Contract transfer under Vietnamese civil law

Chapter 2 Conclusion

As analyzed above, the laws of countries around the world have regulated the transfer of contracts. There are countries that have not yet explicitly regulated in the law, but the court has accepted the transfer of contracts. This shows that the trend of world law has regulated this contractual relationship. And when regulating, they also focus on regulating: Concept, object, method, form, conditions of validity, cases where transfer is not allowed, time of validity, legal consequences; of contract transfer. It can be seen that these are the core, fundamental elements of contract transfer. And these contents have fully anticipated and covered the necessary elements when regulating contract transfer.

These basic, core factors are considered by the author based on the overall situation of contract transfer and related legal regulations in Vietnam.

From summarizing the experience of foreign law and comparing it with the conditions of Vietnam as above, the author presents his views and explains in detail these views, aiming at the content of the provisions on contract transfer in Vietnamese civil law in a scientific way, in accordance with relevant laws of Vietnam and international law, ensuring the rights and legitimate interests of the parties in the contract transfer relationship. Therefore, when recording this transaction in the 2015 Civil Code, lawmakers need to stipulate the factors as analyzed above.

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CONCLUDE

Through the above analysis, although contract transfer has not been regulated or adjusted in the 2015 Civil Code, in reality, this relationship has occurred. Among them, there are contract transfer relationships with disputes that require resolution by the Court. When resolving these disputes, the Court does not have a clear and specific legal basis to apply to resolve them, leading to difficulties for the Court; affecting the legitimate rights and interests of the parties participating in the transfer relationship. The shortcomings due to the lack of regulations on contract transfer in the 2015 Civil Code clearly do not facilitate society in relation to this issue, and demonstrate a major limitation:

- In theory, it shows a scattered, lack of overall basis as a basis for regulating the contract transfer relationship . This leads to the fact that when there is a dispute over the contract transfer relationship that comes to the Court, the Court resolves it very confusingly and contradicts each other in the viewpoint of determining the disputed legal relationship, applying relevant legal provisions to resolve. This leads to the Courts having different ways and results of resolution. The same court system but the resolution is contradictory. Thus, it is clearly not good for the judiciary in general.

- In reality, it shows the barrier of civil communication, causing damage to those involved in the transfer of contracts . As mentioned above, because the 2015 Civil Code does not regulate the transfer of contracts, people are hesitant and confused before the transfer of contracts. When they want to move towards the transfer of contracts, they will not be sure whether the law allows it or not? How does the law regulate this transaction? What are their rights and obligations? How will the court resolve disputes when they arise? and many other related questions. Those questions and concerns will make them hesitate and hesitate before the transaction. In addition, when they decide and participate in the transfer of contracts, if a dispute arises, then they will not have a solid, clear basis (laws) to protect their legitimate rights and interests. This does not guarantee the legitimate rights and interests of the participants.

Therefore, the regulation of contract transfer in the 2015 Civil Code is very necessary and will bring great benefits to the participating parties in particular and to society in general. These benefits are reflected in the following contents:

- Create a common basis, foundation, guide, and regulate the contract transfer relationship . The parties involved in the contract transfer will have actions

legal framework to carry out this transaction. And the Court will have a clear legal basis to apply to resolve disputes of this transaction. Thus, the State can orient the contract transfer relationship to take place according to its intention.

- Expanding the rights of the contracting parties, ensuring the legitimate interests of the contracting parties . When a person has entered into and performed the contract, for some reason they do not want to continue to maintain the contract. Then according to the provisions of the 2015 Civil Code, they will have a plan to terminate the contract, such as unilaterally terminating the performance of the contract (Article 428). According to this plan - article, "the party at fault in the unilateral termination of the contract must compensate for damages". Thus, they face the risk of having to compensate for damages because they want to unilaterally terminate the contract. With this provision, it is very burdensome for them. They have no other choice to be safe, to gain more benefits (no damage, less damage or even profit) from terminating the contract. Therefore, when the civil law stipulates the transfer of the contract, it gives them a good solution in case they want to withdraw from the contract. At that time, they can transfer the entire contract to the party replacing the contract. Accordingly, there is a plan for them to withdraw from the contract smoothly, without having to pay compensation for damages due to unilateral termination of the contract. On the other hand, if the contract is unilaterally terminated, the party who is unilaterally terminated may also suffer actual damages greater than the calculated damages, which the unilateral party must compensate them according to the regulations. These cases show that both parties are at risk of suffering damages if the contract is terminated.

On the other hand, in theory, contracts are created to be performed, to bring benefits to the parties and to society. Therefore, except for the case where the subjective will of the contracting party wants to terminate the contract, in all other cases, related difficulties and problems should be resolved and conditions created for the contract to be performed and completed.

Therefore, the law regulating contract transfer has expanded the right of choice for the subjects participating in the contract, and created a solution to minimize damage, even gain benefits from withdrawing from the contract for both parties in the contract.

- Create convenience and flexibility in the flow of civil communication . A person, at the time of signing a contract, has the desire and purpose to achieve the needs and benefits that the contract will bring, as well as the ability to perform the contract. But during the process of performing the contract, for some reason, they are no longer able to perform the contract or they no longer have the desire and purpose to achieve the benefits of the contract.

contract. At that time, they do not want to continue to be bound by the contract, but want to get out of the signed contract. On the other hand, for the efforts and assets that they have spent to perform part of the contract, they also need to be paid and compensated. Meanwhile, the other party to the contract still wants to continue performing this contract or does not want to pay or compensate for the efforts and assets that the other party has spent to perform the contract. Besides, there is a third party who has a need for this contract. They are willing to take the place of the party who wants to withdraw from the contract as well as they are willing to pay and compensate for the expenses that the party who wants to withdraw has spent to perform the contract in order to continue performing the contract with the other party. Each party has its own conditions, needs, and aims at its own interests. In the case where the needs and interests of the three parties have something in common, they can make a three-party civil transaction - called contract transfer. In which, the party who wants to withdraw, withdraws from the contract is allowed; The party who wants to replace, participates in the contract and the other party of the contract is allowed to continue the contract. In that way, the contract is still maintained, and the interests and will of the parties are still guaranteed and implemented. The civil relations related to the contract continue normally, smoothly, and harmoniously between the parties involved.

- Minimize social costs for resolving related disputes. In case one party wants to withdraw or unilaterally terminate the contract, the two parties to the contract will have conflicts and disputes. Thus, they will request the Court to resolve. When the Court resolves the lawsuit, the State and society will incur costs for the resolution. If the parties find a better, more harmonious solution - transferring the contract, there will be no dispute to the Court, thus saving costs and time for the Court to resolve the lawsuit. This is also a benefit of the contract transfer regulation.

With all the arguments presented above, it shows that the regulation on contract transfer in the 2015 Civil Code is necessary. This supplements the legal scientific theory and brings great benefits to society.

With this work, the author hopes to add another piece to the overall picture of contract transfer in Vietnam, which is currently in its infancy. So that readers have more information on this issue, and a more multi-dimensional and in-depth view. All of this is to make the issue of contract transfer more and more clearly and comprehensively recognized; commensurate with its position and needs in social life, aiming towards officially regulating contract transfer in the 2015 Civil Code.

In addition to his wishes when doing this topic as mentioned above, the author understands that, with his limited understanding and connection to the problem, and the lack of supporting sources, the research on the topic will certainly have many shortcomings that need to be discussed and clarified. Therefore, the author hopes that the reviewer will acknowledge the content of the topic, and the author also hopes to receive and continue to research the views, opinions, and suggestions of teachers and readers, so that the topic can be more complete.

The author sincerely thanks teachers and readers for their evaluation and comments on the topic.

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LIST OF REFERENCES

A. Foreign legal documents

1. European Principles of Contract.

2. The 2004 Undroit Principles of International Commercial Contracts.

3. French Civil Code

4. Cambodian Civil Code.

B. Vietnamese legal documents

5. Civil Code 2015 (Law No. 91/2015/QH13) dated November 24, 2015. 6. Housing Law 2014 (Law No. 65/2014/QH13) dated November 25, 2014.

7. Labor Code 2012 (Law No. 10/2012/QH13) dated June 18, 2012.

8. Law on Enterprises 2014 (Law No. 68/2014/QH13) dated November 26, 2014.

9. Law on Insurance Business 2000 and amendments and supplements 2010 (Law No.: 61/2010/QH12) dated November 24, 2010.

10. Decree 99/ND-CP dated October 20, 2015, detailing and guiding the implementation of the Housing Law.

11. Decision No. 202-TTg dated May 2, 1995 of the Prime Minister promulgating regulations on forest protection contracts, forest regeneration and afforestation.

C. References

12. Do Thanh Cong (2011), "Practice of trial on the performance of payment obligations in real estate transfer contracts", Supreme People's Court Journal , No. 22.

13. Ngo Quoc Chien (2013), "The Civil Code needs to supplement regulations on contract transfer", Legislative Research Journal , Office of the National Assembly, No. 2-3(234-235).

14. Do Van Dai (2008), “Transfer of obligations in Vietnamese positive law”, State and Law Journal , No. 01 (237).

15. Do Van Dai (2012), Law on civil obligations and guarantees for performance of civil obligations

- Verdict and commentary on the verdict, volume I , National Political Publishing House - Truth.

16. Do Van Dai (2012), Law on civil obligations and guarantees for performance of civil obligations

- Verdict and commentary on the verdict, volume II , National Political Publishing House - Truth.

17. Do Van Dai (2013), Vietnamese Contract Law - Judgments and judgment comments, Volume I , National Political Publishing House.

18. Do Van Dai (2014), Vietnamese Contract Law - Judgments and judgment comments, Volume II , National Political Publishing House.

19. Do Van Dai (2014), “Transfer of claim rights in the Civil Code”, Supreme People's Procuracy Journal , No. 3 (Tet Issue).

20. Phan Hai Ho (2007), “Transfer of claim rights through practice in some civil cases”, Democracy and Law Magazine , No. 2 (179).

21. Le Minh Hung (2015), Contract validity , Hong Duc Publishing House.

22. Tran Thi Huong (2013), Contract transfer, International conference on amending the 2005 Vietnamese Civil Code and foreign experience, Ho Chi Minh City University of Law.

23. Nguyen Ngoc Khanh (2007), Contract regime in the Vietnamese civil code , Justice Publishing House.

24. Hoang The Lien (editor) (2013), Scientific commentary on the 2005 Civil Code, volume II , National Political Publishing House - Truth.

25. Nguyen Xuan Quang, Le Net, Nguyen Ho Bich Hang (2007), Vietnamese Civil Law, National University Publishing House.

26. Nguyen Thi Thuy (2008), “Transfer of claim rights in property insurance”, Journal of Legal Science , Ho Chi Minh City University of Law, No. 5(48).

27. Hanoi Law University (2008), Vietnamese Civil Law, Volume II , People's Police Publishing House.

28. Ho Chi Minh City University of Law (2014), Law on contracts and compensation for damages in contracts , Hong Duc Publishing House - Vietnam Lawyers Association.

REFERENCE APPENDIX

Based on the above research contents, the author proposes to add provisions on contract transfer in the Contract regime of the 2015 Civil Code. The Contract regime of the 2015 Civil Code will have an additional section on “contract transfer”, in addition to the current 3 sections, which are “Contract conclusion”, “Contract performance”, “Contract termination”. And the specific provisions on contract transfer can be outlined as follows.

CIVIL CODE

. . .

PART THREE

OBLIGATIONS AND CONTRACTS

Chapter XV.

GENERAL PROVISIONS

Section 1. BASIS OF ARISE AND SUBJECT OF OBLIGATIONS

. . .

Section 7. CONTRACT

Subsection 1. CONTRACT CONCLUSION

. . .

Subsection 2. CONTRACT PERFORMANCE