Sanctions for unfair competition acts under the provisions of Vietnamese law

competition law, assess the inadequacies of the system of sanctions and mechanisms to ensure implementation to propose measures to improve the law to prevent and eliminate unfair competition in economic relations taking place in the Vietnamese market today.

The topic " Sanctions for unfair competition acts according to the provisions of Vietnamese law " can be considered the first monograph, with the level of Master's thesis in Law.

3. Purpose, tasks and scope of research

The thesis delves into the study of unfair competition practices and sanctions for violations of competition laws according to the provisions of Vietnamese law, evaluates the practice of enforcing competition laws and combating unfair competition. From there, proposes a number of solutions to improve Vietnamese law on sanctions for unfair competition practices, contributing to the fight against violations of the law in business and commercial activities.

For that purpose, the topic defines the tasks as:

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- Clarifying the theory of sanctions against unfair competition to build a clean and equal business environment, protect business freedom and consumer rights.

- Analyze and evaluate current legal provisions on sanctions for unfair competition; unfair competition practices in our country and handling of violations.

- Proposing directions and solutions to improve Vietnamese law on sanctions against unfair competition acts in accordance with the actual conditions and circumstances of our country and the trend of international economic integration.

The scope of research of the Thesis is theoretical and practical issues of legal science regarding competitive relations, deeply analyzing the

Unfair competition and sanctions for unfair competition in the Vietnamese market, as a basis for perfecting our country's anti-unfair competition laws.

4. Research methods

The research topic is based on dialectical materialism and historical materialism. In addition, statistical, analytical, synthetic and evaluative methods are also used, combined with comparison and contrast with competition laws of some countries in the world to give practical and feasible recommendations and solutions.

5. Contribution of the topic

From the study of theory and practice of law enforcement against unfair competition in our country, assessment of the effectiveness of sanctions for handling violations of competition law during the application process, comparison with the laws of some countries in the world, thereby contributing to perfecting the law on sanctions for handling violations, solutions to limit and eliminate unfair competition in the Vietnamese market, creating an equal and fair competitive environment, accelerating the process of international economic integration.

6. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:

Chapter 1 : Overview of sanctions for unfair competition.

Chapter 2 : Current status of Vietnamese law on sanctions against unfair competition acts.

Chapter 3 : Recommendations for improving Vietnamese law on sanctions against unfair competition.

Chapter 1‌‌

DISCUSSION ON SANCTIONS

FOR UNFAIR COMPETITION CONDUCT

1.1. CONCEPT OF SANCTIONS AGAINST UNFAIR COMPETITION CONDUCT

1.1.1. Concept of unfair competition

Competition is a social phenomenon that occurs in the market between business entities, manifested in the form of rivalry and rivalry between businesses for the purpose of competing for the market to buy or sell products. Competition is the force that most market economies rely on to ensure that businesses satisfy the needs and desires of consumers. When there is competition, no government needs to regulate what products businesses produce, in what quantity, quality and price. The competitive relationship directly regulates those issues for businesses. Thus, competition only exists in a market economy.

Competitive behavior is the behavior of businesses to achieve a defined economic goal (usually the "supply" of goods or services that satisfy similar or similar needs), by attracting each other's customers. In other words, the meaning of competition is to ensure the right of customers to choose. Whether it is an oil refinery buying crude oil, a chain of gas stations buying gasoline, or an individual driver wanting to fill his tank, if he learns to choose from different suppliers, he will be more likely to buy products of the highest quality and the most reasonable price. Therefore, the important factor in determining competitive behavior is the "regular customer", that is, the common customers of competing businesses. The

Losing a regular customer is considered a form of competitive loss, so businesses have sought every way to limit this loss. However, attracting each other's customers through fair and non-discriminatory competitive measures is recognized and protected by law. In other words, businesses have the right to use all measures that are not prohibited by law to attract and entice customers to their side. In that case, the business that suffers damage due to the loss of a number of regular customers will not have a legal basis to sue for compensation for damages against the competing business. Vietnam's Competition Law also recognizes the right to compete in business in accordance with the provisions of the 1992 Constitution on the right to freedom of business and in accordance with the 2005 Commercial Law, which directly regulates commercial activities in the Vietnamese market.

To ensure that competition takes place objectively in the market but within the legal framework, governments only influence with basic competition policies such as: Regulations on safety and health; Protecting consumers and combating unfair, deceptive or unethical competition against consumers; Protecting the right to compete, combating monopolies to ensure real competition between businesses...

Regulations governing unfair competition are an important part of competition law. From a legal perspective, unfair competition is defined differently by international law and national law. According to the Paris Convention for the Protection of Industrial Property of 1883, any act of competition contrary to honest and good faith practices in the industrial and commercial sphere is considered unfair competition (Article 10bis - added to the Convention in 1900 and last amended by the Stockholm Act of 1967).

Thus, the criterion for assessing the fairness or unfairness of the Convention on Competition is " honest and good faith practice ".

It is a criterion that is difficult to quantify and can change, with differences between countries, depending on socio-economic conditions, concepts, customs... In Belgium and Luxembourg, the criterion is " honest commercial practices "; in Spain and Switzerland, it is " the principle of good faith "; in Italy, it is " proper professionalism "; in Germany, Greece and Poland, it is " business ethics ".

The Competition Law of Mongolia stipulates that unfair competition includes all acts that violate market competition and the right to fair competition of enterprises. The Law Against Unfair Competition of the Federal Republic of Germany in 1909 (last amended on July 23, 2002) stipulates: "Anyone who, in business transactions for the purpose of competition, commits acts contrary to good customs and traditions may be required to stop the violation and compensate for damages." The Law Against Unfair Competition of China defines unfair competition as activities of enterprises and business entities that violate the law, cause damage to the legitimate rights and interests of other enterprises, and disrupt the economic and social order.

Vietnam's Competition Law defines:

Unfair competition is a competitive behavior of an enterprise in the course of doing business that is contrary to common standards of business ethics, causing or possibly causing damage to the interests of the State, the rights and legitimate interests of other enterprises or consumers [42, Clause 4, Article 3].

This is a type of behavior that has a direct impact and causes negative consequences to the normal business activities of enterprises and the legitimate rights of consumers. Article 39 of this law also lists a number of types of behavior considered unfair competition such as: misleading instructions; infringement of business secrets; coercion in business; defamation of other enterprises; disruption of business activities of other enterprises; advertising for the purpose of competition.

unfair competition; promotions aimed at unfair competition; discrimination by associations; illegal multi-level marketing and other acts of unfair competition according to the criteria specified in Clause 4, Article 3 of the Competition Law.

Based on the above concepts of unfair competition, unfair competition can be divided from the perspective of considering the interests of the infringed entity, including: acts of infringing on the interests of competitors and acts of infringing on the interests of customers. Although there are many different understandings, the legal nature of unfair competition is acts that are contrary to the standards of honesty and fairness in commercial relations, causing damage mainly to businesses that are competitors in the relevant market. From an economic perspective, "the nature of unfair competition is acts of illegally appropriating the competitive advantage of other businesses or acts of destroying the competitive advantage of other businesses or acts of creating artificial competitive advantages" [29].

From the concepts of unfair competition, it can be seen that unfair competition has the following basic characteristics:

Firstly , the subjects that commit acts of unfair competition are business entities in the marketplace.

Article 2 of the Competition Law clearly defines the subjects of application of this Law as business organizations and individuals (collectively referred to as enterprises) of all different economic sectors, including enterprises producing and supplying public products and services, enterprises operating in state-monopolized sectors and fields, and foreign enterprises operating in Vietnam as well as industry associations operating in Vietnam.

This characteristic reflects the scope of subjects performing competitive and unfair competition acts, occurring in all economic sectors, in all stages and phases of the production and business process. In a competitive market, the business behavior of any enterprise is an act of

competition in relation to other enterprises. On the other hand, business activities are activities aimed at making profits and are carried out in the market. Thus, unfair competition must be acts carried out by enterprises in the market, contrary to common standards of business ethics and carried out for the purpose of making profits.

However, the provisions of the Competition Law have not been consistent. As quoted above, the subjects performing unfair competition include enterprises and professional associations operating in Vietnam. However, the definition of unfair competition states: "Unfair competition is the competition of enterprises", which means that one subject of unfair competition has been eliminated. Meanwhile, the unfair competition listed includes discrimination by associations.

Second, unfair competition is behavior that is contrary to common standards of business ethics.

This characteristic shows the unhealthy nature of the behavior and is the basis for distinguishing between healthy competition and unhealthy competition in the market. The concept of unhealthy competition behavior as prescribed by the Law on Competition of Vietnam does not clearly state the objective manifestation of the behavior because the competitive tricks implemented by enterprises in reality are very diverse and sophisticated, and can be confusing, deceitful, defamatory, disruptive, etc. But another law is cited to list the behaviors identified as unhealthy competition. However, in practice, the law needs to have specific regulations to identify each behavior.

To determine whether a competitive behavior is unfair, one must base it on "common standards of business ethics". Business ethics is a category used to refer to requirements and demands that are even higher than

including issues related to legal obligations. Behaviors such as tax evasion, fraud, counterfeiting, causing damage to other businesses by dishonest business practices, etc. are not subject to the regulation of business ethics, because they are illegal behaviors within the scope of control and handling of the law. Business ethics are rules of conduct, business practices that have been widely recognized in economic and social life. However, this is a difficult basis to quantify, requiring the law to constantly supplement and adjust to suit the movement of social life, in specific historical conditions. Therefore, the concept of unfair competition behavior in each country may be different, related to the economic, social, and ethical categories of a certain society.

American businessmen approach ethical issues based on the foundation of utilitarianism and pragmatism. The goal of business ethics is mainly to build a reputable image of the business and achieve higher efficiency for the business. Meanwhile, in Europe, the approach to ethics and corporate social responsibility is often between the ideal and pragmatic attitudes, people consider ethics as an issue within the business production activities of the business itself.

For an underdeveloped market economy like Vietnam, commercial practices and customs do not have enough time and level to form business ethics standards, accepted and implemented uniformly as mandatory rules.

Third, unfair competition acts cause or may cause damage to the interests of the State, the legitimate rights and interests of other enterprises or of consumers.

The right to freedom of business was recognized in Article 57 of the 1992 Constitution and competition is a component of the content of the right to freedom of business.

Sanctions for unfair competition acts under the provisions of Vietnamese law - 2

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