Current Legal Regulations on the Application of Commercial Practices

and relationships with each other based on tradition. Tradition is expressed in village customs regulating the behavior of members in the village community [22, pp. 10-12]. Thus, compared to the laws of feudal dynasties, customs or traditions are dominant and become popular in regulating social relations. However, customs in villages may be different due to being confined within the scope of small community activities, but still have the common features of rural Vietnam.

The customs in Vietnamese villages in general are mainly civil customs. There are a few customs related to commerce. The association of hundreds of crafts, the association of the private sector and the issue of financial receipts and expenditures in villages are customs more or less related to commerce that were researched and published by Phan Ke Binh in the publication "Vietnam customs " (1915).

The guild of hundreds of craftsmen consists of people who share a profession in the village. People who practice a profession join that guild. Each guild elects one person to be the guild leader or each year everyone takes turns being the guild leader once. The guild leader is the person who takes care of the guild's work. These tasks include: "one is to maintain work for each other, two is to maintain friendship with each other, three is to defend and help each other". The guild has people to keep books and keep money like a miniature society [1, pp. 235-236]. Although these guilds are different from guilds in business, their rules are close to guilds.

A private association is an association that helps each other with capital. There are many types of private associations such as trading associations, filial piety associations, happy associations, and Tet associations, but among them, trading associations are the closest to commerce. A private association has a bookkeeper who invites people to join the association and collects money. The members of the association write their names in a book and agree with each other that each person will pay money into the association each month until the association runs out. The amount of money depends on the agreement. On the fixed date of each month, the members go to the house of the bookkeeper to trade with each other by drawing lots. Whoever wins the lot will be given a fixed amount of money, about 80% of the bowl of money. The remaining portion of the bowl of money will be divided among them.

Those who have not bought and the cost of the meeting and the landlord's fee. Those who have bought the house must sign the book. In the following months, those who have not bought the house will meet and buy and sell. The mortgagee has the right to take a month of the house for free [1, pp. 231-232].

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Many villages do not have an annual income and expenditure book. The income and expenditure book usually has five entries as follows for the input and output:

Inputs : (1) Public land, for the tenants to cultivate for profit; (2) public money to release interest for profit; (3) fees such as fees for orchids, fees for the communal house, fees for rank, fees for the civil service, fees for the dignitaries, etc., (4) money from selling the land, selling the commune, selling the post, selling the temple, selling the management, etc., and (5) contributions.

Number of outputs : (1) Sacrificial offerings; (2) food and drink; (3) preparation of worship items, repair of temples and shrines; (4) declaration; (5) feeding the patrol, feeding the soldiers, and providing for the village chief [1, pp. 218-219].

These customs are close to the merchant status, but very sketchy, showing a lack of interest in commerce. In fact, in old societies in Vietnam, social classes were ranked according to the order of "scholar, farmer, worker, merchant". Merchants were not respected.

Among ethnic minorities, customs are very rich. There are some typical customary laws that are still preserved today. The application of these customary laws in modern social life in Vietnam has many conflicts arising, but they are not eliminated because many laws still consider customary law as an important source, especially in regulating relationships in the field of private law.

Environment of applying customs in the French colonial period

During this period, customary law or custom was considered a supplementary source of law to compensate for deficiencies in the law. Customary law was only applied when there were no relevant provisions of law and could not be contrary to the provisions of law. Customary law was recognized through two elements: (1) The entity element or customary element, which means

a behavioral measure followed by many people over a certain period of time, as long as it does not affect the rights of others; and (2) a spiritual element or awareness of the necessity of that custom [10, p. 71].

The 1931 Tonkin Civil Code stipulates:

When there is no enforceable law, the judge shall judge according to custom, and if there is no custom, then according to reason and equity, taking into account the particular customs, habits and feelings of the parties.

The Judge shall decide according to jurisprudence and precedent [2, Article 4].

The provisions show that custom plays an important role behind the statutory law. Although the sources of law are listed, judges have great power to determine and choose the source of law when deciding a case, including determining the order of priority for applying sources other than statutory law. However, these determinations and choices must be based on jurisprudence and case law. This provision shows that there is flexibility in the application of the sources of law and that the construction of norms is more of a guide than an imposition.

The 1936 Central Vietnam Civil Code was built on the basis of amending a number of provisions of the 1931 Northern Vietnam Civil Code. Therefore, the content of Article 4 of the Central Vietnam Civil Code is completely identical to Article 4 of the Northern Vietnam Civil Code as cited above. However, in the "Preamble" of the Central Vietnam Civil Code, there is a paragraph as follows:

The intention of this revision is to amend the law in Central Vietnam to make it clear and consistent, and to follow all the provisions that can be made according to the current law in force in Northern Vietnam, but first of all, it must follow the opinions of the people in the country who have answered questions about customs and the wishes of the people. There are a few provisions that must be based on

according to current regulations, it is edited into this law. Many places in this text are a bit long, but this is intentionally made clear so that the authorities and the people involved can easily understand and apply it [3].

This passage shows that the Central Civil Code paid great attention to customary law and simplified the way legal rules were expressed. Attention to customary law made it possible to preserve national traditions even though the nation was under foreign domination. The content of these Articles 4 was copied and included in the 1972 Civil Code of the former Saigon Government (Article 9).

In addition to the Articles on the recognition of customary law as an important supplementary source to written law, the Civil Codes under the old regimes in Vietnam also followed the model of the French Civil Code of 1804 with the principle of prohibiting judges from refusing to adjudicate on the grounds that there are no provisions of law or that the law is obscure or incomplete (Article 5 of the Civil Code of Tonkin; Article 5 of the Civil Code of Central Vietnam; and Article 8 of the 1972 Civil Code of the former Saigon Government). Therefore, in cases where written law has the above shortcomings, judges still have to find solutions to resolve disputes. The best way to get the most acceptable solution is to seek the rules of custom or practice because those rules are closest to the people, to the communities where the disputes occur.

With the above general rules on customary law in the Civil Code, it is unnecessary to repeat the principles of applying customs or behavioral habits in the Commercial Code because civil law is the theoretical foundation of the private law system [9, pp. 324-325]. The Commercial Codes of the old regimes in Vietnam all clearly state the relationship between civil law and commercial law, therefore only talking about specific customs (if any) in each separate regime, not stating the general principles of applying customs as in the Civil Code.

2.1.2. Current legal regulations on the application of commercial practices

The 2005 Civil Code stipulates:

In cases where the law does not provide and the parties do not have an agreement, customary practices may be applied; if there is no customary practice, similar provisions of law may be applied. Customary practices and similar provisions of law must not be contrary to the principles prescribed in this Code [39, Article 3].

These provisions show that Vietnamese law focuses on the application of customary law rules to resolve disputes between parties. The customary law rules have priority only after legal normative documents (called "laws") and agreements between the parties involved. However, the applied rules cannot be contrary to the principles of the 2005 Civil Code. Therefore, when expressing these provisions in common parlance, some Vietnamese jurists believe that:

Custom can be applied as a source of civil law when it meets all the following conditions: (1) it has become popular, recognized by the majority of people living in the same area or practicing in the same field; (2) it is not contrary to the principles prescribed in the Civil Code; and (3) it is only applied if the legal relationship has not been regulated by law or the parties in that relationship have not reached an agreement [34, p. 28].

The condition of not being contrary to the principles of the Civil Code mentioned above is a rather difficult condition to determine because the 2005 Civil Code declares many principles at different levels and sometimes it is difficult to explain them in relation to each other. For example, in Article 4, the 2005 Civil Code declares the principle of freedom and voluntary commitment and agreement with a part of the content that: "The right to freely commit and agree in establishing civil rights and obligations

guaranteed by law, if the commitment or agreement does not violate the prohibitions of the law or is not contrary to social morality". However, in Article 11, the 2005 Civil Code states the principle of compliance with the law as follows: "The establishment and exercise of civil rights and obligations must comply with the provisions of this Code and other provisions of the law". Meanwhile, most jurists understand that: "Compliance with the law is a form of law enforcement, in which legal entities restrain themselves and do not carry out activities prohibited by law" [17, p. 15]. Freedom of contract means that the parties have the freedom to choose their partners, freely express and unify their will to create rights and obligations between them. This issue has been mentioned in Article 4 of the 2005 Civil Code above. Freedom of contract is only hindered by prohibitions of the law and social morality. In addition, the parties can agree differently from the provisions of the law. According to the theory and understanding of most Vietnamese lawyers, the issue of compliance with the law has been expressed in Article 4 of the 2005 Civil Code. Therefore, setting forth the additional principle of compliance with the law in Article 11 of the 2005 Civil Code unjustly narrows the freedom of contract. In other words, Article 4 and Article 11 of the 2005 Civil Code are contradictory.

The 2005 Commercial Law stipulates two principles of applying commercial habits and applying commercial customs. The introduction of these principles may take into account the characteristics of commercial law (a branch of law developed on the basis of customary rules of merchants). The reality of commercial life is always changing, while written law is difficult to keep up with, but disputes still occur every day requiring resolution. Therefore, these two principles are valuable not only in meeting such requirements of commerce, but also in contributing to changing the general perception of the types of sources of law.

Article 12 of the 2005 Commercial Law stipulates: "Unless otherwise agreed, the parties are deemed to have implicitly applied the customs in commercial activities established between them that the parties know or should know, but which must not be contrary to the provisions of law" [42]. Article 13 of the Law

Commerce 2005 stipulates: "In cases where the law does not provide, the parties do not have an agreement and there is no established practice between the parties, commercial practices shall apply but must not be contrary to the principles prescribed in this Law and in the Civil Code" [42].

These provisions show the order of priority of application of various sources of law as follows:

First , written law;

Second , agreement between the parties; Third , trade practice; and Fourth , trade usage.

This order is different from the order expressed in Article 3 of the 2005 Civil Code. The difference is that there is an additional source type, which is commercial practice (behavioral practice). However, both the 2005 Civil Code and the 2005 Commercial Law have a common issue that needs to be reconsidered - that is, the issue of considering the contract between the parties as the source type after the written law.

Commercial habits and commercial practices are clearly distinguished by current Vietnamese law. The 2005 Commercial Law defines: " Commercial habits are rules of conduct with clear content that are formed and repeated many times over a long period of time between the parties, and are implicitly recognized by the parties to determine the rights and obligations of the parties in a commercial contract" [42, Article 3, paragraph 3]; and " Commercial practices are widely recognized habits in commercial activities in a region, area or commercial field, with clear content that is recognized by the parties to determine the rights and obligations of the parties in commercial activities" [42, Article 3, paragraph 4]. According to this concept, commercial habits are a broader concept than commercial practices. However, this concept is not really satisfactory to apply to commercial life. There is another concept that: For

The habit of conduct between parties in a contractual relationship, proof is sufficient when it is revealed that in the same circumstances the parties behaved in the same way before [10, p. 74]. Thus, commercial habits only arise in the relationship between specific parties in a specific contractual relationship. Commercial customs are the habits of a community in the commercial field. The fact that the Commercial Law 2005 provides definitions of the concepts of commercial customs and commercial habits as above not in alphabetical order, means that there is an implied logical relationship between them. This concept probably needs to be reconsidered. After the 2005 Civil Code and the 2005 Commercial Law were promulgated, the Council of Judges of the Supreme People's Court issued Resolution No. 04/2005/NQ-HDTP dated September 17, 2005 defining: "Custom is a habit that has become a habit in social life, in production and daily activities, recognized and followed by the community where the custom exists as a common convention of the community" [48]. This definition has overcome the weakness of considering commercial habits and commercial customs to have a hierarchical relationship. However, it does not mention the clarity of customary rules [10, p. 70], that is, it does not mention the material element of customary law. Therefore, a question arises: What can definitively determine the rights and obligations of the parties in the relationship regulated by that customary rule?

The distinction between commercial practices and civil practices currently seems to depend entirely on the provisions of the 2005 Commercial Law and the 2004 Civil Procedure Code because there are provisions here to distinguish between civil acts and commercial acts, more broadly, distinguish between civil law and commercial law. The 2005 Commercial Law stipulates: "Commercial activities are activities aimed at generating profits, including buying and selling goods, providing services, investing, promoting trade and other activities aimed at generating profits" [42, Article 3, paragraph 1]. This definition is written in a way that both indicates the scope of the concept and lists and explains specific activities of a commercial nature, but has not yet linked commercial activities with commerce.

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