, I would like to ask, what do I need to do to carry out land use rights transactions (such as selling the land)?
Reply to consultant:
The question you asked me will be answered as follows:
Because your father passed away without leaving a will, according to the law, his estate will be divided among the first heirs, including the wife, husband, natural father, natural mother, adoptive father, adoptive mother, biological child, and adopted child of the deceased, as prescribed in Article 651 of the Civil Code 2015. These people are entitled to an equal share of the estate.
Therefore, you must first determine the legal heirs of your father’s estate. Based on this, they can go to the People’s Committee of the commune where the land is located or to a Notary Office to carry out the procedures for declaring or dividing the inheritance.
The inheritors then need to prepare documents and submit them to the People’s Committee of the commune where the land is located, or to the branch of the land registration office of the district where the land is located to carry out the procedures to change the registration certificate of land use rights, ownership of houses, and other assets attached to the land.
After completing these procedures, in order to carry out land use rights transactions, it is necessary to obtain the consent of the owners named on the certificate of land use rights, ownership of houses, and other assets attached to the land.
If you have any questions or need further legal support, please contact the information below for advice.
Question:
Dear lawyer, I have a question in the following issue, I would like to receive a lawyer’s advice! I sincerely thank you!
What is commercial franchising and how to carry out commercial franchising activities?
Reply to consultant:
Regarding the question you asked me, I would like to answer as follows:
1.What is franchise registration?
1.1. What is a franchise?
According to the provisions of Article 284 of the Commercial Law 2005, commercial franchising is a business activity whereby the franchisor permits and requires the franchisee to conduct the purchase and sale of goods and provision of services according to the terms and conditions specified in Clause 1 of this Article, subject to certain conditions.
Alternatively, franchising can be understood as a business activity performed between merchants, whereby the franchisor (who is the trader that grants the franchise, including the secondary franchisor in the relationship with a secondary franchisee) allows and requires the franchisee (who is the franchisee, including the secondary franchisee in relation to the secondary franchisor, to whom the franchisee secondary franchisor is understood as a trader who has the right to re-grant the commercial rights received from the original franchisor to the secondary franchisee) to conduct and perform the work of buying and selling goods and providing services corresponding to certain conditions as prescribed by law.
These conditions include:
Firstly, the purchase and sale of goods and provision of services by the franchisee must be conducted in the manner of a business organization prescribed by the franchisor and associated with the trademark, trade name, business secret of the franchisor’s business, business slogans, business logos, and advertisements of the franchisor.
That is, after the franchisee receives the franchisor’s permission through the franchise contract signed between the two parties, the franchisee will conduct and carry out the purchase and sale of goods or provide services on their own in accordance with the process, organization, and business activities prescribed by the franchisor. In connection with the purchase and sale of goods and provision of these services, the franchisee must also ensure that the goods sold or services provided bear the trademark, trade name, business secret, business slogans, business logos, as well as advertisements of the franchisor.
Secondly, the franchisor has the right to control and assist the franchisee in running the business.
After receiving the franchise, during the franchisee’s business operations, the franchisor will have complete control over the management of the business, ensuring the business process is properly organized and the business is regulated by the franchise. Additionally, when the franchisee encounters difficulties or obstacles in their business, the franchisor is also fully entitled to help the franchisee.
In general, when the franchisor has transferred its commercial rights to the franchisee, the franchisee will be the party that directly performs the purchase and sale of goods and provision of services. Although the franchisor does not directly perform the purchase and sale of goods or provide services, they still have the right to directly control and assist the franchisee in running the business to ensure that the franchisee operates in accordance with the business process set forth by the franchisor.
1.2. What is the registration of franchise activities?
According to the provisions of commercial law, specifically in Clause 1, Article 291 of the Commercial Law 2005, Clause 1, Article 17 of Decree No. 35/2006/ND-CP detailing the Commercial Law on commercial franchising, and clauses 1 and Section II of Circular 09/2006/TT-BMT guiding the registration of commercial franchising activities, Vietnamese or foreign traders who intend to franchise (including initial franchise and secondary franchise) must register their franchising operation with the competent authority in accordance with the law before conducting commercial franchising activities.
Thus, it can be understood that the registration of franchising activities means that the intended franchisor will have to carry out the procedures for registration of commercial franchising activities with the competent authority in accordance with the law to have the right to carry out franchising activities with franchisees. After the intended franchisor completes the procedures for franchise registration with the competent registrar and is entered by the competent registrar in the Register of Franchise Operations, the registration of franchise operation has been completed and the franchisor will be allowed to enter into franchise contracts with the franchisee.
1.3. Cases not required to register commercial franchising activities
According to the provisions of Clause 2, Article 3 of Decree No. 120/2011/ND-CP amending and supplementing administrative procedures in a number of Government Decrees detailing the Commercial Law, the following cases are not required to register for concessions of trade rights:
– Domestic franchising; and
– Franchising from Vietnam to abroad.
For the above cases, the prospective franchisor is not required to register the franchise with the competent registrar. However, the party intending to franchise must comply with the reporting regime to the Department of Industry and Trade. This is to help the Departments and Ministries to make statistics and grasp the status of franchising in the current market and manage the list of traders who are carrying out franchising activities.
According to Point a, Clause 1, Article 18 of Decree 35/2006/ND-CP, Clause 3, Article 3 of Decree 120/2011/ND-CP, and Clause 1, Section I of Circular 09/2006/TT-BTM, the Ministry of Trade (now the Ministry of Industry and Trade) will be the agency that registers franchising activities for “franchisement from foreign countries into Vietnam, including franchising activities from Export Processing Zones, Non-Tax Zones, customs offices, or separate customs areas as prescribed by Vietnamese law into the Vietnamese territory.”
Corresponding to this activity, the application for registration of commercial franchising at the Ministry of Industry and Trade specified in Clause 2, Section II of Circular 09/2006/TT-BTM will include:
An application for registration of commercial franchising, made according to form MD-1 in Appendix II issued together with Circular 09/2006/TT-BTM;
An introduction to commercial franchising, made according to the form in Appendix III issued together with Circular 09/2006/TT-BTM;
A copy of the business registration certificate or equivalent document of the foreign trader, certified by the competent authority where the foreign trader is established;
A notarized copy of the industrial property protection title abroad in case there is a transfer of the right to use the industrial property objects that have been granted the protection title;
Papers proving the consent of the original franchisor to allow re-franchise in case the trader registering franchising is a secondary franchisor.
Note:
In addition to the commercial franchising registration application, a notarized copy of the business registration certificate or investment certificate, and the remaining papers in the franchise registration dossier, if possible, must be present in a foreign language. It must be translated into Vietnamese and legalized according to the provisions of Vietnamese law (according to Clause 4, Section II of Circular 09/2006/TT-BTM and Clause 4, Article 3 of Decree No. 120/2011/ND-CP).
A copy of a foreign trader’s business registration certificate or equivalent document expressed in a foreign language must be translated into Vietnamese and certified by a Vietnamese diplomatic mission in the foreign country, which will certify and carry out the consular legalization in accordance with the provisions of Vietnamese law.
3.Order and procedures for registration of commercial franchising
Pursuant to the provisions of Article 20 of Decree No. 35/2006/ND-CP and Clauses 5 and 6, Section II of Circular 09/2006/TT-BTM, the order and procedures for registration of commercial franchising are carried out as follows:
Step 1: Submit your application
The trader intending to franchise must prepare all the documents in the application for registration of commercial franchising as guided in Section 2 above.
Then, send the dossier to the State agency competent to register commercial franchising activities.
After receiving the application for registration of commercial franchising, the registration authority will write a receipt and hand it over to the trader registering the franchising.
Step 2. Follow up and supplement records (if any)
Within 02 working days from the date of receipt of the application, if the application is incomplete or invalid, the registration agency will notify the applicant in writing to request the supplement and completion of the application. At this time, the time limit for processing the dossier will be counted from the time when the trader registers the franchising operation and completes the dossier.
If it is unclear about the supplement of the dossier, the trader registering the commercial franchising operation has the right to request the registration authority to clearly explain the requirements to supplement and complete the dossier.
Step 3. Process the application and get the result
Within 05 working days from the date of receipt of complete and valid dossiers, the registration authority will register commercial franchising activities for traders in the Franchise Register and notify the trader in writing.
In case the registration authority refuses to register commercial franchising, within 05 working days from the date of receipt of complete and valid dossiers, the registration agency will notify the eligible traders in writing and state the reason for the refusal.
4.Legal basis
-Commercial Law 2005.
-Decree 35/2006/ND-CP dated March 31, 2006 of the Government detailing the Commercial Law on commercial franchising activities.
-Circular 09/2006/TT-BMT dated May 25, 2006 of the Ministry of Trade guiding the registration of commercial franchising activities.
-Decree 120/2011/ND-CP dated December 16, 2011 of the Government amending and supplementing administrative procedures in a number of Government Decrees detailing the Commercial Law.
Question:
Dear lawyer, I have a question in the following issue, I would like to receive a lawyer’s advice! I sincerely thank you!
After getting married, aside from the shared assets between the husband and wife, do they also have the right to own their own separate property? If so, how is it specifically regulated?
Reply to consultant:
Regarding the question you asked me, I would like to answer as follows:
1.What is the separate property of husband and wife?
According to the provisions of Article 43 of the Law on Marriage and Family 2014 and Article 11 of Decree 126/2014/ND-CP, the private property of the husband and wife includes:
-Property that each person had before marriage;
-Property inherited separately or given separately during the marriage;
-Property that is divided between husband and wife separately after division of common property during the marriage period;
-Property to serve the essential needs of the husband and wife;
-Property formed from the separate property of the husband and wife;
-Yields and profits arising from the separate property of the husband and wife after division of common property;
-Property rights to intellectual property objects in accordance with the law on intellectual property;
-Property that the spouses establish separate ownership according to a judgment or decision of a court or other competent agency;
Allowances and incentives received by spouses in accordance with the law on incentives for people with meritorious services to the revolution;
Other property rights attached to the personal identity of the husband and wife.
Thus, during marriage, both the husband and wife can have their own separate property, which is owned by each person.
According to the provisions of Article 158 of the 2015 Civil Code, the right to possess, use, and dispose of property of the owner in accordance with the law is also known as ownership.
– Regarding the right of possession: According to the provisions of Article 186 of the Civil Code 2015, the right of possession includes the possession of the owner and the possession of a person who is not the owner, which is the subject’s holding, governing the property directly or indirectly as the holder of a right to the property.
-Regarding the right to use: According to the provisions of Article 189 of the Civil Code 2015: “The right to use is the right to exploit the utility, to enjoy the yields and profits from the property. The right to use may be transferred to another person by agreement or by law.”
-Regarding the right to dispose: According to Article 192 of the Civil Code 2015: “The right to dispose is the right to transfer property ownership, relinquish the right to own, consume or destroy property.”
According to Article 206 of the 2015 Civil Code on possession, use, and disposition of privately owned property, it stipulates: “The owner has the right to possess, use and dispose of privately owned property to serve the purpose of service demand for living, consumption, production, business and other purposes that are not illegal. The possession, use, and disposition of privately owned property must not cause damage or affect national interests, ethnic groups, public interests, and lawful rights and interests of others.
Thus, possessing, using, and disposing of private property refers to the subject’s possession and control of their property but must not be contrary to law, social ethics, cause damage, or affect the interests and rights of others. They have the right to exploit and benefit from the property to the extent permitted by law and have the right to transfer ownership of the property, waive the right to own, consume or destroy it.
3.1. Regarding the right to possess, use and dispose of separate property of husband and wife, or to enter or not to enter separate property into common property:
According to the provisions of Clause 1, Article 44 of the Law on Marriage and Family 2014, “Wives and husbands have the right to possess, use and dispose of their own property, and to enter or not enter separate property into common property.”
Accordingly, husbands and wives who have separate property have the right to decide whether or not to enter their own property into the common property of the husband and wife. According to the provisions of Article 46 of the Law on Marriage and Family 2014, the entry of separate property of husband and wife into common property is done as follows:
-According to the agreement of the husband and wife.
-If transactions related to such property must follow a certain form according to the law, then the agreement must ensure that form.
Obligations related to separate property that have been merged into common property shall be performed by common property, unless otherwise agreed by the husband and wife or otherwise provided for by law.
Thus, spouses have full decision-making power over their own property, and no one is allowed to force wives or husbands with separate property to enter their own property into the common property of the husband and wife.
3.2. Regarding the right to manage the private property of husband and wife:
According to the provisions of Clause 2, Article 44 of the Law on Marriage and Family 2014, “In cases where a spouse cannot manage his/her own property and does not authorize another person to manage it, the other party has the right to manage that property. Asset management must ensure the interests of property owners.”
Thus, when establishing ownership rights with their own property, the husband and wife will manage that property themselves. In case a spouse cannot manage their own property, they can authorize another person to manage their property. In case one spouse cannot manage by himself and does not authorize another person to manage his or her own property, the other person has the right to manage such property.
3.3. Regarding the separate obligations of husband and wife towards their own property
Clause 3, Article 44 of the Law on Marriage and Family 2014 stipulates: “Each person’s separate property obligations shall be paid from his/her own property”.
In addition to having title rights to their own property, the spouses also have obligations related to that separate property. When a husband and wife have separate obligations regarding their property, they must use their own property to pay those obligations. If the separate property of a spouse is not enough to pay off separate property obligations, payment by that person’s portion of the common property of the husband or wife may be agreed upon.
3.4. Regarding the right of husband and wife to decide on yields and income arising from separate property, which is the family’s sole source of livelihood
According to Clause 4, Article 44 of the 2014 Law on Marriage and Family: “In case a husband and wife have separate property and the yields and income from that separate property are the family’s sole source of livelihood, the disposition of this property must have the consent of the husband and wife”.
Accordingly, if a husband and wife have separate property and the yields and income from that separate property are the family’s only source of livelihood, the disposition of this property must be agreed upon by the husband and wife. This regulation is in line with reality and aims to ensure the stability of common life, and to ensure the legitimate rights and interests of other family members.
In addition, according to Clause 2, Article 24 of the Law on Marriage and Family 2014: “Husband and wife may authorize each other to establish, perform and terminate transactions according to the provisions of the Law on Marriage and Family, the Civil Code and other relevant laws, but such authorization must have the consent of both husband and wife”. In this case, a spouse who is a separate property owner has the right to authorize the other party to act on their behalf to establish, perform and terminate transactions related to such assets.
Thus, when a spouse has separate property, they are entitled to own that property separately and do not depend on the will of the other party. This shows that the law has recognized the freedom of each individual, including the right to freely possess, use and dispose of the property of husband and wife.
4.Legal basis
-Civil Code 2015
-Law on Marriage and Family 2014
-Decree 126/2014/ND-CP detailing a number of articles and measures to implement the Government’s marriage and family law.
The amended IP Law 2022 in Vietnam takes effect from January 1, 2023. New decrees and circulars will also be issued to provide detailed guidance on the provisions of the amended IP Law 2022. Therefore, document templates based on provisions of the amended IP Law 2022 or new decrees and circulars are also being revised and will be issued next time.
While waiting for the new templates to be officially issued, IP Vietnam issued Notice No. 333/TB-SHTT on February 3, 2023, to state which case continues to use the existing templates only with minor modifications and which case must wait for new templates. In particular:
As to applications/requests filed before January 1, 2023:
| The cases continue to use the existing templates | The cases must wait for the new templates |
| – Decision to accept/refuse to accept valid applications;
– Documents related to: + withdraw, amend, supplement, divide, convert applications, change recodal request; + invalidation, termination of the validity of the protection title; + amend, annuity, renewal, re-grant, grant duplicates; + registration/recordal of the contract of transfer of intellectual property rights; + industrial design applications in which the subject-matter is not the industrial design of the product being a part of a complex product or a part of a complex product but is visible when exploiting the complex product use. – Decision to refuse to issue a protection title, excluding the cases at item a.(i) and c.(ii) (see next column); – Decision to refuse to accept the protection of the internationally registered trademark, excluding the cases at item c.(ii) (see next column), – Decision to accept international registration trademark protection; – Documents relating to complaint settlement; – Decision on grant of a protection title. |
a. For industrial design applications: (i) Documents relating to industrial design applications of products that are parts of complex products that are invisible in the process of exploiting the complex product use filed from August 1, 2020, without a decision on grant/refusal; (ii) Notice of substantive examination result having the intention of partial rejection. b. For patent applications: (i) Notice of substantive examination result for patent applications relating to the regulations on patent security control; (ii) Notice of substantive examination result having the intention of partial rejection. c. For trademark applications: (i) Notice of substantive examination result for trademark applications filed under the national procedure having the partial rejection; (ii) Decision to refuse to grant protection title/refuse to accept the protection of internationally registered trademarks related to the provisions at Articles 74.2.e, 74.2.h, and 117.3.b of the amended IP Law. |
As to applications/requests filed from January 01, 2023
Temporarily suspending the release of documents related to such applications/requests to wait for the new document templates.
The promulgation of new document templates is necessary to comply with the provisions of the amended legal documents, such as the IP Law 2022 and new degrees/circulars. However, waiting for such templates will slow down the application processing work of IP Vietnam until they are officially issued, especially notices of the substantive examination result for patent /industrial design /trademark applications. We hope Vietnamese authorities will soon publish new templates to facilitate the application processing, helping applicants quickly have intellectual property rights protected in Vietnam.
Kindly contact us via our emails at winco@winco.vn; patent@winco.com.vn or our phones at (84-24) 37 628 119/ 37 628 185 if you have any questions to receive the fastest and most accurate support from us.
Question:
Dear lawyer, I have a question in the following issue, I would like to receive a lawyer’s advice! I sincerely thank you!
In case the plaintiff is duly summoned for the second time but still absent, will the court settle the judgment enforcement in the decision to suspend?
Reply to consultant:
Regarding the question you asked me, I would like to answer as follows:
According to the provisions of Clause 4, Article 217 of the 2015 Civil Procedure Code:
“Article 217. Suspension of settlement of civil cases
…4. For cases to be retried according to first-instance procedures after a decision on cassation or reopening is issued but the Court decides to stop the settlement of the case, the Court must also deal with consequences of the execution of the case project, other related issues (if any). In case the plaintiff withdraws the lawsuit petition or is still absent after being duly summoned for the second time, the termination of the settlement of the case must be agreed upon by the defendant and persons with related interests and obligations.
According to the above provisions, if the case has been decided by cassation or reopening procedures to cancel the judgment for re-trial, the process of re-settlement of the first-instance trial agency will take place. If the plaintiff withdraws the entire lawsuit petition or has been summoned to the court for the second time but is still absent, and does not request a trial in their absence or because of force majeure events or objective obstacles, the termination of the settlement of the case must be agreed upon by the defendants and persons with interests related obligations. Therefore, if the plaintiff withdraws the entire petition or is still absent after being duly summoned for the second time, but does not request a trial in their absence or because of force majeure events or objective obstacles, the court must consult the defendant and persons with related interests and obligations on whether to agree to suspend the settlement of the case, or to request the settlement of consequences of judgment enforcement.
If the defendant disagrees with the termination of the settlement of the case, requests to settle the consequences of judgment enforcement and other related issues, the court shall issue a decision to suspend the plaintiff’s request, redefine the defendant as the plaintiff, and the plaintiff as the defendant.
If the defendant agrees to suspend the settlement of the case, but persons with related interests and obligations do not agree to suspend the settlement of the case or request the settlement of consequences of judgment enforcement and other related matters, the independent agency or claim, the Security Court shall issue a decision to suspend the plaintiff’s claim and the defendant’s counterclaim (if any). Persons with related rights and obligations shall become plaintiffs, and those who are requested by the courts to settle by persons with related rights and obligations shall become defendants. The court shall continue to handle the case according to the general procedure.
If the defendant and persons with related interests and obligations agree to suspend the settlement of the case, do not request the settlement of consequences of judgment enforcement or other related issues, the court shall terminate the settlement of the case and settle the matter of court fees, but not the consequences of judgment enforcement.
If the defendant and persons with related interests and obligations have been duly summoned by the court for the second time to ask for opinions on whether or not to agree to suspend the settlement of the case or request a post-mortem settlement of the results of judgment enforcement, other related issues but are still absent, not due to force majeure events or objective obstacles, they shall be considered as agreeing to suspend the settlement of the case.
Question:
Dear lawyer, I have a question about the following issue, and I would like to receive legal advice. Thank you in advance!
Which cases are not entitled to inheritance according to the provisions of the Civil Code 2015?
Reply to the consultant:
In your case, I would advise the following:
The acknowledgment and distribution of inheritance is a procedure that occurs after the person who left the inheritance dies. The division of the inheritance can be determined by the will or by division by law. However, in some cases, the heirs are not entitled to inherit the deceased’s estate.
What is inheritance?
Inheritance is defined as the transfer of a deceased person’s property to a living person. Inheritance is divided into two forms:
Inheritance according to the will: the transfer of a deceased person’s property to a living person as designated by that person in their will, while they were still alive, according to Article 624 of the 2015 Civil Code.
Inheritance by law: inheritance according to the line of inheritance, and the conditions and order of inheritance are determined by law, as specified in Article 649 of the 2015 Civil Code.
According to the provisions of Article 612 of the 2015 Civil Code: “The estate includes the separate property of the deceased and the part of the property of the deceased in common property with others.”
As stated in Article 105 and Article 107 of the 2015 Civil Code:
Assets are objects, money, valuable papers, and property rights.
Assets include both real estate and movables. Real estate and movables may be existing assets or assets formed in the future. Specifically:
Real estate includes land, houses and construction works attached to the land, other assets attached to land, houses, construction works, and other assets as prescribed by law.
Movables are assets that are not real estate.
Therefore, inheritance refers to the property of the heir while they are still alive, which can include objects, money, valuable papers, and property rights. Estate property is classified as immovable and movable. Inheritance property may include land, other properties attached to land and houses, construction works, and other assets as prescribed by law. Property rights of the deceased that are left include the right to claim debt, the right to claim compensation for damage, and moral rights attached to property such as copyright and rights to industrial property objects.
Inheritance is the portion of the estate that remains after the obligations of the person’s property and expenses related to the inheritance are paid. Debts, compensation for damage, or obligations related to property left by the deceased are not considered estates or inheritances as specified in Article 658 of the 2015 Civil Code.
3.What is an heir?
According to Article 613 of the 2015 Civil Code: “An individual heir must be a person who is alive at the time of the inheritance’s opening or was born and is still alive after the opening of the inheritance, but was conceived before the person who left the legacy died. If the heir under the will is not an individual, it must exist at the time of opening the inheritance.
An heir is the person who inherits the estate either according to the will or the law. If the heir is an individual, they must be alive at the time of the inheritance’s opening, or if they were born after the opening of the inheritance, they must have been conceived before the person who left the estate died.
If the heir under the will is an agency or organization, they must exist legally at the time of the inheritance’s opening.
4.Cases not entitled to inheritance
4.1. Persons who are not entitled to inheritance
According to the provisions of Article 621 of the 2015 Civil Code, those who are not entitled to inheritance include:
Persons convicted of intentional acts of infringing upon life and health or of serious mistreatment, abusing the legacy leaver, seriously infringing upon that person’s honor and dignity.
This is the case where the person entitled to inherit the inheritance intentionally commits acts of infringing upon the life, health, or seriously ill-treating, abusing the person leaving the estate, seriously infringing upon the honor and dignity of that person. Those acts have been sentenced by a competent court with a legally effective judgment or decision.
Persons who seriously violate the obligation to nurture the estate leavers. It is considered a serious violation of the obligation to nurture and leave an estate when that person has a support obligation and has the practical ability to perform support for a person for whom he or she has a support obligation as prescribed by law, but knowingly refuses or evades the support obligation, causing that person to fall into a miserable or life-threatening situation. Such a person does not have the right to inherit the estate left by that person. For this case, a person can only be deprived of the right to inherit the estate when there are enough grounds to assert that they seriously violate the obligation to take care of the estate leaver. If there is no basis, the person is still entitled to inherit the estate.
Persons convicted of intentionally infringing upon another heir’s life in order to enjoy part or all of the estate to which such heir is entitled. Unlike the case of encroachment on the person leaving the estate, here the heir is only deprived of the right to enjoy the estate when there is an act of infringing on the life of the heir, and this is in order to enjoy a part of the estate. As in the first case, the person who commits these acts must be convicted and must intend to lose the right to inherit.
Persons who deceive, coerce, or prevent bequeathers from making wills; forging wills, modifying wills, canceling wills, concealing wills in order to enjoy part or all of the estate against the will of the estate leavers. The right to make a will to dispose of property is the right to dispose of the owner’s property while he is still alive. The act of obstructing the testator is an illegal act. Therefore, the person who obstructs will be deprived of the right to inherit the estate left by the person who has the estate. Forging wills, modifying wills, destroying wills, concealing wills in order to enjoy part or all of the estate against the will of the estate leavers means that if the above acts are performed without going against the will of the deceased, this person will not be deprived of the right to inherit.
Note: The people mentioned above are still entitled to the estate if the person who left the estate knows the behavior of such people but still allows them to enjoy the estate according to the will.
4.2. Those disqualified from inheriting by the person who leaves the estate
According to the provisions of Article 626 of the 2015 Civil Code, the testator has the right to deprive an heir of the right to inherit.
Thus, disqualification is the situation where the person leaving the inheritance does not wish to leave his or her part of the property to someone and this is stated in the legal will. This is the right of the testator.
It means that the person who is deprived of the right to inherit is someone who is not entitled to inherit according to the will. At the same time, the disqualification of someone’s inheritance is also related to the division of the inheritance according to the law, as stated in Clause 3, Article 651 of the 2015 Civil Code: “Those in the line of inheritance may inherit only if no one is left in the first line of heirs due to death, no right to inherit, disqualification of inheritance, or refusal to receive the estate.”
Therefore, there is only one case of disqualification of inheritance due to the will of the testator. This is one of the rights of the person leaving an inheritance.
Note:
Although being deprived of the right to inherit means they are not entitled to inherit according to the will, the provisions of Article 644 of the 2015 Civil Code still allow for inheritors regardless of the will’s contents, including minor children, father, mother, wife, husband, and adult children without working capacity. These people are entitled to a share of the estate equal to two-thirds of the share of a legal heir if the estate is divided according to law, in case they are not allowed to enjoy the estate by the testator or only entitled to enjoy a portion of the estate less than two-thirds of a share if the estate is divided according to law.
5. Legal grounds:
Civil Code 2015
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1.What is a well-known trademark?
1.1. What is a trademark?
According to the provisions of Clause 16, Article 4 of the Law on Intellectual Property 2005, amended and supplemented in 2009 and 2019, a trademark is a sign used to distinguish goods and services of different organizations and individuals.
A trademark is a sign registered by a business entity to distinguish its goods or services from those of other business entities dealing in the same or similar goods. Trademarks increase the recognition of goods and services among consumers.
1.2. What is a famous trademark?
According to the provisions of Clause 20, Article 4 of the Law on Intellectual Property 2005, amended and supplemented in 2009 and 2019, a well-known trademark is a mark that is widely recognized by consumers throughout the territory of Vietnam.
Therefore, under Vietnamese intellectual property law, the scope of a well-known mark is limited to the territory of Vietnam. This means that even if a mark is famous worldwide, it must also be widely known by consumers in Vietnam to be considered a well-known mark under Vietnamese intellectual property law. In addition, to determine whether a mark is a well-known mark or not, it is necessary to consider the evaluation criteria prescribed under Vietnamese intellectual property law.
Well-known trademarks have the following basic characteristics:
A visible sign that can take the form of letters, words, drawings, images, including holograms, or a combination of those elements, represented by one or more colors (as provided for in Clause 1 of Article 72 of the Law on Intellectual Property 2005, amended and supplemented in 2009 and 2019). Trademarks are designed to help consumers easily remember a good or service, so the above characteristics are essential when it comes to trademarks.
The ability to distinguish the goods and services of the trademark owner from those of other entities (as provided for in Clause 2, Article 72 of the Law on Intellectual Property 2005, amended and supplemented in 2009 and 2019).
-High popularity: Well-known brands are widely recognized by consumers in different geographical areas.
-Great economic value: Although they are intangible assets, well-known trademarks bring many economic benefits to businesses. Consumers rely on well-known brands and trust the goods and services of the enterprises. Famous brands make consumers remember the goods and services of the business when they have a need. Because of the great value of well-known brands, businesses can attract capital from investors by using their famous brands.
-Vulnerability: Well-known trademarks are vulnerable to unauthorized use because of their popularity and high economic value. Therefore, well-known marks are often used by other entities with identical or similar signs, leading to confusion about the origin of goods or giving a false impression about the relationship between the entity using such signs and the owners of the well-known trademark.
3.Criteria for evaluating famous trademarks
3.1. Recognition of a famous trademark
According to the provisions of Article 42, Section 5 of Circular 01/2007/TT-BKHCN dated February 14, 2007, which guides the implementation of Decree No. 103/2006/ND-CP dated September 22, 2006 of the Government, as amended by point a, Clause 35, Article 1 of Circular 16/2016/TT-BKHCN, a well-known mark is defined as follows:
-Well-known trademarks are protected by Vietnamese law under the provisions of Article 75 of the Intellectual Property Law 2005, as amended and supplemented in 2009 and 2019, and in accordance with the provisions of Article 6bis of the Paris Convention on the protection of industrial property.
-The rights to a well-known trademark are protected and belong to the owner of the mark without the need for registration. Trademark owners can use the documents required by law to prove their ownership of the mark and to demonstrate that the mark meets the conditions for being considered well-known.
Documents proving ownership of the mark and proving the popularity of the mark may include information on the scope, scale, extent, and continuity of the use of the mark, including demonstrating the origin, history, and duration of continuous use of the mark; the number of countries where the mark has been registered or recognized as a well-known mark; the list of goods and services bearing the mark; the territory in which the mark is circulated, the products sold or services provided; the quantity of goods and services bearing the mark that have been produced and consumed; the value of the mark’s assets; the price of the transfer or transfer of the right to use; the value of the investment capital contribution of the mark; investment expenses for advertising and brand marketing, including participation in national and international exhibitions; infringement cases, disputes, and decisions, judgments of a court or competent authority; survey data of consumers who know the brand through buying, selling, using, and advertising and marketing; ranking and evaluating brand reputation of national and international organizations, mass media; awards and medals that the trademark has achieved; assessment results of intellectual property assessment organizations.
-In case a well-known mark is recognized, leading to a decision on the handling of infringement of rights to that famous mark according to the provisions of Point d, Clause 1, Article 129 of the 2005 Intellectual Property Law, as amended and supplemented in 2005, 2009, or 2019, or leads to a decision not to protect other trademarks as prescribed at point i, clause 2, Article 74 of the Intellectual Property Law 2005, as amended and supplemented in 2009, or 2019, that well-known mark will be recorded in the List of well-known trademarks kept at the National Office of Intellectual Property for reference information serving the establishment and protection of intellectual property rights.
3.2. Criteria for evaluating famous brands
According to the provisions of Article 75 of the Intellectual Property Law 2005, amended and supplemented in 2009 and 2019, the criteria to be considered when evaluating a well-known brand are:
The number of consumers who have come to know the brand through buying, selling, or using goods or services bearing the mark, or through advertising.
The first criterion to evaluate a well-known trademark is the number of consumers who know the mark throughout the territory of Vietnam. However, the law does not specify how large the number of consumers must be. Therefore, proving this criterion is still quite difficult for trademark owners.
According to the provisions of Clause 1, Article 3 of the Law on Protection of Consumer Rights in 2010, “consumers are those who buy and use goods and services for the purposes of consumption and daily life of individuals, families, or organizations.” Accordingly, related consumers are consumers who share or have similar needs and interests in the use of goods and services for consumption and daily activities of individuals, families, or offices. Therefore, relevant consumers may know the brand through the purchase, sale, or use of goods and services bearing the mark, or through advertising. Thus, the more consumers are aware of the brand, the higher the popularity of that brand. The number of unrelated people who know the mark is not a criterion for assessing the popularity of the brand.
The territory in which the goods or services bearing the mark have been circulated.
From the concept of a well-known mark, it can be seen that the territorial scope to evaluate a well-known mark is based on the number of areas in the territory of Vietnam where goods and services bearing the mark have been circulated.
In order to bring goods and services to circulate freely on the market, one of the necessary conditions is the registration of product circulation. Therefore, goods and services bearing the trademark that have been circulated are the goods and services bearing the mark that have been granted a lawful product circulation license.
Revenue from the sale of goods or provision of services bearing the mark, or the quantity of goods sold, and the amount of services provided.
In order for a mark to become a well-known mark, it is necessary to evaluate the revenue from the sale of goods or the provision of services bearing the mark, the quantity of goods sold, and the amount of services provided. The larger the sales volume, the more goods are sold, and the more services are provided, proving that the goods and services are preferred by many consumers, and the popularity is high. The above evaluation criteria are intended to reinforce the value that a well-known mark brings to the owner of the mark.
-Period of continuous use of the trademark.
A well-known trademark is one that must be used for a long time and continuously. The non-continuous use of the mark means that the trademark owner has stopped using the trademark for a period of time, making the popularity of the trademark low, leading to a decrease in consumer recognition of the brand. At this time, the competent authorities will assess the period of time the mark has not been used, consider the cause of the interruption, and then decide whether the mark is still a well-known trademark or not.
Wide reputation of goods and services bearing the mark.
A trademark is considered a well-known trademark only if it has built trust with consumers. Therefore, when considering the criteria for evaluating famous marks, it is necessary to pay attention to the reputation of goods and services bearing the mark.
Number of countries protecting the mark.
This criterion is also interesting to know how many countries the trademark owner has registered for trademark protection and the number of countries that have protected the mark from which to assess the level of popularity of that trademark.
Number of countries recognizing the mark as well-known.
With the number of countries recognizing the mark as famous, it proves that the mark has a higher degree of prestige.
-Transfer price, license price, and value of investment capital contribution of the mark.
This is one of the important criteria to evaluate a trademark as a well-known trademark. A reputable brand will gain the trust of consumers, thereby increasing the economic value of that brand. The higher the popularity of the brand, the higher the price will be, and the more economic value it will bring. Therefore, the larger the transfer price, the license price, and the value of the investment capital contribution, the greater the brand coverage in the market as well as the reputation among consumers.
– Law on Intellectual Property 2005, amended and supplemented in 2009, 2019;
– Circular 01/2007/TT-BKHCN dated February 14, 2007 guiding the implementation of Decree No. 103/2006/ND-CP dated September 22, 2006 of the Government;
– Circular 16/2016/TT-BKHCN dated June 30, 2016 of the Ministry of Science and Technology;
– Law on Protection of Consumer Rights 2010.
Legislation
Patents are regulated by the:
– Law on Intellectual Property No. 50/2005/QH11(as revised in 2009, 2014 and 2019);
– Civil Code 2015 (in particular Chapter 13);
– Decree No. 103/2006/ND-CP dated 22 September 2006, Detailing and Guiding the Implementation of a Number of Articles of the Law on Intellectual Property regarding Industrial Property;
– Decree No. 99/2013/ND-CP dated 29 August 2013, on Administrative Penalties in the Area of Industrial Property;
– Circular No. 01/2007/TT-BKHCN of 14 February 2007, guiding the Implementation of the Decree No. 103/2006/ND-CP of 22 September 2006, detailing and guiding the Implementation of a Number of Articles of the Law on Intellectual Property regarding Industrial Property (amended, supplemented by Circulars Nos. 13/2010/TT-BKHCN of 30 July 2010, 18/2011/TT-BKHCN of 22 July 2011, 05/2013/TTBKHCN of 20 February 2013 and 16/2016/TT-BKHCN of 30 June 2016.
Under Article 4.12 of the Vietnam IP Law:
An invention is a technical solution in form of a product or process which is intended to solve a problem by applying laws of nature.
From the definition of the invention, it can understand that:
– Invention is a product or a technological process created by humans, not something (already existing in nature) discovered by humans.
– The essential attribute of an invention is a technical character because an invention is a technical solution to solve a problem.
There are two types of patents in Vietnam, including a Patent for Invention and a Patent for Utility Solution (Utility Model).
Note: Under Article 115.1.đ) of the Vietnam IP Law, it is possible to convert a patent application into a utility solution application and vice versa anytime before the IP Vietnam issues one of three decisions: (i) a decision to refuse to accept a valid application, a decision to refuse to grant a patent, or a decision to grant a patent.
An invention shall be eligible for protection as a Patent for Invention if it meets the following conditions:
(i) being novelty,
(ii) involving an inventive step, and
(iii) being industrially applicable.
An invention shall be eligible for protection as a Patent for Utility Solution if it meets the following conditions:
(i) being novelty,
(ii) not being common knowledge, and
(iii) being industrially applicable.
– A Patent for Invention must satisfy three criteria: (i) worldwide novelty, (ii) inventive step and (iii) industrial applicability. Meanwhile, a Patent for Utility Solution must satisfy two criteria: (i) worldwide novelty and (ii) industrial applicability, and must not be common knowledge.
It is easy to find that the patentability criteria of a Patent for Invention are higher than that of a Patent for Utility Solution.
– A Patent for Invention is valid for 20 years from the filing date, while a Patent for Utility Solution is valid for 10 years from the filing date.
– A request for substantive examination of a Utility Solution application must be filed within 36 months from the earliest priority date, compared to 42 months for a patent application.
– Under Article 59 of the Vietnam IP Law, the following subject matters are not protected as invention:
– In addition, according to Article 8.1 of the Vietnam IP Law, subject matters that are contrary to the social ethics and public order and prejudicial to defence and security are also not protected as Invention.
Under Article 4.12 of the Vietnam IP Law, “Use” claims are presently regarded as non-patentable subject matters because they are not in the form of a parent or process. Therefore, such formats as the “Use” claim, the “Swiss-type” claim, and “second or further medical use” claim are currently unacceptable in the formality examination.
To be accepted by the IP Vietnam, an applicant may actively amend “use” claims to read them as “the composition, product… for use as…, or for use in…”. However, please bear in mind that the Vietnamese IPO’s acceptance is merely accepted provisionally as to formality, then such type of claim will be probably rejected in the substantive examination because the function/utility of the claimed subject is not the essential technical features of such subject matter under Circular 01/2007/TT-BKHCN.
Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted in accordance with the law of that country or region.
For example, if a patent is granted in Vietnam, it will only be valid for the whole territory of Vietnam.
Yes, a patent/utility solution application should be filed as soon as possible.
Like most countries, Vietnam applies the “first to file” principle under Article 90 of the Vietnam IP Law. It can simply understand that if two people create the same invention independently, and both of them file their patent application with the IP Vietnam, then a patent will be only granted to the person who is the first to file a patent application, regardless of who creates the invention first.
Under Article 90 of the Vietnam IP Law:
– If there are two or more patent applications filed for identical or equivalent inventions, a patent will only be granted to an application having the earliest priority date or filing date among the applications that satisfy all protection criteria.
– In case where there are two or more applications satisfying all protection criteria and having the same earliest priority or filing date, all of the applicants are now required to reach an agreement to proceed with one application only. Without such an agreement, all those applications shall be refused.
Under Article 86 of the Vietnam IP Law:
– Authors create inventions by their own expenses and efforts;
– Individuals or organizations invests funds, facilities and material means to authors in the form of job assignment or hiring, unless otherwise agreed by the involved parties whose agreements are not contrary to the legal provisions;
– In case many individuals or organizations jointly create or invest to create an invention, that organization or individual may register an invention after obtaining the consent of the other individual or organization.
Please see the link:
https://wincolaw.com.vn/filing-requirements/vietnam/patent-utility-solution-in-vietnam
for more details.
Applicants and all organizations/individuals having rights/interests directly related to the decisions or notices related to the processing of patent applications have the right to complain to the IP Vietnam or initiate a lawsuit in court in accordance with the provisions of the Vietnam IP Law and relevant laws.
– The first complaint to the IP Vietnam is made within 90 days, from the date of receiving or learning about the IP Vietnam’s decision or notice on the processing of the patent application.
– The second complaint to the Minister of Science and Technology is made within 30 days from the expiration of the time limit for settling the first complaint but the first complaint is not resolved or from the date that the person having the right to complain receives or learns about the decision for settling the first complaint, or initiate a lawsuit in court. The complainant has the right to initiate a lawsuit at court if they disagree with the complaint settlement decision of the Minister of Science and Technology.
No. For the reasons of national security, inventions of Vietnamese organizations and individuals and inventions created in Vietnam (by Vietnamese or by foreigners) must be filed firstly in Vietnam before filing at any overseas patent offices, noting that:
(i) A patent application may be filed elsewhere after six (6) months of having been filed in Vietnam; and
(ii) A patent application is not allowed to file abroad when determined as a secret invention.
Under Clauses 1&2 of Article 60 of the Vietnam IP Law, the requirements of the novelty of invention are:
Exceptions to a lack of novelty are provided in Clauses 3 & 4 – Article 60 of the Vietnam IP Law.
Accordingly, Vietnam applies a 12 month grace period from the disclosure date if one of the following events occurs:
– Where it is disclosed by a person entitled to registration as regulated in Article 86 of the Intellectual Property (IP) Law, regardless of any disclosure reasons;
– Where it is disclosed by a person who obtains information about the invention directly or indirectly from the persons as regulated in Article 86 of the IP Law;
– Where it was disclosed in patent applications or patents published by the state management agency in charge of industrial property (the IP Vietnam), but the publication is not in accordance with the provisions of the law or because the application is filed by someone who does not have the right to file.
Disclosures under Clauses 3 & 4 of Article 60 of the IP Law would not be considered as prior art when assessing the novelty and inventive step of the invention.
Under Article 61 of the Vietnam IP Law, the requirements of an inventive step are:
An invention is considered as involving an inventive step if, based on the technical solutions already publicly disclosed in the forms of use or written description or any other form inside or outside the country, before the filing date of the patent application or before the priority date in case the application benefits a priority date, the invention is inventive progress and cannot be easily created by a person skilled in the art.
Under Article 61 of the Vietnam IP Law, the requirements of the industrial applicability are:
An invention shall be considered to be capable of industrial applicability if it can be applied to mass production or manufacture of the product or it is possible to repeatedly apply the process that is the subject matter of the invention to get stable results.
The period of protection is 20 years for patents for invention from the filing date, while it is 10 years for patents for utility solution from the filing date.
Annuity payments are required to maintain the validity. The first annuity is to be paid at the time of granting the patent and due dates for the second and subsequent annuities are the anniversary of the granting date of the patent. Within six months before the due date to pay an annuity, the patent owner must submit a request to pay the annuity. In case an annuity payment is not made by the due date, the patent will lapse on the due date. However, a six-month grace period is available with a surcharge of 10% of the fee for each month late.
Under Article 112 of the Vietnam Intellectual Property Law:
– Any third party can file an opposition with the IP Vietnam from the date a patent application is published on the Industrial Property Official Gazette until before the date of the decision to grant a patent.
– The opposition must be made in writing, accompanied by documents or cited information sources to support it.
The IP Vietnam always publishes patent applications on the Industrial Property Official Gazette (electronic version) on a monthly basis. You should check whether the patent application you wish to oppose has been published or not, so you can proceed to file the pre-grant opposition.
– Yes. An applicant may actively amend their patent application (filing a request for voluntary amendment) at any time before the IP Vietnam issues a final decision regarding the grant or refusal of the parent application.
– Any amendment must not go beyond the scope of the original disclosure of the patent application.
– The applicant is requested to pay a fee for the amendment of a patent application.
– In Vietnam, one or more divisional applications can be filed for any reasons, such as (i) in response to a lack of unity rejection, (2) the voluntary amendment of a parent application by filing a divisional application.
– Time limit for filing a divisional application:
A divisional application can be filed at any time before the IP Vietnam issues a final decision regarding the grant or refusal of the parent application.
In practice, a divisional application should be filed no later than at the time of paying the grant fees of the parent application.
– Requirements for the specification of a divisional application:
The specification of a divisional application must not go beyond the original specification of the parent application.
The claimed subject-matter(s) of the divisional application must be different from those of the parent application and must be supported fully by the specification of the parent application.
– The applicant is required to pay fees for filing a divisional application. The fees for filing a divisional application are similar to those for filing its parent application except that the payment of fees for a priority claim are not required in a divisional application.
– Yes. An applicant can request IP Vietnam to record the transfer of a patent application to another person on the basis of assigment, inheritance, or a decision of competent authority before the IP Vietnam issues a final decision regarding the grant or refusal of the parent application.
– An applicant is required to pay the fees for the transfer request.
Yes. In Vietnam, granted patents can be amended under Article 97 of the Vietnam IP Law.
Therefore, a patent owner can carry out the following post-grant amendments:
– To change the name and/or address of the patent owner;
– To change the name and/or address and/or nationality of inventors;
– To correct errors in patents made by the IP Vietnam; or
– To narrow the scope of patent protection by removing one or some independent and/or dependent claims. In this case, the subject patent application must be reexamined as to substance.
Note:
The advice above relies on the provisions of the law and regulations at the time of consultation, which may no longer be relevant due to changes in legal policy.
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