Legal regulations of traders in tourism business in Vietnam

Thus, in the most general understanding, traders include natural and legal persons who conduct commercial activities independently and regularly with the aim of seeking profits and must be responsible for the commercial activities they carry out. The above characteristics of traders help us distinguish traders from subjects in other branches of law.

To contribute to the process of developing and perfecting the country in the trend of globalization of international economic relations, it is impossible not to mention the role of traders because it is an important component in the market economy. Traders are people who directly conduct commercial activities with many relationships, interacting with each other in diverse business relationships. Commercial transactions are increasingly complex, so the need for legal regulation becomes more urgent. Building legal regulations on traders aims to:

- Create an equal legal environment for business activities.

- Create the premise for traders to conduct their commercial activities in accordance with the general development of the economy.

- Promote the development of the market for goods and commercial services

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- Expanding trade with foreign countries

- Speculation, market manipulation, dumping, and violations of industrial property rights are strictly prohibited...

Building a complete law on traders is also a premise to create conditions for commercial activities to be realized in the market, creating favorable conditions for the development of the commercial market.

1.2.1.2. Classification of traders

From the positive law of countries, traders can be divided into two basic types: natural traders and legal traders.

Individual trader

Individual traders are the first form of entities participating in commercial relations. At first, these entities only conducted purely buying and selling activities for the purpose of making a profit. Later, along with the expansion of the concept of commerce, the activities of traders were also expanded to include promotional and advertising activities... They performed these activities on their own behalf and were responsible for their own actions. Unlike other forms of traders, individual traders do not have capital contributions or associations of many members, but all assets to carry out and participate in commercial transactions belong to a single owner, this owner is a specific individual. Thus, an individual trader is understood as an individual who conducts individual business activities, possibly in the form of a sole proprietorship.

Usually, countries require that individual traders must meet the following conditions:

Carry out commercial acts on a regular basis and make them your profession.

Carry out commercial acts on your own behalf and for your own account.

Those who conduct business under the name and account of others such as employees, commercial branches, authorized persons, etc. are not natural traders.

Under the provisions of the US Commercial Code, individuals with full civil capacity can conduct business activities under their own name or trade name without having to apply for a license. In some states of the United States, it may be necessary to register the trade name of the business entity in the commercial directory as a matter of practice. Under the US Commercial Code, an individual who wants to conduct business activities as an individual must meet the following conditions:

1. Have full civil act capacity;

2. Have the necessary knowledge, expertise and professional skills;

3. Have sufficient other material conditions such as: corresponding minimum capital, assets, technical equipment;

4. Find the market;

While condition a is a legal requirement, conditions b, c, d will be tested by the trader in practice. An entity that does not have these minimum conditions will not be able to survive in fierce competition and will be eliminated by the market.

On the other hand, to avoid abuse in US Commercial law, one of the most noted regulations is the transaction security regulation. This regulation is very developed to meet the demands of the market with many different legal forms for business activities [17, p. 18].

According to French regulations, natural persons can be divided into legal traders and actual traders; traders with commercial establishments and traders without commercial establishments; husband and wife traders conducting commercial activities together and husband and wife traders conducting commercial activities separately. This classification from the French perspective has great significance in theory and practice. Although not registered in the commercial register, when disputes arise or there is insolvency or bankruptcy, the law must still consider the actual commercial nature related to the merchant to resolve it.

The German Commercial Code specifically defines what a merchant is and what circumstances are considered to be considered merchants. German law details six groups of merchants and the specific standards for each group: natural merchants; qualified merchants; unqualified merchants; registered merchants; formal merchants. In practice, merchants in Germany are usually large enterprises, and natural merchants are generally free to operate and are less bound by the provisions of the merchant statute.

The Commercial Code of the Federal Republic of Germany states that small traders are unqualified traders and are not required to fulfill all the obligations of a trader, such as not having to register in the commercial directory, not having to have their own store... but still have to comply with the provisions of commercial law [19].

In terms of form, individual business forms are not bound by law regarding the procedures for establishment and operation, but it is necessary to see that like other business forms under the provisions of the laws of other countries, individual business forms are also governed by administrative legal regulations related to public interests and order, national security and defense. In addition, there is the domination of restraint and regulation with the rules of the market mechanism in the current integration conditions.

In general, the laws of all countries stipulate that individual traders must have full capacity before becoming traders, such as:

- Must reach a certain age.

- Have civil capacity and not be prohibited by law from practicing.

Normally, the issue of the capacity to act and the legal capacity of traders must refer to the provisions of civil law. Commercial law must have specific provisions on the activities of traders as well as provisions on the prohibition of commercial activities in some cases such as people serving prison sentences may be deprived of the right to manage assets and perform certain commercial acts... depending on the specific provisions of each country.

The laws of some countries also have specific provisions to distinguish between traders and craftsmen. Factors to consider as a craftsman include:

- Must be a manual worker;

- Must do the work yourself (or hire a few people);

- Must work for yourself (take responsibility for your own losses and profits from your own activities).

Although this distinction is not very clear. But it is also a criterion to determine a craftsman who is not a merchant.

To become a natural person trader under Vietnamese law, an individual must meet the following conditions:

- Qualified to conduct commercial business;

- Granted business registration certificate.

Street vendors or petty traders in Vietnam are not regulated by commercial law but are assigned to the Government for specific regulations.

A natural person trader is essentially a business individual who is responsible for debts with all of his or her assets. Natural persons traders are private enterprises in Vietnamese, sole traders in English and proprietorships in American [21].

Legal entity

In addition to individuals participating in commercial relations, there are also organizations or other entities. In order for organizations to participate in legal relations in general and commercial relations in particular as a separate subject, the concept of legal entity was born to distinguish them from natural persons who are individuals participating in legal relations.

Since ancient Rome, guilds, churches, workshops, etc. have been formed and expanded. Initially, these organizations did not have their own property, but the property was contributed by members as a form of joint ownership by shares, and in case the organization was dissolved, the property was returned to the members according to the shares they had contributed. Such organizations could not participate as an independent entity in legal relations. Meanwhile, people realized that in cases where property did not belong to anyone such as theaters, churches, ships, etc., these were indivisible products even though

Its members change but the assets still exist. These assets do not belong to each individual but to an organization that exists independently, not depending on the changes of the members in that organization. The transactions of the organization are through representatives in the name of the organization, not of individuals. However, the concept of legal entity in ancient times had not yet been formed.

During the feudal system, the division of labor continued to develop and more and more such organizations appeared. Many colonial mining companies began to appear in the territories of Asian, African, and Latin American countries. Commodity production dominated the capitalist period.

The issue of consolidating the status of economic organizations by legal means so that these organizations can participate in civil and commercial relations is an urgent need for different types of organizations and is also a means of competition between capitalists in the capitalist economy. The concept of legal entity was formed and developed in this period. However, there is no common definition of legal entity in any country's law, although today the laws of all countries recognize the existence of legal entities as a subject of civil and commercial law. Scholars, based on that legal research, have proposed five necessary signs of an organization to be recognized as a legal entity:

- A legal entity exists independently of the existence of its members. A legal entity is considered a separate entity, with its own field of operation and its own will, which does not coincide with the will and life of the members of that legal entity.

- Legal entities have their own assets, independent of the assets of their members.

- A legal entity has the right to possess, use, and dispose of its own property and to perform legal acts in its own name.

- Can become plaintiff or defendant in court.

- Independently responsible for the assets of members.

Although relatively unified in determining the necessary signs of a legal entity, bourgeois jurists also agree with the view that the above signs are not enough to recognize this or that organization as a legal entity. That is explained by the fact that: In the current conditions of capital concentration, there are more and more organizations that are recognized as legal entities in one country but not recognized in another. A typical example of this case is the type of unlimited partnership, these companies are not recognized as legal entities in Germany, the US and the UK, but are recognized as legal entities in France, Japan... Perhaps because of the above situation, many people think that the views on legal entities in legal science are abstract and easily changed [25].

To participate in legal relations, legal entities must, through their activities as independent subjects, participate in social relations in general and commercial relations in particular.

All activities of a legal entity are carried out through the actions of individuals - representatives of the legal entity. The actions of these individuals do not create rights and obligations for themselves, but on behalf of the legal entity, they create rights and obligations for that legal entity. The representation of a legal entity is carried out in two forms:

Legal representative - natural representative: Normally, this is the head of the legal entity as stated in the charter of the legal entity or regulations of the competent state agency. On behalf of the legal entity, perform acts to maintain the activities of the legal entity within the framework of the law and the charter .

Authorized representative - the legal representative of a legal entity may authorize another person to perform transactions. It may authorize an individual who is a member of the legal entity or another individual, or it may authorize another legal entity to perform transactions. The authorized person shall perform transactions within the scope of authority established in the authorization document and only

may be re-authorized if the principal agrees. The authorization document must clearly specify the authority of the authorized person and the content and duration of the authorization.

The acts of employees or agents of a legal entity when performed within the scope of their duties or authorization are considered acts of the legal entity. Thus, their acts have created rights and obligations for the legal entity.

The elements of a legal entity's background are a synthesis of events to differentiate a legal entity from other legal entities when participating in legal relationships. Elements of a legal entity's background or decision to establish a legal entity.

The charter of a legal entity must include the following contents: name, nationality, headquarters, executive body, charter capital, rights and obligations of members. In particular, the charter must define the objectives and scope of action (regarding the field of operation, operating space, operating time, etc.). Any changes, amendments or supplements to the charter of a legal entity must be approved and registered with the competent state agency.

A proper name is used to identify a legal entity and distinguish it from other entities. A legal entity has the right to freely choose its name. For a commercial company, once its proper name is registered, it is protected by law as a trade name of a merchant and no one is allowed to appropriate that name.

Executive body of a legal entity: is the place that manages all internal activities as well as participates in external activities of the legal entity. The organization and tasks of the executive body depend on the type of legal entity as stipulated in the charter of the legal entity or in the decision to establish the legal entity.

The headquarters of a legal entity is the place where the executive body of the legal entity is located, where the main activities of the legal entity are concentrated, where the rights and obligations of the legal entity are exercised, where transaction documents are served to the legal entity, and where the Court has jurisdiction to resolve disputes of the legal entity.

In addition to the head office, a legal entity has representative offices and branches of the legal entity which are dependent units of the legal entity performing obligations according to law.

Legal regulations of traders in tourism business in Vietnam - 4

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