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HANOI NATIONAL UNIVERSITY FACULTY OF LAW
NGO VAN HIEP
SANCTIONS FOR COMPENSATION FOR DAMAGES CAUSED BY BREACH OF BUSINESS AND COMMERCIAL CONTRACTS
MAJORITY: ECONOMIC LAW CODE: 60 38 50
MASTER'S THESIS IN LAW
SCIENTIFIC INSTRUCTOR: DR. NGUYEN AM HIEU
HANOI - 2007
TABLE OF CONTENTS | ||
Cover page | Page | |
Commitment | 2 | |
Thanks | 3 | |
INDEX | 4 | |
Preface | 7 | |
Chapter 1 | 11 | |
common compensation issues | ||
damages for BREACH OF CONTRACT | ||
1. | Concept and nature | 11 |
1.1. | Concept | 11 |
1.2. | Nature | 12 |
2. | Basis for compensation for damages | 13 |
2.1. | Violation | 13 |
2.2. | Actual damages | 15 |
2.3. | Causal relationship between the violation and the actual damage | 16 |
economy | ||
2.4. | Error factor | 17 |
3. | Meaning of compensation for damages | 20 |
3.1. | For the breaching party | 20 |
3.2. | For the aggrieved party | 21 |
3.3. | For society | 22 |
Chapter 2 | 22 | |
Legal status of compensation | ||
usually damages for breach of contract |
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Compensation for damages caused by violation of consumer rights, theoretical and practical issues - 5 -
Compensation for damages caused by violation of consumer rights under Vietnamese Civil Law - 14 -
Compensation for damages caused by violation of consumer rights under Vietnamese Civil Law - 2 -
Directions and Solutions for Perfecting the Law to Improve the Effectiveness of Law Enforcement on Compensation for Damages Caused by Environmental Pollution -
Distinguishing the Judicial Remedy of "Return of Property, Repair or Compensation for Damages" from a Monetary Penalty
General law principles - particular law relating to compensation | 23 | |
2. | usually damages for breach of contract Sanctions for breach of business and commercial contracts | 25 |
3. | Basis for applying sanctions for damages caused by violations | 30 |
4. | business contract, trade Exemption from liability for violations and obligations | 35 |
5. | notice of breach The burden of proving loss and limiting loss of the party | 37 |
6. | violated The relationship between compensation and sanctions | 38 |
7. | penalty Legal consequences of suspension, termination or cancellation of a contract | 39 |
8. | contract and the right to claim damages Compensation for damages due to breach of sales contract | 41 |
8.1. | internationalization Legal basis of compensation for damages due to breach of contract | 41 |
8.2. | international trade Basic types of damages for breach of sales contract | 43 |
internationalization | ||
8.3. | Similarities and differences between tort damages breach of business and commercial contracts and compensation for damages | 43 |
damage caused by breach of international sales contract | ||
Chapter 3 some shortcomings and METHODS | 50 | |
1. | Directions for improving the law on Compensation for damages due to breach of contract Some shortcomings of the law on compensation for damages caused by violations | 50 |
breach of business contract
2. Some recommendations to amend the law on compensation for damages 55
due to breach of business and commercial contracts
2.1. Violation and fault element 56
2.2. Damages and how to calculate damages 59
2.3. International legal integration 60
Conclusion 64
Reference 65
PAIN
1. Urgency of the topic
In the early stages of the renovation process, the State issued many legal regulations to regulate emerging economic relations, replacing old and outdated legal regulations with the emergence of legal documents regulating the economic field, economic contracts, especially compensation for damages caused by violations of economic contracts. As a typical legal product of the subsidy period, along with the transformation of the economy, the law has changed its nature from regulating economic contracts as mandatory and planned, now shifting to economic contracts based on the agreement of the will, needs of the parties and the demands of the market. The Economic Contract Ordinance dated September 25, 1989; Decree No. 17/HDBT dated February 16, 1990 detailing the implementation of the Economic Contract Ordinance, along with other legal documents are important evidence for the development of economic law.
With the development of the economy, the 1995 Civil Code, together with the 1997 Commercial Law and related legal documents, have actively contributed to the cause of innovation, industrialization and modernization of the country. However, over time, the provisions of the 1995 Civil Code and the 1997 Commercial Law have become outdated, so they need to be amended and supplemented to suit the new situation and the 2005 Civil Code; the 2005 Commercial Law have met the requirements of economic development. The 2005 Civil Code and the 2005 Commercial Law, together with legal provisions on compensation for damages caused by breach of business and commercial contracts, have become a necessary legal corridor, creating momentum for the development of a multi-sector commodity economy, following a market mechanism under the management of the State.
The continuous development of the economy, business relations continuously arise and develop, leading to many legal regulations regulating the field of business and commercial contracts, especially legal regulations related to compensation for damages due to breach of business and commercial contracts, becoming outdated. Therefore, the issue of amending and supplementing these legal regulations has become an urgent requirement to contribute to the transparency of business laws, promote the development of the domestic economy, and create a premise for integration into the regional and world economy.
2. Research situation
Compensation for damages due to breach of business and commercial contracts is an important issue of business law in general and business and commercial contract law in particular, so it has been studied by many scientists and scholars, and is reflected in many books, articles in newspapers and specialized law magazines such as: "Some issues related to amending Vietnamese law on contracts" by Dr. Nguyen Am Hieu - State and Law Magazine No. 4/2004; "Improving the law on contracts in Vietnam" by Dr. Duong Dang Hue - State and Law Magazine No. 6/2002; "Civil liability and some issues on determining damages" by MSc. Tran Thi Hue - Democracy and Law Magazine No. 1/2005; "Fault and liability for compensation for damages outside the contract" by Dr. Phung Trung Tap - Supreme People's Court Journal No. 10/2004..... However, previous studies related to the sanctions for compensation for damages due to breach of business and commercial contracts have only focused on theory, stopping at raising the issue, approaching it from a narrow perspective without having a comprehensive, general view or comparing it with other types of sanctions for compensation for damages. On the other hand, there are limited solutions to improve legal regulations on compensation for damages due to breach of business and commercial contracts.
Therefore, it is necessary to conduct a comprehensive and systematic study on the issue of compensation for damages caused by breach of business and commercial contracts based on the theory and practice of implementing legal regulations on business and commercial contracts in our country in recent years.
3. Purpose and tasks of the thesis
The thesis studies the most general theoretical issues on sanctions for compensation for damages due to breach of contract, the practical implementation of legal regulations on compensation for damages due to breach of business and commercial contracts, assesses the current status of implementation of legal regulations, points out the shortcomings and inadequacies of legal regulations on compensation for damages due to breach of business and commercial contracts in recent years, on that basis, proposes solutions to improve the corresponding legal regulations on compensation for damages due to breach of business and commercial contracts.
4. Research object and scope
The thesis focuses on studying the most general theoretical issues on compensation for damages due to breach of contract, legal regulations on compensation for damages due to breach of business and commercial contracts as well as the practical implementation of these regulations in recent years, comparing them with other legal regulations on compensation for damages.
5. Scientific basis of the topic
- Theoretical basis : The topic is carried out on the basis of dialectical materialism and Marxist historical materialism methodology, the Party and State's viewpoints on innovation, building a multi-sector commodity economy with socialist orientation, legal policies, and economic policies.
- Practical basis : Actual implementation of legal regulations on compensation for damages caused by breach of business and commercial contracts in recent years.
In the past, our country joined the World Trade Organization (WTO) and integrated into the international economy.
6. Research methods
The thesis uses research methods: History, statistics, synthesis, analysis, comparison, contrast, logic, observation....
7. New points of the topic
- Research the issue of compensation for damages due to breach of contract in general and business and commercial contracts in particular in a comprehensive and systematic manner based on theory and practice of implementing the provisions of business law, business and commercial contracts, and compensation for damages due to breach of business and commercial contracts in recent times.
- Compare some similarities and differences between compensation for damages due to breach of business and commercial contracts in Vietnam with compensation for damages due to breach of Japanese commercial contracts and compensation for damages due to breach of international goods sale contracts.
- Propose some solutions to improve legal regulations on compensation for damages caused by breach of business and commercial contracts, specifically, it is necessary to amend and supplement the corresponding articles and clauses in related legal documents.
8. Thesis structure
This thesis consists of an introduction, three chapters and a conclusion.
* Foreword : This part presents the urgency of the topic, the purpose and tasks of the thesis, the object and scope of the research, the scientific basis of the topic, the research method, and the novelty of the topic.
* Chapter 1 : General issues on compensation for damages due to breach of contract.