In the context of the integrated world, relations with foreign elements have become diverse and complex. Determining what is a civil relationship with foreign elements and determining the applicable law to ensure the rights and interests of the participants are very important. So about the matter “Civil relations with foreign elements under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Civil Code 2015
- Decree 138/2006/ND-CP Guiding the Civil Code on civil relations involving foreign elements
Overview of legal provisions on civil relations involving foreign elements
Decree 138/2006/ND-CP detailing the implementation of provisions of the Civil Code on the application of Vietnamese laws, foreign laws, international treaties and international practices to foreign officials. civil system with foreign elements. Vietnamese agencies, organizations and individuals; Foreign agencies, organizations and individuals involved in civil relations involving foreign elements are the subjects of application of this Decree.
The application of civil law of the Socialist Republic of Vietnam, international treaties, foreign laws and international practices shall comply with the provisions of Article 759 of the Civil Code. In case there is a difference between the provisions of Part Seven of the Civil Code and the provisions of other specialized laws on the same content, the provisions of the specialized law shall apply. In case of selection or invocation of application of the law of a country with different legal systems, the litigant has the right to request the application of the legal system which has the closest relationship with the litigant regarding rights and interests. civic duty.
The Decree specifically stipulates: Civil legal capacity of individuals being foreigners; The civil act capacity of the individual being a foreigner; Identification of people who have no civil act capacity, have lost their civil act capacity or have limited civil act capacity; Identification of missing or dead persons; The civil legal capacity of the foreign legal entity; Property ownership; Inheritance according to law with foreign elements; Inheritance by will…
This Decree takes effect 15 days after its publication in the Official Gazette and replaces the Government’s Decree No. 60/CP of June 6, 1997 guiding the implementation of the provisions of the 1995 Civil Code on civil relations with foreign elements.
The concept of civil relations with foreign elements
According to the provisions of Clause 2, Article 663 of the 2015 Civil Code and Clause 1, Article 3 of Decree 138/2006/ND-CP Guiding the Civil Code on civil relations with foreign elements promulgated by the Prime Minister There are regulations on understanding civil relations involving foreign elements as follows:
Civil relations involving foreign elements are:
a/ Civil, marriage and family, business, commercial and labor relations in which at least one party is a foreign agency, organization or individual or overseas Vietnamese;
b/ Civil, marriage and family, business, commercial and labors relations of which the parties are Vietnamese citizens or organizations but the bases for establishment, alteration or termination comply with foreign laws or arise overseas or assets related to which are located overseas
In addition, in this Article, there are definitions of a number of relevant provisions as follows:
– “Foreigners” means those who do not have Vietnamese nationality, including foreign nationals and stateless persons.
– “Overseas Vietnamese” means Vietnamese nationals who are residing and working permanently in foreign countries.
– “Foreign agencies and organizations” means agencies and organizations other than Vietnamese agencies and organizations, which are set up under foreign laws, including international agencies and organizations set up under international law.
– “Foreign legal persons” means legal persons set up under foreign laws.
– “Entry into a civil contract in absentia” means the entry into a civil contract through electronic means or other means without the presence of contractual parties at the same place to sign the contract.
Civil cases involving foreign elements are specified in Clause 2, Article 464 of the Civil Procedure Code 2015, whereby:
A civil case involving a foreign element is a civil case in one of the following cases:
a) At least one of the participating parties is a foreign individual, agency or organization;
b) The participating parties are all Vietnamese citizens, agencies or organizations, but the establishment, change, performance or termination of such relationship occurs in a foreign country;
c) The involved parties are all Vietnamese citizens, agencies or organizations, but the subjects of such civil relations are overseas.
Civil relations with foreign elements under Vietnam law
Civil relations involving foreign elements are regulated from Article 664 to Article 671 of the 2015 Civil Code as follows:
Determining the law applicable to civil relations involving foreign elements
– The law applicable to civil relations involving foreign elements shall be determined according to international treaties to which the Socialist Republic of Vietnam is a signatory or Vietnamese law.
– In case an international treaty to which the Socialist Republic of Vietnam is a contracting party or Vietnamese law provides that the parties have the right to choose, the law applicable to civil relations involving foreign elements shall be determined at the option of the parties.
– In case the above-mentioned applicable law cannot be determined, the applicable law is the law of the country which has the closest connection with the civil relationship involving that foreign element.
Application of international treaties to civil relations involving foreign elements
– In case an international treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions on the rights and obligations of the parties to a civil relationship involving foreign elements, the provisions of such international treaty is applied.
– In case an international treaty to which the Socialist Republic of Vietnam is a signatory contains provisions different from those of this Part and other laws on law applicable to civil relations involving foreign elements, provisions of that international treaty is applied.
Applying international practices to civil relations involving foreign elements
The parties may choose international practices in the case specified in Clause 2, Article 664 of the Civil Code 2015. If the consequences of the application of such international custom are contrary to the basic principles of Vietnamese law, Vietnamese law shall apply.
Applying foreign laws to civil relations involving foreign elements
Where a foreign law is applied but there are different interpretations, the application must follow the interpretation of the competent authority in that country.
The scope of the law referred to
– The law referred to regulations on determining applicable law and regulations on rights and obligations of parties to civil relations, except for the case specified in Clause 4, Article 668 of the Civil Code 2015.
– In case of reference to Vietnamese law, the provisions of Vietnamese law on rights and obligations of the parties to civil relations shall apply.
– In case of reference to the law of a third country, the provisions of the law of the third country on the rights and obligations of the parties to the civil relationship shall apply.
– In the case specified in Clause 2, Article 664 of the Civil Code 2015, the law selected by the parties is the regulation on the rights and obligations of the parties to the civil relationship, excluding the provisions on determining the rights and obligations of the parties to the civil relationship applicable law.
Applying the laws of countries with many legal systems
Where the law of a country to which more than one legal system is referred, the applicable law shall be determined according to the principles prescribed by the law of that country.
Where foreign law does not apply
– The foreign law referred to is not applicable in the following cases:
+ Consequences of the application of foreign law contrary to the basic principles of Vietnamese law;
+ The content of foreign law cannot be determined even though necessary measures have been applied in accordance with the procedural law.
– In case foreign law is not applied according to the provisions of Clause 1, Article 670 of the Civil Code 2015, Vietnamese law shall apply.
The statute of limitations for civil relations involving foreign elements
The statute of limitations for civil relations involving foreign elements shall be determined according to the law applicable to such civil relations.
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Frequently asked questions
According to Article 664 of the 2015 Civil Code, the principles of determining the law applicable to civil relations involving foreign elements are as follows:
“1The law applicable to civil relations involving foreign elements shall be determined according to international treaties to which the Socialist Republic of Vietnam is a signatory or Vietnamese law.
Where an international treaty to which the Socialist Republic of Vietnam is a contracting party or Vietnamese law provides that the parties have the right to choose, the law applicable to civil relations involving foreign elements shall be determined at the option of the parties.
In case the applicable law cannot be determined as prescribed in Clauses 1 and 2 of this Article, the applicable law is the law of the country that has the closest relationship with the civil relationship involving foreign elements.”
According to the 2015 Civil Code, which provides for the non-application of foreign laws when referred to, Article 670 of the 2015 Civil Code stipulates:
“1. The foreign law referred to does not apply in the following cases:
a) Consequences of the application of a foreign law contrary to the basic principles of Vietnamese law;
b) The contents of the foreign law cannot be determined even though necessary measures have been applied in accordance with the procedural law.
2. Where foreign law is not applicable as prescribed in Clause 1 of this Article, Vietnamese law shall apply.
The provisions on the application of the provisions of the law are referred to:
The 2015 Civil Code has separated Article 668 to more clearly define the referenced application of the law, whereby,
“first. The law referred to includes regulations on determining applicable law and regulations on rights and obligations of parties to civil relations, except for the case specified in Clause 4 of this Article.
In case of reference to Vietnamese law, the provisions of Vietnamese law on rights and obligations of the parties to civil relations shall apply.
In case of reference to the law of a third country, the provisions of the law of the third country on the rights and obligations of the parties to the civil relationship shall apply.
In the case specified in Clause 2, Article 664 of this Code, the law chosen by the parties is the provisions on the rights and obligations of the parties to the civil relationship, excluding the provisions on determining the applicable law” .
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