Content Guaranteeing Freedom of Business for Investors

“violations of law are prescribed in advance and protected by the coercion of the State”[33].

Subjective rights are not the act itself but only the ability to act. If this ability is actually exercised, another phenomenon appears, which is the exercise of subjective rights. Subjective rights have several characteristics:

- Ability to act within the framework determined by legal norms;

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- The ability to require the other party (a participant in a legal relationship) to perform their obligations (performance can be by action or inaction).

- The ability to request competent State agencies to apply necessary coercive measures to the other party to fulfill their obligations, in case their subjective rights are violated by the other party.

Through the above analysis, it can be seen that the concept of "Rights" has two characteristic signs:

Firstly, it is the subject's ability to act. When it is the subject's ability, it means that it only stops at the theoretical level and does not mean that it has happened in reality. Whether this ability happens in reality or not depends on the subjective will of the party that is empowered by law. This is different from the concept of obligation. For obligations, the obligated party must certainly perform that action to protect the rights and interests of the other party.

Second, recognized and permitted by law. When the possibilities of conduct occur in reality, they are always recognized by law. Legal recognition ensures the legal value of these rights. This is reflected in sanctions for subjects with obligations when they do not comply with subjects with rights.

Freedom in the usual sense means not being constrained. Accordingly, freedom is understood as the ability of a person to act according to his own will and wishes.

Freedom is one of the basic human rights recognized by the whole world. The Declaration of Independence gave birth to the Democratic Republic of Vietnam.

President Ho Chi Minh also made this issue clear by quoting the content of the 1776 US Declaration of Independence:

"All men are created equal. They are endowed by their Creator with certain unalienable rights; among these are life, liberty, and the pursuit of happiness."

However, all freedoms are within the framework of the law. Legal regulation helps protect the freedom of each individual, not allowing the freedom of one individual to affect the freedom of another. Therefore, it can be affirmed that the freedom of business is a legal category. From this perspective, the freedom of business is considered on the following two basic aspects:

 From the perspective of subject rights: The right to freedom of business is understood as the ability to act consciously of subjects in the process of their production and business activities. In this sense, the right to freedom of business includes the ability that individuals or legal entities can act such as: Freedom to invest capital to establish a business, freedom to choose a business organization model, freedom to choose partners to establish business relationships, freedom to compete, freedom to decide on the resolution of business disputes, etc. These abilities to act are natural attributes of subjects and are not bestowed by the state. However, in order for those abilities to act to become reality, they must be institutionalized by the state through law and only then will they become "Real rights".

 From the perspective of a legal institution: The right to freedom of business is a legal institution that includes a system of legal norms and legal guarantees issued by the state to create conditions for entities to exercise their right to freedom of business. In short, with the above approach, the right to freedom of business - on the one hand includes the rights that business entities enjoy - on the other hand is the responsibility of the state when performing its management function to respect and protect those rights.

In short, according to the author, the concept of freedom of business must be viewed and considered comprehensively in the following basic aspects:

Firstly , the right to freedom of enterprise is an essential and important part of human freedom. Therefore, it must be recognized and protected by the State.

Second , the actual realization of the right to freedom of business requires the State to establish sufficient mechanisms to promptly meet the requirements set forth by the right to freedom of business.

Third , the human right to freedom of enterprise exists as an inevitable need of socio-economic development. Therefore, the State must consider it as a goal to strengthen its position and power in all aspects. It must be the goal that the State aims for if it wants to realize its legitimate status and progressive humanity in the process of implementing its domination.

1.2. Contents of ensuring freedom of business for investors

Freedom of business in investment is understood as a system of rights associated with business people, which are mainly and first of all:

- Ensure freedom to engage in business;

- Ensure the right to self-determination of internal issues in the business process;

- Ensure the right to secure property ownership;

- Guarantee freedom of contract;

- Ensure freedom of competition according to the law;

The above freedoms have an organic relationship to form a unified body of the content of the right to freedom of business. The development process of the economy will certainly enrich the content of this right.

1.2.1. Ensuring the freedom to engage in business

The right to investment and business autonomy is a basic and important content in the system of business freedom rights. It includes the right to freely choose the form, location, investment field, investment capital, and business lines. That important position and role is shown in the fact that citizens who want to become legal business participants (have legal status) must register for investment/business registration at the competent state agency. Once they have registered for investment (legal status is recognized), then they will have legal status and be allowed to conduct investment and business activities. Thus, the right to freely participate

Business is the basis for individuals and legal entities to be recognized by the State as legal business entities, and is the premise for them to conduct other business activities.

Associated with the right to participate is the right to freely choose the investment sector; investment form and investment location. When exercising the right to freely establish and register a business, business entities have decided to choose their own business sector. The choice of investment sector and business sector depends entirely on the wishes, conditions and capabilities of the business entities, based on understanding market demand. No one has the right to illegally interfere with this right of theirs, because the ones responsible for business results are the investors. The right to freely choose the investment sector and business sector is also limited by a number of sectors related to national security and defense, social order and safety. Based on the choice of investment sector, entities have the right to freely choose the investment form and business form suitable to their conditions.

To ensure the freedom of business participation of entities, the following conditions must be met:

- Must expand the scope of business licenses.

- There must be many business organization models for investors to choose from.

- Business establishment and registration procedures must be simple and convenient.

- The State must clearly regulate which business lines are prohibited; which business lines require conditions, and what are those conditions?

1.2.2. Ensure the right to self-determination of internal issues in the business process

During business operations, entities have the right to decide on issues so that business can take place most effectively, such as:

- Hiring and employing labor;

- Choose a partner;

- Decision to continue business or terminate business;

- Decision to expand or reduce business;

- Decide on profit sharing and management rights;

- Decide to resolve internal disputes and resolve disputes with external parties;

- Capital mobilization during business

1.2.3. Ensuring property ownership

Property is a complex and key issue of business freedom. It reflects the relationship between people in the production process of possessing material wealth in society. In Roman law, property rights include: Right to use (Usus); right to profit (Fructus); right to dispose (Abusus) [6]

The forms of ownership recognized by law become the ownership regime. The difference between a centrally planned economy and a market economy is ultimately the issue of ownership of the means of production. “The two economies differ in two main respects. First, they give different answers to the question: How are economic activities organized? By the market or by planning? Second, they give different answers to the question: Who owns the means of production? The state or the individuals?” [42]

Regarding the right to freedom of business in investment, the right to own means of production plays the most important role; it is considered the foundation, the premise for the formation and implementation of this right. The right to be guaranteed ownership of assets has a positive, strong impact on other freedoms, such as: freedom to establish a business, freedom of contract, freedom to compete... Regarding the right to freely establish a business, register a business, the right to own means of production plays a decisive role. No one can establish a business - register a business without having means of production, a certain amount of capital. Those means of production, capital must belong to the capital contributor, the person who establishes the business, the person who registers the business. When establishing a business, registering a business, the issue of ownership always comes first. For example, when establishing and registering a business for a company, the issue of capital contribution, the capital contribution mechanism always has a decisive meaning. According to Associate Professor, Dr. Le Hong Hanh, "capital contribution is the basis for forming business ownership. The issue of capital contribution itself is also a purely ownership issue" [9, p. 21].

To exercise ownership rights over means of production, the following conditions must be met:

- Expand the subjects capable of becoming owners of means of production.

- Regulate many forms of ownership of means of production; forms of ownership must be treated equally.

- Create the basis for the conscious development of existing forms of ownership with their inherent characteristics.

- Ensure ownership transfer is smooth, fast, safe and profitable.

- Expanding the scope of ownership.

- There must be effective measures to protect different forms of ownership of means of production. Owners must have legal measures to protect their ownership rights.

1.2.4. Guarantee of freedom of contract

To survive and develop, businesses must establish economic relations with each other to exchange products, goods, services, etc. The establishment of economic relations is carried out through contracts. “Contracts, in the simplest definition, are agreements that have legal value and bind the parties” [41]

Contracts reflect the economic relationship between businessmen. It is a relationship of will established voluntarily, equally, and mutually beneficial. In that sense, freedom of contract is one of the important contents of freedom of business. It concretely and vividly expresses the real value of ownership rights, freedom of establishment and business registration, freedom of competition...

The rights to ownership of means of production, freedom of establishment and business registration will lose their meaning without freedom of contract. Contracts represent specific business activities. All investment activities such as: contributing capital to establish a business, using labor, purchasing machinery and equipment, construction, joint ventures, borrowing capital, exchanging goods, performing services... are all done through contracts. Therefore, ensuring freedom of contract is the condition for implementing other freedoms in the system of freedom of business in investment.

In short , freedom of contract is the right of business entities, expressed in the following four aspects:

- Firstly , signing a contract is the right of investors, no one has the right to impose or interfere with this right.

- Second , investors have the freedom to choose partners to establish investment relationships.

- Third , investors have the right to agree to apply measures to ensure contract performance.

- Fourth , investors have the freedom to negotiate changes to certain contents during the contract implementation process.

1.2.5. Ensuring freedom of competition

Competition is one of the laws of the market economy. It plays an important role not only as a driving force for development, but also as an important factor in making business relations healthy. Competition is a natural attribute of businessmen. Therefore, it must be protected by law as a right of businessmen and become an indispensable content of the right to freedom of business. It is also necessary to affirm that the right to freedom of competition of businessmen is healthy competition. It is "a beautiful, pure form of competition and free from bad habits in everyday life. It is the opposite of unhealthy competition" [33, p. 24]. In relation to other freedoms of business, the right to freedom of competition is important. It is the driving force for the implementation of ownership rights of means of production, freedom of contract... To ensure the right to fair competition for business entities, the following requirements must be guaranteed:

- There must be a complete legal system on competition.

- The state must have a mechanism to control prices.

- Monopolies must be controlled and minimized, even if they are state monopolies.

- There must be strict sanctions against unfair competition, illegal competition and other negative aspects of competition.

- Must ensure equality for economic sectors.

1.3. The meaning of basic rights to ensure business freedom of enterprises

1.3.1. Political and legal significance

From a political perspective, free enterprise is one of the manifestations of freedom, democracy, and equality - concepts considered the philosophical foundation of every progressive society.

Freedom in general and freedom of business in particular are not only the goals of a civilized society, but also the driving force for social development and progress, because it promotes the human factor (and people are the most important resource in society). Intellectual products, talents, knowledge, business arts... are personal assets, closely linked to human qualities, when liberated, they will bring enormous power - liberating social productivity, promoting social development in all aspects.

The right to freedom of business itself is a manifestation of freedom and democracy. Recognizing and ensuring the implementation of the right to freedom of business is also a manifestation of respect for human rights. Socialism values ​​human rights, so it must respect that freedom even more. The nature of our state is a state "of the people, by the people and for the people". Respecting the right to freedom of business means promoting the good nature of our state. The right to freedom of business is both the goal of a state "for the people" and the means of a state "by the people".

If freedom of business is a natural requirement of a market economy, then ensuring this freedom demonstrates the conformity between law and economics, affirming the correct innovation path of our Party and State. This conformity is an important factor determining the success of the innovation cause, because in the end, the essence of the innovation path of our Party and State is to democratize social life.

Legally, freedom of business is an important principle guiding the construction and implementation of economic law. It sets out the basic requirements and contents for the construction and completion of the economic law system of our country today and in the future. First of all, freedom of business must be correctly perceived in the formation of economic law.