The Decree No.52 regulates the development, application and management of e-commerce activities in Vietnam, including the setting up company and business in e-commerce website, e-commerce trading floor and other forms of business in modern world.
ANT Lawyers, a law firm in Vietnam introduces the degree for reference as following:
THE GOVERNMENT
Decree No. 52/2013/ND-CP dated May 16, 2013 of the Government on e-commerce
Pursuant to the Law on Governmental Organization dated December 25, 2001;
Pursuant to Civil Code dated June 14, 2005;
Pursuant to the Commercial Law dated June 14, 2005;
Pursuant to the Law on Information Technology dated June 29, 2006;
Pursuant to the Competition Law dated December 3, 2004;
Pursuant to the Law on protection of consumers’ interests dated November 17, 2010;
At the proposal of the Minister of Industry and Trade;
The Government issues this Decree on E-commerce;
Chapter 1.
GENERAL PROVISIONS
Article 1. Scope of regulations
This Decree regulates the development, application and management of e-commerce activities
Article 2. Subject of application
1. This Decree is applicable to traders, organizations or individuals involved in e-commerce activity in Vietnam’s territory, including:
a) Vietnamese traders, organizations or individuals;
b) Foreign individuals residing in Vietnam;
c) Foreign traders and organizations with their presence in Vietnam through investment operation, establishment of branches and representative offices or website set-up under Vietnamese domain name.
2. The Ministry of Industry and Trade shall preside over and coordinate with the Ministry of Information and Communications based on the social and economic conditions and management requirements of each period to guide the management measures for foreign traders, organizations or individuals that carry out e-commerce with Vietnamese subjects.
Article 3. Terms explanations
In this Decree, the terms below are construed as follows:
1. E-commerce activity is the conduction of a part or the whole process of commercial activities by electronic means connected to the Internet, mobile telecommunications network or other open networks.
2. The national e-commerce development program is a set of contents and tasks for e-commerce development activities in each period in order to encourage and support the e-commerce applications to improve the efficiency of business and production to boost the domestic commercial transaction and export, develop the E-commerce infrastructure towards modernization.
3. E-document in commercial transactions (hereinafter referred to as e-document) is contract, proposal, notice, certification or other documentation in the form of a data message shown by the parties and involved to the commitment or contract performance.
Electronic documents in this Decree do not include drafts, promissory notes, money orders, bills of lading, shipping bills, stock received and issued dockets or any transferable documents to which permit the document holders or beneficiaries to have the right to receive goods or services or are paid an amount of money.
4. The creator is the party or representative of that party and has made or sent e-document before storing it. The creator does not include the party having operation as an intermediary related to the e-document.
5. The recipient is the party receiving the e-document at the discretion of the originator. The recipient does not include the party having operation as an intermediary related to the e-document.
6. Automatic information system is the information system used to make, send, receive or respond to data message without the human intervention or checking of each action performed.
7. Business location is a fixed establishment to conduct business activities, excluding the temporary establishments of goods or services provision.
8. E-commerce website (hereinafter referred to as website) is the electronic information page set to serve a portion or the whole process of buying and selling activities of goods or provision of services, from display and introduction of goods or services to contract commitment, service provision, payment and after-sales service.
9. E-commerce trading floor is an E-commerce website permitting the traders, organizations or individuals that are not the website owners may conduct a portion or the whole process of buying and selling goods and services on that website.
E-commerce trading floor in this Decree does not include the websites of online securities trading.
10. Online promotion website is an E-commerce website set up by traders and organizations to perform the promotion for the goods and services of other traders, organizations or individuals under the terms and conditions of promotion service contract.
11. Online auction website is an E-commerce website providing solutions allowing traders, organizations and individual that is not the website owners may auction their goods on that website.
12. Online order function is a function installed on the e-commerce website or terminal equipment of customer and connected to an e-commerce website in order to permit customer to begin the process of contract commitment under the terms and conditions published on that website including contract commitment with the automatic information system.
13. Personal information is the information contributing to identify a specific individual, including his/her name, age, home address, phone number, medical information, account number, information on personal payment transactions and other information that the individual would like to keep confidential.
Personal information in this Decree does not include work contact information and other information that the individual has published himself on mass media.
14. Collection of personal information is the collection of information to put it into a database, including personal information of many consumers as customers or potential customers of the traders, organizations or individuals engaged in e-ecommerce.
15. Service of e-contract certification is the third party’s service on storing and the integrity assurance of the e-document created by the parties during contract commitment and implementation.
Article 4. Prohibited acts in e-commerce activities
1. Violation of e-commerce and business activities:
a) Organizing marketing and business network for the e-commerce services in which each participant shall have to pay an initial amount of money to buy the services and receive commission, bonus or other economic benefits from mobilizing others to join the network;
b) Taking advantage of e-commerce to carry on business of counterfeit, goods or services in violation of the intellectual property, goods or services in the list of goods and services banned from business;
c) Taking advantage of the name of e-commerce operation to illegally mobilize capital from other traders, organizations or individuals.
d) Providing e-commerce services or certification, evaluation and monitoring services in e-commerce when these services have not been registered or licensed in accordance with the provisions of this Decree.
e) Providing e-commerce services or certification, evaluation and monitoring services in e-commerce not in accordance with the information in the record of registration or licensing.
g) There are fraudulent acts or providing false information when performing the procedures for notification of setting up e-commerce website, registering website to provide e-commerce services, registering or licensing the certification, evaluation and monitoring services in E-commerce.
2. Violation of information on e-commerce website.
a) Falsifying registration information or failing to comply with the regulations on the form and way of publication of information registered on e-commerce website;
b) Using logos of credit evaluation programs of e-commerce website when having been recognized by programs.
c) Using links, logos or other technologies on e-commerce website to cause confusion of the relationship with other traders, organizations or individuals;
d) Using links to provide conflicting or misleading information compared with the information published in the area where the website is connected with this link.
3. Violation of transaction on e-commerce website:
a) Performing acts of consumer fraud on e-commerce websites;
b) Falsifying information of traders, organizations or individuals to participate in e-commerce activities;
c) Intervening in the operation system and Internet browser in the electronic equipment accessible to website to force customers to stay on the website against their wishes.
4. Other violations:
a) Stealing, using, disclosing, transferring and selling information related to business secrets of other traders, organizations or individuals or personal information of consumers in e-commerce without the consent of the parties concerned, unless otherwise regulated by law.
b) Falsifying or copying interface of e-commerce website of other traders, organizations or individuals to make profit or to cause confusion, loss of customer confidence in those traders, organizations or individuals.
Article 5. Contents of e-commerce’s state management
1. Developing and implementing mechanisms, policies, strategies, plans, programs of e-commerce development.
2. Promulgating and organizing the implementation of legal normative documents on e-commerce activities, criteria, regulations on E-commerce applications and regulations on the management of specific e-commerce services.
3. Managing and monitoring e-commerce activities.
4. Propagating, disseminating and educating the Law on e-commerce.
5. Performing activities of research, application and transfer of technology in e-commerce.
6. Performing activities of consulting and supporting enterprises to deploy and apply e-commerce.
7. Implementing the training and retraining of human resource for e-commerce.
8. Making statistics of e-commerce.
9. Performing international cooperation in the area of e-commerce
10. Performing the inspection, examination, settlement of complaints and denunciations and handling of violations in E-commerce activities.
Article 6. Responsibilities of e-commerce’s state management
1. The Ministry of Industry and Trade is responsible before the Government for the performance of the state management of e-commerce.
2. The Ministries, ministerial-level agencies, People’s Committees of centrally-affiliated provinces and cities shall, within their ambit of duties, powers, coordinate with the Ministry of Industry and Trade to perform the state management of e-commerce.
Article 7. Program of national e-commerce’s development
1. The State has the appropriate policies and measures in order to promote the e-commerce to develop transparently and sustainably through the Program of national e-commerce development.
2. The contents of the Program of national e-commerce development include:
a) Building and developing the infrastructure of e-commerce;
b) Propagating, disseminating and raising awareness of e-commerce
c) Training and developing human resource of e-commerce;
d) Developing products and solutions of e-commerce;
e) Consulting the development of e-commerce application plan.
g) Performing international cooperation of e-commerce;
h) Raising management capacity and organizing activities of e-commerce development.
i) Other contents
3. The Prime Minister stipulates the participants, scope of application, management mechanism and fund assistance of the Program of national e-commerce development.
Article 8. Statistics of e-commerce
1. People’s Committee of centrally-affiliated provinces and cities shall collect the statistic data on the situation of application of e-commerce of each locality and make an annual report to the Ministry of Industry and Trade for summing-up
2. Traders and organizations providing the e-commerce services shall periodically report on the activities of their service provision in service of statistics of e-commerce.
3. The Minister of Industry and Trade stipulates in detail the regulations of report and statistics for traders and organizations providing e-commerce services and localities with enterprises operating e-commerce.
Chapter 2.
CONTRACT COMMITMENT IN E-COMMERCE
SECTION 1. E-DOCUMENT IN E-COMMERCE
Article 9. Legal value as the original
1. E-document in e-commerce has its legal value as the original if meeting the following two conditions:
a) There is credible assurance about the integrity of information contained in e-document from the time the information is first initialized in the form of e-document;
b) Information contained in the e-document may be accessible and usable in the complete form when necessary.
2. Criteria for assessing the integrity of the information are completeness and unchangeableness, apart from the changes of the form arising in the process of exchange, storage or display of the E-document.
3. Criteria of reliability assurance is when one of the following measures is applied on the basis of an agreement between parties exchanging and using E-document:
a) Signing the E-document with digital signature issued by a legal digital signature certification service provider.
b) Storing the E-document in the system of a licensed E-contract certification service provider that the parties have agreed to select.
c) There is an assurance from the traders, organizations providing infrastructure for the creation, sending and storage of E-document on the integrity of information contained in E-document during the sending and storage in the system;
d) Other measure which the parties have agreed upon.
Article 10. Time, sending location and receiving of e-document
1. The time for sending an e-document is the time that e-document leaves the information systems under the control of the creator or his/her representative. In case the e- document does not leave the information systems under the control of the creator or his/her representative, the sending time is the time of receiving the e-document.
2. In case the parties have no other agreements, the receiving time of an E-document is the time that E-document comes to the accessible e-address given by the recipient.
3. Place of business of the creator is regarded as a place to send the E-document and places of business of the recipient are regarded as a place to receive the E-document.
Article 11. Parties’ business places
1. Place of business of each party is the place indicated by that party, unless the other party states that it has no place of business at this location.
2. In case one party has many places of business but does not indicate any place of business, then the place of business is the one having the closest relationship with the related contract considering any context before and at the time of contract commitment.
3. In case an individual has no place of business, then the place of business is the registration place of permanent residence of that individual.
4. A place shall not be regarded as a place of business if that place is only the one for placement of machinery and technological equipment of the information system used by one party for contract commitment or only the place from which the other parties may access that information system.
5. A place name associated with a domain name or e-mail address of a party is not necessarily related to the place of business of such party.
Article 12. Proposal for contract commitment without any receiving party
A notice by E-document evidence on the proposal for contract commitment without specific receiving party is only a notice of proposal for contract commitment. That notice has not been regarded as a proposal for contract commitment, unless the notifying party specifies in the notice its responsibilities in the event of getting accepted answer.
Article 13. Use of automatic information system
Contract is concluded from the interaction between an automatic information systems with a person or between automatic information systems without any denial of legal value because there is no human examination or intervention in each specific action due to automatic performance of the information system or the contract is concluded.
Article 14. Information entry error in electronic documents
1. In case a person makes an error in information entry in an e-document used for exchange with the automatic information system of other parties but this automatic information system does not support that person to correct the error, then that person or the traders, organizations or individuals which that person represents have the right to withdraw the portion of e-document with error if meeting the two following conditions:
a) Once being aware of the error, that person or the traders, organizations or individuals which that person represents shall notify the other party of the error and clearly state that he has made an error in this e-document;
b) That person or the traders, organizations or individuals which that person represents have not used nor have any material benefit or value of the goods or services received from other party.
2. The right to withdraw the portion of e-document with error does not affect the responsibility to deal with the consequences arising out of the provisions in Clause of this Article.
SECTION 2. CONTRACT COMMITMENT USING ONLINE ORDERING FUNCTION ON E-COMMERCE WEBSITE
Article 15. Proposal for contract commitment
If an E-commerce website has an online ordering function applicable for specific goods and services introduced on that website, then the introductory information about goods and services and relevant terms and conditions shall be regarded as the notice of proposal for contract commitment of the traders, organization and individuals selling goods as prescribed in Article 12 of this Decree.
Article 16. Providing terms and conditions of contract when using online order on E-commerce website
E-commerce website with an online ordering function must provide customer with information about the terms and conditions of contract specified from Article 30 to Article 34 of this Decree before the time the customers their proposal for contract commitment.
Article 17. Proposal for contract commitment
E-document created by customer and sent by using the online ordering function shall be regarded as the proposal for contract commitment of customer for the goods or services associated with that online ordering function.
Article 18. Reviewing and confirming contract’s contents
E-commerce website must have a mechanism to permit customer to review, supplement, modify and confirm the transaction contents before using the online ordering function in order to send proposal for contract commitment. This mechanism of reviewing and confirmation must meet the following conditions:
1. Displaying the following information to customers:
a) Name of goods or services, the number and type;
b) Method and time of goods delivery or provision of services;
c) Total value of the contract and the details regarding the payment method selected by the customer.
These information must be capable of storing, printing on system of customer information and be displayed later.
2. Displaying customer’s information about the way to respond to the proposal for contract commitment and time limit to respond to the proposal for contract commitment
3. Permitting customers to select the cancellation of transaction or confirmation of the proposal for contract commitment.
Article 19. Response to the proposal for contract commitment
1. Responding to acceptance or denial of the proposal for contract commitment must be done in the appropriate form so that the information can be stored, printed and displayed in the customer’s information system.
2. Upon responding to acceptance of the proposal for contract commitment, the traders, organizations or individuals selling goods must provide customers with the following information:
a) List of all goods or services that customers have ordered, the number and price of each product and total value of contract.
b) Time of delivery or service provision;
c) Contact information for customer to ask about the status of contract performance when necessary.
Article 20. Terminating the proposal for contract commitment
1. In case the traders, organizations or individuals selling goods has announces the time limit for response to the proposal for contract commitment, if this time limit is over without any response to the customer, the proposal for contract commitment of the customer shall be regarded as a termination of validity.
The response to acceptance after this time limit is regarded as another proposal for contract commitment from the traders, organizations or individuals selling goods.
2. In case the traders, organizations or individuals selling goods do not announce the time limit for response to the proposal for contract commitment, if within 12 (twelve) hours from the time of sending the proposal for contract commitment, then the proposal for contract commitment of the customer shall be regarded as a termination of validity.
Article 21. Time for contract commitment by using online ordering function on E-commerce website
The time for contract commitment upon the use of an online ordering function on E-commerce website is the time the customer receives the response from the traders, organizations or individuals selling goods to accept the proposal for contract commitment as prescribed in Clause 2, Article 19 of this Decree.
Article 22. Procedures for contract termination for E-commerce service contract and other online services
1. Website providing the E-commerce services and other online services must provide online tools so that customers can send notice of contract termination upon the end of need for service using. This tool must satisfy the following conditions:
a) Allowing customers to store and display notice of contract termination in its information system after sending.
b) There are feedback mechanisms so that customers know that their notice of contract termination has been sent.
2. Website providing the E-commerce services and other online services must publish information transparently and completely on the process and procedures for contract termination including the following contents:
a) The cases where the traders, organizations or individuals provide the contract termination services and the way to deal with consequences of this contract termination.
b) The time of validity termination of contract and the payment method of service fees in case customer is the party terminating the contract;
c) If the website does not publish the time of validity termination of contract in case customer is the party terminating the contract, the time when customer sends notice is regarded as the time of contract termination.
Article 23. Contract commitment on goods purchase E-commerce website
The Ministry of Industry and Trade shall specify the process of online contract commitment on E-commerce website developed the traders, organizations or individuals to purchase goods and services.
