May 2022 Legal Update (Part 1)
Our Vietnam Legal Update #204 would lead you on 02 legal issues:
I. Guidance on the implementation of business investment projects
The Prime Minister’s Special Task Force on Reviewing, Removing Difficulties, Obstacles and Promoting the Implementation of Investment Projects issued Official Letter No. 2541/CV-TCT to guide the implementation implement business investment projects in accordance with the law. Here are some typical responses to these problems:
1. Issues: Whether investment projects to build the head office, offices; commercial or service works must meet the conditions for determining that an investment project using land is “part of a housing development scheme/plan in accordance with the Housing Act” as prescribed in Article 11 of Decree No. 25/2020/ND-CP or not?
To respond: According to Article 11.3 of Decree No. 25/2020/ND-CP, conditions applicable to projects under housing development programs/plans apply only in cases where the project uses land with purposes /investment activities in housing construction. Therefore, in the event that an investment project for the construction of headquarters, offices, commerce and services does not have housing construction objectives/activities, we do not need to apply this condition.
2. Issues: In the event that two or more investors meet the preliminary capacity and experience requirements, but one investor requests in writing not to participate in the bidding for the project. As a result, there is only one investor left with preliminary capacity and experience, how to proceed?
The preparation, submission and preliminary assessment of the capacity and experience of the investor and the selection of investors are specified in Articles 13 and 16 of Decree No. 25/2020/ND-CP. Accordingly, this assessment should determine the number of investors who meet the prior capacity and experience requirements to serve as the basis for applying investor approval procedures or arranging a tender. open to select investors.
In the event that two or more interested investors have been assessed to meet the preliminary capacity and experience requirements, the project shall organize an open tender to select the investor for the implementation of the project. The fact that an investor, after being assessed to meet the preliminary capacity and experience, has a written request not to participate in the tender for the implementation of the project will not affect this question.
3. Issues: Should a project that requires the state to allocate or lease land through auctions or tenders be subject to the procedures for investment approval by the Provincial People’s Committee?
To respond: Investment projects that require the state to allocate or lease land through an auction of land use rights or tenders to select investors, which fall outside the cases provided for in Article 30, Article 31 and Articles 32.1b, c, d of the Investment Law, are not required to carry out procedures to obtain the approval of the investment before putting auction land use rights or bid to select investors.
4. Issues: What is “the other document determining the right to use the site for the implementation of an investment project” as prescribed in Article 33.1d of the Investment Law?
According to Article 33.1.dd of the Investment Law, the investment policy approval file of the investment project proposed by the investor includes a copy of the land use right document or another document determining the right to use the land to implement an investment project in the event that the investment project does not require the state to allocate or lease land or allow the change of land allocation.
According to article 189 of the 2015 Civil Code, the right of use is the right to operate the public service, to enjoy the yields and benefits of the property; the right of use may be transferred to another person by agreement or by law. Thus, the right to use the site is expressed through forms such as real estate donation contracts, residential lease contracts, house rental contracts for other purposes, real estate loan contracts , mortgage contracts, land use rights contracts, etc.
Thus, the right to use the place will be indicated in different documents according to each specific case as prescribed by the Civil Code.
II. Category Frequently Asked Legal Questions
Question: If the employer terminates the employment contract illegally, what type of benefits and compensation can an expatriate receive?
To respond: The employer unlawfully and unilaterally terminates the employment contract if it is (i) without cause for unilateral termination of the employment contract and/or (ii) a breach of notice. Then, the expatriate will receive the following allowances and benefits:
a. In the event that the employer agrees to reinstate the expatriate to work, the expatriate will receive the following benefits:
- The amount of salary for the period during which the expatriate was not authorized to work;
- Be paid for social insurance and health insurance for the period during which the expatriate was not authorized to work;
- Pay an additional amount of at least 02 months of salary under the employment contract; and
- An amount equivalent to the salary provided for in the employment contract for unannounced days in the event of breach of the notice obligation.
b. In the event that the expatriate does not wish to return to work, in addition to the amount provided for in point a, the expatriate will also receive a severance allowance.
vs. In the event that the employer does not wish to reinstate the expatriate and the latter accepts, in addition to the amounts provided for in points a and b above, the expatriate will receive additional compensation equivalent to at least 02 months of salary under the employment contract.