THE NATIONAL
ASSEMBLY
-------- |
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness --------------- |
No: 33/2005/QH11
|
Ha Noi, day
14 month 06 year 2005
|
Pursuant to the 1992
Constitution of the Socialist Republic of Vietnam, which was amended and
supplemented under Resolution No. 51/2001/QH10 of December 25, 2001, of the
10th National Assembly, the 10th session;
This Code provides for civil
affairs.
PART ONE
GENERAL
PROVISIONS
Chapter I
TASKS
AND EFFECT OF THE CIVIL CODE
Article 1.- Tasks and
governing scope of the Civil Code
The Civil Code provides the
legal status, legal standards for the conduct of individuals, legal persons,
other subjects; the rights and obligations of subjects regarding personal
identities and property in civil, marriage and family, business, trade, labor
relations (hereinafter referred collectively to as civil relations).
The Civil Code has the tasks of
protecting legitimate rights and interests of individuals and organizations,
State interests and public interests; ensuring legal equality and safety in
civil relations, contributing to the creation of conditions for meeting the
material and spiritual demands of people, and to the promotion of
socio-economic development.
Article 2.- Effect of
the Civil Code
1. The Civil Code shall apply to
civil relations established from the effective date of this Code, unless
otherwise provided for by this Code or the National Assembly's resolution.
2. The Civil Code shall apply in
the territory of the Socialist Republic of Vietnam.
3. The Civil Code shall apply to
civil relations involving foreign elements, unless otherwise provided for by
treaties to which the Socialist Republic of Vietnam is a contracting party.
Article 3.- Application
of practices, analogy of law
In cases where it is neither
provided for by law nor agreed upon by the parties, practices can be applied;
if practices are unavailable, analogy of law may be applied. Practices and
analogy of law must not contravene the principles provided in this Code.
Chapter II
BASIC
PRINCIPLES
Article 4.- Principles
of free and voluntary undertaking and agreement
The right to freely undertake or
agree on the establishment of civil rights and obligations shall be guaranteed
by law, if such undertaking or agreement is not banned by law and/or not
contrary to social ethics.
In civil relations, the parties
shall act entirely voluntarily and neither party may impose, prohibit, coerce,
threaten or hinder the other party.
Lawful undertakings or
agreements shall be binding on the parties and must be respected by
individuals, legal persons and other subjects.
Article 5.- The
principle of equality
In civil relations, the parties
shall be equal and shall not invoke differences in ethnicity, gender, social
status, economic situation, belief, religion, educational level and occupation
as reasons to treat each other unequally.
Article 6.- The
principle of goodwill and honesty
In civil relations, the parties
must act in goodwill and honesty in establishment and performance of civil
rights and obligations; neither party shall deceive the other party.
Article 7.- The
principle of bearing civil liability
The parties shall strictly
perform their own civil obligations and shall themselves be liable for the
non-performance or the incorrect performance of obligations; if a party does
not voluntarily perform, it shall be forced to perform its obligations in
accordance with the provisions of law.
Article 8.- The
principle of respect for good morals and traditions
The establishment and
performance of civil rights and obligations must ensure the preservation of
national identities, respect and promote good customs, practices and
traditions, solidarity, mutual affection and cooperation, the principle of
every individual for the community and the community for every individual and
the noble ethical values of ethnicities living together on Vietnamese soil.
Ethnic minority people shall be
given favorable conditions in civil relations so as to step by step improve
their material and spiritual life.
The task of assisting elderly
persons, young children and persons with disabilities in the performance of
civil rights and obligations shall be encouraged.
Article 9.- The
principle of respect for, protection of, civil rights
1. All the civil rights of
individuals, legal persons or other subjects shall be respected and protected
by law.
2. When the civil rights of a
subject are infringed upon, he/she/it shall have the right to protect such
rights by him/her/itself in accordance with the provisions of this Code or
request competent agencies or organizations to:
a/ Recognize his/her/its civil
rights;
b/ Order the termination of the
act of violation;
c/ Order a public apology and/or
rectification;
d/ Order the performance of
civil obligations;
e/ Order compensation for
damage.
Article 10.- The
principle of respect for State interests, public interests and legitimate
rights and interests of other persons
The establishment and
performance of civil rights and obligations must not infringe upon State
interests, public interests and legitimate rights and interests of other
persons.
Article 11.- The
principle of compliance with law
The establishment and
performance of civil rights and obligations must comply with the provisions of
this Code and other provisions of law.
Article 12.- The principle
of conciliation
In civil relations, conciliation
between the parties in accordance with the provisions of law shall be
encouraged.
No one may use force or threaten
to use force when participating in civil relations and/or resolving civil
disputes.
Article 13.- Bases for
establishment of civil rights and obligations
Civil rights and obligations
shall be established on the following bases:
1. Lawful civil transactions;
2. Decisions of courts or other
competent state agencies;
3. A legal event which is
specified by law;
4. Creation of spiritual values
which are intellectual property objects;
5. Legitimate possession of
property;
6. Damage caused by an illegal
act;
7. Performance of a task without
authorization;
8. Illegal possession and use of
assets or illegal gain therefrom;
9. Other bases specified by law.
Chapter III
INDIVIDUALS
Section 1. CIVIL LEGAL
CAPACITY, CIVIL ACT CAPACITY OF INDIVIDUALS
Article 14.- Civil legal
capacity of individuals
1. The civil legal capacity of
an individual is his/her capability to have civil rights and civil obligations.
2. All individuals shall have
the same civil legal capacity.
3. The civil legal capacity of
an individual shall exist from the time he/she is born and terminate when
he/she dies.
Article 15.- Contents of
the civil legal capacity of an individual
An individual shall have the
following civil rights and obligations:
1. Personal rights not
associated to property, and personal rights associated to property;
2. Ownership rights, inheritance
rights and other rights with respect to property;
3. Rights to participate in
civil relations and to assume obligations arising out of such relations.
Article 16.- No
restrictions on the civil legal capacity of an individual
The civil legal capacity of an
individual shall not be restricted, unless otherwise provided for by law.
Article 17.- The civil
act capacity of an individual
The civil act capacity of an
individual is his/her capability to establish and perform civil rights and
obligations through his/her acts.
Article 18.- Adults and
minors
Persons who are full eighteen
years old or older are adults. Persons who are not yet full eighteen years old
are minors.
Article 19.- The civil
act capacity of an adult
An adult shall have full civil
act capacity, except the cases specified in Article 22 and Article 23 of this
Code.
Article 20.- The civil
act capacity of minors who are between full six years old and under full
eighteen years old
1. Persons who are between full
six years old and under full eighteen years old must have the consents of their
representatives at law when establishing and performing civil transactions,
except those transactions to meet their daily-life needs suitable to their age
group or otherwise provided for by law.
2. In cases where a person who
is between full fifteen years old and under full eighteen years old has his/her
own property to ensure the performance of obligations, such person may
establish and perform civil transactions by him/herself without the consent of
his/her representative at law, unless otherwise provided for by law.
Article 21.- Persons
without civil act capacity
Persons who are under full six
years old shall not have civil act capacity. All civil transactions of persons
under full six years of age must be established and performed by their
representatives at law.
Article 22.- Loss of
civil act capacity
1. When a person is incapable of
cognizing or controlling his/her acts due to mental disease or other ailments,
the Court may, at the request of the person(s) with related rights or interests,
issue a decision to declare such a person as having lost his/her civil act
capacity, based on the conclusion of a competent medical examination body.
When there is no longer a basis
for declaring a person as having lost his/her civil act capacity, the Court
shall, at the request of such person him/herself or of a person with related
rights or interests, issue a decision to revoke the decision declaring the loss
of civil act capacity.
2. Civil transactions of persons
who have lost their civil act capacity shall be established and performed by
their representatives at law.
Article
23.- Restrictions on civil act capacity
1. Persons whose addiction to
narcotics/drugs or to other stimulants leads to the squandering of their
families' property may be declared by decision of the Court to be persons with
a restricted civil act capacity, at the request of persons with related rights
or interests or of relevant agencies or organizations.
2. The at-law representatives of
persons with a restricted civil act capacity and the scope of such
representation shall be decided by the Court. Civil transactions related to the
property of persons with a restricted civil act capacity must have the consents
of their representatives at law, except for transactions to meet their daily-life
needs.
3. When there is no longer a
basis for declaring that a person has a restricted civil act capacity, the
Court shall, at the request of such person him/herself or a person with related
rights or interests, make a decision to revoke the decision having declared the
restriction on his/her civil act capacity.
Section 2. PERSONAL RIGHTS
Article 24.- Personal
rights
Personal rights specified in
this Code are civil rights inherent to each individual, which cannot be
transferred to other persons, unless otherwise provided for by law.
Article 25.- Protection
of personal rights
When a personal right of an
individual is infringed upon, such person shall have the right to:
1. Make rectification
him/herself;
2. Request the infringer or
request competent agencies, organizations to order the infringer to terminate
the infringement and make a public apology and/or rectification;
3. Request the infringer or
request competent agencies or organizations to order the infringer to pay
compensation for damage.
Article 26.- The right
with respect to family and given names
1. Each individual has the right
to have a family name and a given name. The family and given names of a person
shall be the family and given names in the birth certificate of such person.
2. An individual shall establish
and exercise civil rights and perform civil obligations in his/her family and
given names which have been recognized by a competent state agency.
3. The use of pseudonyms and pen
names must not cause damage to the rights and interests of other persons.
Article 27.- The right
to change family and given names
1. Individuals shall have the
right to request competent state agencies to recognize the change of their
family and/or given names in the following cases:
a/ Where it is so requested by
the person who has a family or given name the use of which causes confusion or
affects the feelings of his/her family, the honor, legitimate rights and
interests of such person;
b/ Where an adoptive father or
mother requests to change the family and/or given name of an adopted child or
when an adopted child ceases to be an adopted child and he/she or his/her
biological father or mother requests to reclaim the family and/or given name
which was given to him/her by the biological father or mother;
c/ Where it is so requested by
the biological father or mother or the child when identifying the father and/or
mother of the child;
d/ Where there is a change of
the family name of a child from that of the father to that of the mother or
vice versa;
e/ Where there is a change of
the family name and/or given name of a person who was lost from his/her
childhood and has discovered the origin of his/her bloodline;
f/ Where there is a change of
the family name and/or given name of a person whose gender has been re-determined;
g/ Other cases specified by law
on civil status.
2. The change of the family name
and/or given name of a person who is full nine years or older must be consented
by that person.
3. The change of the family name
and/or given name of an individual shall neither change nor terminate the civil
rights and obligations which have been established under the former family name
and/or given name.
Article 28.- The right
to determine ethnicity
1. An individual upon his/her
birth may have his/her ethnicity determined in accordance with the ethnicity of
his/her biological mother and father. In cases where the biological father and
mother belong to two different ethnicities, the ethnicity of the child shall be
determined as the ethnicity of the father or the ethnicity of the mother in
accordance with practices or in accordance with the agreement of the biological
father and mother.
2. A person who has attained
adulthood, the biological father and mother or guardian of a minor may request
competent state agencies to re-determine his/her ethnicity in the following
cases:
a/ To re-determine his/her
ethnicity in accordance with the ethnicity of the biological father or mother,
if the father and mother belong to two different ethnicities;
b/ To re-determine his/her ethnicity
in accordance with the ethnicity of his/her biological father and/or mother in
circumstances where he/she is the adopted child of a person belonging to a
different ethnicity and has had his/her ethnicity determined in accordance with
the ethnicity of his/her adoptive father and/or mother due to the
unidentification of his/her biological father and/or mother.
3. Where the biological father
or mother or the guardian of a minor requests the re-determination of the
ethnicity of a minor who is full fifteen years or older under the provisions of
Clause 2 of this Article, the consent of such minor is required.
Article 29.- The right
to registration of birth
Individuals, when born, shall
have the right to have their births registered.
Article 30.- The right to
registration of death
1. When a person dies, his/her
next of kin, the house owner or the agency or organization to which the dead
person belonged must register the death of such person.
2. If a newborn infant dies
after birth, the infant's birth and death must be registered; if the infant
dies before or immediately upon birth, the infant's birth and death must not be
registered.
Article 31.- The right
of an individual with respect to his/her picture
1. An individual shall have the
right with respect to his/her picture.
2. The use of a picture of an
individual must have his/her consent; where such person has died, lost his/her
civil act capacity or is under full fifteen years old, the consent of his/her
father, mother, husband, wife, adult children or representative is required,
unless it is for State interests, public interests or otherwise provided for by
law.
3. It is strictly forbidden to
use pictures of other persons to infringe upon their honor, dignity and/or
prestige.
Article 32.- The right
to safety of life, health and body
1. Individuals shall shave have
the right to safety of life, health and body.
2. When a person discovers
another person who has got an accident or is sick whereby his/her life is
threatened, the person who discovers him/her shall have the responsibility to
deliver such person to a medical establishment; the medical establishment must
not refuse to provide treatment to the person and shall have to utilize all
available means and capabilities to cure him/her.
3. The application of new
curative methods on the body of a person and the anesthetization, surgery,
amputation, implantation and grafting of body organs must have his/her consent;
if the person is a minor, has lost the civil act capacity or is an unconscious
patient, the consent of his/her father, mother, guardian or next of kin is
required; in cases where there is a threat to the life of a patient which
cannot wait for the opinions of the above-said persons, a decision of the head
of the medical establishment is required.
4. A post-mortem operation shall
be performed in the following cases:
a/ Where it is so consented by
the decedent before his/her death;
b/ Where it is so consented by
the decedent's father, mother, wife, husband, adult children or guardian when
there is no opinion of the decedent before he/she dies;
c/ Where it is so decided by a
competent medical organization or a competent state agency in case of
necessity.
Article 33.- The right
to donation of body organs
Individuals shall have the right
to donate their body organs for the purpose of medical treatment of other
persons or scientific research.
The donation and use of body
organs shall comply with the provisions of law.
Article 34.- The right
to donation of corpses, body organs after death
Individuals shall have the right
to donate their corpses, body organs after they die for the purpose of medical
treatment of other persons or scientific research.
The donation and use of corpses,
body organs of dead persons shall comply with the provisions of law.
Article 35.- The right
to receive body organs
Individuals shall have the right
to receive body organs of other persons for their medical treatment.
It is strictly forbidden to
receive and use body organs of other persons for commercial purposes.
Article 36.- The right to
re-determination of gender
Individuals shall have the right
to the re-determination of their gender.
The re-determination of gender
of a person shall be performed in cases where his/her gender is affected with
inborn defects or has not been properly shaped, which needs the medical
intervention to clearly determine the gender.
The re-determination of gender
shall comply with the provisions of law.
Article 37.- The right
to protection of honor, dignity and prestige
Individuals' honor, dignity and
prestige shall be respected and protected by law.
Article 38.- The right
to personal secrets
1. An individual's rights to
personal secrets shall be respected and protected by law.
2. The collection and
publication of information and materials on the private life of an individual
must be consented by that person; in cases where that person has died, lost his
civil act capacity or is under full fifteen years, the consent of his/her
father, mother, wife, husband, adult children or representative is required,
except for cases where the collection and publication of information and
materials are made by decision of a competent agency or organization.
3. Letters, telephones,
telegrams, other forms of electronic information of individuals shall be safely
and confidentially guaranteed.
The inspection of an
individual's letters, telephones, telegrams and/or other forms of electronic
information may be performed only in cases where it is so provided for by law
and decided by competent state agencies.
Article 39.- The right
to marriage
Males and females who have fully
met the conditions for marriage in accordance with the law on marriage and
family shall have the right to marriage at their free will.
The freedom of marriage between
persons belonging to different ethnicities and/or religions, between religious
and non-religious persons and between Vietnamese citizens and foreigners shall
be respected and protected by law.
Article 40.- The right
to equality between husband and wife
Husband and wife are equal to
each other, shall have the same rights and obligations in all respects in
family and in civil relations and shall together build a plentiful, equitable,
progressive, happy and lasting family.
Article 41.- The right
to enjoy mutual care among family members
The members of a family shall
have the right to enjoy mutual care and assistance in accordance with the fine
moral traditions of the Vietnamese family.
Children and grandchildren who
are minors shall benefit from the care and upbringing of the mother, father and
grandparents; children and grand-children shall have the duty to respect, care
for and support their parents and grandparents.
Article 42.- The right
to divorce
A wife or husband or both the
wife and the husband shall have the right to request the Court to solve their divorce.
Article 43.- The right
to recognize or not to recognize a father, mother or child
1. A person who is not
recognized as a father, mother or child of another person shall have the right
to request a competent state agency to determine him/her as father, mother or
child of that person.
2. A person who is recognized as
a father, mother or child of another person shall have the right to request a
competent state agency to determine him/her as not being father, mother or
child of that person.
Article 44.- The right
to adopt a child and the right to be accepted as an adoptive child
An individual's right to adopt a
child and right to be accepted as an adoptive child shall be recognized and
protected by law.
The adoption of a child and the
process of being accepted as an adoptive child shall comply with the provisions
of law.
Article 45.- The right
to citizenship
An individual shall have the
right to have a citizenship.
The recognition of, change to,
the naturalization or relinquishment of the Vietnamese citizenship shall comply
with the provisions of law on citizenship.
Article 46.- The
inviolable right to place of residence
Individuals shall have the
inviolable right to their places of residence.
The entry into the place of
residence of a person must be consented by that person.
The search of a place of
residence of a person shall be performed only in cases where it is so provided
for by law and where there is a warrant from a competent state agency; the
search must comply with the order and procedures specified by law.
Article 47.- The right
to freedom of belief and religion
1. Individuals shall have the
right to freedom of belief and religion, and to adhere to or not to adhere to a
religion.
2. No one may infringe upon the
freedom of belief and religion, or abuse beliefs or religions to infringe upon
State interests, public interests or legitimate rights and interests of other
persons.
Article 48.- The right
to freedom of movement, freedom of residence
1. Individuals shall have the
right to freedom of travel and freedom of residence.
2. An individual's freedom of
travel and/or freedom of residence may be restricted only by decision of a
competent state agency and in accordance with the order and procedures
specified by law.
Article 49.- The right
to work
Individuals shall have the right
to work.
Every person shall have the
right to work, the freedom to choose a job or occupation without being
discriminated against on the ground of his/her ethnicity, sex, social status,
belief or religion.
Article 50.- The right to
freedom of business
Individuals' right to freedom of
business shall be respected and protected by law.
Individuals shall have the right
to choose the forms, areas and lines of business, to establish enterprises, to
freely enter into contracts and hire labor, and other rights in accordance with
the provisions of law.
Article 51.- The right
to freedom of research, creation
1. Individuals shall have the
right to freedom of scientific and technical research, inventions, innovations
to improve techniques and rationalize production; the right to literary and art
creation and critique, and to participation in other activities of research
and/or creation.
2. The right to freedom of
research and/or creation shall be respected and protected by law. No one shall
have the right to hinder or restrict an individual's right to freedom of
research and creation.
Section 3. PLACE OF RESIDENCE
Article 52.- Place of
residence
1. The place of residence of an
individual is the place where such person permanently lives.
2. In cases where it is
impossible to identify an individual's place of residence as provided for in
Clause 1 of this Article, his/her place of residence shall be the place where
such person currently lives.
Article 53.- Place of
residence of minors
1. The place of residence of a
minor is the place of residence of his/her parents; if the parents have
separate places of residence, the place of residence of the minor shall be the
place of residence of the father or mother with whom the minor permanently
lives.
2. A minor may have a place of
residence separate from the place of residence of his/her father and mother, if
it is so agreed by his/her parents or so provided for by law.
Article 54.- Place of
residence of wards
1. The place of residence of a
ward is the place of residence of his/her guardian.
2. A ward may have a place of
residence separate from the place of residence of his/her guardian, if it is so
agreed by the guardian or so provided for by law.
Article 55.- Place of
residence of husband and wife
1. The place of residence of a
husband and a wife is the place where the husband and the wife permanently live
together.
2. A husband and a wife may have
separate places of residence, if they so agree upon.
Article 56.- Place of
residence of military personnel
1. The place of residence of
military personnel currently performing his/her military obligations is the
place where the military personnel's unit is stationed.
2. The place of residence of an
army officer, professional military personnel, defense worker or official is
the place where his/her unit is stationed, except in cases where he/she has a
place of residence as specified in Clause 1, Article 52 of this Code.
Article 57.- Place of
residence of persons performing itinerant occupations
The place of residence of a
person performing an itinerant occupation on a ship, boat or other means for
itinerant work is the place of registration of such ship, boat or means, except
for cases where he/she has a place of residence specified in Clause 1, Article
52 of this Code.
Section 4. GUARDIANSHIP
Article
58.- Guardianship
1. Guardianship is a task
whereby an individual or organization (hereinafter referred collectively to as
guardian) is required by law or appointed to take care of and protect
legitimate rights and interests of a minor or a person who has lost his/her
civil act capacity (hereinafter referred collectively to as ward).
2. Wards include:
a/ Minors who have lost their
mothers and fathers, whose parents are unidentifiable, or whose parents have
both lost their civil act capacity or have had their capacity for civil acts
restricted, whose parents have had their parental rights restricted by the
Court, or whose parents are still alive but have no conditions to take care of
and to educate such minors, and if their parents so request;
b/ Persons who have lost their
civil act capacity.
3. Persons who are under full
fifteen years old as provided for at Point a, Clause 2 of this Article and
persons defined at Point b, Clause 2 of this Article must have guardians.
4. A person may be a guardian
for more than one person, but a person may be a ward of only one guardian,
except in cases where the guardian is his/her father, mother or grandfather,
grand-mother as specified in Clause 2 of Article 61 or Clause 3 of Article 62 of
this Code.
Article 59.- Supervision
of guardianship
1. The next of kin of wards
shall have the responsibility to appoint their representatives to supervise the
guardianship in order to monitor, urge, inspect the guardians in the
performance of their guardianship, consider and settle in time the guardians'
proposals and/or petitions related to the guardianship.
The wards' next of kin are their
spouses, parents, children; if none of these people is available, the wards'
next of kin shall be their grandparents, siblings; if none of these persons is
available, the wards' next of kin shall be their uncles and ants.
2. In cases where a ward has
none of his/her next of kin or his/her next of kin cannot nominate any one to
supervise the guardianship as provided for in Clause 1 of this Article, the
People's Committee of the commune, ward, or district township where the
guardian resides shall appoint a person to supervise the guardianship.
3. The persons who supervise the
guardianship must be those who have full civil act capacity.
Article
60.- Requirements for individuals to be guardians
Persons who meet all of the
following requirements may act as guardians:
1. Having full civil act
capacity;
2. Having good virtues; being
not examined for penal liability or having had their criminal records written
off after having been sentenced for one of the crimes of intentionally
infringing upon the life, health, honor, dignity or property of other persons;
3. Having necessary conditions
to ensure the performance of the guardianship.
Article 61.- The natural
guardian of a minor
The natural guardian of a minor
who has lost both his/her mother and father, whose parents are unidentifiable,
or whose parents have both lost their civil act capacity or have had their
civil act capacity restricted, whose parents have had their parental rights
restricted by the Court, or whose parents do not have conditions to take care
of and to educate the minor, and if the parents so request, shall be determined
as follows:
1. In cases where it is not otherwise
agreed upon by the biological siblings, the eldest brother or sister shall be
the guardian for his/her younger siblings who are minors; if the eldest brother
or sister does not fully meet the conditions for being a guardian, the next
eldest brother or sister shall be the guardian;
2. In cases where there are no
biological siblings or where the biological siblings do not fully meet the
requirements to be a guardian, the paternal grandfather, grandmother or the
maternal grandfather, grandmother shall be the guardian; if none of these
persons fully meet the conditions to be a guardian, the uncle or ant of that
person shall be the guardian.
Article 62.- The natural
guardian of a person who has lost his/her civil act capacity
1. In cases where the wife has
lost her civil act capacity, her husband shall be her guardian; if the husband
has lost his civil act capacity, his wife shall be his guardian.
2. In cases where the father and
mother have both lost their civil act capacity or where either of them has lost
the civil act capacity while the other does not fully meet the requirements to
be a guardian, the eldest child shall be the guardian; if the eldest child does
not fully meet the requirements to be a guardian, the next eldest child shall
be the guardian.
3. In cases where an adult who
has lost his/her civil act capacity has no wife or husband, no children or his
wife or her husband or children do not fully meet the requirements to be a
guardian, his/her father and/or mother shall be the guardian.
Article 63.- Appointment
of a guardian
In cases where a minor or a
person who has lost his/her civil act capacity does not have a natural guardian
as provided for in Article 61 and Article 62 of this Code, the People's
Committee of the commune, ward or district township where the ward resides
shall have the responsibility to appoint a guardian or propose an organization
to assume the guardianship.
Article 64.- Procedures
for appointing a guardian
1. The appointment of a guardian
must be made in writing, clearly stating the reason for appointing the
guardian, the specific rights and obligations of the guardian and the status of
the ward's property.
2. The appointment of a guardian
must be consented by the person who is appointed to be a guardian.
Article 65.- Obligations
of guardians towards wards aged under full fifteen years
The guardian of a person aged
under full fifteen years shall have the following obligations:
1. To take care of and educate
the ward;
2. To represent the ward in
civil transactions, except where it is provided for by law that wards aged
under full fifteen years can establish and perform civil transactions by
themselves;
3. To manage the property of the
ward;
4. To protect legitimate rights
and interests of the ward.
Article 66.- Obligations
of guardians towards wards aged between full fifteen years and under full
eighteen years
The guardian of a person aged
between full fifteen years and under full eighteen years shall have the
following obligations:
1. To represent the ward in
civil transactions, except where it is provided for by law that wards who are
aged between full fifteen years and under full eighteen years can establish and
perform civil transactions by themselves;
2. To manage the property of the
ward;
3. To protect legitimate rights
and interests of the ward.
Article 67.- Obligations
of guardians towards wards who have lost their civil act capacity
The guardian of a person who has
lost his/her civil act capacity shall have the following obligations:
1. To take care of and ensure
the medical treatment for the ward;
2. To represent the ward in
civil transactions;
3. To manage the property of the
ward;
4. To protect legitimate rights
and interests of the ward.
Article 68.- Rights of
guardians
A guardian shall have the
following rights:
1. To use the property of the
ward in order to take care of and pay for the needs of the ward;
2. To be paid for all expenses
necessary for the management of the ward's property;
3. To represent the ward in the
establishment and performance of civil transactions in order to protect
legitimate rights and interests of the ward.
Article 69.- Management
of property of wards
1. Guardians must manage the
property of their wards as if it were their own property.
2. Guardians may perform
transactions related to the property of their wards in the interests of the
wards. The sale, exchange, lease, lending, pledge, mortgage, deposit and other
transactions involving the property of wards, which has a large value, must be
consented by the guardianship supervisors.
Guardians must not donate the
property of their wards to other persons.
3. Civil transactions between
guardians and their wards in connection with the latter's property shall be
invalid, except for cases where such transactions are performed in the
interests of the wards and agreed upon by the guardianship supervisors.
Article 70.- Replacement
of guardians
1. A guardian may be replaced in
the following cases:
a/ The guardian no longer meets
all of the requirements specified in Article 60 of this Code;
b/ The guardian being an
individual dies or has been declared missing by the Court or being an
organization which has terminated its operation;
c/ The guardian seriously
violates a guardian's obligations;
d/ The guardian proposes his/her
replacement and another person agrees to assume the guardianship.
2. In case of changing a natural
guardian, the persons defined in Article 61 and Article 62 of this Code shall
assume the role of a natural guardian; if there is no natural guardian, the
appointment of a guardian shall comply with the provisions of Article 63 of
this Code.
3. The procedures for changing
an appointed guardian shall comply with the provisions of Article 64 and
Article 71 of this Code.
Article 71.- Transfer of
the guardianship by the appointed guardian
1. Upon the change of an
appointed guardian, the person who has performed the guardianship shall have to
transfer the guardianship to his/her replacement within fifteen days as from
the date a new guardian is found.
2. The transfer of guardianship
must be made in writing, clearly stating the reason for the transfer and the
status of the ward's property at the time of transfer. The person who appointed
the guardian and the person who supervises the guardianship shall witness the
transfer of guardianship.
3. In case of change of a
guardian for the reason that the guardian being an individual has died, or been
declared by the court as having his/her civil act capacity restricted, losing
his/her civil act capacity or as missing; or that the guardian being an
organization has terminated its operation, the person who appointed the
guardian shall make a record thereon, clearly stating the status of the ward's
property and the rights and obligations which have arisen in the course of
performing the guardianship for transfer to the new guardian to the witness of
the guardianship supervisor.
4. The transfer of guardianship
must be recognized by the People's Committee of the commune, ward or district
township where the new guardian resides.
Article 72.- Termination
of guardianship
A guardianship shall be
terminated in the following cases:
1. The ward has obtained full
civil act capacity;
2. The ward has died;
3. The ward's father and/or
mother have/has fully met the conditions to perform their rights and
obligations;
4. The ward has been adopted.
Article
73.- Consequences of the termination of guardianship
1. When a guardianship is
terminated, the guardian must settle up the property with the ward or with the
mother and/or father of the ward within three months from the time the guardianship
terminates.
In cases where the ward dies,
the guardian must settle up the property with the ward's heirs within three
months as from the time the guardianship terminates; if the ward's heirs are
unidentifiable upon the expiry of such time limit, the guardian shall continue
to manage the property of the ward until the property has been settled in
accordance with the provisions of law on inheritance and shall notify such to
the People's Committee of the commune, ward or district township where the ward
resides.
The settlement of property shall
be carried out under the supervision of the guardianship supervisors.
2. The rights and obligations
arising from civil transactions in the interest of a ward shall be performed by
the guardian as follows:
a/ To transfer them to the ward
when the ward has obtained full civil act capacity;
b/ To transfer them to the
ward's father and/or mother in cases specified in Clause 3 and Clause 4,
Article 72 of this Code;
c/ To transfer them to the
ward's heir(s) when the ward dies.
Section 5. NOTICE OF SEARCH
FOR PERSONS WHO ARE ABSENT FROM THEIR PLACES OF RESIDENCE, DECLARATION OF
MISSING PERSONS AND DECLARATION OF DEATH
Article 74.- Request for
notice of search for persons who are absent from their places of residence and
the management of their property
When a person has disappeared
for six consecutive months or more, the person with related rights or interests
shall have the right to request the Court to issue a notice of search for the
person absent from his/her place of residence under the provisions of civil
procedure law and may request the Court to apply measures for management of the
property of the absent person in accordance with the provisions of Article 75
of this Code.
Article 75.- Management
of the property of a person who is absent from his/her place of residence
1. At the request of the person
with related rights or interests, the Court shall hand over the property of a
person absent from his/her place of residence to one of the following persons
for management:
a/ The person who has been
authorized by the absent person to manage the latter's property shall continue
to manage such property;
b/ For a common property, the
remaining co-owner(s) shall manage such property;
c/ The property being currently
managed by the wife or the husband shall continue to be managed by the wife or
the husband; if the wife or the husband dies or loses her/his civil act
capacity or has her/his civil act capacity restricted, a child who has attained
adulthood or the father and/or mother of the absent person shall manage the
latter's property.
2. In cases where there are none
of the persons defined in Clause 1 of this Article, the Court shall appoint a
person among the next of kin of the absent person to manage his/her property;
if the absent person does not have any next of kin, the Court shall appoint
another person to manage the property.
Article 76.- Duties of
the persons managing the property of persons absent from their places of
residence
The persons managing the
property of persons absent from their places of residence shall have the
following duties:
1. To keep and preserve the
property of the absent persons as if it were their own property;
2. To immediately sell the
property being subsidiary food crops or other products being in danger of
decay;
3. To perform the absent
persons' obligations to support their dependents and/or to pay due debts with
such persons' property under the Court's decisions;
4. To hand back the property to
the absent persons upon their return and to notify the Court thereof; if they
are at fault in the management of property thereby causing damage, they must
pay compensations therefor.
Article 77.- Rights of
the persons managing the property of persons absent from their places of
residence
The persons managing the
property of persons absent from their places of residence shall have the
following rights:
1. To manage the property of the
absent persons;
2. To deduct a portion from the
property of the absent persons in order to perform the latter's obligations to
support their dependents and/or obligations to pay due debts;
3. To be paid for all expenses
necessary for the management of the property.
Article 78.- Dclaration
of a person to be missing
1. When a person has disappeared
for two consecutive years or more and there is no reliable information on
whether such person is still alive or dead even though notification and search
measures have been fully applied in accordance with the civil procedure law,
the Court may, at the request of a person with related rights or interests,
declare such person missing. The two-year time limit shall be counted from the
date the last information on such person is obtained; if the date of the last
information cannot be determined, this time limit shall be counted from the first
day of the month following the month when the last information is received; if
the date and month of the last information cannot be determined, this time
limit shall be counted from the first day of the year following the year when
the last information is received.
2. In cases where the wife or
the husband of a person who has been declared missing files for a divorce, the
Court shall grant the divorce.
Article 79.- Management
of the property of persons who have been declared missing
The persons currently managing
the property of the persons who are absent from their places of residence as
provided for in Clause 1, Article 75 of this Code shall continue to manage the
property of such persons when they are declared missing by the Court and have
the rights and duties specified in Article 76 and Article 77 of this Code.
In cases where a Court has
resolved to permit the wife or the husband of the person who has been declared
missing to divorce, the property of the missing person shall be handed over to
the child(ren) who has/have attained adulthood or to the mother and/or father
of the missing person for management; if there is no such person, the property
shall be handed over to the next of kin of the missing person for management;
if there is no next of kin, the Court shall appoint another person to manage
the property.
Article 80.- Annulment
of the decision declaring a person missing
1. When a person who has been
declared missing returns or when there is reliable information that such person
is still alive, the Court shall, at the request of such person or a person with
related rights or interests, issue a decision to annul the decision declaring a
person missing.
2. A person who has been
declared missing shall, upon his/her return, be permitted to take back his/her
property handed to him/her by the property manager after paying the management
expenses.
3. In cases where the wife or
the husband of a person who has been declared missing has been granted a
divorce, the decision permitting the divorce shall still be legally effective,
despite the return of the person who has been declared missing or the reliable
information that such person is still alive.
Article 81.- Declaration
of a person to be dead
1. A person with related rights
or interests may request the Court to issue a decision declaring that a person
is dead in the following cases:
a/ After three years as from the
date the Court's decision declaring a person missing takes legal effect there
is still no reliable information that such person is alive;
b/ The person has disappeared
during a war and five years from the end of the war, there is still no reliable
information that such person is alive;
c/ The person was hit by an
accident, catastrophe or a natural disaster and one year from the end of such
accident, catastrophe or natural disaster, there is still no reliable
information that such person is alive, unless otherwise provided for by law;
d/ The person has disappeared
for five consecutive years or more and there is no reliable information that
such person is still alive; this time limit shall be counted in accordance with
the provisions of Clause 1, Article 78 of this Code.
2. The Court shall, on a
case-by-case basis, determine the date of death of a person who has been
declared dead, based on the cases specified in Clause 1 of this Article.
Article 82.- Personal
relations and property relations of persons who have been declared dead by the
Court
1. When a decision of the Court
declaring that a person is dead becomes legally effective, all marriage and family
relations and other personal relations of such person shall be resolved as if a
person had died.
2. The property relations of a
person whom the Court has declared dead shall be resolved as if such person had
died; the property of such person shall be settled in accordance with the law
on inheritance.
Article 83.- Annulment
of the decision declaring that a person is dead
1. When a person who has been
declared dead returns or when there is reliable information that such person is
still alive, the Court shall, at the request of such person or of a person with
related rights or interests, issue a decision to annul the decision which
declared that such person was dead.
2. The personal relations of the
person who has been declared dead shall be restored when the Court issues a
decision to annul the decision which declared that such person was dead, except
for the following cases:
a/ Where the wife or the husband
of the person who has been declared dead was permitted by the Court for her or
his divorce in accordance with the provisions of Clause 2, Article 78 of this
Code, the decision permitting the divorce shall remain legally effective;
b/ Where the wife or the husband
of the person who has been declared dead has married another person, such
marriage shall remain legally effective.
3. A person who has been
declared dead but is still alive shall have the right to demand that the
persons who received his/her inheritance to return the property that still
remains.
In cases where the heir of a
person whom the Court has declared dead is aware that such person is still
alive, but deliberately conceals such for the purpose of enjoying the
inheritance, he/she must return the entire property which he/she has received,
including yields and profits; if causing damage, he/she must pay compensation
therefor.
Chapter IV
LEGAL
PERSONS
Section 1. GENERAL PROVISIONS
ON LEGAL PERSONS
Article 84.- Legal
persons
An organization shall be
recognized as a legal person when it meets all the following conditions:
1. Being established lawfully;
2. Having a well-organized
structure;
3. Possessing property
independent from that of individuals and other organizations, and bearing its
own liability with such property;
4. Independently entering into
legal relations in its own name.
Article 85.- Establishment
of legal persons
A legal person may be
established on the initiative of an individual or an organization, or under a
decision of a competent state agency.
Article 86.- The civil
legal capacity of legal persons
1. The civil legal capacity of a
legal person is its capability to have civil rights and obligations consistent
with the purpose of its operation.
2. The civil legal capacity of a
legal person shall arise from the time it is established and shall terminate
from the time it ceases to be a legal person.
3. The representative at law or
the authorized representative of a legal person shall act in the name of the
legal person in civil relations.
Article 87.- The name of
a legal person
1. A legal person must have its
own name in the Vietnamese language, which shall clearly indicate the legal
person's organizational form and distinguish it from other legal persons
operating in the same domain.
2. A legal person must use its
own name in civil transactions.
3. The name of a legal person
shall be recognized and protected by law.
Article 88.- The charter
of a legal person
1. In cases where it is provided
for by law that a legal person must have a charter, the charter of the legal
person must be approved by the founding members or the members' congress; the
charter of the legal person must be recognized by a competent state agency, if
it is so provided for by law.
2. The charter of a legal person
shall have the following principal contents:
a/ Name of the legal person;
b/ Purpose and scope of its operation;
c/ Its head-office;
d/ Its charter capital, if any;
e/ Its organizational structure,
the procedures for nomination, election, appointment, relief from office and
dismissal; duties and powers of the positions in the managing body and other
bodies;
f/ Rights and obligations of the
members;
g/ Procedures for amending and
supplementing the charter;
h/ Conditions for consolidating,
merging, dividing, separating or dissolving the legal person.
3. Amendments and supplements to
the charter of a legal person must be recognized by a competent state agency,
if it is so provided for by law.
Article 89.- The
managing body of a legal person
1. A legal person must have its
managing body.
2. The organization, tasks and
powers of the managing body of a legal person shall be provided for in the
charter of such legal person or in the decision on its establishment.
Article 90.- The
head-office of a legal person
The head-office of a legal
person is the place where its managing body is located.
The contact address of a legal
person shall be the address of its head-office. The legal person may select
another place as its contact address.
Article 91.- The
representative of a legal person
1. The representative of a legal
person may be a representative at law or an authorized representative. The
representative of a legal person must abide by the provisions on
represen-tation in Chapter VII, Part One of this Code.
2. The representative at law of
a legal person shall be provided in the legal person's charter or the decision
on the establishment of the legal person.
Article
92.- Representative offices and branches of legal persons
1. Legal persons may establish
representative offices and/or branches at places other than their head-
offices.
2. Representative offices are
dependent units of legal persons, having the tasks of representing under
authorization the interests of the legal persons and protecting such interests.
3. Branches are dependent units
of legal persons, having the tasks of performing all or part of the functions
of the legal persons, including the function of representation under
authorization.
4. Representative offices and
branches are not legal persons. The heads of representative offices or branches
shall perform tasks under authorization of their legal persons within the
authorization scope and duration.
5. Legal persons shall have
civil rights and obligations arising from civil transactions established and
performed by their representative offices and/or branches.
Article 93.- Civil
liability of legal persons
1. A legal person shall bear
civil liability for the exercise of its civil rights and performance of its
civil obligations established and performed by its representative in the name
of the legal person.
2. A legal person shall bear
civil liability with its own property; shall not bear civil liability for its
members with respect to civil obligations established and performed by such
members not in the name of the legal person.
3. Members of a legal person
shall not bear civil liability for the legal person with respect to civil
obligations estab-lished and performed by the legal person.
Article
94.- Consolidation of legal persons
1. Legal persons of the same
type may consolidate with one another to form a new legal person under the
provisions of the charters, the agreement among such legal persons or under the
decision of a competent state agency.
2. After the consolidation, the
former legal persons shall terminate; the civil rights and obligations of such
legal persons shall be transferred to the new legal person.
Article 95.- Merger of
legal persons
1. A legal person may be merged
(hereinafter referred to as the merged legal person) into another legal person
of the same type (hereinafter referred to as the merging legal person) under
the provisions of the charter, the agreement among such legal persons or under
the decision of a competent state agency.
2. After the merger, the merged
legal person shall terminate; the civil rights and obligations of such legal
person shall be transferred to the merging legal person.
Article 96.- Division of
legal persons
1. A legal person may be divided
into many legal persons under the provisions of its charter or the decision of
a competent state agency.
2. After division, the divided
legal person shall terminate; the civil rights and obligations of such legal
person shall be transferred to the new legal persons.
Article 97.- Separation
of legal persons
1. A legal person may be
separated into many legal persons under the provisions of its charter or the
decision of a competent state agency.
2. After separation, the
separated legal person and the separating legal persons shall perform their
rights and obligations in accordance with the purposes of their respective
operations.
Article 98.- Dissolution
of legal persons
1. A legal person may be
dissolved in the following cases:
a/ Under the provisions of its
charter;
b/ By the decision of a
competent state agency;
c/ Upon the expiration of the
term of operation stated in its charter or in the decision of a competent state
agency.
2. Before being dissolved, a
legal person must fulfill its property obligations.
Article 99.- Termination
of legal persons
1. A legal person shall
terminate in the following cases:
a/ Being consolidated, merged,
divided or dissolved under the provisions of Articles 94, 95, 96 and 98 of this
Code;
b/ Being declared bankrupt under
the provisions of law on bankruptcy.
2. A legal person shall
terminate from the time its name is deleted from the legal person register or
from the time determined in the decision of a competent state agency.
3. When a legal person
terminates, its property shall be settled under the provisions of law.
Section 2. TYPES OF LEGAL
PERSON
Article 100.- Types of
legal person
1. State agencies, units of the
armed forces;
2. Political organizations,
socio-political organizations;
3. Economic organizations;
4. Socio- political and
professional organizations; social organizations, socio-professional
organizations
5. Social funds, charity funds;
6. Other organizations which
meet all the conditions specified in Article 84 of this Code.
Article 101.- Legal
persons being state agencies or armed force units
1. State agencies or armed force
units which have been allocated property by the State for the performance of
state management functions and other functions not for business purposes shall
be legal persons when participating in civil relations.
2. State agencies or armed force
units shall bear civil liability related to the performance of their functions
and tasks with funds allocated from the State budget.
3. In cases where state agencies
or armed force units engage in activities generating revenues in accordance
with the provisions of law, they shall bear civil liability for
revenue-generating activities with the property obtained from such activities.
Article 102.- Legal
persons being political organizations or socio-political organizations
1. Political organizations or
socio-political organizations, which manage, use or dispose of property under
their respective ownership for the purpose of achieving the political or social
objec-tives in accordance with their respective charters, shall be legal
persons when participating in civil relations.
2. The property of a political
organization or socio-political organization cannot be divided to its members.
3. Political organizations or
socio-political organizations shall bear civil liability with their own
property, except those, which, according to the provisions of law, cannot be
used for bearing civil liability.
Article 103.- Legal
persons being economic organizations
1. State enterprises,
co-operatives, limited liability companies, joint-stock companies,
foreign-invested enterprises and other economic organizations which meet all
the conditions stipulated in Article 84 of this Code shall be legal persons.
2. Economic organizations must
have their own charters.
3. Economic organizations shall
bear civil liability with their own property.
Article 104.- Legal
persons being socio-political and professional organizations, social
organizations or socio-professional organizations
1. Socio-political and
professional organizations, social organizations or socio-professional
organizations, which are permitted to be established and have their charters
recognized by competent state agencies, and have members being individuals or
organizations that voluntarily contribute property or membership fees with a
view to serving the purposes of the organizations and the common needs of the
members, shall be legal persons when participating in civil relations.
2. Socio-political and professional
organizations, social organizations or socio-professional organizations shall
bear civil liability with their own property.
3. Where socio-political and
professional organizations, social organizations or socio-professional
organizations terminate their operation, their property must not be divided to
their members but be settled according to the provisions of law.
Article 105.- Legal
persons being social funds or charity funds
1. Social funds or charity
funds, which are permitted to be established and have their charters recognized
by competent state agencies and operate for the purpose of promoting cultural
and/or scientific development, charity and other social and humanitarian
purposes, which do not aim to gain profits, shall be legal persons when
participating in civil relations.
2. The property of the social
funds or charity funds shall be managed, used and disposed of in accordance
with the provisions of law and in conformity with such funds' operation
purposes specified by their respective charters.
3. Social funds and charity
funds shall be permitted to carry out only activities stipulated in their
respective charters recognized by competent state agencies and within the limit
of their property and must bear civil liability with such property.
4. The organization which
estab-lishes a social fund or a charity fund shall not bear civil liability
with the property under its ownership for the activities of the fund and must
not divide up the property of the fund in the course of the fund's operation.
In cases where social funds or
charity funds terminate their operations, their property shall not be divided
to their founding members but must be settled in accordance with the provisions
of law.
Chapter V
FAMILY
HOUSEHOLDS AND COOPERATIVE GROUPS
Section 1. FAMILY HOUSEHOLDS
Article 106.- Family
households
Family households in which
members have common property and jointly contribute their efforts and labor to
their common economic activities in agricultural, forestry or fishery
produc-tion or in a number of other production and/or business domains defined
by law shall be subjects when participating in civil relations in such domains.
Article
107.- Representatives of family households
1. The head of a family
household shall be the representative of the household in civil transactions
for the common interests of the household. The father, mother or another adult
member may be the head of the household.
The head of a family household
may authorize another adult member to represent the household in civil
relations.
2. Civil transactions
established and performed in the common interest of a family household by the
representative of the household shall give rise to the rights and obligations
of the entire family households.
Article 108.- Common
property of family households
The common property of a family
household shall comprise land use rights, the forest and/or planted forest use
rights of the family household, the property contributed or jointly created by
household members or presented as a common gift, or jointly inherited and other
property which the members agree to be the common property of the household.
Article
109.- Possession, use, disposal of the common property of family
households
1. Family household members
shall possess and use the common property of their households by mode of
agreement.
2. The disposal of property
being means of production, common property of great value of family households
must be agreed upon by members aged full fifteen years or older; for other
common property, the disposal thereof must be agreed upon by the majority of
members aged full fifteen years or older.
Article 110.- Civil
liability of family households
1. Family households must bear
civil liability for the exercise of civil rights and the performance of civil obligations,
which are established and performed in the name of the family households by
their respective representatives.
2. Family households shall bear
civil liability with their common property; if the common property is
insufficient to fulfill their respective common obligations, their members must
bear joint liability with their own property.
Section 2. COOPERATIVE GROUPS
Article
111.- Cooperative groups
1. Cooperative groups, which are
formed on the basis of cooperation contracts certified by commune/ward/township
People's Committees and which are entered into by three or more individuals who
jointly contribute property and labor in order to perform certain tasks and to
jointly enjoy benefits and jointly bear liabilities, shall be subjects in civil
relations.
Cooperative groups, which meet
all the conditions to become legal persons in accordance with the provisions of
law, shall register their activities in the capacity of legal persons at
competent state agencies.
2. A cooperation contract shall
have the following principal contents:
a/ The purpose and term of the
cooperation contract;
b/ The full names and places of
residence of the head and other members of the group;
c/ The levels of property
contribution, if any; the mode of distributing the yields and profits among the
group members;
d/ The rights, obligations and
responsibilities of the head and the members of the group;
e/ The conditions for accepting
new group members or leaving the cooperative group;
f/ The conditions for
terminating the cooperative group;
g/ Other agreements.
Article 112.- Members of
cooperative groups
Cooperative group members shall
be individuals who are full eighteen years or older and have full civil act
capacity.
Cooperative groups shall have
the right to enter into labor contracts with persons who are not their members
to perform certain tasks.
Article
113.- Representatives of cooperative groups
1. The representatives of
cooperative groups in civil transactions shall be their heads appointed by the
group members.
The heads of cooperative groups
may authorize group members to perform certain tasks necessary for the groups.
2. Civil transactions
established and performed by the representatives of cooperative groups for the
purpose of the groups' operations under decisions of a majority of the group
members shall give rise to the rights and obligations of the entire cooperative
groups.
Article 114.- Property
of cooperative groups
1. The property contributed or
jointly created by group members and the property donated to the whole groups
shall be the common property of such cooperative groups.
2. The group members shall
manage and use the property of the cooperative groups in accordance with the
agreed mode.
3. The disposal of property
being the means of production of the cooperative groups must be consented by
all the group members; for other common property, the consent of a majority of
the group members is required.
Article
115.- Obligations of group members
Group members shall have the
following obligations:
1. To implement cooperation on
the principles of equality, mutual benefit, mutual assistance and assurance of
the common interests of the cooperative group;
2. To compensate for damage
caused to their cooperative group as a result of their own fault.
Article 116.- Rights of group
members
Group members shall have the
following rights:
1. To enjoy yields and profits
gained from the operations of their cooperative group as agreed upon;
2. To participate in deciding on
matters relevant to the operations of their cooperative group and in inspecting
the operations of the cooperative group.
Article 117.- Civil
liability of cooperative groups
1. Cooperative groups must bear
civil liability for the performance of civil rights and obligations established
and performed by their representatives in the name of the cooperative groups.
2. Cooperative groups shall bear
civil liability with their common property; if the common property is
insufficient to perform their common obligations, their group members must
jointly bear civil liability with their own property proportional to their
respective contributions.
Article 118.- Acceptance
of new group members
Cooperative groups may accept
new group members, if so consented by a majority of the group members, unless
otherwise agreed upon.
Article 119.- Leaving
cooperative groups
1. Group members shall have the
right to leave their cooperative groups under the agreed conditions.
2. Group members leaving their
cooperative groups shall have the right to request the return of the property
which they have contributed to the cooperative groups and to be distributed
their share of the property in the common property and must discharge their
obligations towards the cooperative groups as agreed upon; if the distribution
of property in kind affects the continuation of the groups' operation, the
property shall be valued in money for distribution.
Article
120.- Termination of cooperative groups
1. A cooperative group shall
terminate in the following cases:
a/ Upon the expiry of the term
stated in the cooperation contract;
b/ The purpose of the
cooperation has been achieved;
c/ The group members agree to
terminate the cooperative group.
In case of termination,
cooperative groups must report thereon to the commune/ward/township People's
Committees which authenticated the cooperation contracts.
2. Cooperative groups shall
terminate under decisions of competent state agencies in cases specified by
law.
3. Upon their termination,
cooperative groups must settle their debts; if the common property is
insufficient to repay the debts, the group members' own property must be used
for the settlement in accordance with the provisions of Article 117 of this
Code.
In cases where all debts have
been repaid and the group is still left with common property, such property
shall be divided to the group members in proportion to each person's
contribution, unless otherwise agreed upon.
Chapter VI
CIVIL
TRANSACTIONS
Article 121.- Civil
transactions
A civil transaction is a
contract or unilateral legal act which gives rise to, changes or terminates
civil rights and/or obligations.
Article 122.- Conditions
for civil transactions to become effective
1. A civil transaction shall be
effective when it meets all the following conditions:
a/ The persons participating in
the transaction have the civil act capacity;
b/ The purpose and contents of
the transaction do not violate prohibitory provisions of law and are not
contrary to social ethics;
c/ The persons participating in
the civil transaction act completely voluntarily;
2. The forms of civil transactions
shall be the conditions for such transactions to be effective in cases where it
is so provided for by law.
Article 123.- Objectives
of civil transactions
The objectives of civil
transactions are legitimate interests which the parties wish to obtain when
establishing such transactions.
Article 124.- Forms of
civil transactions
1. A civil transaction shall be
expressed verbally, in writing, or through specific acts.
Civil transactions through
electronic means in form of data messages shall be considered transactions in
writing.
2. In cases where it is provided
for by law that a civil transaction must be expressed in writing, notarized,
authenticated, registered or permitted, such provisions must be complied with.
Article
125.- Conditional civil transactions
1. In cases where the parties
have agreed on the conditions which shall give rise to or cancel a civil
transaction, the civil transaction shall arise or be cancelled upon the
occurrence of such conditions.
2. In cases where the conditions
which give rise to or cancel a civil transaction cannot occur due to the act of
intentional hindrance of one party or a third person, such conditions shall be
considered having occurred; if one party or a third person exerts impacts to
deliberately promote the occurrence of conditions so as to give rise to or
cancel the civil transaction, such conditions shall be considered having not
occurred.
Article
126.- Interpretation of civil transactions
1. In cases where a civil
transaction may be understood in different ways, such transaction must be
interpreted in the following order:
a/ According to the true
aspirations of the parties when the transaction is established;
b/ According to the meaning
consistent with the objective of the transaction;
c/ According to the practices of
the locality where the transaction is established.
2. The interpretation of civil
contracts shall comply with the provisions of Article 409 of this Code and the
interpretation of the contents of testaments shall comply with the provisions
of Article 673 of this Code.
Article 127.- Invalid
civil transactions
Civil transactions which fail to
satisfy one of the conditions specified in Article 122 of this Code shall be
invalid.
Article 128.- Civil
transactions which are invalid due to violation of prohibitory provisions of
law or contravention of social ethics
Civil transactions with purposes
and contents violating prohibitory provisions of law or contravening social
ethics shall be invalid.
Prohibitory provisions of law
mean the provisions of law which do not permit subjects to perform certain
acts.
Social ethics are common
standards of conduct among people in social life, which are recognized and
respected by the community.
Article 129.- Civil
transactions invalid due to falsity
When the parties falsely establish
a civil transaction in order to conceal another transaction, the false
transaction shall be invalid and the concealed transaction remains valid,
except in cases where it is also invalid under the provisions of this Code;
In cases where a false transaction
is established with a view to shirking the responsibility toward a third
person, such transaction shall also be invalid.
Article 130.- Civil
transactions invalid due to establishment or performance by minors or persons
having lost their civil act capacity or having had their civil act capacity
restricted
When a civil transaction is
established or performed by a minor or by a person who has lost his/her civil
act capacity or whose civil act capacity is restricted, the Court shall, at the
request of the representative of that person, declare such transaction invalid,
if it is provided for by law that such transaction must be established and
performed by the representative of that person.
Article 131.- Civil
transactions invalid due to mistakes
When a party has established a
transaction due to its misunderstanding of the contents of the transaction due
to unintentional mistakes made by the other party, it shall have the right to
request the other party to change the contents of such transaction; if the
other party does not accept such request, the mistaken party shall have the
right to request the Court to declare the transaction invalid.
The cases where a party has
intentionally made mistakes, thus making the other party misunderstand the
contents of the transaction shall be settled in accordance with the provisions
of Article 132 of this Code.
Article 132.- Civil
transactions invalid due to deception or intimidation
When a party participates in a
civil transaction due to being deceived or intimidated, it shall have the right
to request the Court to declare such civil transaction invalid.
Deception in a civil transaction
means an intentional act of a party or a third person, aiming to induce the
other party to misunderstand the subject, the nature of the object or the
content of the civil transaction and thus to agree to enter into such
transaction.
Intimidation in a civil
transaction means an intentional act of a party or a third person, thus
compelling the other party to perform the civil transaction in order to avoid
damage to the life, health, honor, reputation, dignity and/or property of
his/her own or of his/her father, mother, wife, husband or children.
Article 133.- Civil
transactions invalid due to establishment by persons incapable of being aware
of and controlling their acts
A person who has the civil act
capacity but established a civil transaction at a time he/she was incapable of
being aware of and controlling his/her acts shall have the right to request the
Court to declare such civil transaction invalid.
Article 134.- Civil
transactions invalid due to non-compliance with the prescribed forms
In cases where it is provided
for by law that the forms of civil transactions are conditions for civil
transactions to be valid but the parties fail to comply therewith, the Court or
another competent state agency shall, at the request of one or all of the
parties, compel the parties to comply with the provisions on forms of
transactions within a given period of time; past that time limit, if they still
fail to comply with such provisions, the transactions shall be invalid.
Article 135.- Partially
invalid civil transactions
A civil transaction shall be
partially invalid when one part of the transaction is invalid, provided that
such part does not affect the validity of the remaining parts of the
transaction.
Article 136.- The
statute of limitations for requesting the Court to declare a civil transaction
invalid
1. The statute of limitations
for requesting the Court to declare a civil transaction invalid as specified in
Articles 130 thru 134 of this Code shall be two years, counting from the date
the civil transaction is established.
2. For civil transactions
specified in Articles 128 and 129 of this Code, the statute of limitations for
requesting the Court to declare such civil transactions invalid shall not be
restricted.
Article 137.- Legal
consequences of invalid civil transactions
1. Invalid civil transactions
shall not give rise to, change or terminate any civil rights and obligations of
the parties from the time of establishment thereof.
2. When a civil transaction is
invalid, the parties shall be restored to the original status and shall return
to each other what they have received; if the return cannot be made in kind, it
shall be made in money, except for cases where the transacted property, gained
yields and/or profits are confiscated under the provisions of law. The party at
fault, which caused damage, must compensate therefore.
Article 138.- Protection
of the interests of a bona fide third party when a civil transaction is invalid
1. In cases where a civil
transaction is invalid but the transacted property being a moveable not subject
to ownership registration has already been transferred to a bona fide third
party through another transaction, the transaction with the third party shall
still be valid, except for the case specified in Article 257 of this Code.
2. In cases where the transacted
property being an immoveable or a moveable subject to ownership registration
has already been transferred to a bona fide third party through another
transaction, the transaction with the third party shall be invalid, except for
cases the bona fide third party receives such property through auction or
transaction with a person who, under court judgment or decision of a competent
state agency, was the owner of the property, but later is not the owner of the
property as the court judgment or decision is cancelled or modified.
Chapter VII
REPRESENTATION
Article
139.- Representation
1. Representation is the act of
a person (hereinafter referred to as the representative) to establish and
perform a civil transaction in the name and interests of another person
(hereinafter referred to as the represented person) within the scope of
representation.
2. Individuals, legal persons or
other subjects may establish and/or perform civil transactions through their
representatives. Individuals must not allow other persons to represent them, if
the law provides that they must establish and perform the transactions
themselves.
3. Representation relations
shall be established under law or under authorization.
4. The represented persons shall
have rights and obligations arising from the civil transactions established by
their representatives.
5. The representatives must have
full civil act capacity, except for the cases specified in Clause 2, Article
143 of this Code.
Article
140.- Representation at law
Representation at law is the
representation provided for by law or decided by a competent state agency.
Article
141.- Representatives at law
Representatives at law shall
include:
1. Fathers and/or mothers with
respect to children who are minors;
2. Guardians with respect to
wards;
3. Persons appointed by the
Court with respect to persons with a restricted capacity for civil acts;
4. Heads of legal persons as
prescribed by the charters of the legal persons or decided by competent state
agencies;
5. Heads of family households
with respect to family households;
6. Heads of cooperative groups
with respect to cooperative groups;
7. Other persons as specified by
law.
Article
142.- Representation under authorization
1. Representation under
authorization is the representation established under an authorization between
the representative and the represented person.
2. Forms of authorization shall
be agreed upon by the parties, except for cases where it is provided for by law
that authorization must be made in writing.
Article
143.- Representatives under authorization
1. Individuals, representatives
at law of legal persons may authorize other persons to establish and/or perform
civil transactions.
2. Persons aged between full
fifteen years and under eighteen years may be representatives under
authorization, except for cases where it is provided for by law that civil
transactions must be established and/or performed by persons aged full eighteen
years or more.
Article 144.- Scope of
representation
1. Representatives at law shall
have the right to establish and perform all civil transactions in the interests
of the represented persons, unless otherwise provided for by law.
2. The scope of representation
under authorization shall be established in accordance with the authorization.
3. Representatives may only
perform civil transactions within the scope of representation.
4. Representatives must inform
the third party in civil transactions of the scope of their representation.
5. Representatives must not
establish and/or perform civil transactions with themselves or with the third
party whom they also represent, unless otherwise provided for by law.
Article 145.- Consequences
of civil transactions established and/or performed by persons without the
authority of representation
1. Civil transactions
established and/or performed by persons without the authority of representation
shall not give rise to rights and obligations of the represented persons,
except in cases where the representatives or the represented persons give
consent thereto. The persons who effected transactions with the persons having
no authority of representation must notify such to the represented persons or
their representatives in order to get their replies within the prescribed time
limit; upon the expiry of such time limit, if no reply is given, such
transactions shall not give rise to rights and/or obligations for the
represented persons, but the persons having no authority of representation must
still fulfill the obligations towards the persons with whom they have effected
the transactions, except in cases where such persons knew or should have known
about the unauthorized representation.
2. Persons who effected
transactions with persons having no authority of representation shall be
entitled to unilaterally terminate the performance of, or annul, the
established civil transactions and to demand compensation for damage, except in
cases where such persons knew or should have known about the unauthorized
representation and still effected the transactions.
Article
146.- Consequences of civil transactions established and/or performed
ultra vires by representatives
1. Civil transactions
established and/or performed ultra vires by representatives shall not give rise
to rights and/or obligations of the represented persons for the portions of
transactions performed ultra vires, except in cases where the represented
persons give consent thereto or know but do not oppose it; if consent is not
given, the representatives shall have to fulfill the obligations towards the
persons with whom they have effected the transactions for the portions of the
civil transaction beyond the scope of their representation.
2. Persons who have effected
transactions with such representatives shall have the right to unilaterally
terminate the performance of, or annul, the portions of civil transaction
performed ultra vires or the entire civil transactions and shall have the right
to demand compensation for damage, except in cases where such persons knew or
should have known that the authority of representation was usurped, and still
effected the transactions.
3. In cases where the
representatives and the persons involved in the transactions with the
representatives intentionally establish and/or perform civil transactions ultra
vires, thereby causing damage to the represented persons, the representatives
and such persons shall be jointly liable for compensation.
Article 147.- Termination
of representation of individuals
1. The representation at law of
an individual shall terminate in the following cases:
a/ The represented person has
attained adulthood or has had his/her civil act capacity restored;
b/ The represented person dies;
c/ Other cases specified by law.
2. The representation under
authorization of individuals shall terminate in the following cases:
a/ The authorization time limit
has expired or the authorized work has been completed;
b/ The authorizing persons
revoke the authorization, or the authorized persons refuse the authorization;
c/ The authorizing persons or
the authorized persons die, have been declared by the Court as having lost
their civil act capacity, having their civil act capacity restricted, having
been missing or dead.
Upon the termination of the
authorized representation, the representatives must fulfill the property
obligations towards the represented persons or the heirs of the represented
persons.
Article
148.- Termination of representation of legal persons
1. The representation at law of
legal persons shall terminate when such legal persons cease to exist.
2. The representation under
authorization of legal persons shall terminate in the following cases:
a/ The authorization time limit
has expired or the authorized work has been completed;
b/ The representatives at law of
the legal persons revoke the authorization or the authorized persons refuse the
authorization;
c/ The legal persons cease to
exist or the authorized persons die, have been declared by the Court as having
lost their civil act capacity, having their civil act capacity restricted,
having been missing or dead.
Upon the termination of
representation under authorization, the representatives must fulfill the
property obligations towards the authorizing legal persons or inheriting legal
persons.
Chapter VIII
TIME
LIMITS
Article 149.- Time limit
1. A time limit is a period of
time determined from one point of time to another point of time.
2. A time limit may be
determined by the minute, hour, day, week, month, year or by an event which may
occur.
Article
150.- Application of the method of calculating a time limit
1. The method of calculating a
time limit shall comply with the provisions of this Code, unless otherwise
agreed upon or provided for by law.
2. Time limits shall be
calculated according to the solar calendar.
Article 151.- Provisions
on time limits and the point of time for calculating a time limit
1. In cases where the parties
have agreed that the time limit shall be one year, half a year, a month, half a
month, a week, a day, an hour or a minute and where the lengths of time do not
take place consecutively, such time limit shall be calculated as follows:
a/ One year means 365 days;
b/ Half a year means six months;
c/ One month means 30 days;
d/ Half a month means 15 days;
e/ One week means 7 days;
f/ One day means 24 hours;
g/ One hour means 60 minutes;
h) One minute means 60 seconds.
2. In cases where the parties
have agreed on the point of time to be at the beginning of a month, the middle
of a month, or the end of a month, such point of time shall be defined as
follows:
a/ The beginning of a month is
the first day of the month;
b/ The middle of a month is the
15th day of the month;
c/ The end of a month is the
last day of the month.
3. In cases where the parties
have agreed on the point of time to be at the beginning of a year, the middle
of a year, or the end of a year, such point of time shall be defined as
follows:
a/ The beginning of a year is
the first day of January;
b/ The middle of a year is the
last day of June;
c/ The end of a year is the last
day of December.
Article 152.- The point
of time at which a time limit commences
1. When a time limit is
determined by the minute or hour, such time limit shall begin from the
pre-determined point of time.
2. When a time limit is
determined by the day, week, month or year, the time limit must not be counted
from the first day but shall be counted from the day following the determined
date.
3. When a time limit begins from
the occurrence of an event, the day on which the event occurs shall not be
counted, and the time limit shall be counted from the day following the date of
occurrence of the event.
Article 153.- The end of
a time limit
1. When a time limit is
calculated by the day, the time limit shall end at the moment which ends the
last day of the time limit.
2. When a time limit is
calculated by the week, the time limit shall end at the moment which ends the
corresponding day of the last week of the time limit.
3. When a time limit is
calculated by the month, the time limit shall end at the point of time which
ends the corresponding day of the last month of the time limit; if the month in
which the time limit ends does not have a corresponding day, the time limit
shall end on the last day of such month.
4. When a time limit is
calculated by the year, the time limit shall end at the moment which ends the
corresponding day and month of the last year of the time limit.
5. When the last day of a time
limit falls on a weekend or a public holiday, the time limit shall end at the
moment which ends the working day following such holiday.
6. The point of time which ends
the last day of a time limit shall be at exactly twelve o’clock at night on
that day.
Chapter IX
STATUTE
OF LIMITATIONS
Article 154.- Statute of
limitations
A statute of limitations is a
time limit specified by law upon the expiration of which a subject may enjoy
civil rights, be released from civil obligations or lose the right to initiate
a civil lawsuit or the right to request the settlement of civil matters.
Article 155.- Types
of statute of limitations
1. The statute of limitations
for enjoying civil rights is the time limit upon the expiration of which the
subject shall enjoy civil rights.
2. The statute of limitations
for release from civil obligations is the time limit upon the expiration of
which the person with the civil obligations shall be released from performing
such obligations.
3. The statute of limitations
for initiating a lawsuit is the time limit within which a subject shall have
the right to initiate a lawsuit in order to request a Court to settle a civil
case for the protection of legitimate rights and interests which are infringed
upon; after such time limit expires, the right to initiate a lawsuit shall be
lost.
4. The statute of limitations
for requesting a civil matter is the time limit within which a subject shall
have the right to request a Court to settle a civil matter for the protection
of legitimate rights and interests of individuals, agencies or organizations, public
interests, or the State's interests; after such time limit expires, the
requesting right shall be lost.
Article 156.- Method of
calculating a statute of limitations
A statute of limitations shall
be calculated from the point of time which begins the first day of the statute
of limitations and shall end at the point of time which ends the last day of
the statute of limitations.
Article
157.- Effectiveness of the statute of limitations for enjoyment of civil
rights and for release from civil obligations
1. Where it is provided for by
law that a subject may enjoy civil rights or be released from civil obligations
under the statute of limitations, such enjoyment of civil rights or release
from civil obligations shall take effect only after the statute of limitations
ends.
2. The statute of limitations
for enjoyment of civil rights shall not be applicable in the following cases:
a/ The possession of property
under state ownership without legal bases;
b/ The enjoyment of personal
rights which are not associated with property.
3. The statute of limitations
for release from civil obligations shall not be applicable to the performance
of civil obligations towards the State, unless otherwise provided for by law.
Article 158.- Continuity
of the statute of limitations for enjoyment of civil rights or for release from
civil obligations
1. The statute of limitations
for enjoyment of civil rights or for release from civil obligations shall be
continuous from its beginning to its expiration; if there is an event which
causes an interruption, the statute of limitations must be
re-calculated ab initio, after the event which caused the
interruption terminates.
2. The statute of limitations
for enjoyment of civil rights or for release from civil obligations shall be
interrupted upon the occurrence of one of the following events:
a/ There is a resolution from a
competent state agency with respect to the civil rights or obligations to which
the statute of limitations currently applies;
b/ The civil rights or
obligations to which the statute of limitations currently applies are disputed
by a person with related rights or obligations.
3. The statute of limitations
shall run continuously in cases where the enjoy-ment of civil rights or the
release from civil obligations is legally transferred to another person.
Article
159.- Commencement of the statute of limitations for initiating a civil
case, the statute of limitations for requesting the settlement of a civil
matter
1. The statute of limitations
for initiating a civil case shall be counted from the date the legitimate
rights and/or interests are infringed upon, unless otherwise provided for by
law.
2. The statute of limitations
for requesting the settlement of a civil matter shall be counted from the date
on which the requesting right arises, unless otherwise provided for by law.
Article
160.- Non-application of the statute of limitations for initiating civil
cases
The statute of limitations for
initiating civil cases shall not apply in the following cases:
1. Requesting to restitute property
under the state ownership;
2. Requesting to protect
personal rights which are infringed upon, unless otherwise provided for by law;
3. Other cases specified by law.
Article 161.- A period
of time not calculated into the statute of limita-tions for initiating civil
cases, the statute of limitations for requesting the settlement of civil
matters
A period of time which shall not
be calculated into the statute of limitations for initiating a civil case or
the statute of limitation for requesting the settlement of a civil matter is a
period of time within which one of the following events occurs:
1. A force majeure or
an objective hindrance, which renders a subject with the right to initiate a
lawsuit or to request unable to exercise this right within the statute of
limitations.
A force majeure means
an event which occurs objectively and unpredictably and cannot be overcome
though all necessary measures have been applied and all the permitted
capabilities have been used.
Objective hindrances means
obstacles created under the impacts of objective circumstances, which render
the persons with related civil rights or civil obligations unable to know that
their legitimate rights and/or interests have been infringed upon or unable to
exercise their civil rights or perform their civil obligations.
2. The unavailability of a
representative in cases where the person with the right to initiate a lawsuit
or the person with the right to request has not yet attained adulthood, lost
his/her civil act capacity or has his/her civil act capacity restricted.
3. The unavailability of a new
representative for replacement, or discontinuity of representation for
plausible reasons in cases where the representative of a minor or of a person
who has lost his/her civil act capacity or has his/her civil act capacity
restricted dies.
Article
162.- Re-commencement of the statute of limitations for initiating civil
cases
1. The statute of limitations
for initiating a civil case shall re-commence in the following cases:
a/ The obligor has acknowledged
a part or all of his/her/its obligations towards the person initiating the
lawsuit;
b/ The obligor has fulfilled a
portion of his/her/its obligations towards the person initiating the lawsuit;
c/ The parties have reconciled
with each other.
2. The statute of limitations
for initiating a civil case shall re-commence from the date following the date
upon which an event specified in Clause 1 of this Article occurs.
PART TWO
PROPERTY
AND OWNERSHIP RIGHTS
Chapter X
GENERAL
PROVISIONS
Article 163.- Property
Property comprises tangible
things, money, valuable papers and property rights.
Article 164.- Ownership
rights
Ownership rights comprise an
owner’s rights to possession, to use and to disposition of his/her property in
accordance with the provisions of law.
Owners are individuals, legal
persons or other subjects, having all three rights which are the right to
possession, the right to use and the right to disposition of their property.
Article 165.- The
principle for exercising ownership rights
Owners may perform all acts on
their own will with respect to their property without causing damage to or
affecting State interests, public interests or legitimate rights and interests
of other persons.
Article 166.- Bearing of
risks with respect to property
Owners must bear risks when
their property is destroyed or damaged due
to force majeure events, unless otherwise agreed upon or
otherwise provided for by law.
Article
167.- Registration of property ownership rights
Ownership rights to immoveables
shall be registered in accordance with the provisions of this Code and the law
on registration of immoveables. Ownership rights to moveables must not be
registered, unless otherwise provided for by law.
Article 168.- Time of
transferring property ownership rights
1. The transfer of ownership
rights to immoveables shall take effect from the time of registering the
ownership rights, unless otherwise provided for by law.
2. The transfer of ownership
rights to moveables shall take effect from the time the moveables are transferred,
unless otherwise provided for by law.
Article 169.- Protection
of ownership rights
1. Ownership rights of
individuals, legal persons or other subjects shall be recognized and protected
by law.
2. No one may be illegally
restricted in or deprived of his/her ownership rights to his/her property.
Owners shall have the right to
protect their ownership rights by themselves, to prevent any person from
infringing upon their ownership rights, to search for and reclaim the property
which has been possessed, used or disposed of by other persons without legal
bases.
3. In case of extreme necessity
for reasons of national defense, security or national interests, the State
shall effect a compulsory purchase or requisition with compensation of the
property of individuals, legal persons or other subjects in accordance with the
provisions of law.
Article 170.- Bases for
establishing ownership rights
Ownership rights to property
shall be established in the following cases:
1. Through labor or lawful
production and business activities;
2. Ownership rights are
transferred under an agreement or a decision of a competent state agency;
3. Yields and profits gained;
4. A new thing created from
merger, mixture or processing;
5. Inheritance of property;
6. Possession under the
conditions specified by law of ownerless things, things which have been let
drop on the ground or have been left over out of inadvertence or buried, stray
domestic animals or poultry, or raised aquatic animals which naturally move in;
7. Possession of a property
without a legal basis but in good faith, continuously and openly in accordance
with the statute of limitations specified in Clause 1, Article 247 of this
Code;
8. Other cases specified by law.
Article 171.- Bases for
termination of ownership rights
Ownership rights shall terminate
in the following cases:
1. The owner transfers his/her
ownership rights to another person;
2. The owner renounces his/her
ownership rights;
3. The property is destroyed;
4. The property is disposed of
for the discharge of the owner's obligations;
5. The property is compulsorily
purchased;
6. The property is confiscated;
7. Where other persons have
established their ownership rights under the conditions specified by law of
things which have been let drop on the ground or have been left over out of
inadvertence; stray domestic animals or poultry or raised aquatic animals which
naturally move in; the property over which other persons have established their
ownership rights in accordance with the provisions of Clause 1, Article 247 of
this Code;
8. Other cases specified by law.
Article 172.- Forms of
ownership
On the basis of the regime of
ownership by the entire people, collective ownership and private ownership, the
forms of ownership shall include state ownership, collective ownership, private
ownership, common ownership, ownership by political organizations or
socio-political organizations, and ownership by socio-political-professional
organizations, social organizations or socio-professional organizations.
Article 173.- Rights of
non-owners of property
1. Non-owners of property shall
only have the right to possess, use and dispose of the property which is not
under their ownership when it is so agreed upon by the owners of such property
or provided for by law.
2. The rights of non-owners of
property shall include:
a/ Land use rights;
b/ The right to the restricted
use of adjacent real estates;
c/ Other rights as agreed upon
or provided for by law.
3. The transfer of property
ownership rights by owners to other persons does not constitute a basis for
termination of the property non-owners' rights specified in Clause 2 of this
Article.
4. The property non-owners'
rights shall be protected under the provisions of Article 261 of this Code.
5. The property non-owners'
rights which must be registered shall include land use rights, the right to
restricted use of adjacent real estates under agreement and other rights
specified by law.
Chapter XI
TYPES
OF PROPERTY
Article 174.- Immovables
and movables
1. Immovables shall include:
a/ Land;
b/ Houses and constructions
annexed to the land, including properties attached to such houses and
constructions;
c/ Other properties annexed to
the land;
d/ Other properties specified by
law.
2. Movables are properties other
than immovables.
Article 175.- Yields and
profits
1. Yields are natural products
which property generates.
2. Profits are incomes derived
from the exploitation of property.
Article 176.- Primary
objects and auxiliary objects
1. A primary object is an
independent object of which the utility can be exploited according to its
functions.
2. An auxiliary object is an
object, which directly serves the exploitation of the utility of a primary
object, is a part of the primary object but can be separated from the primary
object.
When performing an obligation to
transfer a primary object, the auxiliary object must also be transfered, unless
otherwise agreed upon.
Article 177.- Divisible
objects and indivisible objects
1. A divisible object is an
object which still retains its original properties and functions when it is
divided.
2. An indivisible object is an
object which cannot retain its original properties and functions when it is
divided.
When an indivisible object needs
to be divided, such object must be valued in money for the division.
Article 178.- Expendable
objects and non-expendable objects
1. An expendable object is an
object which, after having been used once, loses or no longer retains its
original properties, shape and functions.
An expendable object cannot be
the object of a lease contract or a lending contract.
2. A non-expendable object is an
object which still essentially retains its original properties, shape and
functions after it has been used many times.
Article 179.- Fungible
objects and distinctive objects
1. Fungible objects are objects
which have the same shape, properties and functions and which can be determined
by units of measurement.
Fungible objects of the same
quality may be interchangeable.
2. A distinctive object is an
object which is distinguishable from other objects by its own characteristics
regarding symbol, shape, color, material, properties or position.
When performing an obligation to
transfer a distinctive object, none other than such object must be transferred.
Article
180.- Integrative objects
An integrative object is an
object comprising components or parts which fit together and are connected with
each other to form a complete whole in which if any component or part is
missing, or if the components or parts are not of the right specifications or
the same category, it cannot be used or its utility value will be decreased.
When performing the obligation
of transfering an integrative object, all the components or parts of the object
must be transferred, unless otherwise agreed upon.
Article 181.- Property rights
A property right is a right
which can be valued in money and may be transferred in civil transactions,
including intellectual property rights.
Chapter XII
CONTENTS
OF OWNERSHIP RIGHTS
Section 1. THE RIGHT TO
POSSESSION
Article 182.- The right to
possession
The right to possession is the
right to keep and manage the property.
Article 183.- Possession
with a legal basis
Possession with a legal basis is
the possession of a property in the following cases:
1. The owner possesses the
property;
2. A person is authorized by the
owner to manage the property;
3. A person to whom the right to
possession has been transferred through a civil transaction in accordance with
the provisions of law;
4. A person who discovers and
keeps derelict property, property with unidentified owners, property which has
been let drop on the ground, left over out of inadvertence, buried or sunken in
accordance with the conditions specified by law;
5. A person who discovers and
keeps stray domestic animals, poultry or raised aquatic animals in accordance
with the conditions specified by law;
6. Other cases specified by law.
Article 184.- Owner's
right to possession
In cases where an owner
possesses property under his/her ownership, he/she may conduct all acts on
his/her own will to keep and manage the property, provided that such acts are
not contrary to law or social ethics.
An owner's possession shall not
be restricted or interrupted in terms of time, except in cases where he/she
transfers the possession to another person or otherwise provided for by law.
Article 185.- The right
to posse-ssion of a person who is authorized by the owner to manage the
property
1. When an owner authorizes
another person to manage his/her property, the authorized person shall exercise
the right to possession of such property within the scope and in accordance
with the method and time limit specified by the owner.
2. The person authorized to
manage a property cannot become owner of the transferred property by virtue of
the statute of limitations specified in Clause 1, Article 247 of this Code.
Article 186.- The right
to posse-ssion of a person to whom a property is handed over through a civil
transaction
1. When an owner hands over a
property to another person through a civil transaction which does not include
the transfer of ownership rights, the person to whom the property is handed
over must possess such property according to the purpose and contents of the
transaction.
2. The person to whom the
property is handed over shall have the right to use such property and to
transfer the right to possession and use of the property to another person if
the owner so agrees.
3. The person to whom the
property is handed over cannot become owner of the transferred property by
virtue of the statute of limitations specified in Clause 1, Article 247 of this
Code.
Article 187.- The right
to possession of property which has been let drop on the ground, left over out
of inadvertence, buried or sunken, and property the owners of which are
unidentifiable
1. A person who discovers a
property which has been let drop on the ground, left over out of inadvertence,
buried or sunken must immediately notify or return it to the owner; if the
owner is unknown, such person must notify or hand over the property to the
People's Committee of the commune, ward or township or the nearest police
station or another competent state agency in accordance with the provisions of
law.
A person who discovers a
property the owner of which cannot be identified, or a property which has been
let drop on the ground, left over out of inadvertence, buried or sunken shall
be entitled to possess such property from the time of discovery to the time the
property is returned to its owner or handed over to a competent state agency.
2. With respect to a property
which has been dispersed by another person in order to hide an act of violation
of law or to evade the performance of a civil obligation, the person who
discovers it must forthwith notify or hand over the property to a competent
state agency defined in Clause 1 of this Article.
Article 188.- The right to
possession of stray domestic animals, poultry, raised aquatic animals
Persons who discover and keep
stray domestic animals, poultry or raised aquatic animals must immediately
notify or return them to their owners; if the owners cannot be identified, they
are entitled to possess such property from the time of discovery to the time of
returning them to their owners.
Article 189.- Possession
without legal bases but in good faith
A possession of property which
does not comply with the provisions of Article 183 of this Code is a possession
without a legal basis.
A person who possesses a
property without a legal basis but in good faith means a possessor who does not
know or could not have known that the possession of such property is without a
legal basis.
Article 190.- Continuous
possession
The possession of property which
takes place within a period of time without dispute over such property means a
continuous possession, even when this property is transferred to another person
for possession.
Article 191.- Overt
possession
A possession is regarded as
overt when it is performed in an explicit manner, without concealment; the
property being currently possessed is used in accordance with its functions and
utility and is preserved and kept by the possessor as if it were his/her own
property.
Section 2. THE RIGHT TO USE
Article 192.- The right
to use
The right to use means the right
to exploit the utility of, and to enjoy the yields and profits from, the
property.
Article 193.- Owner's
right to use
In cases where the owner
directly exercises the right to use a property under his/her ownership, he/she
may exploit the utility of, and enjoy the yields and profits from, the property
in accordance with his/her will, but must not cause damage to, or affect State
interests, public interests or legitimate rights and interests of other
persons.
Article
194.- Non-owner's right to use
1. The right to use a property
may be transferred to another person through a contract or in accordance with
the provisions of law.
A non-owner of a property shall
have the right to use the property in accordance with its functions, utility
and mode.
2. A possessor without a legal
basis but in good faith may also have the right to exploit the utility of, and
enjoy the yields and profits from, the property in accordance with the
provisions of law.
Section 3. THE RIGHT TO
DISPOSITION
Article 195.- The right
to disposition
The right to disposition means
the right to transfer property ownership rights or to renounce such ownership
rights.
Article 196.- Conditions
for disposition
The disposition of property must
be performed by persons having the civil act capacity in accordance with the
provisions of law.
In cases where the order and
procedures for disposition of property are specified by law, such order and
procedures must be complied with.
Article 197.- Owner's
right to disposition
Owners shall have the right to
sell, exchange, donate, lend, bequeath, abandon or dispose of their property in
other forms in accordance with the provisions of law.
Article
198.- Non-owner's right to disposition
Property non-owners shall only
have the right to dispose of property under owners' authorization or under the
provisions of law.
Persons who are authorized by
owners to dispose of the latter's property must effect the disposition in
accordance with the will and interests of the owners.
Article
199.- Restrictions on the right to disposition
1. The right to disposition
shall be restricted only in cases where it is so provided for by law.
2. When the property put up for
sale is a historical or cultural relic, the State shall have the pre-emptive
right to purchase such property.
In cases where legal persons,
individuals or other subjects have the pre-emptive right to purchase with
respect to a certain property in accordance with the provisions of law, the
owners, when selling the property, must reserve such right for those subjects.
Chapter XIII
FORMS
OF OWNERSHIP
Section 1. STATE OWNERSHIP
Article 200.- Property
under state ownership
Property under state ownership
shall include land, natural forests, forests planted with the source of state
budget capital, mountains, rivers, lakes, water sources, underground natural
resources, resources from the sea, continental shelf and airspace, and the
capital and property invested by the State in enterprises and facilities in the
branches and fields of economy, culture, social affairs, science, technique,
foreign affairs, national defense and security, and other properties specified
by law.
Article 201.- Exercise
of owner's rights to property under state ownership
1. The Socialist Republic of
Vietnam State shall exercise owner's rights to property under state ownership.
2. The Government shall perform
the unified management of the property under state ownership and ensure its
efficient and thrifty use for the defined purposes.
Article
202.- Management, use and disposition of property under state ownership
The management, use and
disposi-tion of property under state ownership shall be performed within the
scope and according to the order specified by law.
Article 203.- Exercise
of state ownership rights to property invested in state enterprises
1. When a property under state
ownership is invested in a state enterprise, the State shall exercise owner's
rights over such property in accordance with the provisions of law on
enterprises.
2. State enterprises shall be
entitled to manage and use capital, land, natural resources and other property
invested by the State in accordance with the provisions of law on enterprises
Article 204.- Exercise
of state ownership rights to property allocated to state agencies, armed force
units
1. When the property under state
ownership is assigned to state agencies or armed force units, the State shall
exercise the right to inspect and supervise the management and use of such
properties.
2. State agencies or armed force
units shall have the right to manage and use the State-allocated property for
the defined purposes and in accordance with the provisions of law.
Article 205.- Exercise
of state ownership rights to property assigned to political organizations,
socio-political organizations, socio-political-professional organizations
1. When the property under state
ownership is allocated to political organizations, socio-political organizations
or socio-political-professional organizations, the State shall exercise the
right to inspect and supervise the management and use of such property.
2. Political organizations,
socio-political organizations and socio-political-professional organizations
shall have the rights to manage and use the State-allocated property for the
defined purposes, according to the scope, mode and order provided for by law in
accordance with the functions and tasks specified in their respective charters
Article 206.- Rights of
enterprises, households, cooperative groups and individuals to use and exploit
property under state ownership
In cases where it is so provided
for by law and so permitted by competent state agencies, enterprises,
households, cooperative groups or individuals may use land, exploit aquatic
resources and other natural resources under state ownership and must use,
exploit them efficiently and for the defined purposes, and fulfill their
obligations towards the State in accordance with the provisions of law.
Article 207.- Property
under state ownership which has not been allocated to organizations or
individuals for management
The Government shall organize
and exercise the protection, investigation and survey on, and work out plans to
exploit the property under state ownership which has not been allocated to
organizations or individuals for management.
Section 2. COLLECTIVE
OWNERSHIP
Article 208.- Collective
ownership
Collective ownership means
ownership by cooperatives or other stable economic entities in which
individuals and/or households jointly contribute capital and labor for
production and business cooperation to achieve common goals stated in their
charters and on the principles of voluntariness, equality, democracy and joint
management and mutual benefit.
Article 209.- Property
under collective ownership
Property constituted from the
contributions of members, legitimate income from production and business,
supports from the State or other sources that accord with the provisions of law
shall be property under the ownership of such collectives.
Article
210.- Possession, use and disposition of property under collective
ownership
1. The possession, use and
disposition of property under collective ownership must comply with law, accord
with the charters of the collectives and ensure the stable development of
collective ownership.
2. Property under collective
ownership may be assigned to members for exploitation of the utility thereof by
their labor in production and business activities in order to serve the common
need for production expansion and economic development as well as the interests
and needs of the members.
3. The members of a collective
shall have the pre-emptive right to purchase, lease or package- lease property
under collective ownership.
Section 3. PRIVATE OWNERSHIP
Article 211.- Private
ownership
Private ownership means
ownership of individuals over their lawful property.
Private ownership comprises
personal ownership by individuals, ownership by small business owners and
private capitalist ownership.
Article 212.- Property
under private ownership
1. Legitimate income, savings,
residential houses, means of daily life, means of production, capital, yields
and profits and other lawful properties of an individual constitute property
under private ownership.
Lawful property under private
ownership shall not be limited in quantity and value.
2. An individual cannot be the
owner of a property which cannot, as provided for by law, come under private
ownership.
Article
213.- Possession, use and disposition of property under private ownership
1. Individuals shall have the
right to possession, use and disposition of property under their respective
ownership to meet the needs of daily life, consumption or production and
business and other purposes in accordance with the provisions of law.
2. The possession, use and
disposition of property under private ownership must not cause damage to or
affect State interests, public interests or legitimate rights and interests of
other persons.
Section 4. COMMON OWNERSHIP
Article 214.- Common
ownership
Common ownership means ownership
of property by more than one owner.
Common ownership comprises
common ownership by shares and common ownership by integration.
A property under common
ownership is a common property.
Article
215.- Establishment of common ownership right
A common ownership right is
established under the agreement of the owners, under the provisions of law or
in accordance with practices.
Article 216.- Common
ownership by shares
1. Common ownership by shares
means common ownership in which each owner's share of the ownership right to
the common property is determined.
2. Each of the owners of
property under common ownership by shares shall have his/her rights and
obligations to such property corresponding to his/her share of the ownership
right, unless otherwise agreed upon.
Article 217.- Common
ownership by integration
1. Common ownership by
integration means common ownership in which each owner's share of the ownership
right to the common property is not determined.
Common ownership by integration
comprises divisible common ownership by integration and indivisible common
ownership by integration.
2. Owners of property under
common ownership by integration shall have equal rights and obligations to the
property under common ownership.
Article 218.- Mixed
common ownership
1. Mixed common ownership means
ownership over the property contributed as capital by owners of different
economic sectors for production and/or business to gain profits.
2. Property created from the
sources of contributed capital of owners, lawful profits from production and/or
business activities or from other sources in accordance with the provisions of
law is the property under mixed common ownership.
3. The possession, use and
disposition of property under mixed common ownership must comply with the
provisions of Article 216 of this Code and relevant provisions of law on
capital contribution, organization, production and/or business operation,
management, administration, property liability and profit division.
Article 219.- Common
ownership by husband and wife
1. Common ownership by husband
and wife is common ownership by integration.
2. Husband and wife who jointly
establish and develop the common property through the efforts of each shall
have equal rights in the possession, use and disposition of such property.
3. Husband and wife shall
discuss, agree or authorize each other to the possession, use and disposition
of the common property.
4. The common property of
husband and wife may be divided by their agreement or by a decision of the
Court.
Article 220.- Common
ownership by a community
1. Common ownership by a
community means ownership by a family line, hamlet, village, mountain village,
religious community or other population communities over the property
estab-lished in accordance with practices and the property jointly contributed
and raised by community members or given to the whole community or from other
sources in accordance with the provisions of law for meeting the common legitimate
interests of the entire community.
2. The members of a community
shall jointly manage, use and dispose of the common property for the interests
of the community as agreed upon or according to practices, but not in
contravention of law and social ethics.
3. The common property of a
community is the property under common ownership by integration.
Article 221.- Possession
of common property
Owners of property under common
ownership shall jointly manage the common property according to the principle
of unanimity, unless otherwise agreed upon or provided for by law.
Article 222.- Use of
common property
1. Each owner of property under
common ownership by shares shall have the right to exploit the utility of, and
enjoy the yields and profits from, the common property corresponding to his/her
share in the ownership right, unless otherwise agreed upon or provided for by
law.
2. Owners of property under
common ownership by integration shall have equal rights to exploit the utility
of, and enjoy the yields and profits from, the common property, unless
otherwise agreed upon.
Article
223.- Disposition of common property
1. Each owner of property under
common ownership by shares shall have the right to dispose of his/her own share
in the ownership right as agreed upon or provided for by law.
2. The disposition of property
under common ownership by integration shall be performed in accordance with the
agreement of the co-owners or the provisions of law.
3. In cases where an owner of
property under common ownership sells his/her share in the ownership right, the
other co-owners shall have the pre-emptive right to purchase such share. If
within three months from the date they are notified of the sale and conditions
of the sale, for an immovable property or one month for a movable property none
of the co-owners wants to buy it, then such owner shall have the right to sell
his/her share to other persons.
In cases where the sale of
ownership right shares violates the pre-emptive right to purchase, any of the
co-owners of the property under common ownership by shares shall, within three
months from the date of detecting the violation of the pre-emptive right to
purchase, have the right to request the Court to transfer to him/her the rights
and obligations of the purchaser; the party at fault in causing damage must pay
compensation therefor.
4. In cases where one of the
co-owners renounces his/her share in the ownership right or where such person
dies without any heir(s), such share of the ownership right shall belong to the
State, except for the case of common ownership by community where such share
shall come under common ownership of the remaining co-owners.
Article 224.- Division
of property under common ownership
1. In case of divisible common
ownership, each co-owner shall have the right to request a division of the
common property; if the co-owners have agreed not to divide the common property
within a certain time limit, then each co-owner shall only have the right to
demand a division of the common property after the expiration of that time
limit; when the common property cannot be divided in kind, it should be valued
in money for division.
2. In cases where a person
requests one of the co-owners to discharge his/her payment obligations when the
latter has no private property or his/her private property is not enough for
payment, the requesting person shall have the right to request a division of
the common property so as to receive monetary payment and to participate in the
division of the common property, unless otherwise provided for by law.
If the ownership right share in
kind cannot be divided or such division is protested against by the remaining
co-owners, the requesting person shall have the right to request the obligator
to sell his/her ownership right share for the performance of his/her payment
obligations
Article 225.- Common
ownership in a condominium
1. The areas, equipment and
furnishings, which are for common use, in a condominium are under common
ownership of all the apartment owners in that condominium and cannot be
divided, unless otherwise provided for by law or otherwise agreed upon by all
owners.
2. The apartment owners in a
condominium shall have equal rights and obligations in the management and use
of common areas and equipment.
3. In cases where a condominium
is destroyed, the apartment owners in the condominium shall have the right to
use the ground area of the condominium in accordance with the provisions of
law.
Article
226.- Termination of common ownership
A common ownership shall
terminate in the following cases:
1. The common property has been
divided;
2. One of the co-owners is
entitled to the entire common property;
3. The common property no longer
exists;
4. Other cases specified by law.
Section 5. OWNERSHIP BY
POLITICAL ORGANIZATIONS, SOCIO-POLITICAL ORGANIZATIONS
Article 227.- Ownership
by political organizations, socio-political organizations
Ownership by political
organizations or socio-political organizations means ownership by such
organizations for the purpose of achieving the common objectives specified in
their charters.
Article 228.- Property
under ownership by political organizations, socio-political organizations
1. Property constituted from the
sources of contributions of members, property donated or presented to the whole
organizations and property from other sources in accordance with the provisions
of law is the property under ownership by political organizations or
socio-political organizations.
Property under state ownership,
over which the ownership has been transferred to political organizations or
socio-political organizations, shall be the property under ownership by such
organizations.
2. Property under state
ownership which has been assigned to political organizations or socio-political
organizations for management and use shall not come under ownership by such
organizations.
Article
229.- Possession, use, disposition of property under ownership by
political organizations, socio-political organizations
Political organizations or
socio-political organizations shall exercise the rights to possession, use and
disposition of property under their respective ownership in accordance with the
provisions of law and the operation purposes stipulated in their charters.
Section 6. OWNERSHIP BY
SOCIO-POLITICAL-PROFESSIONAL ORGANIZATIONS, SOCIAL ORGANIZATIONS,
SOCIO-PROFESSIONAL ORGANIZATIONS
Article 230.- Ownership
by socio-political- professional organizations, social organizations,
socio-professional organizations
Ownership by
socio-political-professional organizations, social organizations or
socio-professional organizations means ownership by such organizations for the
purpose of achieving the common objectives of members as specified in their
respective charters.
Article 231.- Property
under ownership by socio-political-professional organizations, social
organizations, socio-professional organizations
Property constituted from the
sources of contributions by members, property donated or presented to the whole
organizations or from other sources in accordance with the provisions of law
shall be the property under ownership by such socio-political-professional
organizations, social organizations or socio-professional organizations.
Article
232.- Possession, use, disposition of property under ownership by
socio-political-professional organizations, social organizations,
socio-professional organizations
Socio-political-professional
organizations shall exercise their rights to possession, use, disposition of
property under their respective ownership in accordance with the provisions of
law and the operation purposes specified in their respective charters.
Chapter XIV
ESTABLISHMENT
AND TERMINATION OF OWNERSHIP RIGHTS
Section 1. ESTABLISHMENT OF
OWNERSHIP RIGHTS
Article
233.- Establishment of ownership rights to property acquired from labor,
lawful business and/or production activities
Workers or persons who conduct
lawful production and/or business activities shall have the rights of ownership
over property acquired from their labor or lawful production and/or business
activities as from the time such property is acquired.
Article
234.- Establishment of ownership rights by an agreement
A person to whom a property has
been transferred through a contract for purchase and sale, donation, exchange
or lending shall have the right to own such property as from the time of
transferring the property, unless otherwise agreed upon by the parties or
provided for by law.
Article
235.- Establishment of ownership rights to yields and profits
Property owners and/or users
shall have the rights of ownership over the yields and profits as from the time
such yields and profits are obtained, as agreed upon or provided for by law.
Article
236.- Establishment of ownership rights in case of merger
1. In cases where the property
of different owners is merged together to form an indivisible object which is
impossible to determine whether the merged property is primary or auxiliary
object, the newly formed object shall be the property under common ownership of
such owners; if the merged property is primary object and auxiliary object, the
newly formed object shall belong to the owner of the primary object from the
time the new object is formed; the owner of the new property must pay to the
owner of the auxiliary object for the value of the such auxiliary object,
unless otherwise agreed upon.
2. When a person merges the
movable property of another person to his/her own movable property even though
he/she knew or should have known that such property is not his/her own, and
also does not have the consent of the owner of the property being merged, then
the owner of the property being merged shall have one of the following rights:
a/ To request the person who
merges the property to hand over to him/her the new property, and pay to that
person the value of that person's property;
b/ To request the person who
merges the property to pay the value of the portion of his/her own property and
to compensate for any damage, if he/she refuses to take the new property.
3. When a person merges the
movable property of another person into his/her own immoveable property even
though he/she knew or should have known that such property is not his/her own
and also does not have the consent of the owner of the property being merged,
the owner of the property being merged shall have the right to request the person
who merges the property to pay the value of the portion of his/her own property
and compensate for damage.
Article
237.- Establishment of ownership rights in case of mixture
1. In cases where the property
of various owners are mixed together to form a new indivisible object, the new
object shall be the property under common ownership of such owners as from the
time of mixture.
2. When a person mixes the
property of another person into his/her own property even though he/she knew or
should have known that such property is not his/her own, and does not have the
consent of the owner of the property which has been mixed, then the owner of
the property which has been mixed shall have one of the following rights:
a/ To request the person who has
mixed the property to hand over to him/her the new property and to pay to the
person who has mixed the property the value of that person's property;
b/ To request the person who has
mixed the property to pay the value of the portion of his/her own property and
to compensate for any damage, if he/she refuses to take the new property.
Article
238.- Establishment of ownership rights in case of processing
1. An owner of materials and/or
raw materials, which are processed to create a new object, is also the owner of
the newly created object.
2. A bona fide user of materials
and/or raw materials owned by another person for processing shall become owner
of the new property, but must pay the value of materials and/or raw materials
and compensate for any damage to the owner of such materials and/or raw
materials.
3. In cases where the processor
does not act in good faith, the owner of materials and/or raw materials shall
have the right to request the hand-over of the new object; if there are many
owners of materials and/or raw materials, they shall be the co-owners of the
newly created object by shares, corresponding to the value of the materials
and/or raw materials of each person. The owners of materials and/or raw
materials which have been processed not in good faith shall have the right to
request the processor to compensate for any damage.
Article
239.- Establishment of ownership rights to derelict objects and objects
whose owners are unidentifiable
1. A derelict object is an
object the owner of which has renounced his/her ownership rights to it.
The person who has discovered a
derelict object which is a movable property shall have the right to own such
property in accordance with the provisions of law; if the discovered object is
an immovable property, it shall belong to the State.
2. A person who has discovered
an object the owner of which is unidentifiable must notify or submit it to the
People's Committee of the commune, ward or township, or the nearest police
station for public announcement so that the owner may be aware of such and
reclaim it.
The submission of the object
must be recorded in an official report, which shall clearly state the full
names and addresses of the submitter and the receiver, and the conditions,
quantity and volume of the property submitted.
The People's Committee or the
police station, which received the object must notify the discoverer of the
results of the effort to identify its owner.
In cases where the object the
owner of which is unidentifiable is a movable property and its owner remains
unidentifiable after one year from date of public announcement, such movable
property shall belong to the discoverer as provided for by law; if the object
is an immovable property and its owner remains unidentifiable even after five
years from the date of public announcement, such immovable property shall
belong to the State; the discoverer shall be entitled to enjoy a monetary
reward as provided for by law.
Article
240.- Establishment of ownership rights to buried or sunken objects which
are found
Ownership rights to a
discovered, buried or sunken object without an owner or with its owner being
unidentifiable, after deducting expenses for search and preservation, shall be
determined as follows:
1. The found object, which is a
historical or cultural relic, shall belong to the State; the person who found
such object shall be entitled to a monetary reward as provided for by law.
2. The found object, which is
not a historical or cultural relic but has the value of up to ten months'
minimum salary set by the State, shall come under ownership of the discoverer;
if the found object is valued higher than ten months' minimum salary set by the
State, the discoverer shall be entitled to a value equal to ten months' minimum
salary set by the State and 50% of the value of the portion in excess of ten
months' minimum salary set by the State, and the remainder shall belong to the
State.
Article
241.- Establishment of ownership rights to objects which have been let
drop on the ground or left over out of inadvertence by other persons
1. A person who finds an object
which another person has let drop on the ground or left over out of
inadvertence and knows the latter's address must notify or return the object to
such person; if he/she does not know the address of the latter, he/she must
notify or submit such object to the People's Committee of the commune, ward or
township or the nearest police station in order to make a public announcement
for the owner to be aware thereof and reclaim it.
The local People's Committee or
the police station, which has received the object, must notify the person who
has submitted it of the results of identification of the owner.
2. If after one year from the
date of public announcement of the found object, it is not possible to identify
the owner or the owner does not come to reclaim the object, such object shall
belong to the finder, if the object has the value of up to ten months' minimum
salary set by the State; if the object's value is greater than ten months'
minimum salary set by the State, after deducting the expenses for
preserva-tion, the finder shall be entitled to a value equal to ten months'
minimum salary set by the State and 50% of the value of the portion in excess
of ten months' minimum salary set by the State, and the remaining value shall belong
to the State.
3. If the object which has been
let drop on the ground or left over out of inadvertence is a historical or
cultural relic and its owner is unidentifiable or no one comes to reclaim the
object, the object shall belong to the State; the finder of the object shall be
entitled to a monetary reward as provided for by law.
Article
242.- Establishment of ownership rights to stray domestic animals
A person who captures a stray
domestic animal must care for it and notify the People's Committee of the
commune, ward or township where he/she resides in order to make a public
announcement for the owner to be aware thereof and reclaim the animal. The
owner who reclaims the stray domestic animal must pay a remuneration for the
care for the animal and other expenses to the person who captured it.
If after six months from the
date of public announcement no one comes to reclaim it, the animal shall belong
to the person who captured it; if the captured animal is a free-ranging animal
according to practices, this time limit shall be one year.
During the period of caring for
the stray domestic animal, the person who captured it shall be entitled to half
of the number of offsprings born, if any, and must compensate for any damage if
he/she is at fault in intentionally causing the death of the stray animal.
Article
243.- Establishment of ownership rights to stray poultry
In cases where a person's
poultry has strayed and is captured by another person, the person who captured
the poultry must make a public announcement for the owner to be aware thereof
and reclaim it. The owner who reclaims the stray poultry must pay a
remuneration for the care therefore and other expenses to the person who
captured the poultry.
If after one month from the date
of public announcement no one comes to reclaim the stray poultry, it shall
belong to the person who captured it.
During the period of caring for
the stray poultry, the person who captured it shall be entitled to the yields
generated from the stray poultry and must compensate for any damage if he/she
is at fault in intentionally causing the death of the poultry.
Article
244.- Establishment of ownership rights to raised aquatic animals
When a person's raised aquatic
animal moves naturally into the field, pond or lake of another person, it shall
belong to the person having such field, pond or lake. Where an aquatic animal
has specific marks which make it possible to determine that it does not belong
to him/her, the person having such field, pond or lake must make a public
announcement for the owner to be aware thereof and reclaim it. If after one
month from the date of public announcement no one comes to reclaim the raised
aquatic animal, it shall belong to the person having such field, pond or lake.
Article
245.- Establishment of ownership rights from inheritance
Heirs shall have the rights of
ownership over the inherited property as provided for in Part Four of this
Code.
Article
246.- Establishment of ownership rights in accordance with judgments or
decisions of Courts or decisions of other competent state agencies
Ownership rights may be
established based on judgments or decisions of Courts or decisions of other
competent state agencies.
Article
247.- Establishment of ownership rights by virtue of a statute of
limitations
1. A person who possesses or a
person who enjoys benefits from a property without a legal basis but in good
faith and in an overt and continuous manner for a period of ten years with
respect to a movable property or thirty years with respect to an immovable
property, shall become owner of such property from the time of commencement of
possession, except for the cases specified in Clause 2 of this Article.
2. A person who possesses a
property under state ownership without a legal basis shall not become owner of
such property, even if it is in good faith, continuous and overt possession
regardless of the duration of possession.
Section 2. TERMINATION OF
OWNERSHIP RIGHTS
Article 248.- Transfer
by owners of ownership rights to other persons
When an owner transfers his/her
ownership rights to another person through a purchase and sale, exchange,
donation or loan contract or through bequeathal, the former's rights of
ownership over the property shall terminate as from the time the ownership
rights of the transferee arise.
Article
249.- Renunciation of ownership rights
An owner may him/herself
terminate ownership rights to his/her property by a public declaration or
certain acts indicating his/her renunciation of the rights to possession, use
and disposition of such property.
The renunciation of ownership
rights to property must comply with the provisions of law if such renunciation
may cause harm to social order and safety or environmental pollution.
Article 250.- Property
to which another person has established ownership rights
When another person has
established ownership rights to an object which has been let drop on the ground
or left over out of inadvertence, a stray domestic animal or poultry, or a
naturally moving raised aquatic animal in accordance with the provisions of
Articles from 241 to 244 of this Code, the ownership rights of the person who
previously owned such property shall terminate.
When the ownership rights of a
possessor have been established according to the provisions of Clause 1,
Article 247 of this Code, the ownership rights of the person whose property is
being possessed shall terminate.
Article 251.- Disposal
of property to fulfill the obligations of owners
1. The rights of ownership over
a property shall terminate when such property is disposed of to fulfill its
owner's obligations by a decision of the Court or another competent state
agency, unless otherwise provided for by law.
2. The disposal of property to
fulfill its owner's obligations shall not be applicable to property not subject
to distrainment as provided for by law.
3. The rights of ownership over
a property which is disposed of to fulfill its owner's obligations shall
terminate at the time the ownership rights of the recipient of such property
arise.
4. The disposal of land use
rights shall comply with the provisions of land law.
Article 252.- Property
which is destroyed
When a property is destroyed,
the ownership rights to such property shall terminate.
Article 253.- Property
which is compulsorily purchased
When a property is compulsorily purchased
under decision of a competent state agency for defense or security reasons and
for national interests, the owner's ownership rights to such property shall
terminate as from the time the decision of the competent state agency takes
legal effect.
Article 254.- Property
which is confiscated
When a property of an owner is
confiscated and placed in the State fund due to his/her criminal conviction or
administrative violation, his/her rights of ownership over such property shall
terminate as from the time the judgment or decision of a Court, or the decision
of another competent state agency takes legal effect.
Chapter XV
PROTECTION
OF OWNERSHIP RIGHTS
Article 255.- Measures
for protection of ownership rights
Lawful owners and possessors
shall have the right to request Courts or other competent agencies or
organizations to compel the persons infringing upon their ownership rights or
possession rights to return the property and terminate the acts of illegally
obstructing the exercise of their ownership rights or possession rights, and to
request compensation for any damage.
Lawful owners and possessors
shall have the right to protect by themselves the property under their
ownership or the property currently in their lawful possession by measures
provided for by law.
Article 256.- The right
to reclaim property
Lawful owners and/or possessors
shall have the right to request the persons possessing, using or receiving
benefits from the property under their lawful ownership or possession rights
without a legal basis to return such property, except for the cases specified
in Clause 1, Article 247 of this Code. In cases where the property is in the
possession of a bona fide possessor, Articles 257 and 258 of this Code shall
apply.
Article 257.- The right
to reclaim movable property not subject to ownership right registration from
bona fide possessors
Owners may reclaim movable
property not subject to ownership right registration from bona fide possessors
in cases where such bona fide possessors have acquired such property through
unindemifiable contracts with persons who have no right to dispose of the
property; in case of indemifiable contracts, the owners may reclaim the movable
property if such movable property has been stolen, lost or other cases of
possession against the owners' will.
Article 258.- The right
to reclaim movable property subject to ownership right registration or
immovable property from bona fide possessors
Owners may reclaim their movable
property subject to ownership right registration and immovable property, except
for cases where the third party possessing the property in good faith has
received such property through auctions or transactions with the persons who,
under judgments of courts or decisions of competent state agencies, were owners
of the property but later are not owners as such judgments or decisions have
been cancelled or modified.
Article 259.- The right
to request the prevention or termination of acts of illegally obstructing the
exercise of lawful ownership rights and possession rights
When exercising their ownership
rights or possession rights, lawful owners or possessors shall have the right
to request persons committing acts of illegally obstructing the exercise of
their lawful ownership rights or possession rights to terminate such acts; if
the offenders do not willingly terminate such acts, the owners or possessors
shall have the right to request the Court or other competent agencies or
organizations to compel such persons to terminate their violation acts.
Article 260.- The right
to request compensation for damage
Lawful owners or possessors
shall have the right to request persons infringing upon their ownership rights
or possession rights to compensate for any damage.
Article 261.- Protection
of rights of possessors who are not owners
The rights defined in Articles
from 255 thru 260 of this Code shall also belong to the persons who, though
being not owners, possess the property on the basis of land use rights, the
right to restricted use of adjacent immovable property or on other bases
provided for by law or agreed upon.
Chapter XVI
OTHER
PROVISIONS ON OWNERSHIP RIGHTS
Article
262.- Obligations of owners in emergency circumstances
1. An emergency circumstance is
a circumstance where in order to avert a danger actually and directly
threatening the interests of the State or of a collective, or the legitimate
rights or interests of their own or of other persons, a person has no
alternative but to take an act which would cause lesser damage than the damage
to be prevented.
2. In an emergency circumstance,
the owner of a property must not hinder another person from using his/her own
property or hinder another person from causing damage to such property in order
to prevent or abate the greater danger or damage that threatens to happen.
3. The causing of damage in an
emergency circumstance is not the act of infringing upon ownership rights. The
owners shall be compensated for damage in accordance with the provisions of
Clause 3, Article 614 of this Code.
Article
263.- Obligations of owners in the protection of the environment
When using, preserving and
renouncing his/her property, an owner must comply with the provisions of law on
environmental protection; if he/she causes environmental pollution, the owner
shall have to terminate the acts which cause the pollution, to take measures to
remedy the consequences and to compensate for damage.
Article
264.- Obligations of owners to respect and ensure social order and safety
When exercising his/her rights
to possession, use or disposition of his/her own property, an owner must
respect and ensure social order and safety and must not abuse his/her ownership
rights to cause social disorder or unsafety, causing damage to the State
interests, public interests or legitimate rights and interests of other persons.
Article 265.- The
obligation to respect the boundaries between immovable properties
1. The boundaries between
adjoining immovable properties shall be determined under the agreement between
the owners or the decisions of competent state agencies.
The boundaries may also be
determined in accordance with practices or the boundaries which have existed
for thirty years or more without disputes.
2. A person with land use rights
may use the air space and underground area perpendicular to the boundaries of the
land area in accordance with the construction planning specified by a competent
state agency, and without affecting the use of the adjoining land of other
persons.
A land user may plant trees and
conduct other activities only within the land area under his/her own use rights
and within the boundaries which have been determined; if tree roots and/or
branches extend beyond the boundaries, he/she must clip the extending roots
and/or prune the extending branches, unless otherwise agreed upon.
3. In cases where the boundary
is a canal, irrigation ditch, trench, gutter or the boundary of a rice field,
the land user shall have the obligation to respect and maintain the common
boundary; he/she must not encroach upon the boundary or change the boundary
markers.
Article 266.- Ownership
rights to boundary markers separating immovable properties
1. Owners of adjoining immovable
properties may put up boundary stakes, fences or partition walls only on the
portion of land under their land use rights. Persons using adjoining lands may
mutually agree on the putting up of boundary stakes, fences or partition walls
and planting of trees on the boundary as boundary markers between the immovable
properties; these boundary markers shall be under their common ownership.
In cases where a boundary marker
is put up on the boundary by only one party and with the consent of the owner
of the adjoining immovable property, such boundary marker shall be under common
ownership and the construction expenses shall be borne by the party who puts up
the marker, unless otherwise agreed upon; if the owner of the adjoining
immovable property does not give his/her consent for justifiable reasons, the
owner who has put up the boundary stake, fence or partition wall must remove
it.
With respect to trees as common
boundary markers, the parties shall all have the obligation to protect them;
the yields from the trees shall be shared equally, unless otherwise agreed
upon.
2. With respect to common house
walls as boundary markers, the owner of the adjoining immovable property shall
not install a window or air ventilating hole or drill the wall in order to
install building structures, except where it is so consented by the owner of
the adjoining immovable property.
In cases where houses are
separately built but have adjoining walls, an owner may drill and install
building structures only up to his/her boundary wall.
Article 267.- The
obligation to respect building codes
1. When constructing a project,
the project owner must comply with the law on construction, ensure safety, must
not build beyond the height and distance specified by the law on construction
and must not infringe upon legitimate rights and interests of owners of
adjoining and surrounding immovable properties.
2. When there is a danger of an
incident occurring to the construction project, which would affect the
adjoining and surrounding immovable properties, the project owner must
immediately stop the construction and make repairs or dismantle the
construction at the request of owners of adjoining and surrounding immovable
properties or at the request of a competent state agency; if damage is caused,
compensation must be made.
3. When building a sanitation
project, a toxic chemical storehouse or another project the use of which may
cause environmental pollution, the owner must build it at a reasonable site and
distance from the boundaries, and must ensure sanitation and safety and not
affect owners of adjoining and surrounding immovable properties.
Article 268.- The
obligation to ensure safety for adjoining construction projects
When drilling wells, digging
ponds or constructing other subterranean projects, project owners must dig or
build them at distances from the boundaries as specified by the law on
construction.
In cases where the projects are
in danger of threatening the safety of adjoining and surrounding immovable
properties, the project owners must immediately take remedial measures; if
damage is caused to owners of adjoining and surrounding properties,
compensation must be made.
Article 269.- Obligations
of owners in draining rainwater
House owners must install water
drainage conduits so that rainwater from their house roofs will not run down
onto the immovable properties of owners of adjoining immovable properties.
Article
270.- Obligations of owners in draining waste water
House owners must install
under-ground drains or water drainage sewers to discharge waste water to the
prescribed location, so that the waste water will not spill onto the immovable
property of owners of adjoining immovable property or onto public roads or
public places, thus causing environmental pollution.
Article
271.- Restrictions on the right to install doors/windows
1. House owners shall only
install doors and/or windows swinging over to adjacent houses or opposite houses
and common paths in accordance with the provisions of law on construction.
2. The awnings above doors or
windows swinging into common paths must be at least 2.5m above the ground.
Article 272.- The right
to request the repair or removal of adjoining immovable property
In cases where a tree or a
construction project is in danger of collapsing onto an adjoining immovable
property or a public facility, the owner must cut down the tree, repair or
demolish such construction project.
The owner of an adjoining
immovable property shall have the right to request the owner of the tree or the
construction project, which is in danger of collapsing, to cut down the tree,
or demolish the construction project; if the latter does not cut down the tree
or demolish the construction project, the owner of an adjoining immovable
property shall have the right to request a competent state agency to permit the
cutting down of the tree, or demolition of the construction project. The
expenses for cutting down the tree or demolishing the construction project
shall be borne by the owner of the tree or the construction project.
Article 273.- The right
to an easement over adjoining immovable property
A house owner or a land user
shall have the right to use in a reasonable manner an adjoining immovable
property under the ownership of another person for his/her own needs for
passageway, water supply and drainage, gas supply, electricity transmission
wires, communication lines and other necessary needs, but must compen-sate,
unless otherwise agreed upon.
Article
274.- Establishment of the right to an easement over adjoining immovable
property
1. The right to an easement over
adjoining immovable property shall be established as agreed upon or provided
for by law.
2. In cases where the right to
an easement over an adjoining immovable property has been established for the
house owner or land user, the successive house or land use right transferee
shall also be entitled to such right.
Article 275.- The right
regarding the passageway through adjoining immovable property
1. The owner of an immovable
property surrounded by immovable properties of other owners from which there
are no exits shall have the right to request one of the owners of the adjoining
immovable properties to reserve for him/her a convenient and reasonable
passageway leading to a public path; the requested person shall have the
obligation to meet such request. The person for whom a passageway is reserved
must compensate the owner of the adjoining immovable property, unless otherwise
agreed upon.
The passageway shall be opened
on the adjoining immovable property which is considered most convenient and
reasonable, with the specific characteristics of the locations and interests of
the surrounded immovable property being taken into account, and with the least
damage caused to the immovable property on which the passageway is opened.
2. The position, the extent of
length, width and height of the passageway shall be agreed upon by the parties
to ensure the convenience for the ingress and egress and to minimize
inconvenience to the parties; if there is a dispute over the passageway, the
parties shall have the right to request a competent state agency to determine
it.
3. In cases where an immovable
property is divided into different parts to different owners and/or users, upon
such division, a necessary passageway must be reserved for the person(s) in the
interior in accordance with the provisions of Clause 2 of this Article, without
any compensation.
Article 276.- The right
to install electricity transmission wires and communication wires through
adjoining immovable property
An owner of an immovable
property shall have the right to install electricity transmission wires and
communication wires in a reasonable manner through the immovable property of
other owners, but must ensure the safety and convenience for such owners; if
damage is caused, compensation must be made.
Article 277.- The right
regarding the water supply and drainage through adjoining immovable property
In cases where due to the
natural position of an immovable property the water supply and drainage pipes
must run through another immovable property, the owner of the immovable
property through which the water flows must reserve an appropriate channel for
the water supply and drainage and must not hinder or prevent the flow of water.
The user of the water supply and drainage channel must minimize to the lowest
possible extent any damage to the owner of the immovable property through which
the water flows when installing water conduits; if damage is caused,
compensation must be paid. In cases where the water flowing naturally from a
higher position to a lower position causes damage to the owner of the immovable
property through which the water flows, the user of the water supply and drainage
channel shall not have to compensate for any damage.
Article 278.- The right
regarding irrigation and water drainage in cultivation
A person who is entitled to use
land for cultivation shall have the right to request persons using the
surrounding land to reserve for him/her a channel suitable and convenient for
irrigation and water drainage; the requested person shall have the obligation
to meet such request; if the user of the water channel causes damage to the
neighboring land users, he/she must pay compensation therefore.
Article
279.- Termination of the right to easement over adjoining immovable
property
The right to easement over
adjoining immovable property shall terminate in the following cases:
1. The adjoining immovable
property and the immovable property of an owner currently exercising the right
to easement over such immovable property are integrated into one property;
2. The house owner or land user
no longer needs an easement over the adjoining immovable property.
PART THREE
CIVIL
OBLIGATIONS AND CIVIL CONTRACTS
Chapter XVII
GENERAL
PROVISIONS
Section 1. CIVIL OBLIGATIONS
Article 280.- Civil
obligations
A civil obligation is a task
under which a subject or more than one subject (hereinafter referred
collectively to as the obligors) must transfer an object, transfer rights, pay
money or return valuable papers, perform other tasks or refrain from doing
certain tasks in the interest of one or a number of other subjects (hereinafter
referred collectively to as the obligees).
Article 281.- Bases upon
which civil obligations arise
A civil obligation shall arise
on the following bases:
1. A civil contract;
2. A unilateral legal act;
3. Performance of a task without
authorization;
4. Possession and use of
property or enjoyment of benefits from property without a legal basis;
5. Causing damage by performing
an illegal act;
5. Performance of a task without
authorization;
6. Other bases specified by law.
Article 282.- Objects of
civil obligations
1. An object of a civil
obligation may be a property or a task which must or must not be performed.
2. An object of a civil
obligation must be specifically determined.
3. Only those property which are
be alienable and tasks which can be performed but are not prohibited by law and
not contrary to social ethics may be objects of civil obligations.
Section 2. PERFORMANCE OF
CIVIL OBLIGATIONS
Article 283.- The
principle for performance of civil obligations
An obligor must perform his/her
obligation in an honest manner, in the spirit of cooperation, in a manner faithful
to his/her commitment and not contrary to law and social ethics.
Article 284.- Places for
performance of civil obligations
1. The place for the performance
of a civil obligation shall be agreed upon by the parties.
2. In cases where there is no
agreement, the place for performance of a civil obligation shall be determined
as follows:
a/ It is the location of the
immovable property, if the object of the civil obligation is an immovable
property;
b/ It is the place of residence
or head office of the obligee, if the object of the civil obligation is not an
immovable property.
When the obligee changes his/her
place of residence or head office, he/she must notify the obligor of the change
and must bear extra expenses resulting from the change of the place of residence
or head office, unless otherwise agreed upon.
Article 285.- Time limit
for performance of civil obligations
1. The time limit for performing
a civil obligation shall be agreed upon by the parties or provided for by law.
The obligor must perform his/her
civil obligation on time; may perform the civil obligation before the specified
time limit only if the obligee so consents; if the obligor has performed the
obligation before the specified time limit at his/her own will and the obligee
has accepted such performance, the obligation shall be considered to have been
performed on time.
2. In cases where the time limit
for the performance of a civil obligation has not been agreed upon by the
parties or specified by the law, the parties may perform the obligation or
request the performance of the obligation at any time, but must notify each
other in advance within a reasonable period of time.
Article 286.- Delay in
performance of civil obligations
1. The delay in performance of a
civil obligation means the obligation has not been performed yet or has been
partially performed upon the expiration of the time limit for performance of
the obligation.
2. The party that delays the
performance of a civil obligation must immediately notify the obligee of the
non-performance of the obligation on time.
Article
287.- Postponement of performance of civil obligations
1. When it is impossible to
fulfill a civil obligation on time, the obligor must immediately inform the
obligee thereof and propose the postponement of the performance of the
obligation.
In case of failure to inform the
obligee, the obligor must compensate for the arising damage, except in cases
where it is otherwise agreed upon or the notification cannot be made due to
objective causes.
2. The obligor may postpone the
performance of an obligation if the obligee so agrees. The postponed
performance of a civil obligation shall still be considered a timely
performance.
Article 288.- Delay in
acceptance of performance of civil obligations
1. The delay in acceptance of
the performance of a civil obligation means that, upon the expiration of the
time limit for the fulfillment of the civil obligation, the obligor has already
fulfilled the civil obligation as agreed upon, but the obligee does not accept
the performance of such obligation.
2. In case of delay in accepting
the civil obligation's object being a property, the obligor must take necessary
measures to preserve the property and shall be entitled to request the
reimbursement of reasonable expenses.
3. With respect to a property
which is in imminent danger of decay, the obligor shall have the right to sell
such property and return the proceeds from the sale of such property to the
obligee after deducting necessary expenses for the preservation and sale of
such property.
Article
289.- Performance of the obligation to hand over objects
1. The person obliged to hand
over an object must preserve and maintain the object until the hand-over
thereof.
2. When the object to be handed
over is a distinctive object, the obligor must hand over the exact object in
the exact conditions as committed; if the object to be handed over is a
fungible object, it must be handed over in the exact quality and quantity as
agreed upon. If there is no agreement regarding the quality, the object to be
handed over must be of average quality; if it is an integrative object, it must
be handed over in sets.
3. The obligor must bear all
expenses related to the hand-over of the object, unless otherwise agreed upon.
Article
290.- Performance of the obligation to pay money
1. The obligation to pay money
must be performed in full amount, on time, at the right place and by the right
mode agreed upon.
2. The obligation to pay money
shall cover the payment of interests on principals, except otherwise agreed upon.
Article 291.- The
obligation to perform or not to perform a task
1. The obligation to perform a
task is the obligation under which the obligor is obliged to perform that very
task.
2. The obligation not to perform
a task is the obligation under which the obligor is obliged not to perform that
very task.
Article 292.- Periodic
performance of a civil obligation
A civil obligation can be
performed periodically, if so agreed upon or provided for by law.
The delay in periodic
performance of a civil obligation shall also be considered the delay in
performance of the civil obligation.
Article
293.- Performance of a civil obligation through a third party
With the obligee's consent, the
obligor may delegate a third party to perform the civil obligation on his/her/its
behalf but shall still be accountable to the obligee if the third party does
not perform or performs the civil obligation improperly.
Article
294.- Conditional performance of a civil obligation
In cases where the conditions
for the performance of a civil obligation are agreed upon by the parties or
provided for by law, the obligor must perform the obligation when such
conditions arise.
Article
295.- Performance of a civil obligation with optional objects
1. A civil obligation with an
optional object means an obligation with an object being one of many different
properties or tasks, which the obligor may choose at his/her/its free will,
unless where it is agreed upon or it is provided for by law that the right of
choice is reserved for the obligee.
2. The obligor must notify the
obligee of the property or task selected for the performance of the obligation.
Where the obligee has determined the time limit for performance of the selected
obliga-tion, the obligor must fulfill it on time.
3. In cases where only one
property or one task is left, the obligor must hand over such property or
perform such task.
Article
296.- Performance of a substitutable civil obligation
A substitutable civil obligation
is an obligation whereby if the obligor cannot perform the original obligation,
he/she/it may perform another obligation accepted by the obligee as a
substitute for such civil obligation.
Article 297.- Separate
performance of a civil obligation
When many obligors jointly
perform a civil obligation but each obligor has a certain part of the
obligation separate from each other's, each obligor shall only have to perform
his/her/its own part of the obligation.
Article
298.- Performance of a joint civil obligation
1. A joint civil obligation is
an obligation which must be performed by many obligors and the obligee may
request any one of the obligors to perform the entire obligation.
2. In cases where an obligor has
fulfilled the entire obligation, he/she/it shall have the right to request the
other joint obligors to fulfill their respective parts of the joint obligation
towards him/her/it.
3. In cases where the obligee
has already designated one of the joint obligors to perform the entire
obligation, but later exempts that obligor from performing that obligation, the
remaining obligors shall also be exempted from performing the obligation.
4. In cases where the obligee
exempts only one of the joint civil obligors from performing his/her/its own
part of the obligation, the remaining obligors shall still have to fulfill their
own parts of the obligation.
Article
299.- Performance of a civil obligation for joint obligees
1. A civil obligation for many
joint obligees is an obligation whereby each obligee may request the obligor to
perform the entire obligation.
2. The obligor may perform
his/her/its own obligation toward any of the joint obligees.
3. In cases where one of the
joint obligees exempts the obligor from performing the part of the obligation
toward him/her/it, the obligor must still perform the remainder of the obligation
toward the other joint obligees.
Article
300.- Performance of divisible civil obligations
1. A divisible civil obligation
is an obligation whereby the object of the obligation is a divisible thing or a
task which can be divided into parts for performance.
2. The obligor may perform the
obligation part by part, unless otherwise agreed upon.
Article
301.- Performance of indivisible civil obligations
1. An indivisible civil
obligation is an obligation whereby the object of the obligation is an
indivisible thing or a task which must be performed simultaneously.
2. In cases where many obligors
must jointly perform an indivisible obligation, they must perform the
obligation simultaneously.
Section 3. CIVIL LIABILITY
Article 302.- Civil
liability for breach of civil obligations
1. An obligor that fails to
perform or performs improperly his/her/its obliga-tion must bear civil
liability to the obligee.
2. In cases where an obligor
cannot perform a civil obligation due a force majeure event,
he/she/it shall not have to bear any civil liability, unless otherwise agreed
upon or provided for by law.
3. The obligor shall not have to
bear civil liability if he/she/it can prove that the failure to perform the
obligation is due entirely to the fault of the obligee.
Article 303.- Civil
liability for failure to perform the obligation to hand over objects
1. When the obligor fails to
perform the obligation to hand over a distinctive object, the obligee is
entitled to demand the obligor to hand over that exact object; if the object no
longer exists or is damaged, the obligor must pay for the value of the object.
2. When the obligor fails to
perform the obligation to deliver a fungible object, he/she/it must pay for the
value of the object.
3. Where the obligor cannot
perform the obligation as provided for in Clauses 1 and 2 of this Article and
cause damage to the obligee, apart from paying for the value of the object,
he/she/it must also pay compensation for damage to the obligee.
Article 304.- Civil
liability for failure to perform an obligation to perform or not to perform a
task
1. In cases where the obligor
fails to perform a task he/she/it must perform, the obligee may request the
obligor to keep performing it or perform the task him/her/itself or assign
another person to perform such task and demand the obligor to pay for the
reasonable expenses incurred and to pay compensation for damage.
2. When the obligor is not
allowed to perform a task but still performs such task, the obligee is entitled
to demand the obligor to terminate such performance, restore the initial
condition and pay compensation for damage.
Article
305.- Civil liability for delayed performance of civil obligations
1. When the performance of a
civil obligation is delayed, the obligee may extend the time limit so that the
obligor can fulfill the obligation; if this time limit has expired and the
obligation remains unfulfilled, the obligor must, at the request of the
obligee, still perform the obligation and pay compensation for damage; if the
performance of the obligation is no longer necessary to the obligee, the
obligee shall have the right to refuse to accept the performance of the
obligation and demand compen-sation for damage.
2. In cases where the obligor
delays making payments, such obligor must pay the interests on the unpaid
amount at the basic interest rate announced by the State Bank at the time of
payment corresponding to the period of delayed payment, unless otherwise agreed
upon or provided for by law.
Article
306.- Civil liability for delayed acceptance of the performance of
civil obligations
The obligee that delays
accepting the performance of a civil obligation, thus causing damage to the
obligor, must compensate the obligor for the damage and bear all the risks
arising as from the time of delaying the acceptance, unless otherwise agreed
upon or provided for by law.
Article 307.- Liability
to compen-sate for damage
1. The liability to compensate
for damage includes the liability to compen-sate for material damage and the
liability to compensate for mental damage.
2. The liability to compensate
for material damage is the liability to make up for the actual material losses
caused by the breaching party, which can be calculated in money and include the
loss of property, reasonable expenses incurred in preventing, mitigating and/or
redressing the damage and the actual loss or reduction of income.
3. A person causing mental
damage to another person by infringing upon the life, health, honor, dignity or
prestige of such person shall have to pay pecuniary compensation to the victim
in addition to stopping the infringement, offering an apology and making public
rectification.
Article 308.- Fault in
civil liability
1. A person who does not perform
or performs improperly a civil obligation must bear civil liability if he/she
is at fault either intentionally or unintentionally, unless otherwise agreed
upon or provided for by law.
2. Intentionally causing damage
means a situation in which a person is fully aware that his/her act will cause
damage to another person and still performs the act, thereby allowing the
damage to occur whether intentionally or unintentionally.
Unintentionally causing damage
means a situation in which a person does not foresee that his/her act may cause
damage, though he/she must have known or can know in advance that such damage
will occur, or foresees that his/her act may act cause damage but believes that
the damage would not occur or can be prevented.
Section 4. TRANSFER OF THE
RIGHT TO DEMAND AND TRANSFER OF CIVIL OBLIGATIONS
Article 309.- Transfer
of the right to demand
1. An obligee having the right
to demand the improperly of a civil obligation may transfer that right to a
transferee under agreement, except for the following cases:
a/ The right to demand support
payment and to demand compensation for damage caused by infringement upon
his/her life, health, honor, dignity or prestige;
b/ The obligee and the obligor
have agreed not to transfer the right to demand;
c/ Other cases provided for by
law.
2. When an obligee transfers the
right to demand to a transferee, the later shall become the obligee holding the
right to demand.
The transferor of the right to
demand must notify the obligor in writing of the transfer of the right to
demand. The transfer of the right to demand does not require the consent of the
obligor, unless otherwise agreed upon or provided for by law.
Article 310.- Forms of
transfer of the right to demand
1. The transfer of the right to
demand shall be expressed in writing or orally.
2. In cases where it is provided
for by law that the transfer of the right to demand must be expressed in
writing, notarized, or authenticated, registered or permitted, such provisions
must be complied with.
Article 311.- The
obligation to provide information and transfer papers
1. The transferor of the right
to demand must provide necessary information and transfer the relevant papers
to the transferee.
2. The transferor of the right
to demand who breaches the obligation provided for in Clause 1 of this Article
and causes damage shall have to compensate for the damage.
Article
312.- Non-liability after transferring the right to demand
The transferor of the right to
demand shall not have to bear liability for the obligor's capability to perform
the obliga-tion, unless otherwise agreed upon.
Article 313.- Transfer
of the right to demand with measures to secure the performance of civil
obligations
In cases where the right to
demand the performance of civil obligations involves security measures, the
transfer of the right to demand shall also include such security measures.
Article 314.- The
obligor's right of refusal
1. In cases where the obligor is
not notified of the transfer of the right to demand or the transferee cannot
prove the authenticity of the transfer of the right to demand, the obligor shall
have the right to refuse the performance of obligation toward the transferee.
2. In cases where the obligor is
not notified of the transfer of the right to demand and has already performed
the obligation toward the transferor of the right to demand, the transferee
must not demand the obligor to perform the obligation toward him/her/it.
Article 315.- Transfer
of civil obligations
1. The obligor may transfer a
civil obligation to a substitute obligor, if it is so consented by the obligee,
except in cases where the obligation is connected with the personal identity of
the obligor or where it is provided for by law that such obligation must not be
transferred.
2. When being transferred an
obligation, the substitute obligor shall become the obligor.
Article 316.- Forms of
transfer of civil obligations
1. The transfer of a civil
obligation shall be expressed either in writing or orally.
2. Where it is provided for by
law that the transfer of obligation must be expressed in writing, notarized or
authenticated, registered or permitted, such provisions must be complied with.
Article 317.- Transfer
of civil obligations with security measures
In cases where a secured civil
obligation is transferred, the security measures shall terminate, unless
otherwise agreed upon.
Section 5. SECURITY FOR THE
PERFORMANCE OF CIVIL OBLIGATIONS
I. GENERAL PROVISIONS
Article 318.- Measures
to secure the performance of civil obligations
1. The measures to secure the
performance of civil obligations include:
a/ Pledge of property;
b/ Mortgage of property;
c/ Deposit;
d/ Security collateral;
e/ Escrow account;
f/ Guaranty;
g/ Pledge of trust.
2. In cases where the security
measures are agreed upon by the parties or provided for by law, the obligor
must implement those security measures.
Article 319.- Scope of
security for the performance of a civil obligation
1. A civil obligation may be
partially or fully secured as agreed upon or as provided for by law; if the
scope of security is not agreed upon or provided for by law, the obligation shall
be regarded as fully secured, including the obligation to pay interests and
compensation for damage.
2. The parties may agree on
measures to secure the performance of civil obligations in order to secure the
performance of assorted obligations, including current obligations, future
obligations or conditional obligations.
Article 320.- Objects
used to secure the performance of civil obligations
1. Objects used to secure the
performance of civil obligations must be under the ownership rights of the
securing party and be permitted for transaction.
2. Objects used to secure the
performance of civil obligations are the existing objects or objects to be
formed in the future. Objects to be formed in the future are movable property
or immovable property under the ownership of the securing party after the time
the obligations are established or the security transactions are entered into.
Article 321.- Monies,
valuable papers used to secure the performance of civil obligations
Monies, bonds, shares,
promissory notes and other valuable papers can be used to secure the
performance of civil obligations.
Article 322.- Property
rights used to secure the performance of civil obligations
1. Property rights owned by the
securing party, including property rights arising from copyrights, industrial
property rights, rights to plant varieties, the right to claim debts, the right
to receive insurance indemnities for secured objects, property rights to
capital amounts contributed to enterprises, property rights arising from contracts
and other property rights of the securing party, may all be used to secure the
performance of civil obligations.
2. Land use rights may be used
to secure the performance of civil obligations in accordance with the
provisions of this Code and the law on land.
3. The right to exploit natural
resources shall be used to secure the performance of civil obligations in
accordance with the provisions of this Code and the law on natural resources.
Article
323.- Registration of secured transactions
1. Secured transactions are
civil transactions for which, as agreed upon by the parties or provided for by
law, the application of security measures defined in Clause 1, Article 318 of
this Code, is required.
2. The registration of secured
transactions shall be carried out in accordance with the provisions of law on
registration of secured transactions. The registration shall constitute a
condition for secured transactions to be effective only in cases where it is so
provided for by law.
3. Where secured transactions
are registered under the provisions of law, such secured transactions shall be
legally valid for a third party as from the time of registration.
Article 324.- Property
used to secure the performance of many civil obligations
1. A property can be used to
secure the performance of many civil obligations, if its value at the time of
establishment of the secured transaction is greater than the total value of all
secured obligations, unless otherwise agreed upon or provided for by law.
2. In cases where a property is
used to secure the performance of many obligations, the securing party must
notify the subsequent secure that the security property is being used to secure
the performance of another obligation. Each time of security must be made in
writing.
3. In cases where property must
be disposed of to secure the performance of a due obligation, the other
obligations, though being undue, shall be considered being due and all the
secures are entitled to participate in the disposal of the property. The secure
that has notified the disposal of the property shall have to dispose of the
property, unless otherwise agreed upon by the secures.
In cases where the parties wish
to continue performing the undue obligations, they may reach agreement on the
use of other property by the securing party to secure the performance of undue
obligations.
Article 325.- Priority
order of payment
The payment priority order under
the disposal of security property shall be determined as follows:
1. In cases where the secured
transactions are registered, the payment priority order upon the disposal of
security property shall be determined according to the registration order;
2. In cases where one property
is used to secure the performance of many civil obligations with registered
secured transactions and unregistered secured transactions as well, priority
shall be given to the payment of registered secured transactions;
3. In cases where one property
is used to secure the performance of many civil obligations with all secured
transactions being unregistered, the payment priority order shall be determined
according to the order of establishment of secured transactions.
II. PLEDGE OF PROPERTY
Article 326.- Pledge of
property
The pledge of a property is a
transaction in which a party (hereinafter referred to as the pledgor) hands
over a property to the other party (hereinafter referred to as the pledgee) to
secure the performance of a civil obligation(s).
Article 327.- Forms of
pledge of property
The pledge of property must be
established in writing, either in a separate document or incorporated in a
principal contract.
Article 328.- Effect of
pledge of property
A pledge of property shall take
effect as from the time of handing over the property to the pledgee.
Article 329.- Duration
of pledge of property
The duration of a pledge of
property shall be agreed upon by the parties. In the absence of such agreement,
the pledge duration shall be counted till the termination of the obligation
secured by the pledge.
Article
330.- Obligations of the property pledgor
The property pledgor shall have
the following obligations:
1. To hand over the pledged
property to the pledgee as agreed upon;
2. To notify the pledgee of the
right of a third party to the pledged property, if any; in the absence of such
notification, the pledgee shall have the right to cancel the property pledge
contract and demand compensation for damage, or to maintain the contract and
accept the rights of the third party to the pledged property;
3. To pay the pledgee reasonable
expenses incurred for maintaining and preserving the pledged property, unless
otherwise agreed upon.
Article 331.- Rights of
the property pledgor
The property pledgor shall have
the following rights:
1. To demand that the pledgee
suspend the use of the pledged property in the cases specified in Clause 3,
Article 333 of this Code, if such use puts the pledged property in danger of
loss or depreciation of its value;
2. To sell the pledged property,
if so agreed by the pledgee;
3. To replace the pledged
property with another property, if so agreed upon;
4. To demand that the pledgee
that keeps the pledged property return the pledged property when the obligation
secured by the pledge has terminated;
5. To demand that the pledgee
compensate for damage caused to the pledged property.
Article
332.- Obligations of the property pledgee
The property pledgee shall have
the following obligations:
1. To maintain and preserve the
pledged property; if causing loss of, or damage to, the pledged property, to
pay compensation for damage to the pledgor;
2. Not to sell, exchange,
donate, lease, or lend the pledged property; not to use the pledged property to
secure the performance of another obligation;
3. Not to exploit the utility
of, or enjoy the yields and/or profits from, the pledged property, if not so
consented by the pledgor;
4. To return the pledged
property upon the termination of the obligation which is secured by the pledge
or when it is replaced by another security measure.
Article 333.- Rights of
the property pledgee
The property pledgee shall have
the following rights:
1. To demand that the person
unlawfully possessing or using the pledged property return the property;
2. To demand that the pledged
property be disposed of in the manner as agreed upon or provided for by law for
the performance of an obligation;
3. To exploit the utility of,
and enjoy the yields and/or profits from, the pledged property, if so agreed
upon;
4. To be paid reasonable
expenses for the preservation of the pledged property when returning the
pledged property to the pledgor.
Article 334.- Pledge of
many properties
In cases where many properties
are pledged to secure the performance of one civil obligation, each property
shall be determined as securing the performance of the entire obligation. The
parties may also agree that each property secures the performance of a part of
the obligation.
Article
335.- Cancellation of pledge of property
The pledge of a property may be
cancelled, if so consented by the pledgee.
Article 336.- Disposal
of pledged property
In cases where the time for
performing the civil obligation becomes due and the pledgor has failed to
perform or has performed the obligation not in accordance with the agreement,
the pledged property shall be disposed of by the mode agreed upon by the
parties or be auctioned under the provisions of law for the performance of the
obligation. The pledgee shall be given priority to receive payment from the
proceeds of the sale of the pledged property.
Article 337.- Disposal
of pledged property involving many objects
In cases where a pledged
property comprises many objects, the pledgee may choose specific property for
disposal, unless otherwise agreed upon. The pledgee may only handle a number of
necessary property corresponding to the value of the secured obligation; in case
of disposal in excess of the number of necessary property, causing damage to
the pledgor, the pledgee must pay compensation therefor to the pledgor.
Article 338.- Payment of
proceeds from the sale of pledged property
The proceeds from the sale of
the pledged property shall be used for fulfillment of obligations toward the
pledgee after deducting the expenses for preservation and sale of the property
and other necessary expenses related to the disposal of the pledged property;
in cases where the secured obligation is a loan, the payment shall be made to
the pledgee in the order of principal, interest, fine and pecuniary
compensation for damage, if any; the remaining proceeds, if any, must be
returned to the pledgor; if the sale proceeds are insufficient, the pledgor
must pay the deficit.
Article
339.- Termination of pledge of property
The pledge of property shall
terminate in the following cases:
1. The obligation secured by the
pledge has terminated;
2. The pledge of property has
been cancelled or substituted by another security measure;
3. The pledged property has been
disposed of;
4. It is so agreed by the
parties.
Article 340.- Return of
pledged property
When the pledge of property is
terminated as provided for in Clauses 1 and 2 of Article 339 of this Code, the
pledged property and ownership right certificates shall be returned to the
pledgor. Yields and profits received from the pledged property shall also be
returned to the pledgor, unless otherwise agreed upon.
Article 341.- Pledge of
property at pawn shops
The pledge of property at pawn
shops shall comply with the provisions of Articles 326 thru 340 of this Code
and other legal documents regarding activities of pawn shops.
III. MORTGAGE OF PROPERTY
Article 342.- Mortgage
of property
1. The mortgage of property
means the use by a party (hereinafter referred to as the mortgagor) of
his/her/its own property to secure the performance of a civil obligation toward
the other party (hereinafter referred to as the mortgagee) without transferring
such property to the mortgagee.
In cases where an entire
immovable or movable property containing an auxiliary object is mortgaged, the
auxiliary object of such immovable or immovable property shall also belong to
the mortgaged property.
In cases where only part of the
immovable or movable property containing an auxiliary object is mortgaged, the
auxiliary object shall belong to the mortgaged property, unless otherwise
agreed upon by the parties.
The mortgaged property can also
be the property to be formed in the future.
2. The mortgaged property shall
be held by the mortgagor. The parties may agree to let a third party keep the
mortgaged property.
3. The mortgage of land use
rights shall comply with the provisions of Articles 715 thru 721 of this Code
and other relevant provisions of law.
Article 343.- Forms of
property mortgage
The mortgage of property must be
made in writing, either in a separate document or incorporated in a principal
contract. Mortgage documents must be notarized, authenticated or registered, if
so provided for by law.
Article 344.- Duration
of mortgage
The parties shall agree on the
duration of a mortgage of property; in the absence of such agreement, the
mortgage shall last until the termination of the obligation secured by the
mortgage.
Article 345.- Mortgage
of property currently being leased
A property that is being leased
may also be mortgaged. Yields and profits received from the lease of property
shall belong to the mortgaged property, if it is so agreed upon or provided for
by law.
Article 346.- Mortgage
of insured property
1. In cases where a mortgaged
property is insured, the insurance coverage shall also belong to the mortgaged
property.
2. The mortgagee must notify the
insurance organization that the insured property is being used as mortgage. The
insurance organization shall pay the insurance indemnities directly to the
mortgagee upon the occurrence of an insured incident. In cases where the
mortgagee fails to notify the insurance organization that the insured property
is being used as mortgage, the insurance organization shall pay indemnities
under the insurance contract and the mortgagor is obliged to make payment to
the mortgagee.
Article 347.- Mortgage
of many properties to secure the performance of one civil obligation
In cases where many properties
are mortgaged to secure the performance of one civil obligation, each property
shall be determined as securing the performance of the entire obligation. The
parties may also agree that each property secures the performance of part of
the obligation.
Article
348.- Obligations of the property mortgagor
The property mortgagor shall
have the following obligations:
1. To preserve and maintain the
mortgaged property;
2. To apply necessary remedial
measures, including the cessation of the exploitation of the utility of the
mortgaged property, if due to such exploitation the mortgaged property is in
the danger of loss or depreciation of its value;
3. To notify the mortgagee of a
third party's rights to the mortgaged property, if any; in case of non-notification,
the mortgagee may cancel the property mortgage contract and demand compensation
for damage or maintain the contract and accept the third party's rights to the
mortgaged property;
4. Not to sell, exchange or
donate the mortgaged property, except for the cases specified in Clauses 3 and
4, Article 349 of this Code.
Article 349.- Rights of
the property mortgagor
The property mortgagor shall
have the following rights:
1. To exploit the utility of,
and enjoy the yields and profits from, the property, except in cases where the
yields and profits also belong to the mortgaged property as agreed upon;
2. To invest so as to increase
the value of the mortgaged property;
3. To sell, replace the
mortgaged property if such property is a commodity circulated in the process of
production and/or business;
In case of sale of the mortgaged
property being a commodity circulated in the process of production and/or
business, the right to demand the purchaser pay the money, the sale proceeds or
the property formed from the sale proceeds shall become the mortgaged property
in replacement of the sold property;
4. To sell, exchange or donate
the mortgaged property other than a commodity circulated in the process of
production and/or business, if so agreed by the mortgagee;
5. To lease, lend the mortgaged
property but with the notification to the lessee or the borrower that the
leased or lent property is being mortgaged, and to have to notify such to the
mortgagee;
6. To reclaim the mortgaged
property held by a third party, when the obligation secured by the mortgage is
terminated or secured by another measure.
Article
350.- Obligations of the property mortgagee
The property mortgagee shall
have the following obligations:
1. To return to the mortgagor
the papers on the mortgaged property upon termination of the mortgage in cases
where the parties agree that the mortgagee keeps the papers on the mortgaged
property;
2. To request a state agency
competent to register secured transactions to delete the registration in the
cases specified in Articles 355, 356 and 357 of this Code.
Article 351.- Rights of
the property mortgagee
The property mortgagee shall
have the following rights:
1. To demand that the lessee or
the borrower of the mortgaged property in the case specified in Clause 5,
Article 349 of this Code terminate the use of the mortgaged property, if such
use causes the loss or decrease of the value of such property;
2. To directly check and inspect
the mortgaged property but not to hinder or cause difficulty to the use or
exploitation of the mortgaged property;
3. To demand that the mortgagor
supply information on the actual conditions of the mortgaged property;
4. To demand that the mortgagor
apply necessary measures to preserve the property, the property value in cases
where exists the danger of causing the loss or decrease of value of the
property due to the exploitation and use thereof;
5. To demand that the mortgagor
or a third party that keeps the mortgaged property return such property for
disposal in cases where the time for fulfillment of the obligation becomes due
while the obligagor fails to perform or improperly performs the obligation;
6. To supervise and inspect the
process of property formation in case of mortgaging the property to be formed
in the future;
7. To request the disposal of
the mortgaged property in accordance with the provisions of Article 355 or
Clause 3 of Article 324 of this Code and to be given priority in the settlement
of payments.
Article
352.- Obligations of a third party holding mortgaged property
A third party holding the
mortgaged property shall have the following obligations:
1. To maintain and preserve the
mortgaged property; if causing loss of the mortgaged property, the loss or
decrease of the value of the mortgaged property, to pay compensation therefor;
2. To discontinue the
exploitation of the utility of the mortgaged property, in the case specified in
Clause 1, Article 353 of this Code, if the continued exploitation thereof may
put the mortgaged property in the danger of losing or decreasing its value;
3. To hand back the mortgaged
property to the mortgagee or the mortgagor as agreed upon.
Article 353.- Rights of
the third party holding mortgaged property
The third party holding the
mortgaged property shall have the following rights:
1. To exploit the utility of,
and enjoy the yields and profits from, the mort-gaged property, if it is so
agreed upon;
2. To be paid the remuneration
and the expenses for maintenance and preservation of the mortgaged property,
unless otherwise agreed upon.
Article
354.- Replacement and repair of mortgaged property
1. The mortgagor may replace the
mortgaged property only when it is so consented by the mortgagee, unless
otherwise agreed upon, except for the case specified in Clause 3, Article 349
of this Code.
2. In case of mortgage of a
warehouse, the mortgagor may replace commodities in the warehouse, but must
strictly ensure the value of the ware-housed commodities as agreed upon.
3. When the mortgaged property
is damaged, the mortgagor must repair the mortgaged property within a
reasonable time or replace the mortgaged property with a similar value, unless
otherwise agreed upon.
Article 355.- Disposal
of mortgaged property
In cases where the time for
performing a civil obligation becomes due and the obligor has failed to perform
or has improperly performed the obligation, the mortgaged property shall be
disposed of in accordance with the provisions of Articles 336 and 338 of this
Code.
Article
356.- Cancellation of property mortgage
A property mortgage may be cancelled
if the mortgagee so consents, unless otherwise provided for by law.
Article
357.- Termination of property mortgage
A property mortgage shall
terminate in the following cases:
1. The obligation secured by the
mortgage has been terminated;
2. The property mortgage is
cancelled or replaced with another security measure;
3. The mortgaged property has
been disposed of;
4. It is so agreed upon by the
parties.
IV. DEPOSITS
Article 358.- Deposit
1. Deposit is an act whereby one
party transfers a sum of money or precious metals, gems or other valuable
things (hereinafter referred to as the deposited property) to another party for
a specified time limit to secure the entry into, or the performance of, a civil
contract.
Deposit must be established in
writing.
2. In cases where a civil
contract is entered into or performed, the deposited property shall be returned
to the depositor or deducted for the performance of a payment obligation; if
the depositor refuses to enter into or perform the civil contract, the deposited
property shall belong to the depositary; if the depositary refuses to enter
into or perform the civil contract, he/she/it must return the deposited
property and pay a sum of money equivalent to the value of the deposited
property to the deposi-tor, unless otherwise agreed upon.
V. SECURITY COLLATERAL
Article 359.- Security
collateral
1. Security collateral is an act
whereby a lessee of a movable property transfers a sum of money or precious
metals, gems or other valuable things (hereinafter referred to as security
collateral property) to the lessor for a specified time limit to secure the
return of the leased property.
2. In cases where the leased
property is returned, the lessee shall be entitled to reclaim the security
collateral property after deducting the rental; if the lessee does not return
the leased property, the lessor shall be entitled to reclaim the leased
property; if the leased property is no longer available for the return, the
security collateral property shall belong to the lessor.
VI. ESCROW ACCOUNT
Article 360.- Escrow
account
1. Escrow account is an act
whereby an obligor deposits a sum of money, precious metals, gems or valuable
papers into a blocked bank account to secure the performance of a civil
obligation.
2. In cases where the obligor
has failed to perform or has improperly performed an obligation, the obligee
shall be entitled to receive payment and compensation for damage caused by the
obligor from the bank where the escrow account is effected, after deducting the
bank service charges.
3. The procedures for deposit
and payment shall be specified by the law on banking.
VII. GUARANTY
Article 361.- Guaranty
Guaranty is an act whereby a
third party (hereinafter referred to as the guarantor) commits with the obligee
(hereinafter referred to as the guarantee) to perform an obligation for the
obligor (hereinafter referred to as the guaranteed), when the obligation
becomes due and the guaranteed has failed to perform or has improperly
performed the obligation. The parties may also agree that the guarantor shall
only be liable to perform the obligation when the guaranteed is incapable of
performing its obligation.
Article 362.- Forms of
guaranty
The guaranty must be made in
writing, either in a separate document or incorporated in the principal
contract. Guarantee documents must be notarized or authenticated in cases where
it is so provided for by law.
Article 363.- Scope of
guaranty
A guarantor may undertake to
guarantee a part or whole of the obligation for the guaranteed.
The guaranty obligation includes
interest on the principal, fines and damages, unless otherwise agreed upon.
Article
364.- Remuneration
The guarantor shall be entitled
to remuneration if so agreed upon between the guarantor and the guaranteed.
Article 365.- Joint
guarantors
When more than one person
undertake to guarantee an obligation, they must perform jointly the guaranty,
except in cases where they agree or it is provided for by law that the guaranty
shall be in independent shares; the obligee may demand that anyone of the joint
guarantors perform the entire obligation.
When one of the joint guarantors
has performed the entire obligation for the guaranteed, he/she/it shall have
the right to demand that the other guarantors perform their shares of the
obligation to him/her/it.
Article
366.- Relationship between the guarantor and the guarantee
1. The guarantee must not demand
that the guarantor perform an obligation for the guaranteed when the obligation
has not become due.
2. The guarantor shall not have
to perform the guaranty obligation in cases where the guarantee can offset the
obligation with the guaranteed.
Article 367.- The
guarantor's right to demand
When the guarantor has fulfilled
his/her/its obligation, he/she/it shall have the right to demand the guaranteed
to perform his/her/its obligation towards guarantor within the scope of the
guaranty, if not otherwise agreed upon.
Article 368.- Waiver of
the performance of guaranty
1. In cases where the guarantee
exempt the guarantor from the performance of obligation, the guaranteed shall
still have to perform the obligation towards the guarantee, except in cases
where it is agreed upon or provided for by law that the guaranty must be
performed jointly.
2. In cases where one of the
joint guarantors is exempted from performing his/her/its part of the guaranty,
the other joint guarantors shall still have to perform their parts of the
guaranty.
Article 369.- Disposal
of the property of the guarantor
In cases when the time limit for
performing the obligation for the guaranteed becomes due and the guarantor has
failed to perform or has improperly performed the obligation, the guarantor
must use his/her/its own property to make payments for the guarantee.
Article
370.- Cancellation of guaranty
A guaranty may be cancelled if
the guarantee so consents, unless otherwise provided for by law.
Article
371.- Termination of guaranty
A guaranty shall be terminated
in the following cases:
1. The obligation secured by the
guaranty is terminated;
2. The guaranty is cancelled or
is replaced by another security measure;
3. The guarantor has performed
the guaranty obligation;
4. It is so agreed upon by the
parties.
VIII. PLEDGE OF TRUST
Article 372.- Pledge of
trust guaranty by socio-political organizations
Local socio-political
organizations may guarantee by way of pledge of trust for poor individuals and
households to borrow sums of money from banks or other credit institutions for
production, business or provision of services in accordance with regulations of
the Government.
Article 373.- Forms of
pledge of trust guarantee
Loans involving the pledge of
trust security must be made in writing, clearly stating the loan amounts,
purpose of the loans, terms of the loans, interest rates, rights, obligations
and responsibilities of the borrowers, the lending banks or credit institutions
and the guaranteeing organizations.
Section 6. TERMINATION OF
CIVIL OBLIGATIONS
Article 374.- Bases for
termination of a civil obligation
A civil obligation shall
terminate in the following cases:
1. The obligation is fulfilled;
2. It is so agreed upon by the
parties;
3. The obligee waives the
performance of the obligation;
4. The obligation is replaced by
another civil obligation;
5. The obligation is offset;
6. The obligee and the obligor
merge;
7. The statute of limitations
for exemption from the civil obligation has expired;
8. The obligor being an
individual dies or the obligor being a legal person or other subject ceases to
exist while that obligation must be performed by that very individual or legal
person;
9. The obligee being an
individual dies and whose right to demand does not belong to the inheritance or
the obligee being a legal person ceases to exist and the right to demand must
not be transferred to another legal person or subject;
10. A distinctive object, as the
object of the obligation, ceases to exist and is replaced by another civil
obligation.
11. Other cases provided for by
law.
Article
375.- Fulfillment of civil obligations
A civil obligation shall be
deemed completed when the obligor has performed the entire obligation or part
of the obligation but the remaining parts are exempted by the obligee from the
performance.
Article
376.- Fulfillment of a civil obligation in cases where the obligee delays
accepting the object of the obligation
1. When the obligee delays
accepting the object of an obligation, which is an object, the obligor must
preserve the object or may deposit it for safekeeping at a place of bailment
and must immediately notify the obligee thereof. The party delaying the
acceptance must bear all risks and expenses relating to its bailment.
The obligation to deliver an
object shall be completed at the time it is bailed in accordance with the
quantity, quality and other conditions agreed upon by the parties.
2. In cases where the object of an
obligation is money or valuable papers and the obligee delays accepting the
object of the obligation, the obligor may also deposit such object at a place
of bailment and must immediately notify the obligee thereof; the obligation
shall be considered having been completed at the time of bailment.
Article
377.- Termination of civil obligations by agreement
The parties may agree to
terminate a civil obligation at any time, provided that such does not harm
State interests, public interests or legitimate rights and interests of other
persons.
Article
378.- Termination of civil obligations due to waiver of the performance of
obligations
1. A civil obligation shall
terminate when the obligee waives the performance of obligation for the
obligor, unless otherwise provided for by law.
2. When a secured obligation is
waived, the security arrangement shall also terminate.
Article
379.- Termination of a civil obligation by substitution with another civil
obligation
1. In cases where the parties
agree to substitute the original civil obligation with another civil
obligation, the original civil obligation shall terminate.
2. The civil obligation shall
also terminate if the obligee has accepted another property or another task as
a substitute for the property or the task previously agreed upon.
3. In cases where the civil
obligation is an obligation to provide support payment, to pay compensation for
damage due to infringement on the life, health, honor, dignity and reputation,
or other personal obligation which cannot be transferred to other person, then
it shall not be substituted with another obligation.
Article
380.- Termination of civil obligations by offsetting obligations
1. In cases where two parties
have reciprocal obligations with respect to properties of the same type and
both of which are due, they shall not have to perform obligations to each other
and the obligations shall be deemed terminated, except otherwise provided for
by law.
2. In cases where the values of
the properties or the tasks are different, the parties shall pay the difference
in value to each other.
3. Objects which can be valued
in money may be used to offset the payment obligation.
Article 381.- Cases
where civil obligations must not be offset
A civil obligation must not be
offset in the following cases:
1. The civil obligation is in
dispute;
2. The obligation is to
compensate for damage to life, health, dignity, honor or reputation;
3. The obligation is to provide
support payment;
4. Other obligations provided
for by law.
Article 382.- Termination
of civil obligations when the obligor and the obligee merge
When the obligor becomes the
obligee with respect to that particular obligation, the civil obligation shall
terminate.
Article
383.- Termination of civil obligations due to expiration of the statute of
limitations for exemption from civil obligations
When the statute of limitations
for exemption from civil obligations expires, the obligations shall terminate.
Article
384.- Termination of civil obligations when the obligor being an
individual dies or being a legal person, or another subject ceases to exist
When it is agreed upon by the
parties or provided for by law that the obligation must be performed by the
obligor him/her/itself, but such individual has died or the legal person or
other subject has ceased to exist, then that obligation shall terminate.
Article
385.- Termination of civil obligations when the obligee being an
individual dies or being a legal person or other subject ceases to exist
When it is agreed upon by the
parties or provided for by law that the obligation shall be performed only for
the individual, the legal person or the other subject, that is the obligee, but
such individual has died or such legal person or other subject has ceased to
exist, then that obligation shall also terminate.
Article
386.- Termination of civil obligation when distinctive objects no longer
exist
The obligation to hand over an
object shall terminate in cases where the object to be handed over is a
distinctive object which no longer exists.
The parties may agree on the
substitution with another object or compensation for damage.
Article
387.- Termination of civil obligations in case of bankruptcy
In case of bankruptcy, civil
obligations shall terminate in accordance with the provisions of law on
bankruptcy.
Section 7. CIVIL CONTRACTS
I. ENTRY INTO CIVIL CONTRACTS
Article 388.- Definition
of civil contracts
A civil contract is an agreement
between the parties to establish, change or terminate civil rights and/or
obligations.
Article 389.- Principles
for entering into civil contracts
The entry into a civil contract
must adhere to the following principles:
1. Freedom to enter into the
contract, provided that it is not contrary to law and social ethics;
2. Voluntariness, equality,
goodwill, cooperation, honesty and good faith.
Article 390.- Offering
to enter into civil contracts
1. Offering to enter into a
contract means the expression of the intention to enter into the contract and
to be bound on this offer of the offering party to the other specified party.
2. In cases where the offer to
enter into a contract clearly state the time limit for reply and the offer or
enters into the contract with a third party within such time limit, he/she/it
must pay compensation for damage to the offeree and must not enter into the
contract if damage is caused.
Article 391.- Time when
an offer to enter into a civil contract takes effect
1. The time when an offer to
enter into a civil contract takes effect shall be determined as follows:
a/ It is fixed by the offeror;
b/ If the offeror does not fix
such time, the offer to enter into a civil contract shall take effect from the
time the offeree receives such offer.
2. An offer to enter into a
contract shall be considered having already been received in the following
cases:
a/ The offer is transferred to
the place of residence, if the offeree is an individual; to the headquarters,
if the offeree is a legal person;
b/ The offer is introduced into
the official information system of the offeree;
c/ When the offeree knew the
offer to enter into the contract by another mode.
Article
392.- Modification, revocation of offers to enter into civil contracts
1. The offeror may modify or
revoke his/her offer to enter into a contract in the following cases:
a/ If the offeree receives the
notice on modification or revocation of offer before or simultaneously with the
time of receiving the offer;
b/ The conditions for
modification or revocation of the offer arise in cases where the offeror has
clearly stated the eligibility for modification or revocation of the offer when
such conditions arise.
2. When the offeror changes the
contents of the offer, such offer shall be considered a new offer.
Article
393.- Cancellation of offers to enter into contracts
Where the offeror exercises the
right to cancel the offer as such right has been clearly stated in the offer,
he/she/it must notify the offeree thereof and such notification shall take
effect only when it is received by the offeree before the offeree replies to
accept the offer to enter into the contract.
Article
394.- Termination of offers to enter into contracts
An offer to enter into a
contract shall terminate in the following cases:
1. The offeree replies not to
accept the offer;
2. The time limit for reply of
acceptance has expired.
3. When the notice on modication
or revocation of the offer takes effect;
4. When the notice on
cancellation of the offer takes effect;
5. It is so agreed upon by the
offeror and the offeree within the time limit for reply by the offeree
Article 395.- Offer
modification proposed by the offeree
When the offeree accepts to
enter into a contract but states the conditions therefore or modifies the
offer, he/she/it shall be considered having made a new offer.
Article 396.- Acceptance
of offers to enter into contracts
The acceptance of an offer to
enter into a contract is the offeree’s reply to the offeror on the acceptance
of the whole contents of the offer.
Article 397.- Time limit
for reply of acceptance of an offer to enter into a contract
1. When the offeror fixes a time
limit for reply, the reply of acceptance shall be effective only when it is
made within that time limit; if the offeror receives the reply when the time
limit for reply has expired, the acceptance shall be considered a new offer of
the party late in replying.
In cases where the notice on
acceptance of an offer to enter into a contract arrives late for objective
reasons which the offeror knew or would have known, such notice on acceptance
of the offer to enter into the contract remains effective, except for cases
where the offeror immediately replies not to agree with such acceptance of the
offeree.
2. When the parties are in
direct contact, including contacts via telephone or other means, the offeree
must immediately reply whether to accept the offer or not, except for cases
where there in an agreement on the time limit for reply.
Article 398.- Cases
where offerors die or lose their civil act capacity
In cases where the offeror dies
or loses his/her civil act capacity after the offeree accepts to enter into the
contract, the offer to enter into the contract remains valid.
Article 399.- Cases
where offerees die or lose their civil act capacity
In cases where the offeree dies
or loses his/her civil act capacity after making his/her reply to accept the
offer to enter into the contract, the reply of acceptance to enter into the
contract remains valid.
Article 400.- Revocation
of notice on acceptance to enter into contracts
The offeree may revoke his/her
notice on acceptance to enter into a contract if such notice arrives before or
simultaneously with the time the offeror receives the reply of acceptance.
Article 401.- Forms of
civil contract
1. A civil contract can be made
orally, in writing or by specific acts, unless a specific form for such type of
contract is provided for by law.
2. In cases where it is provided
for by law that a contract must be expressed in writing with notarization or
authentication, must be registered or permitted, such provisions shall be
complied with.
Contracts shall not be
invalidated in case of form-related breaches, unless otherwise provided for by
law.
Article 402.- Contents
of civil contracts
Depending on each type of
contract, the parties may agree on the following contents:
1. Object of the contract, which
is a property to be handed over, or a task to be performed or not to be
performed;
2. Quantity and quality;
3. Price and mode of payment;
4. Time limit, place and mode of
performing the contract;
5. Rights and obligations of the
parties;
6. Liability for breach of
contract;
7. Sanction against breach of
contract;
8. Other contents.
Article 403.- Places of
entry into civil contracts
The place where a civil contract
is entered into shall be agreed upon by the parties; in the absence of such
agreement, the place of entry into a civil contract shall be the place of
residence of the individual or the head-office of the legal person that has
made the offer to enter into the contract.
Article 404.- Time of
entry into civil contracts
1. A civil contract shall be
entered into at the time when the offeror receives the reply of acceptance to
enter into the contract.
2. A civil contract shall also
be considered having been entered into when the time limit for reply has
expired and the offeree remains silent, if it is agreed upon by the parties
that silence means the reply of acceptance.
3. The time of entry into an
oral contract shall be the time at which the parties have agreed on the
contents of the contract.
4. The time of entry into a
written contract shall be the time at which the last party signs the contract.
Article 405.- Effect of
civil contracts
Contracts that are legally
entered into shall take effect from the time they are entered into, unless
otherwise agreed upon or provided for by law.
Article 406.- Main types
of civil contract
Contracts shall have the
following main types:
1. Bilateral contract, which is
a contract under which a party has the obligation to the other;
2. Unilateral contract, which is
a contract under which only one party has the obligation;
3. Principal contract, which is
a contract the effect of which does not depend on the auxiliary contract;
4. Auxiliary contract, which is
a contract the effect of which depends on the principal contract;
5. Contract for the benefit of a
third party, which is a contract under which the contracting parties must
perform their obligations and the third party shall enjoy benefits from the
performance of such obligations;
6. Conditional contract, which
is a contract the performance of which depends on the occurrence, change or
termination of a certain event.
Article
407.- Standardized contracts
1. A standardized contract is a
contract which contains provisions prepared by one party according to a
standard contract and given to the other party for reply within a reasonable
period of time; if the offeree gives its reply of acceptance, he/she/it shall
be considered having accepted the entire content of the standardized contract
offered by the offeror.
2. In cases where a standardized
contract contains ambiguous provisions, the offeror of the standardized
contract shall bear adverse consequences of the interpretation of such
provisions.
3. In cases where a standardized
contract contains provisions exempting the liability of the offeror of the
standardized contract, while increasing the responsibility or abolishing
legitimate interests of the other party, such provisions shall not be valid,
unless otherwise agreed upon.
Article 408.- Appendices
to contracts
1. Appendices may be attached to
a contract to detail some provisions of the contract. Appendices shall be as
effective as the contract. The contents of appendices shall not be contrary to
the contents of the contract.
2. In cases where appendices
contain provisions contrary to the contractual provisions, such provisions
shall not be valid, unless otherwise agreed upon. In cases where the parties
accept appendices with provisions contrary to contractual provisions, such
contractual provisions shall be considered having been amended.
Article
409.- Interpretation of civil contracts
1. When a contract contains
ambiguous provisions, the interpretation of such provisions shall be based not
only on the wording of the contract but also on the mutual intentions of the
parties.
2. When a contractual provision
may be construed in several meanings, the meaning which makes the
implementation of such provision most beneficial to the parties shall be
selected.
3. When a contract contains
wordings that may be construed in different meanings, such wordings must be
interpreted according to the meaning which is most appropriate to the nature of
the contract.
4. When a contract contains a
provision or wording that is difficult to understand, such provision or wording
must be interpreted according to practices at the place where the contract is
entered into.
5. When a contract lacks some
provisions, such provisions may be supplemented according to practices at the
place where the contract is entered into.
6. The provisions of a contract
must be interpreted in relation to each other, so that the meanings of such
provisions conform to the whole contents of the contract.
7. In case of contradiction
between the mutual intentions of the parties and the contractual wordings, the
mutual intentions of the parties shall be used for interpretation of the
contract.
8. In cases where the advantageous
party includes in the contract the contents unfavorable for the disadvantageous
party, the interpretation of the contract must be made along the direction of
benefiting the disadvantageous party.
Article 410.- Invalid
civil contracts
1. The provisions on invalid
civil transactions in Articles 127 thru 138 of this Code shall also apply to
invalid contracts.
2. The invalidation of principal
contracts shall terminate the auxiliary contracts, except in cases where the
parties agree that the auxiliary contracts can replace the principal contracts.
This provision shall not apply to the security measures for performance of
civil obligations.
3. The invalidation of the
auxiliary contracts shall not terminate the principal contracts, except for
cases where the parties agree that the auxiliary contracts constitute
inseparable parts of the principal contracts.
Article 411.- Civil
contracts invalidated due to the existence of objects which cannot be realized
1. In cases where a contract,
right at the time it is entered into, contains an object which cannot be
realized for objective reasons, such contract shall be invalidated.
2. In cases where a contract is
entered into and a party knew or would have known that the contract contains an
object which cannot be realized but fails to notify such to the other party
that has, therefore, entered into the contract, the former must pay damages to
the other party, except for cases where the other party knew or would have
known the object which cannot be realized.
3. The provisions of Clause 2 of
this Article shall also apply to cases where a contract contains one or many
parts of an unrealizable object, while the remaining part of the contract
remains legally valid.
II. PERFORMANCE OF CIVIL
CONTRACTS
Article 412.- Principles
for the performance of civil contracts
The performance of a civil
contract must conform to the following principles:
1. It must be performed in
accordance with the agreement on the object, quality, quantity, category, time
limit, methods and other agreements;
2. It must be performed honestly
and in the spirit of cooperation and in a manner that best benefits the parties
and ensures mutual trust;
3. It must not infringe upon
State interests, public interests or legitimate rights and interests of other
persons.
Article
413.- Performance of unilateral contracts
With respect to unilateral
contracts, the obligor must perform the obligation strictly as agreed upon and
may only perform the obligation prior to or after the time limit, if the
obligee so consents.
Article
414.- Performance of bilateral contracts
1. With respect to bilateral
contracts where the parties have agreed upon the time limit for performing the
obligations, each party must perform its obligations when they become due; must
not delay the performance for the reason that the other party has not yet
performed its obligations to the former, except for cases provided for in
Article 415 and Article 417 of this Code.
2. In cases where the parties
have no agreement on which party should perform his/her/its obligation first,
the parties must concurrently perform their obligations to each other; if the
obligations cannot be performed concurrently, the obligation the performance of
which takes more time than others shall be performed first.
Article 415.- The right
to post-pone the performance of civil obligations in bilateral contracts
1. The party that must perform
its obligations first shall have the right to postpone the performance of such
obligations, if the other party’s property has seriously depreciated to the
extent that the obligations cannot be performed as committed until the other
party has the capability to perform its obligations or has a guarantor.
2. The party that must perform
its obligations later shall have the right to postpone the performance of due
obligations if the party that must perform its obligations first has not yet
performed its obligations when they are due.
Article 416.- Lien on
property in bilateral contracts
1. Lien on property means that
the obligee (hereinafter referred to as the lienor) who is legally possessing
the property being an object of a bilateral contract is entitled to retain the
property when the obligor fails to perform the obligations or has performed the
obligations not strictly as agreed upon.
2. The lienor shall have the
following rights and obligations:
a/ To retain the whole or part
of the property in the cases defined in Clause 1 of this Article;
b/ To enjoy yields from the
property subject to a lien and use them to offset the obligations;
c/ To keep and preserve the
property subject to a lien;
d/ To request the owner of the
property subject to a lien to pay necessary expenses for the keeping and
preservation of such property.
3. A lien shall terminate in the
following cases:
a/ It is so agreed upon by the
parties;
b/ The lienor violates the
obligation to keep and preserve the property subject to a lien;
c/ The owner of the property
subject to a lien has fulfilled their obligations.
Article
417.- Non-performance of obligations due to the obligee’s fault
When a party to a bilateral
contract is unable to perform its obligations due to the fault of the other
party, the former shall have the right to demand that the other party still
perform its obligations toward the former or to cancel the contract and demand
compensation for damage.
Article
418.- Non-performance of obligations but not due to the faults of the
parties
When a party to a bilateral
contract is unable to perform its obligations but the parties are not at fault,
the non-performer of the obligations shall have no right to demand that the
other party perform its obligations toward him/her/it. In cases where a party
has performed part of the obligations, it shall have the right to demand the
other party perform the corresponding part of the obligations toward it.
Article
419.- Performance of a contract for the benefit of a third party
When a contract is performed for
the benefit of a third party, the third party shall have the right to directly
request the obligor to perform the obligation toward it; if there appears a
dispute between the parties over the performance of the contract, the third
party shall not have the right to demand the performance of the obligation
until the dispute is settled.
The obligee may also demand that
the obligor perform the contract for the benefit of the third party.
Article 420.- A third
party's right to refuse
In cases where a third party
refuses to enjoy its benefits before the obligor performs his/her/its
obligations, the obligor shall not have to perform his/her/its obligations, but
must notify the obligee thereof, and the contract shall be considered having
been rescinded; the parties shall have to return to each other what they have
received; if the third party refuses to enjoy its benefits after the obligor
has performed his/her/its obligations, the obligations shall be considered
having been fulfilled and the obligee must still fulfill his/her/its
commitments toward the obligor.
Article 421.- No
amendment or rescission of contracts for the benefits of a third party
Once the third party has agreed
to enjoy the benefits, the parties to the contract must not amend or rescind
the contract, even though the contract has not yet been performed, unless the
third party so consents.
Article
422.- Performance of contracts with agreement on sanction against
violations
1. Sanction against violation
means an agreement between the contractual parties that the party violating the
obligation must pay a sum of money to the violated party.
2. The sanctioning level shall
be agreed upon by the parties.
3. The parties may agree that
the violating party shall only pay a fine for the violation but not have to pay
compensation for damage or shall have to pay both the fine for the violation
and compensation for damage; in the absence of prior agreement on the level of
compensation for damage, the compensation for the whole damage must be paid.
In cases where the parties have
no agreement on compensation for damage, the violating party shall have to pay
only the fine for the violation.
III. AMENDMENT AND
TERMINATION OF CIVIL CONTRACTS
Article 423.- Amendment
of civil contracts
1. The parties may agree to
amend their contracts and resolve the consequences of such amendment, unless
otherwise provided for by law.
2. In cases where a contract has
been made in writing, notarized or authenticated, registered or permitted, the
amendment of the contract must also conform to such form.
Article
424.- Termination of civil contracts
A contract shall terminate in
the following cases:
1. The contract has been fulfilled;
2. It is so agreed upon by the
parties;
3. The individual entering into
the contract dies, or the legal person or other subjects entering into the
contract cease to exist while the contract must be performed by that very
individual, legal person or subjects;
4. The contract is rescinded or
unilaterally suspended from performance;
5. The contract cannot be
performed because its object no longer exists, and the parties may agree to
substitute such object with another object or compensate for damage;
6. Other cases provided for by
law.
Article 425.- Rescission
of civil contracts
1. A party shall have the right
to rescind a contract without having to compensate for damage if the breach of
the contract by the other party is a condition for rescission, as agreed by the
parties or provided for by law.
2. The party rescinding the
contract must immediately notify the other party of the rescission; if failing
to give notification, thereby causing damage, it shall have to pay compensation
therefore;
3. When a contract is rescinded,
it shall cease to be valid ad initio and the parties must return to
each other the property they have received; if the property cannot be returned
in kind, then it shall be paid for in money.
4. The party at fault in the
rescission of the contract shall have to compensate for damage.
Article 426.- Unilateral
termination of performance of civil contracts
1. A party shall have the right
to unilaterally terminate the performance of a contract if so agreed upon by
the parties or provided for by law.
2. The party that unilaterally
terminates the performance of the contract must immediately notify the other
party of the termination; if failing to give notification, thereby causing
damage, it shall have to pay compensation therefore.
3. When the performance of a
contract is unilaterally terminated, the contract shall terminate as from the
time the other party receives the termination notice. The parties shall not
have to continue to perform their obligations. The party that has already
performed its obligations shall have the right to demand payment from the other
party.
4. The party at fault in the
unilateral termination of a contract must compensate for damage.
Article 427.- Statute of
limitations for initiating lawsuits related to civil contracts
The statute of limitations for
initiating lawsuits to request the courts to settle disputes over civil
contracts shall be two years counting from the date legitimate rights and
interests of individuals, legal persons or other subjects are infringed upon.
Chapter XVIII
COMMON
CIVIL CONTRACTS
Section 1. CONTRACTS FOR
PROPERTY SALE AND PURCHASE
I. GENERAL PROVISIONS ON
CONTRACTS FOR PROPERTY SALE AND PURCHASE
Article 428.- Contracts
for property sale and purchase
A contract for property sale and
purchase is an agreement between the parties whereby the seller has the
obligation to hand over the property to the purchaser and receive payment,
while the purchaser has the obligation to accept the property and make payment
to the seller.
Article 429.- Objects of
sale and purchase contracts
1. The object of a sale and
purchase contract shall be a property permitted for transaction.
2. In cases where the object of
a sale and purchase contract is an object, that object must be clearly defined.
3. In cases where the object of
a sale and purchase contract is a property right, there must be documents of
title or other evidence proving such right of the seller.
Article 430.- Quality of
objects for sale and purchase
1. The quality of the objects
for sale and purchase shall be agreed upon by the parties.
2. In cases where the quality of
objects has been announced or provided for by competent state agencies, the
quality of the objects shall be determined in accordance with the announced
standards or the regulations of the competent state agencies.
3. When the quality of objects
is not agreed upon between the parties or not provided for by law, then the
quality of the objects for sale and purchase shall be determined according to
the use purposes and the average quality of objects of the same kind.
Article 431.- Price and
mode of payment
1. The price shall be agreed
upon by the parties or determined by a third party at the parties' request.
In cases where the parties agree
to make payments at market prices, the price shall be determined at the place
and time of payment.
With respect to the property in
civil transactions, for which the State has set a price frame, the price shall
be agreed upon by the parties in accordance with that price frame.
2. The parties may agree to
apply inflation coefficients upon the fluctuation of prices.
3. The agreed price may be a
specific price level or a method of determining the price. In cases where the
agreement on the price level or the price-determining method is not clear, the
price of the property shall be determined, based on the market price at the
place and time the contract is entered into.
4. The mode of payment shall be
agreed upon by the parties.
Article 432.- Time limit
for performance of sale and purchase contracts
1. The time limit for the
performance of a sale and purchase contract shall be agreed upon by the
parties. The seller shall have to hand over the property to the purchaser at
the time agreed upon; the seller may hand over the property before or after the
time limit, only if the purchaser so agrees.
2. When there is no agreement
between the parties on the time limit for handing over the property, the buyer
shall have the right to demand that the seller hand over the property and the
seller shall also have the right to demand that the purchaser receive the
property at any time, but the parties must notify each other thereof in advance
within a reasonable period of time.
3. When there is no agreement
between the parties on the time limit for payment, the buyer must make payment
upon receipt of the property.
Article 433.- Places for
handing over property
The place for handing over the
property shall be agreed upon by the parties; in the absence of such agreement,
the provisions of Clause 2, Article 284 of this Code shall apply.
Article 434.- Modes of
handing over property
The property shall be handed
over by the mode agreed upon by the parties; in the absence of such agreement,
the property shall be handed over in one installment by the seller directly to
the purchaser.
Article 435.- Liability
for handing over objects in an incorrect quantity
1. In cases where the seller
hands over the object in a quantity greater than that agreed upon, the
purchaser shall have the right to receive or not to receive the excess portion.
In case of receipt, the payment for the excess portion shall be made as agreed
upon.
2. In cases where the seller
hands over the object in a quantity smaller than that agreed upon, the
purchaser shall have one of the following rights:
a/ To receive the portion
already handed over and demand compensation for damage;
b/ To receive the portion
already handed over and set a time limit for the seller to hand over the
deficit portion;
c/ To cancel the contract and
demand compensation for damage.
Article 436.- Liability
for handing over objects in incomplete sets
1. In cases where the object is
handed over in an incomplete set, thereby making the use purpose of the object
unachievable, the purchaser shall have one of the following rights:
a/ To receive the object and
demand that the seller hand over the remaining part, demand compensation for
damage and postpone the payment for the part received until the complete set is
handed over;
b/ To cancel the contract and
demand compensation for damage.
2. In cases where the purchaser
has made payment but not yet received the object due to the hand-over of an
incomplete set, he/she/it shall be paid interests on the paid amount at the
basic interest rate set by the State Bank and demand that the seller compensate
for damage due to the hand-over of the incomplete set, starting from the time
the contract must be performed to the time the complete set is handed over.
Article 437.- Liability
for handing over objects of a wrong kind
In cases where the object handed
over is of a wrong kind, the purchaser shall have one of the following rights:
1. To receive the object and
make the payment at the price agreed upon by the parties;
2. To demand the hand-over of
object of the right kind and compensation for damage;
3. To cancel the contract and
demand compensation for damage.
Article 438.- The duty
to pay
1. The purchaser must pay in
full at the time and place agreed upon; in the absence of such agreement,
he/she/it must make full payment at the time and place of handing over the
property.
2. The purchaser must pay
interests starting from the date of late payment as specified in Clause 2,
Article 305 of this Code, unless otherwise agreed upon or provided for by law.
Article 439.- Time for
transfer of ownership rights
1. The rights to ownership over
a property for purchase and sale shall be transferred to the purchaser as from
the time the property is handed over, unless otherwise agreed upon by the
parties or provided for by law.
2. With respect to a property
for sale and purchase to which the ownership rights must, as provided for by
law, be registered, the ownership rights shall be transferred to the purchaser
as from the time the procedures for registering the ownership rights to such
property have been completed.
3. In cases where the property
for sale and purchase has not yet been handed over while yields and/or incomes
are generated, such yields and/or incomes shall belong to the seller.
Article 440.- Time for
bearing risks
1. The seller shall bear the
risks to the property for purchase and sale until the property is handed over
to the purchaser; while the purchaser shall bear risks to such property from
the time of receiving it, unless otherwise agreed upon.
2. With respect to a contract
for purchase and sale of property to which the ownership rights must, as
provided for by law, be registered, the seller shall bear risks to such
property until the registration procedures are completed, and the purchaser
shall bear the risks from the time the registration procedures have been
completed even when it has not yet received the property, unless otherwise
agreed upon.
Article
441.- Transportation costs and costs related to the transfer of ownership
rights
In cases where there is no
agreement between the parties or no legal provision on transportation costs and
costs relating to the transfer of ownership rights, the seller must bear the
costs of transportation to the place of handing over the property and the costs
related to the transfer of ownership rights.
Article 442.- The
obligation to provide information and use instructions
The seller is obliged to provide
necessary information on the property for purchase and sale, and instructions
on the use of such property; if the seller fails to perform this obligation,
the purchaser shall be entitled to request the seller to perform it; if the
seller still declines to perform it, the purchaser shall be entitled to cancel
the contract and demand compensation for damage.
Article 443.- Security
of the purchaser's ownership rights to the property for purchase and sale
1. The seller is obliged to
secure that the ownership rights to a property sold to the purchaser are not
disputed by a third party.
2. In cases where the property
is disputed by a third party, the seller must take side with the purchaser in
order to protect the latter's interests; if the third party is entitled to own
part or the whole of the property for purchase and sale, the purchaser shall be
entitled to cancel the contract and demand that the seller compensate for
damage.
3. In cases where the purchaser
knew or must have known that the property for purchase and sale is under the
ownership of a third party, but still purchases it, he/she/it must return the
property to its owner and shall not be entitled to demand compensation for
damage.
Article 444.- Security
of the quality of objects for purchase and sale
1. The seller must secure the
use value or properties of an object for purchase and sale; if after the
purchase, the purchaser discovers a defect that devaluates or reduces the use
value of the object already purchased, he/she/it must promptly notify the
seller of the defect upon the detection thereof and is entitled to request the
seller to repair or change the defective or devalued object and compensate for
damage, unless otherwise agreed upon.
2. The seller must secure that
the object for sale conforms to the descriptions on its pack, trademark or to
the sample that has been selected by the purchaser.
3. The seller shall not be
liable for defects of the object in the following cases:
a/ Defect that the purchaser
knew or must have known when purchasing the object;
b/ The object auctioned or
object sold at a second-hand shop;
c/ The purchaser is at fault in
causing the defects of the object.
Article 445.- The
obligation to provide warranty
The seller shall have the
obligation to provide warranty for a sold object for a period of time called
warranty time limit, if the warranty is agreed upon by the parties or provided
for by law.
The warranty time limit shall be
counted from the time the purchaser has the obligation to receive the object.
Article 446.- The right
to demand warranty
Within the warranty time limit,
if the purchaser discovers a defect in the purchased object, he/she/it shall be
entitled to request the seller to repair it free of charge, reduce its price,
exchange the defective object for another one, or return the object and get
back the money.
Article 447.- Repair of
objects within the warranty time limit
1. The seller must repair the
object and secure that the object meets all the quality standards or has all
the properties as committed.
2. The seller shall bear the
expenses for repair and transportation of the object to the place of repair and
from the place of repair to the place of residence or the head- office of the
purchaser.
3. The purchaser shall be
entitled to request the seller to complete the repair within the time limit
agreed upon by the parties or within a reasonable period of time; if the seller
cannot repair or complete the repair within such time limit, the purchaser
shall be entitled to demand a price reduction, an exchange of the defective
object for another one, or return the object and get back the money.
Article
448.- Compensation for damage within the warranty time limit
1. In addition to the demand for
the application of warranty measures, the purchaser shall be entitled to
request the seller to compensate for damage caused by technical defects of the
object within the warranty time limit.
2. The seller shall not have to
compensate for damage if he/she/it can prove that the damage was caused due to
the purchaser's fault. The seller shall be entitled to a reduction of damages
if the purchaser has not applied the necessary measures within his/her/its
capacity to prevent or limit the damage.
Article 449.- Purchase
and sale of property rights
1. In case of purchase and sale
of property rights, the seller must transfer all documents of title and carry
out the procedures for transfer of ownership rights to the purchaser, whereas
the purchaser must pay money to the seller.
2. In cases where the property
rights are rights to claim debts and the seller warrants the debtor's solvency,
the seller shall be jointly liable for the payment if the debtor fails to pay
the debt when it is due.
3. The time for transferring the
ownership of property rights shall be the time at which the purchaser receives
the papers certifying the ownership of such property rights or from the time of
registration of the transfer of ownership rights, if so provided for by law.
II. CONTRACTS FOR PURCHASE
AND SALE OF HOUSES
Article 450.- Forms of
contracts for purchase and sale of residential houses
A contract for the purchase and
sale of a residential house shall be made in writing, with notarization or
authentication, unless otherwise provided for by law.
Article 451.- Obligations
of the residential house seller
The residential house seller
shall have the following obligations:
1. To notify the purchaser of
any restrictions on ownership rights to the house, if any;
2. To maintain the residential
house already sold pending its transfer to the purchaser;
3. To transfer to the purchaser
the residential house in the same conditions as described in the contract and
all the documents on the house;
4. To strictly carry out all
procedures for purchase and sale of a residential house in accordance with the
provisions of law.
Article 452.- Rights of
the residential house seller
The residential hose seller
shall have the following rights:
1. To request the purchaser to
receive the house within the agreed time limit;
2. To request the purchaser to
make payment within the agreed time limit and by the agreed mode of payment;
3. To request the purchaser to
complete all the procedures for purchase and sale of residential houses within
the agreed time limit;
4. Not to transfer the house when
he/she/it has not yet received the full payment as agreed upon.
Article
453.- Obligations of the residential house purchaser
The residential house purchaser
shall have the following obligations:
1. To pay the purchase money in
full, on time and by the agreed mode; if there is no agreement on the time
limit and place of payment, the purchaser must make the payment at the time
when the seller hands over the house and at the place where the house is
located;
2. To receive the house and the
documents on the house within the agreed time limit;
3. In case of purchasing the
house currently on lease, the purchaser must secure the rights and interests of
the lessee as agreed upon in the lease contract when the lease remains in
effect.
Article 454.- Rights of
the residential house purchaser
The residential house purchaser
shall have the following rights:
1. To receive the house in the
same conditions as agreed upon together with all the documents on the house;
2. To request the seller to
complete all the procedures for the purchase and sale of residential house
within the agreed time limit;
3. To request the seller to hand
over the house on time; if the seller fails to hand over or delays the
hand-over, to request the seller to pay compensation for damage.
Article 455.- Purchase
of houses to be used for other purposes
Unless it is otherwise provided
for by law, the provisions of Articles 450 thru 454 of this Code shall also
apply to the purchase of houses to be used for other purposes other than the
purchase of residential houses.
III. SPECIFIC REGULATIONS ON
PROPERTY PURCHASE AND SALE
Article 456.- Auction
A property may be sold by
auction at the will of its owner or as provided for by law.
When a common property is to be
sold by auction, the consent of all co-owners must be obtained, unless
otherwise agreed upon or provided for by law.
Article 457.- Auction
notices
1. The auctioneer must make a
public announcement at the place of auction and on the mass media regarding the
time, place, quantity and quality and the list of property to be auctioned, at
least seven days for movables and thirty days for immovables before the date of
auction.
2. Persons related to the
property to be auctioned must be notified of the auction for their
participation in determining the reserve price, unless otherwise agreed upon.
Article 458.- Conduct of
an auction
1. At an auction, the auctioneer
shall announce the reserve price.
2. The person who offers the
highest bid, which is at least equal to the reserve price shall be the person
entitled to purchase the auctioned property and be considered having accepted
to enter into a contract.
3. The auction shall be recorded
in writing with the signatures of the purchaser, the seller and two witnesses.
4. The time limit for handing
over the auctioned property, the mode and time limit of payment shall comply
with the regulations on auction.
5. The auctioneer shall not be
liable for the value and quality of the auctioned property.
6. In cases where the announced
highest bid is lower than the reserve price, the auction shall be considered
having failed.
The Government shall specify the
organization of, and the procedures for, property auction.
Article 459.- Auction of
immovable property
1. The auction of an immovable
property shall be held at the locality where the immovable property is located
or at a place determined by the auctioneer.
2. After the issuance of a
notice on the auction of an immovable property, persons who wish to purchase it
must register to purchase and make an advance cash deposit. The list of
purchase registrants shall be publicized at the place of auction.
3. In case of success in the
purchase of the auctioned property, the advance deposit shall be deducted from
the purchase price; if the successful bidder refuses to purchase, he/she shall
not be refunded with such money.
4. The auctioneer must refund
the advance deposits to other persons who have registered to purchase but could
not purchase the auctioned property.
5. The purchase and sale of an
auctioned immovable property must be recorded in writing with notarization or
authentication or must be registered, if so provided for by law.
Article 460.- Purchase
after trial use
1. The parties may agree on a
trial use by the purchaser of the purchased objects for a period of time called
the trial use period. During the trial use period, the purchaser may reply to
purchase or not to purchase them; if the purchaser does not reply after the
trial use period expires, he/she shall be considered as having accepted the
purchase on the terms agreed upon prior to the receipt of the objects for trial
use.
2. During the trial use period,
the objects still belong to the seller. The seller must bear all risks that may
occur to the objects, unless otherwise agreed upon. Within the trial use
period, the seller must not sell, donate, lease, exchange, mortgage or pledge
the property, pending the purchaser's reply.
3. In cases where the trial user
gives the reply of non-purchase, he/she must return the objects to the seller
and compensate the seller if he/she has caused the loss of, or damage to, the
objects in trial use. The trial user shall not be liable for ordinary wear
caused by trial use, and shall not have to return any yields gained from the
trial use.
Article 461.- Purchase
by deferred payment or installment payment
1. The parties may agree on the
deferred payment or installment payment by the purchaser within a time limit
after receiving the purchased objects; the seller shall have the right to
reserve his/her ownership rights to the sold objects until the purchaser has
paid in full, unless otherwise agreed upon.
2. The contract for purchase by
deferred payment or installment payment must be made in writing. The purchaser
shall be entitled to use the objects purchased by deferred payment or
installment payment and must bear risks during the use period, unless otherwise
agreed upon.
Article 462.- Redemption
of property already sold
1. The seller may agree with the
purchaser on the right to redeem the sold property within a time limit called
the redemption period.
The redemption period shall be
agreed upon by the parties, but shall not exceed one year for movables, and
five years for immovables, as from the time of handing over the property.
Within this period, the seller shall be entitled to redeem the property at any
time, but must notify the purchaser in advance within a reasonable period of
time. The redemption price shall be the market price at the time and place of
redemption, unless otherwise agreed upon.
2. Within the redemption period,
the purchaser must not sell, exchange, donate, lease, mortgage or pledge the
property and must bear risks to the property.
Section 2. CONTRACTS FOR
PROPERTY EXCHANGE
Article 463.- Contracts
for property exchange
1. A contract for property
exchange is an agreement between the parties whereby the parties shall transfer
their property and ownership rights to such property to each other.
2. A contract for property
exchange must be made in writing, notarized or authenticated or registered, if
so provided for by law.
3. In cases where one party
exchanges with the other party a property not under its ownership rights or
without authorization of the owner, the other party shall be entitled to cancel
the contract and demand compensation for damage.
4. Each party shall be considered
the seller of the property transferred to the other party and the buyer of the
property received. The provisions on purchase and sale contracts in Articles
428 thru 437 and Articles 439 thru 448 of this Code shall also apply to
contracts for property exchange.
Article 464.- Payment
for differences in value
In cases where the exchanged
property has differences in value, the parties must pay each other for such
differences, unless otherwise agreed upon or provided for by law.
Section 3. CONTRACTS FOR
DONATION OF PROPERTY
Article 465.- Contracts
for donation of property
A contract for donation of
property is an agreement between the parties whereby the donor shall transfer
his/her property and ownership rights to the donee without demanding any
compensation while the donee agrees to receive it.
Article 466.- Donation
of movables
A contract for donation of a
movable property shall take effect when the donee receives the property; with
regard to a movable property to which the ownership rights must be registered
as provided for by law, the contract for donation of such property shall take
effect from the time of registration.
Article 467.- Donation
of immovables
1. The donation of an immovable
property must be made in writing, with notarization or authentication or must
be registered, if the ownership rights to such immovable must be registered as
provided for by law.
2. A contract for donation of an
immovable property shall take effect from the time of registration; if the
registration of the ownership rights to the immovable property is not required,
the donation contract shall take effect from the time of transferring the
property.
Article 468.- Liability
for intentional donation of property not under one's ownership
In cases where the donor
intentionally donates a property not under his/her ownership while the donee
does not know or cannot know such, the donor must pay the donee the expenses
for increasing the value of the property when the owner recovers the property.
Article
469.- Notification of defects of donated property
The donor shall have the
obligation to notify the donee of the defects of the donated property. In cases
where the donor knows the defects of the donated property but fails to give
notification thereof, he/she must pay compensation for damage caused to the
donee; if the donor does not know the defects of the donated property, he/she
shall not have to pay compensation for damage.
Article
470.- Conditional donation of property
1. The donor may request the
donee to perform one or more than one civil obligation before or after the
donation. The conditions for the donation must not be contrary to law and
social ethics.
2. In cases where the
obligations must be performed before the donation, if the donee has fulfilled
his/her obligations and the donor still has not handed over the property, the
donor must pay for the obligations already performed by the donee.
3. In cases where the
obligations must be performed after the donation and the donee has failed to
perform them, the donor shall be entitled to reclaim the property and demand
compensation for damage.
Section 4. CONTRACTS FOR
PROPERTY LOAN
Article 471.- Contracts
for property loan
A contract for property loan is
an agreement between the parties whereby the lender transfers the property to
the borrower; when the loan is due, the borrower must return to the lender the
property of the same type in the same quantity and of the same quality, and
shall have to pay the interest only if so agreed upon or provided for by law.
Article 472.- Ownership
rights to loaned property
The borrower shall become owner
of the loaned property from the time of receiving such property.
Article
473.- Obligations of the lender
The lender shall have the
following obligations:
1. To hand over to the borrower
the property in full, of the right quality and in the right quantity at the
time and place agreed upon.
2. To compensate for damage to
the borrower if the lender is aware that the property is not of the required
quality but fails to notify the borrower thereof, except in cases where the
borrower is aware thereof but still receives such property;
3. Not to request the borrower
to return the property ahead of time, except for the cases specified in Article
478 of this Code.
Article 474.- Borrowers'
obligation to repay debts
1. Where the loaned property is
money, the borrower must repay in full when it becomes due; if the loaned
property is an object, the borrower must return an object of the same type, in
the same quantity and of the same quality, unless otherwise agreed upon.
2. In cases where the borrower
cannot return the object, he/she may repay a sum of money equivalent to the
value of the loaned object at the place and time of repaying the debt, if so
agreed by the lender.
3. The place for repayment of
debts shall be the place of residence or the head- office of the lender, unless
otherwise agreed upon.
4. In case of an interest-free
loan, if the borrower fails to repay or has not repaid fully the debt when it
becomes due, he/she must pay the interest on the amount of overdue debt at the
basic interest rate announced by the State Bank corresponding to the duration
of late payment at the time of repayment of the debt, if so agreed upon.
5. In case of a loan with
interest, if the borrower fails to repay or has not repaid fully the debt,
he/she must pay the interest on the principal and the interest thereon at the
basic interest rate announced by the State Bank corresponding to the borrowing
term at the time of repayment of the debt.
Article 475.- Use of
loaned property
The parties may agree that the
loaned property must be used for the right borrowing purpose; the lender shall
be entitled to inspect the use of the property and reclaim the loaned property
ahead of time, if the borrower still uses the property for other than the agreed
purpose even though he/she has been warned not to.
Article 476.- Interest
rate
1. The lending interest rate
shall be agreed upon by the parties, but must not exceed 150% of the basic
interest rate announced by the State Bank for loans of the corresponding type.
2. In cases where the parties
have agreed on the payment of interest for a loan but have not clearly
determined an interest rate or have a dispute over an interest rate, the basic
interest rate announced by the State Bank corresponding to the borrowing term
at the time of repayment of the debt shall be applied.
Article
477.- Performance of contracts on loans without fixed term
1. With respect to a contract
for an interest-free loan without a fixed term, the lender shall be entitled to
reclaim the property and the borrower shall be entitled to repay the debt at
any time, provided that they must notify each other thereof in advance within a
reasonable period of time, unless otherwise agreed upon.
2. With respect to a contract
for a loan without a fixed term and with interest, the lender shall be entitled
to reclaim the property at any time but must notify the borrower thereof in
advance within a reasonable period of time and be paid the interest up to the
time of receiving back his/her property, while the borrower shall also be
entitled to return the property at any time and pay only the interest up to the
time of repaying the debt but also must notify the lender thereof in advance
within a reasonable period of time.
Article
478.- Performance of fixed-term loan contracts
1. With respect to a contract
for an interest-free fixed-term loan, the borrower shall be entitled to return
the property at any time but must notify the lender thereof in advance within a
reasonable period of time, and the lender shall only be entitled to reclaim the
property ahead of time, if the borrower so agrees.
2. With respect to a contract
for a fixed-term loan with interest, the borrower shall be entitled to return
the property ahead of time, but must pay the interest for the whole term,
unless otherwise agreed upon.
Article 479.- Tontine
1. Tontine is a form of property
transaction, which is carried out according to practices and on the basis of
agreement of a group of people rallying together to determine the number of
people, time, money amounts or other property, mode of contributing and
receiving annuities and the rights and obligations of members.
2. The form of tontine for the
purpose of mutual assistance among people shall comply with the provisions of
law.
3. It is strictly prohibited to
organize tontines in the form of usury.
Section 5. CONTRACTS FOR
PROPERTY LEASE
I. GENERAL PROVISIONS ON
CONTRACTS FOR PROPERTY LEASE
Article 480.- Contracts
for property lease
A contract for property lease is
an agreement between the parties whereby the lessor shall hand over the
property to the lessee for use for a specified period of time, and the lessee
must pay a rent.
Article 481.- Leasing
prices
The property-leasing prices
shall be agreed upon by the parties.
In cases where the leasing price
frames are provided for by law, the parties may only agree on leasing prices
within such price frames.
Article 482.- Leasing
terms
1. Leasing terms shall be agreed
upon by the parties; in the absence of such agreement, they shall be determined
according to the leasing purposes.
2. In cases where the parties
have not agreed on a leasing term or where the leasing term cannot be
determined according to the leasing purpose, the leasing contract shall expire
when the lessee has achieved the leasing purpose.
Article 483.- Sublease
The lessee shall be entitled to
sublease the property he/she/it has leased, if the lessor so agrees.
Article 484.- Hand-over
of leased property
1. The lessor must hand over the
property to the lessee in the right quantity, quality, type, condition and at
the time and place agreed upon, and provide information necessary for the use
of the property.
2. In cases where the lessor
delays the hand-over of the property, the lessee may extend the time limit for
the hand-over or rescind the contract and demand compensation for damage; if
the quality of the leased property does not conform to the agreement, the
lessee shall be entitled to request the lessor to repair the property, reduce
the leasing price or to rescind the contract and demand compensation for
damage.
Article 485.- The
obligation to ensure the use value of leased property
1. The lessor must ensure that
the leased property is in the condition as agreed upon, in accordance with the
leasing purpose throughout the leasing term; and must repair all damage and
defects of the leased property, except for minor damage which must, according
to practices, be fixed by the lessee himself/herself/itself.
2. In cases where the leased
property is decreased in use value but not due to the lessee's fault, the
lessee shall be entitled to request the lessor to:
a/ Repair the property;
b/ Reduce the leasing price;
c/ Replace the property with
another property or to be entitled to unilaterally terminate the performance of
the contract and demand compensation for damage, if the leased property is
irreparable and therefore the leasing purpose cannot be achieved, or if the
leased property has defects that the lessee is not aware of.
3. In cases where the lessor has
been given a notice but does not repair or make untimely repair, the lessee
shall be entitled to repair the leased property by himself/herself/itself, but
must notify the lessor thereof and shall be entitled to request the lessor to
pay the repair expenses.
Article 486.- The
obligation to ensure the lessee's right to use the property
1. The lessor must ensure the
lessee's right to a stable use of the property.
2. In case of a dispute over the
ownership rights to the leased property, which disallows the stable use of the
property by the lessee, the lessee shall be entitled to unilaterally terminate
the performance of the contract and demand compensation for damage.
Article 487.- The
obligation to preserve leased property
1. The lessee must preserve the
leased property as if it were his/her/its own, maintain it and make minor
repairs; if causing loss or damage, he/she/it must pay compensation therefor.
The lessee shall not be liable
for natural wear resulting from the use of the leased property.
2. The lessee may repair and add
value to the leased property, if the lessor so agrees, and shall be entitled to
request the lessor to pay the reasonable expenses.
Article 488.- The
obligation to use leased property according to its utility and for the right
purpose
1. The lessee must use the
leased property in accordance with its utility and for the agreed purpose.
2. In cases where the lessee has
used the leased property not for the right purpose and not in accordance with
its utility, the lessor shall be entitled to unilaterally terminate the
performance of the contract and demand compensation for damage.
Article 489.- Payment of
rent
1. The lessee must pay in full
the rent within the time limit as agreed upon; where there is no agreement on
the time limit for rent payment, the time limit for rent payment shall be
determined according to practices at the place of payment; if the time limit
for payment cannot be determined according to practices, the lessee must pay
the money when he/she/it returns the leased property.
2. In cases where the parties
have agreed on periodic payments of the rent, the lessor shall be entitled to
unilaterally terminate the performance of the contract if the lessee does not
pay the rent for three consecutive periods, unless otherwise agreed upon or
provided for by law.
Article 490.- Return of
leased property
1. The lessee must return the
leased property in the same condition as when received, except for natural
wear, or in the condition agreed upon in the contract; if the value of the
leased property has decreased as compared with its condition upon receipt, the
lessor shall be entitled to demand compensation for damage, except for natural
wear.
2. In cases where the leased
property is a movable, the place for returning the leased property shall be the
place of residence or the head office of the lessor, unless otherwise agreed
upon.
3. In cases where the leased
property is a domestic animal, the lessee must return both the leased domestic
animal and its offsprings born in the leasing term, unless otherwise agreed
upon. The lessor must pay the expenses for caring for the offsprings to the
lessee.
4. In cases where the lessee
delays the return of the leased property, the lessor shall be entitled to
request the lessee to return the leased property and pay the rent for the
property for the delayed period and compensate for damage; the lessee must also
pay a fine for violation by delaying the return of the leased property, if so
agreed upon.
5. The lessee must bear risks to
the leased property during the period of delayed return.
Article 491.- Termination
of property lease contracts
A contract for property lease
shall terminate in the following cases:
1. The leasing term has expired;
2. The parties agree to
terminate the contract ahead of time; for a leasing contract without a definite
term, if the lessor wishes to terminate the contract, he/she/it must notify the
lessee thereof in advance within a reasonable period of time, if there is no
agreement on an advance notice period;
3. The contract is rescinded or
the performance of the contract is unilaterally terminated;
4. The leased property no longer
exists.
II. CONTRACTS FOR RENTING
HOUSES
Article 492.- Form of
contracts for renting residential houses
A contract for renting a
residential house must be made in writing; if the renting term is six months or
longer, the contract must be notarized or authenticated and registered, unless
otherwise provided for by law.
Article
493.- Obligations of the residential house lessor
The residential house lessor
shall have the following obligations:
1. To hand over the house to the
lessee in accordance with the contract;
2. To ensure the stable use of
the house by the lessee in the renting term;
3. To maintain and repair the
house periodically or as agreed upon; if the lessor does not maintain and
repair the house, thus causing damage to the lessee, he/she/it must pay
compensation therefore.
Article 494.- Rights of
the residential house lessor
The residential house lessor
shall have the following rights:
1. To receive the rent in full
and on schedule as agreed upon;
2. To unilaterally terminate the
performance of the house-renting contract under the provisions in Clause 1 and
Clause 3, Article 498 of this Code;
3. To renovate and upgrade the
leased house when so consented by the lessee, but not to cause inconveniences
to the lessee in using the accommodation;
4. To take back the leased house
upon expiration of the contract; if the renting term is not specified in the
contract, the lessor wishing to take back the house must notify the lessee
thereof six months in advance.
Article
495.- Obligations of the residential house lessee
The residential house lessee
shall have the following obligations:
1. To use the house for the
right agreed purpose;
2. To pay rent in full and on
schedule as agreed upon;
3. To preserve the house and
repair damage caused by himself/herself/itself;
4. To observe the regulations on
public life;
5. To return the house to the
lessor as agreed upon.
Article 496.- Rights of
the residential house lessee
A residential house lessee shall
have the following rights:
1. To receive the rented house
as agreed upon;
2. To be entitled to exchange
the house being rented to another lessee, if it is so consented in writing by
the lessor;
3. To sublease the rented house,
if it is so consented in writing by the lessor;
4. To continue the rent under
the conditions agreed upon with the lessor in case of changing the house owner;
5. To request the lessor to
repair the currently leased house in cases where the house is heavily damaged;
6. To unilaterally terminate the
performance of the house-renting contract as provided for in Clause 2 and
Clause 3, Article 498 of this Code.
Article 497.- Rights and
obligations of all the lessee's persons named in the contracts for renting
residential houses
All persons of the lessee who
are named in the house-renting contracts shall have equal rights and
obligations toward the lessor and must jointly perform the obligations of the
lessee toward the lessor.
Article 498.- Unilateral
termination of performance of contracts for renting residential houses
1. The lessor shall be entitled
to unilaterally terminate the performance of a house-renting contract when the
lessee commits one of the following acts:
a/ Failing to pay rent for three
consecutive months or more without a plausible reason;
b/ Using the house not in
accordance with the renting purpose;
c/ Intentionally causing serious
damage to the house;
d/ Repairing, exchanging or
subleasing the house wholly or partially to another person without the written
consent of the lessor;
e/ Repeatedly disturbing public
order and seriously affecting the normal life of the people in the
neighborhood;
f/ Causing serious impacts on
environmental sanitation.
2. The lessee shall be entitled
to unilaterally terminate the performance of a house-renting contract when the
lessor commits one of the following acts:
a/ Failing to repair the house
when its quality deteriorates seriously;
b/ Increasing the renting price
unreasonably.
c/ Restricting the lessee's
right to use the house for the interests of a third party.
3. The party unilaterally
terminating the performance of a house-renting contract must notify the other
party thereof one month in advance, unless otherwise agreed upon.
Article
499.- Termination of contracts for renting residential houses
A residential house-renting
contract shall terminate in the following cases:
1. The renting term has expired;
if the contract does not specify the renting term, it shall terminate after six
months from the date the lessor notifies the lessee of the need of retaking the
house;
2. The rented house no longer
exists;
3. The lessee dies without
leaving any co-habitant;
4. The rented house must be
demolished due to severe damage that may cause the house to collapse or due to
the implementation of the State construction planning.
Article 500.- Renting of
houses for other purposes
Unless it is otherwise provided
for by law, the provisions of Articles 492 thru 499 of this Code shall also
apply to the renting of houses for non-residential purposes.
III. CONTRACTS FOR PACKAGE
LEASES OF PROPERTY
Article 501.- Contracts
for package leases of property
A contract for a package lease
of property is an agreement between the partie whereby the package lessor hands
over the property to the lessee for the exploitation of its utility and the
enjoyment of the yields and profits gained from such property and the lessee
has the obligation to pay the rent.
Article 502.- Objects of
package lease contracts
Objects of a contract for a
package lease of property may be land, forest, unexploited water surface,
animals, production and/or business establishments, other means of production
as well as necessary equipment and facilities for exploiting the utility,
enjoying the yields or profits, unless otherwise provided for by law.
Article 503.- Package
lease term
The package lease term shall be
agreed upon by the parties according to the production and/or business cycle
consistent with the characteristics of the object of the package lease.
Article 504.- Package
lease price
The package lease price shall be
agreed upon by the parties; if a package lease is made through bidding, the
package lease price shall be determined by bidding.
Article 505.- Hand-over
of package lease property
Upon the hand-over of the
package lease property, the parties must make record, evaluating the conditions
of the package lease property and determining the value of the package lease
property.
In cases where the parties
cannot determine the value, they shall invite a third party to determine the
value in writing.
Article 506.- Payment of
package rent and mode of payment
1. Rent may be paid in kind, in
cash or by performing a task.
2. The package lessee must pay
the package rent in full even though he/she/it does not exploit the utility of
the package lease property.
3. When entering into a package
lease contract, the parties may agree on the conditions for reduction of the
rent; if the yields or profits are lost at least by one third due to
a force majeure event, the package lessee shall be entitled to demand
a rent reduction or exemption, unless otherwise agreed upon.
4. In cases where the package
lessee has to pay the rent in kind according to the season or the cycle of
exploitation of the utility of the package lease property, he/she/it must pay
the rent at the end of the season or the cycle of exploitation, unless
otherwise agreed upon.
5. In cases where the lessee has
to perform a task, he/she/it must perform that very task.
Article
507.- Exploitation of package lease property
The package lessee must exploit
the package lease property in accordance with the agreed purpose and must
notify the lessor periodically of the conditions and exploitation of the
property; if the package lessor requests or needs unexpected notification, the
package lessee must give a notice in time. When the package lessee exploits the
utility of the package lease property at variance with the agreed purpose, the
package lessor shall have the right to unilaterally terminate the performance
of the contract and demand compensation for damage.
Article 508.- Preservation,
maintenance and disposition of package lease property
1. Within the period of
exploiting the package lease property, the package lessee must preserve and
maintain such property and accompanying equipment and facilities at his/her own
expenses, unless otherwise agreed upon; if the package lessee causes the loss
of, or damage to, the package lease property or causes the loss or reduction of
its value, he/she/it shall have to compensate for damage. The package lessee
shall not be liable for natural wear resulting from the use of the package
lease property.
2. The package lessee may
replace or improve the package lease property by himself/herself/itself, if so
agreed upon, and must preserve its value.
The package lessor must
reimburse to the lessee the reasonable expenses for replacing or improving the
package lease property as agreed upon.
3. The package lessee shall not
be allowed to sublease, unless so consented by the package lessor.
Article 509.- Enjoyment
of yields and incurring of damage to package lease animals
During the term of a package
lease of animals, the package lessee shall be entitled to enjoy half of the
born offsprings and incur half of the damage to the leased animals due to
a force majeure event, unless otherwise agreed upon.
Article 510.- Unilateral
termination of performance of package lease contracts
1. In cases where a party
unilaterally terminates the performance of a contract, it must notify the other
party thereof in advance within a reasonable period of time; if the package
lease is contracted according the season or cycle of exploitation, the period
of advance notification must correspond to the season or cycle of exploitation.
2. In cases where the package
lessee breaches his/her/its obligations while the exploitation of the leased
object is the sole source of his/her/its livelihood and the continuation of the
package lease does not seriously affect the interests of the package lessor,
the package lessor must not unilaterally terminate the performance of the
contract; the package lessee must commit with the package lessor not to further
breach the contract.
Article 511.- Return of
package lease property
Upon the termination of a
package lease contract, the lessee must return the package lease property in
the conditions corresponding to the agreed depreciation level; if the lessee
causes loss or reduction of the value of the package lease property, he/she/it
must compensate for the damage.
Section 6. CONTRACTS FOR
PROPERTY BORROWING
Article 512.- Contracts
for property borrowing
A contract for property
borrowing is an agreement between the parties whereby the lender hands over the
property to the borrower for use in a specified time limit free of charge, and
the borrower must return such property when the borrowing term ends or the
borrowing purpose has been achieved.
Article 513.- Objects of
property-borrowing contracts
Everything that is
non-expendable may be object of a contract for borrowing a property.
Article
514.- Obligations of the property borrower
The property borrower shall have
the following obligations:
1. To preserve and maintain the
borrowed property as if it were his/her/its own property; not to change the
conditions of the borrowed property on his/her/its own will; if the property
suffers normal damage, it must be repaired;
2. Not to sub-lend the borrowed
property without the lender's consent;
3. To return the borrowed
property on time; if there is no agreement on the deadline for the return of
the property, the borrower must return it immediately after the borrowing
purpose has been achieved;
4. To compensate for damage if
he/she/it causes any damage to, or loss of, the borrowed property.
Article 515.- Rights of
the property borrower
The property borrower shall have
the following rights:
1. To use the borrowed property
in accordance with its utility and the agreed purpose;
2. To request the lender to
reimburse the reasonable expenses for any repair or for increasing the value of
the borrowed property, if so agreed upon.
3. Not to be liable for natural
wear of the borrowed property.
Article
516.- Obligations of the property lender
The property lender shall have
the following obligations:
1. To provide necessary
information on the use of the property and defects of the property, if any;
2. To reimburse to the borrower
expenses for repair, expenses for increasing the value of the borrowed
property, if so agreed upon;
3. To compensate the borrower
for any damage, if the lender knows about the defects of the property but does
not inform the borrower thereof, thus causing damage to the borrower, except
for the defects which the borrower knew or should have known.
Article 517.- Rights of
the property lender
The property lender shall have
the following rights:
1. To reclaim the property
immediately after the borrower has achieved his/her purpose, if there is no
agreement on the borrowing period; if the lender has urgent and unexpected
needs to use the lent property, he/she/its shall be entitled to reclaim the
property even if the borrower has not yet achieved his/her/its purpose, but
must notify the borrower thereof in advance within a reasonable period of time;
2. To reclaim the property when
the borrower does not use the property for the right purpose, in accordance
with its utility or the agreed method or the borrower sublends the property
without the lender's consent;
3. To demand compensation for
damage caused to the property by the borrower.
Section 7. SERVICE CONTRACTS
Article 518.- Service
contracts
A service contract is an
agreement between the parties whereby the service provider shall perform a task
for the service hirer, and the service hirer must pay service charges to the
service provider.
Article 519.- Objects of
service contracts
The object of a service contract
must be a feasible task not prohibited by law and not contrary to social
ethics.
Article
520.- Obligations of the service hirer
The service hirer shall have the
following obligations:
1. To supply the service
provider with necessary information, documents and means for the performance of
the task, if so agreed upon or so required by the performance of the task;
2. To pay service charges to the
service provider as agreed upon.
Article 521.- Rights of
the service hirer
The service hirer shall have the
following rights:
1. To request the service
provider to perform the task in accordance with the agreed quality, quantity,
time limit, location and other agreements;
2. In cases where the service
provider violates its obligations, the service hirer shall have the right to
unilaterally terminate the performance of the contract and demand compensation
for damage.
Article
522.- Obligations of the service provider
The service provider shall have
the following obligations:
1. To perform the task in
accordance with the agreed quality, quantity, time limit, location and other
agreements;
2. Not to assign other persons
to perform the task without the service hirer's consent;
3. To preserve and return to the
service hirer the supplied documents and means after fulfillment of the task;
4. To immediately notify the
service hirer of any inadequacy of information and documents and poor quality
of the means for fulfilling the task;
5. To keep secret the
information which he/she/it has come to know during the time of providing the
service, if so agreed upon or provided for by law;
6. To compensate the service
hirer for damage, if he/she/it causes the loss of, or damage to, the supplied
documents and/or means or discloses secret information.
Article 523.- Rights of
the service provider
The service provider shall have
the following rights:
1. To request the service hirer
to supply necessary information, documents and means;
2. To change the service
conditions in the interests of the service hirer without necessarily having to
wait for the opinion of the service hirer, if such wait may cause damage to the
service hirer, but the service provider must immediately notify the service
hirer thereof;
3. To request the service hirer
to pay the service charges.
Article 524.- Payment of
service charges
1. The service hirer must pay
the service charges as agreed upon.
2. When a contract is entered
into without agreement on the service charges, the method of determining the
service charges or without any other instructions on service charges, the
service charges shall be determined based on the market price of the service of
the same kind at the time and place the contract is entered into.
3. The service hirer must pay
the service charges at the place where the task is performed and when the
service is accomplished, unless otherwise agreed upon.
4. In cases where the service is
provided below the agreed level or the task is not accomplished on time, the
service hirer shall have the right to reduce the service charges and demand
compensation for damage.
Article 525.- Unilateral
termination of performance of service contracts
1. In cases where the continued
performance of a task does not benefit the service hirer, the service hirer
shall have the right to unilaterally terminate the performance of the contract,
but must notify the service provider thereof in advance within a reasonable
period of time; the service hirer must pay the service charges for the service
portion performed by the service provider and compensate for damage.
2. In cases where the service
hirer does not perform his/her/its obligation or has performed it at variance
with the agreement, the service provider shall have the right to unilaterally
terminate the performance of the contract and demand compensation for damage.
Article
526.- Continuation of service contracts
If after the expiry of the
service period, the task has not yet been accomplished and the service provider
continues to perform the task while the service hirer knows but does not
object, the service contract shall automatically continue to be performed in
accordance with the agreed contents until the task is accomplished.
Section 8. CONTRACTS FOR
TRANSPORTATION
I. CONTRACTS FOR
TRANSPORTATION OF PASSENGERS
Article 527.- Contracts
for transportation of passengers
A contract for transportation of
passengers is an agreement between the parties whereby the carrier shall
transport the passenger and his/her luggage to the specified destination as
agreed upon, and the passenger shall have to pay the transportation fare.
Article 528.- Forms of
contract for transportation of passengers
1. A contract for transportation
of passengers may be made in writing or orally.
2. Tickets shall be the evidence
of the entry into a contract for transportation of passengers between the
parties.
Article
529.- Obligations of the carrier
The carrier shall have the
following obligations:
1. To transport the passengers
from the place of departure to the place of destination on time, in a civilized
and courteous manner and safely by the agreed means and prescribed route;
provide sufficient seats for passengers and not transport in excess of the
prescribed load;
2. To buy civil liability
insurance for passengers as provided for by law;
3. To ensure the departure time
as notified or agreed upon;
4. To transport luggage and
return them to the passengers or to the persons entitled to receive such
luggage at the agreed place and time along the route as agreed upon;
5. To reimburse the
transportation fare to the passengers as agreed upon or provided for by law.
Article 530.- Rights of
the carrier
The carrier shall have the
following rights:
1. To request passengers to pay
in full the transportation fares and charges for the transport of accompanied
luggage in excess of the prescribed limit.
2. To refuse to transport a
passenger in the following cases:
a/ Where the passenger fails to
comply with the regulations of the carrier or commits acts of causing public
disorder, hindering the work of the carrier, threatening the life, health or
property of other persons or commits other acts threatening the safety of the
journey; in this case. the passenger shall not be refunded the transportation
fare and must be fined for violation, if so provided for by the transport
regulations;
b/ Where the carrier clearly
sees that due to the health condition of the passenger, the transportation may
cause danger to the passenger him/herself or others during the journey;
c/ To prevent the spread of
epidemics.
Article
531.- Obligations of the passenger
The passenger shall have the
following obligations:
1. To pay fully the passenger
transportation fare and the charge for the transport of luggage in excess of
the prescribed limit, and take care of his/her luggage by him/herself;
2. To be present at the place of
departure on the agreed time;
3. To respect and strictly
observe the regulations of the carrier and other regulations on traffic safety.
Article 532.- Rights of
the passenger
The passenger shall have the
following rights:
1. To demand that he/she be
transported by the agreed means of transport, in the class commensurate with
the value of the ticket and along the agreed route;
2. To be exempt from the
transport charges for unaccompanied luggage and hand luggage within the limits
agreed upon or specified by law;
3. To demand the reimbursement
of expenses incurred or compensation for damage, if the carrier is at fault in
failing to conduct the transport according to the agreed time schedule and
place;
4. To be entitled to the
reimbursement of the whole or part of the transportation fare in cases
specified at Points b and c, Clause 2, Article 530 of this Code and other cases
specified by law or agreed upon;
5. To receive the luggage at the
agreed place, on time and along the agreed route;
6. To request the temporary stop
of the travel within the time limit and according to the procedures specified
by law.
Article 533.- Liability
to compensate for damage
1. In cases of loss of human
life and/or damage to the health and luggage of passengers, the carrier must
compensate therefore in accordance with the provisions of law.
2. The carrier shall not have to
compensate for the loss of human life, and/or damage to the health and luggage
of passengers if such loss and/or damage is entirely due to the fault of the
passengers, unless otherwise provided for by law.
3. In cases where a passenger
breaches the agreed transportation conditions or the provisions of the
transport regulations, thus causing damage to the carrier or a third party,
he/she shall have to compensate therefore.
Article 534.- Unilateral
termination of performance of contracts for passenger transportation
1. The carrier shall be entitled
to unilaterally terminate the performance of contracts in the cases specified
in Clause 2, Article 530 of this Code.
2. The passengers shall be
entitled to unilaterally terminate the performance of contracts in cases where
the carrier breaches the obligations specified in Clauses 1, 3 and 4, Article
529 of this Code.
II. CONTRACTS FOR
TRANSPORTATION OF PROPERTY
Article 535.- Contracts
for transportation of property
A contract for transportation of
property is an agreement between the parties whereby the carrier shall have the
obligation to carry the property to the specified place as agreed upon and hand
over such property to the person entitled to receive it and the transport hirer
shall have the obligation to pay the freight.
Article 536.- Forms of
contract for transportation of property
1. A contract for transportation
of property shall be made orally or in writing.
2. The bill of lading or other
equivalent transportation documents shall be the evidence of the entry into
contracts between the parties.
Article 537.- Hand-over
of property to the carrier
1. The transport hirer shall
have the obligation to hand over the property to the carrier at the agreed time
and place, to pack the property in accordance with the agreed packing
specifications; and to bear the cost of loading/unloading his/her property
onto/from the means of transport, unless otherwise agreed upon.
2. In cases where the transport
hirer does not hand over the property at the agreed time and place, he/she must
pay the carrier any expenses incurred for the time of waiting and the cost of
transportation of the property to the place agreed in the contract or pay a
fine for breach as agreed upon; if the carrier delays the receipt of the
property at the agreed place, he/she/it must bear the cost incurred by the
delay.
Article 538.- Freight
rates
1. The freight rates shall be
agreed upon by the parties; if the freight rates are provided for by law, such
rates shall be applied.
2. The transport hirer must pay
in full the freight once the property has been loaded onto the means of
transport, unless otherwise agreed upon.
Article
539.- Obligations of the carrier
The carrier shall have the
following obligations:
1. To ensure that the property
is transported in full and safely to the designated place and on time;
2. To hand over the property to
the person entitled to receive it;
3. To bear the costs related to
the transportation of the property, unless otherwise agreed upon;
4. To buy civil liability
insurance as provided for by law;
5. To compensate the transport
hirer in cases where the carrier causes the loss of, or damage to, the property
due to the carrier’s fault, unless otherwise agreed upon or provided for by
law.
Article 540.- Rights of
the carrier
The carrier shall have the
following rights:
1. To check the authenticity of
the property and the bill of lading or other equivalent transport documents;
2. To refuse to carry any
property of types other than those agreed upon in the contracts;
3. To request the transport
hirer to pay freight in full and on schedule;
4. To refuse to carry the
property banned from transaction, dangerous and/or noxious property, if the
carrier knows or should have known such;
5. To demand compensation for
damage from the transport hirer.
Article
541.- Obligations of the transport hirer
The transport hirer shall have
the following obligations:
1. To pay the carrier the
freight in full, on schedule and by the agreed mode;
2. To take care of the property
during the transportation, if so agreed upon. In cases where the transport
hirer takes care of the property and the property is lost or damaged, the
transport hirer shall not be compensated therefore.
Article 542.- Rights of
the transport hirer
The transport hirer shall have
the following rights:
1. To request the carrier to
transport the property to the agreed place and at the agreed time;
2. To personally receive back or
appoint a third party to receive back the property the transport of which is
hired;
3. To demand compensation for
damage from the carrier.
Article 543.- Delivery
of property to the consignee
1. The party receiving the
property may be the transport hirer or a third party appointed by the hirer for
the receipt of the property.
2. The carrier must deliver the
property to the consignee in full, on schedule, at the agreed place and by the
agreed mode.
3. In cases where the property
has been transported to the place of its delivery on time but there is no
consignee, the carrier may entrust such property to the place of bailment and
must immediately notify the transport hirer or the consignee thereof. The
transport hirer or the consignee shall have to bear all reasonable expenses
arising from the bailment.
The obligation to deliver the
property shall be fulfilled when the bailed property satisfied the agreed
conditions and the transport hirer or the consignee has been notified of the
bailment.
Article
544.- Obligations of the consignee
The consignee shall have the
following obligations:
1. To produce to the carrier a
bill of lading or other equivalent transport documents and receive the property
on time and at the agreed place;
2. To bear the costs of loading
and/or unloading the transported property, unless otherwise agreed upon or
provided for by law;
3. To pay reasonable expenses
arising from the delay in receiving the property;
4. To notify the transport hirer
of the receipt of the property and other necessary information at his/her/its
request; if not, the consignee shall not have the right to request the
transport hirer to protect his/her/its rights and interests related to the
transported property.
Article 545.- Rights of
the consignee
The consignee shall have the
following rights:
1. To check the quantity and
quality of the delivered property;
2. To receive the delivered property;
3. To request the carrier to pay
reasonable expenses arising from the waiting for the receipt of the property if
the carrier delays the delivery;
4. To personally request or ask
the transport hirer to request the carrier to compensate for loss of, or damage
to, the property.
Article 546.- Liability
to compensate for damage
1. The carrier must compensate
the transport hirer for damage, if causing loss of, or damage to, the property,
except for cases specified in Clause 2, Article 541 of this Code.
2. The transport hirer must
compensate the carrier and a third party for any damage caused by the dangerous
or toxic nature of the transported property if he/she/it fails to apply
measures to pack the property and/or to ensure safety during the transportation.
3. In case where a force
majeure event results in a loss, damage or destruction of the property
during the transportation, the carrier shall not be liable for compensating for
any damage, unless otherwise agreed upon or provided for by law.
Section 9. PROCESSING
CONTRACTS
Article 547.- Processing
contracts
A processing contract is an
agreement between the parties whereby the processor performs a task to make a
product at the processee's request and the latter shall receive the product and
pay remuneration therefore.
Article 548.- Objects of
processing contracts
The objects of a processing
contract shall be items which are pre-determined with the models and standards
agreed upon by the parties or provided for by law.
Article
549.- Obligations of the processee
The processee shall have the
following obligations:
1. To supply the processor with
materials and/or raw materials in accordance with the quantity, quality, time
limit and place as contracted, unless otherwise agreed upon; supply the
necessary documents related to the processing work;
2. To instruct the processor in
performing the contract;
3. To pay remuneration as agreed
upon.
Article 550.- Rights of
the processee
The processee shall have the
following rights:
1. To receive the processed
products in accordance with the agreed quantity, quality, mode, time limit and
place;
2. To unilaterally terminate the
performation of the contract and demand compensation for any damage when the
processor seriously breaches the contract;
3. In cases where the products fail
to meet the quality and the processee agrees to accept them and demand repairs
but the processor cannot repair them within the agreed time limit, then the
processee shall be entitled to rescind the contract and demand compensation for
damage.
Article 551.- Obligations
of the processor
The processor shall have the
following obligations:
1. To preserve the materials
and/or raw materials supplied by the processee;
2. To notify the processee to
replace the materials and/or raw materials, if they fail to meet the quality;
refuse to perform the processing if the use of such materials and/or raw
materials may create products harmful to society; if the processor does not
give such notification or refusal, he/she shall be liable for the products
turned out;
3. To deliver the products to
the processee in accordance with the agreed quantity, quality, mode, time limit
and place;
4. To keep secret information on
the processing process and the created products;
5. To take responsibility for
the product quality, except for cases where the poor quality of the products is
attributed to the materials and/or raw materials supplied by the processee or
to unreasonable instructions of the processee;
6. To return to the processee
the remaining materials and/or raw materials after the contract is completed.
Article 552.- Rights of
the processor
The processor shall have the
following rights:
1. To request the processee to
supply materials and/or raw materials in accordance with the agreed quality,
quantity, time limit and place;
2. To reject any unreasonable
instruction by the processee if deeming that such instruction may reduce the
product quality, but must immediately notify the processee thereof;
3. To request the processee to
pay the remuneration in full, on schedule and by the agreed mode.
Article 553.- Liability
to bear risks
Owners of materials and/or raw
materials shall bear all risks to their materials and/or raw materials and/or
products made therefrom until the products are delivered to the processee,
unless otherwise agreed upon.
When the processee delays
receiving the products, he/she/it shall bear the risks during such delay, even
if such products are made from the processor's materials and/or raw materials,
unless otherwise agreed upon.
When the processor delays delivering
the products, thus causing risks to the processed products, he/she/it must
compensate for damage to the processee.
Article 554.- Hand-over
and receipt of processed products
The processor shall have to hand
over the processed products and the processee shall have to receive them at the
agreed time and place.
Article 555.- Delay in
hand-over and receipt of processed products
1. In cases where the processor
delays delivering the processed products, the processee may extend the time
limit; if past this time limit the processor still has not accomplished the
work, the processee shall be entitled to unilaterally terminate the performance
of the contract and demand compensation for damage.
2. In cases where the processee
delays receiving the products, the processor may entrust such product to a
place of bailment and must immediately notify the processee thereof. The
obligation to hand over products is fulfilled once all the agreed conditions
have been met and the processee has been notified thereof. The processee shall
bear all expenses arising from the bailment.
Article 556.- Unilateral
termination of processing contracts
1. Either party shall be
entitled to unilaterally terminate the performance of the processing contract
if the continued performance thereof does not benefit him/her/it, unless
otherwise agreed upon or provided for by law, but must notify the other party
thereof in advance within a reasonable period of time; if the processee
unilaterally terminates the performance of the contract, he/she/it must pay
remunera-tion corresponding to the performed work; if the processor
unilaterally terminates the performance of the contract, he/she/it shall not be
paid any remuneration, unless otherwise agreed upon.
2. The party that unilaterally
terminates the performance of the contract, thus causing damage to the other
party must compensate therefor.
Article 557.- Payment of
remuneration
1. The processee must fully pay
the remuneration at the time of receipt of the processed products, unless
otherwise agreed upon.
2. In cases where there is no
agreement on the remuneration rate, the average rate for making products of the
same type at the place of processing and at the time of payment shall apply.
3. The processee shall not be
allowed to reduce the remuneration, if the products do not meet the agreed
quality due to the materials and/or raw materials supplied by
him/herself/itself or due to his/her/its unreasonable instructions.
Article
558.- Liquidation of materials and raw materials
When a processing contract is terminated,
the processor must return the remaining materials and/or raw materials to the
processee, unless otherwise agreed upon.
Section 10. CONTRACTS FOR
BAILMENT OF PROPERTY
Article 559.- Contracts
for bailment of property
A contract for bailment of property
is an agreement between the parties whereby the bailee agrees to keep in
custody the property entrusted to him/her/it by the bailor and shall return it
to the bailor upon the expiration of the contractual term, while the bailor
shall have to pay remuneration to the bailee, except for cases of
free-of-charge bailment.
Article
560.- Obligations of the bailor
The bailor shall have the
following obligations:
1. To immediately notify, upon
the hand-over of property, the bailee of the conditions of the property and the
appropriate measures to preserve the bailed property; if failing to do so and
the bailed property is destroyed or damaged because of inappropriate
preservation, the bailor shall bear the loss or damage by him/herself/itself;
if damage is caused, he/she/it must compensate therefor.
2. To pay the remuneration in
full, on schedule and by the agreed mode.
Article 561.- Rights of
the bailor
The bailor shall have the
following rights:
1. To reclaim his/her/its
property at any time, if the contract for bailment does not specify the time
limit, but must notify the bailee thereof in advance within a reasonable period
of time;
2. To demand compensation for
damage, if the bailee causes the loss of, or damage to, the bailed property,
except for force majeurecases.
Article
562.- Obligations of the bailee
The bailee shall have the
following obligations:
1. To preserve the property as
agreed upon, and return it to the bailor in the same condition as at the time
of receipt for bailment;
2. To change the method of
preservation only if such change is necessary to better preserve the property,
but must immediately notify the bailor of the change;
3. To immediately notify the
bailor in writing of any risk of damage or destruction to his/her/its property
due to the nature of such property and request the latter to find a remedy
within a certain time limit; if such time limit has expired and the bailor does
not reply, the bailee shall be entitled to take necessary measures for
preservation of the property and demand the bailor to reimburse the expenses
therefore;
4. To compensate for damage if
causing the loss of, or damage to, the bailed property, except for force
majeure cases.
Article 563.- Rights of
the bailee
The bailee shall have the
following rights:
1. To request the bailor to pay
the remuneration as agreed upon;
2. To request the bailor to
reimburse the reasonable expenses for preserving the property in case of
free-of-charge bailment;
3. To request the bailor to take
back his/her/its property at any time, but must notify the bailor thereof in
advance within a reasonable period of time, in case of bailment for an
indefinite period of time;
4. To sell the bailed property
which is in danger of degeneration or destruction in order to ensure the
bailor's interests, notify the bailor thereof, and return the sale proceeds to
the bailor after deducting the reasonable expenses for the sale of property.
Article 564.- Return of
bailed property
1. The bailee must return
exactly the received property and the yields therefrom, if any, unless
otherwise agreed upon;
The place for return of the
bailed property is the place of bailment; if the bailor requests to have
his/her/its property returned at a place other than the place of bailment, then
he/she/it must bear the expenses for transporting the property to such place,
unless otherwise agreed upon.
2. The bailee must return the
property on schedule and shall be entitled to request the bailor to take back
the property ahead of schedule only if there is a plausible reason.
Article 565.- Delay in
hand-over, reception of bailed property
In cases where the bailee delays
in the hand over of property, he/she/it shall not be entitled to request the
bailor to pay remuneration and preservation expenses as from the time of
hand-over delay and must bear risks to the property during the period of delay
in hand-over of the property.
In cases where the bailor delays
in the reception of property, he/she/it must pay the preservation expenses and
remuneration to the bailee for the period of reception delay.
Article 566.- Payment of
remuneration
1. The bailor must pay
remuneration in full when taking back the bailed property, unless otherwise
agreed upon.
2. In cases where the parties
have no agreement on the remuneration level, the average remuneration level at
the place and time of remuneration payment shall apply.
3. When the bailor takes back
his/her/its property ahead of schedule, he/she/it still has to pay the
remuneration in full and necessary expenses arising from the early return of
the property by the bailee, unless otherwise agreed upon.
4. When the bailee requests the
bailor to take back his/her/its property ahead of schedule, the bailee shall
not be entitled to receive the remuneration and shall have to compensate for
damage caused to the bailor, unless otherwise agreed upon.
Section 11. INSURANCE
CONTRACTS
Article 567.- Insurance
contracts
An insurance contract is an
agreement between parties, whereby the insurance buyer must pay the insurance
premium and the insurer must pay a sum of insurance indemnity to the insured
upon the occurence of an insured event.
Article 568.- Types of
insurance contract
The insurance contracts include
contracts for human insurance, contracts for property insurance and contracts
for civil liability insurance.
Article 569.- Objects of
insurance
Objects of insurance include
humans, property, civil liability and others as specified by law.
Article 570.- Forms of
insurance contract
Insurance contracts must be made
in writing. The written insurance requests signed by insurance buyers
constitute inseparable parts of insurance contracts. The insurance certificates
or applications shall be the evidence of the entry into insurance contracts.
Article 571.- Insured
events
An insured event is an objective
event agreed upon by the parties or specified by law, upon the occurrence of
which the insurer must pay an insurance indemnity to the insured, except for
the cases specified in Clause 2, Article 346 of this Code.
Article 572.- Insurance
premium
1. The insurance premium is a
sum of money paid by the insurance buyer to the insurer.
The time limit for payment of
insurance premium shall be agreed upon or prescribed by law. The insurance
premium may be paid in lump sum or periodically.
2. In cases where the insurance
buyer delays in periodic payment of insurance premium, the insurer may set a
time limit for the insurance buyer to pay such premium; if upon the expiration
of such time limit the insurance buyer still fails to pay the insurance
premium, the contract shall terminate.
Article 573.- The
obligation of the insurance buyer to provide information
1. Upon entering into an
insurance contract, the insurance buyer must provide the insurer at the
latter's request with the full information concerning the objects of insurance,
except for information which the insurer already knew or should have known.
2. In cases where the insurance
buyer intentionally provides false information in order to enter into the
contract for enjoying the insurance indemnity, the insurer shall be entitled to
unilaterally terminate the performance of such contract and collect the
insurance premium up to the time of termination of the contract.
Article 574.- The
obligation to prevent damage
1. The insured shall have the
obligation to comply with the contractual conditions as well as relevant
provisions of law and to take measures to prevent damage.
2. In cases where the insured is
at fault, failing to take measures to prevent damage as contracted, the insurer
may set a time limit for the insured to take such measures; if such preventive
measures are not taken upon the expiration of this time limit, the insurer
shall be entitled to unilaterally terminate the performance of such contract or
refuse to pay the insurance indemnity upon the occurence of the damage due to the
insured's failure to take such preventive measures.
Article
575.- Obligations of the insurance buyer, the insured and the insurer when
insured events occur
1. Upon the occurence of an
insured event, the insurance buyer or the insured must immediately notify the
insurer thereof and take all necessary measures within his/her/its capacity to
prevent or limit the damage.
2. The insurer must pay all
necessary and reasonable expenses incurred by a third party to prevent or limit
the damage.
Article 576.- Payment of
insurance indemnity
1. The insurer must pay the
insurance indemnity to the insured within the agreed time limit; if there is no
agreement on such time limit, the insurer must pay the insurance indemnity
within fifteen days from the date of receipt of the complete and valid dossier
requesting the payment of insurance indemnity.
2. In cases where the issurer
delays the payment of insurance indemnity, he/she/it must also pay the interest
on the late paid amount at the basic interest rate set by the State Bank at the
time of payment of insurance indemnity corresponding to the duration of the
delayed payment.
3. In cases where the insured
intentionally lets the damage occur, the insurer shall not have to pay the
insurance indemnity; if such damage occurs due to the insured's negligence, the
insurer shall not have to pay the part of the insurance indemnity corresponding
to the extent of the insured's negligence.
Article 577.- Transfer
of claim for reimbursement of indemnity
1. In cases where the damage is
caused to the insured due to the fault of a third party and the insurer has
paid the insurance indemnity to the insured, the insurer shall have the right
to demand such third party to reimburse the amount already paid. The insured
shall have the obligation to provide the insurer with all necessary
information, documents and evidence, which he/she/it is aware of so as to
enable the insurer to exercise his/her/its right to demand with respect to the
third party.
2. In cases where the insured
has received from the third party the damages less than the amount of insurance
indemnity payable by the insurer, the insurer shall have to pay the insured
only the difference between the insurance indemnity and the amount paid by the
third party, unless otherwise agreed upon; if the insured has received the
insurance indemnity less than the damage caused to him/her/it by the third
party, the insured shall still have the right to request the third party to pay
the difference between the insurance indemnity and the damages.
The insurer shall have the right
to demand the third party to reimburse the amount of money he/she/it has paid
to the insured.
Article 578.- Life
insurance
In case of life insurance, when
the insured event occurs, the insurer must pay the insurance indemnity to the
insured or his/her authorized representative; if the insured dies, the
insurance indemnity shall be paid to his/her heir(s).
Article 579.- Property
insurance
1. The insurer must compensate
for any damage caused to the insured property in accordance with the agreed
terms or the provisions of law.
2. In cases where the ownership
rights to the insured property are transferred to another person, the new owner
of such property shall automatically substitute the former owner in the
insurance contract, as from the time such ownership rights are transferred. The
former owner who is the insurance buyer shall have to notify the new owner that
the property has been insured and notify the insurer in time that the ownership
rights to the property have been transferred.
Article 580.- Civil
liability insurance
1. In case of insurance of civil
liability toward a third party as agreed upon or provided for by law, the
insurer must pay indemnity to the insurance buyer or to the third party at the
insurance buyer's request for the damage caused to the third party by the
insurance buyer at the level of insurance as agreed upon or provided for by
law.
2. In cases where the insurance
buyer has already compensated for the damage to the third party, he/she/it
shall be entitled to demand the insurer to reimburse the sum of money he/she/it
has paid to the third party, which, however shall not exceed the level of
insurance indemnity agreed upon by the parties or provided for by law.
Section 12. MANDATE CONTRACTS
Article 581.- Mandate
contracts
A mandate contract is an
agreement between the parties whereby the mandatary shall have the obligation
to perform a task on behalf of the mandator, and the mandator shall only have
to pay remuneration, if so agreed upon or provided for by law.
Article 582.- Time limit
of mandate
The time limit of mandate shall
be agreed upon by the parties or provided for by law; if there is no agreement
or no legal provisions theron, the mandate contract shall be effective for one
year as from the date the mandate is established.
Article
583.- Sub-mandate
The mandatary shall be entitled
to submandate a third party only if so consented by the mandator or so provided
for by law.
The form of a submandate
contract must also conform to the form of the original mandate contract.
The submandate must not go
beyond the scope of the original mandate.
Article
584.- Obligations of the mandatary
The mandatary shall have the
following obligations:
1. To perform the task in
accordance with the mandate and notify the mandator of the performance thereof;
2. To notify a third party
concerned with the performance of the mandate of the mandate time limit and
scope as well as any amendments or additions to the scope of mandate;
3. To preserve and maintain the
documents and instruments entrusted to him/her for performing the mandate;
4. To keep secret the
information which he/she knew while performing the mandate;
5. To return to the mandator the
property received and benefits obtained in the process of performing the
mandate as agreed upon or provided for by law;
6. To compensate for any damage
arising from any breach of the obligations specified in Clauses 1, 2, 3, 4 and
5 of this Article.
Article 585.- Rights of
the mandatary
The mandatary shall have the
following rights:
1. To request the mandator to
provide information, documents and means necessary for performing the mandated
task;
2. To be entitled to
remuneration and reimbursement of reasonable expenses he/she has paid for the
performance of the mandated task.
Article 586.- Obligations
of the mandator
The mandator shall have the
following obligations:
1. To provide necessary
information, documents and means for the mandatary to perform the task;
2. To take responsibility for
the commitments performed by the mandatary within the scope of mandate;
3. To reimburse reasonable
expenses paid by the mandatary for the performance of the mandated task and pay
remuneration to the mandatary, if so agreed upon.
Article 587.- Rights of
the mandator
The mandator shall have the
following rights:
1. To request the mandatary to
fully notify the performance of the mandated task;
2. To request the mandatary to
return the property and benefits obtained from the performance of the mandated
task, unless otherwise agreed upon;
3. To be compensated for damage,
if the mandatary breaches the obligations specified in Article 584 of this
Code.
Article 588.- Unilateral
termination of performance of mandate contracts
1. In case of a mandate with
remuneration, the mandator may unilaterally terminate the perfomance of the
contract at any time, but must pay the mandatary a remuneration corresponding
to the task already performed by the mandatary and compensate for damage; if it
is a mandate without remuneration, the mandator may unilaterally terminate the
performance of the contract at any time, but must notify the mandatary thereof
in advance within a reasonable period of time.
The mandator must notify in
writing a third party of his/her unilateral termination of the performance of
the contract; if not, the contract with the third party shall remain in effect,
except in cases where the third party knew or must have known about the
termination of the mandate contract.
2. In case of a mandate without
remuneration, the mandatary may unilaterally terminate the performance of the
contract at any time, but must notify the mandator thereof in advance within a
reasonable period of time; if it is a mandate with remuneration, the mandatary
may unilaterally terminate the performance of the contract at any time, but
must compensate for any damage to the mandator.
Article
589.- Termination of mandate contracts
A mandate contract shall
terminate in the following cases:
1. The mandate contract has
expired;
2. The mandated task has been
fulfilled;
3. The mandator or the mandatary
unilaterally terminates the performance of the contract as provided for in
Article 588 of this Code;
4. The mandator or the mandatary
dies, or is declared by the court as losing his/her civil act capacity, having
his/her civil act capacity restricted, missing or dead.
Section 13. PROMISE OF REWARD
AND COMPETITION FOR PRIZES
Article 590.- Promise of
reward
1. A person who has publicly
made a promise for a reward shall have to give the promised reward to the
person who has performed the task at the request of the reward promisor.
2. The task for which the reward
is promised must be specific and feasible, and is neither prohibited by law nor
contrary to social ethics.
Article 591.- Withdrawal
of the promise of reward
Before the time set for starting
the performance of the task, the reward promisor shall be entitled to withdraw
his/her promise of reward. The withdrawal of such promise of reward must be
conducted in the manner and by the medium in which the promise of reward was
announced.
Article 592.- Grant of
reward
1. In cases where a task with a
promise of reward is performed by a person, such person shall be entitled to
receive the reward once the task is fulfilled.
2. When a task with a promise of
reward is performed by several persons simultaneously but independently from
one another, then the first to fulfill such task shall be entitled to receive
the reward.
3. In cases where many persons
fulfill a task with a promise of reward at the same time, the promised reward
shall be equally shared among such persons.
4. In cases where many persons
collaborate with one another in performing a task with a promise of reward at
the reward promisor's request, then each person shall receive one part of the
reward corresponding to his/her contribution.
Article
593.- Competition for prizes
1. Organizers of cultural,
artistic, sport, scientific, technical competitions and other competitions
which are not contrary to law and/or social ethics shall have to announce the
conditions for participation, the scale of evaluation points, the prizes and
the value of each prize.
2. Any change to the conditions
for participation in a competition must be made in accordance with the
announced manner within a reasonable period of time before the competition
begins.
3. A prize winner shall be
entitled to demand the organizer of the competition to grant the prize exactly
of the announced value.
Chapter XIX
PERFORMANCE
OF TASKS WITHOUT MANDATE
Article
594.- Performance of tasks without mandate
The performance of a task
without mandate means the voluntary performance of the task by a person, who is
under no obligation to perform such task, solely in the interest of the person
for whom the task is performed when such person does not know or knows but does
not protest against such performance.
Article 595.- Obligations
to perform tasks without mandate
1. The person who performs a
task without mandate shall have the obligation to perform the task in
accordance with to his/her capacity and conditions.
2. The person who performs a
task without mandate shall have to perform such task as if it were his/her own;
if he/she knows or can guess the intention of the person for whom the task is
performed, he/she must perform the task in accordance with that intention.
3. The person who performs a
task without mandate must notify the person for whom the task is performed of
the progress and results of the performance of that task, if requested, except
for cases where the latter already knew or the person who performs the task
without mandate does not know the latter's place of residence.
4. In cases where the person for
whom the task is performed dies, the person who performs the task without
mandate shall have to continue the performance of that task until the heir or
the representative of the person for whom the task is performed takes over it.
5. If for justifiable reasons,
the person who performs the task without mandate is unable to continue the
performance of the task, he/she must notify the person for whom the task is
performed or his/her representative or next of kin thereof, or he/she may ask
another person to assume the task in his/her place.
Article 596.- Payment
obligation of the person for whom the task is performed
1. The person for whom a task is
performed must take over the task from the person who performs the task without
mandate and reimburse the reasonable expenses already paid by the latter for
the performance of the task, even in cases where the performance of the task
has not yielded the result desired by the former.
2. The person for whom a task is
performed must pay remuneration to the person who performs the task if the
latter has performed the task dutifully to the former's benefit, except in
cases where the person who performs the task without mandate refuses to receive
it.
Article 597.- The
obligation to compensate for damage
1. When the person who performs
a task without mandate intentionally causes damage while performing the task,
he/she shall have to compensate the person for whom the task is performed.
2. If the person who performs a
task without mandate unintentionally causes damage while performing the task,
then based on the circumstances under which he/she assumed that task, such
person may enjoy a reduction of compensation.
Article
598.- Termination of the performance of tasks without mandate
The performance of a task
without mandate shall terminate in the following cases:
1. At the request of the person
for whom the task is performed;
2. The person for whom the task
is performed, his/her heir or representative takes over the task;
3. The person who performs a
task without mandate is unable to continue the performance of the task
according to the provisions in Clause 5, Article 595 of this Code;
4. The person who performs the
task without mandate dies.
Chapter XX
THE
OBLIGATION TO RETURN THE PROPERTY POSSESSED, USED OR BENEFITS ENJOYED THEREFROM
WITHOUT A LEGAL BASIS
Article 599.- The
obligation to return
1. The possessor or user of
another person's property without a legal basis shall have to return such
property to its lawful owner or possessor; if the lawful owner or possessor
cannot be found, the property shall be handed over to a competent state
authority, except for the cases specified in Clause 1, Article 247 of this
Code.
2. The person who benefits from
a property without a legal basis thus causing damage to another person shall
have to return these benefits to the damage sufferer, except for the cases
specified in Clause 1, Article 247 of this Code.
Article 600.- Property
to be returned
1. A possessor or user of a
property without a legal basis must return the entire property he/she has
acquired;
2. In cases where the property
to be returned is a distinctive object, he/she must return that exact object;
if that distinctive object is lost or damaged, he/she must pay pecuniary
compensation therefore, unless otherwise agreed upon;
3. In cases where the property
to be returned is a fungible object which has been lost or damaged, he/she must
return object of the same type or pay pecuniary compensation therefore, unless
otherwise agreed upon.
4. The person who enjoys
benefits from a property without a legal basis shall have to return these
benefits in kind or in money to the person who has sustained the loss of
benefits.
Article 601.- The
obligation to return yields or profits
1. The person who possesses,
uses or enjoys benefits from a property without a legal basis and not in good
faith shall have to return the yields or profits gained as from the time of
possessing or using the property or enjoying the benefits from the property
without a legal basis.
2. The person who possesses,
uses or enjoys benefits from a property without a legal basis but in good faith
shall have to return the yields or profits gained as from the time he/she knew
or should have known that such possession or use of the property, or such
enjoyment of benefits from the property lacked a legal basis, except for the
cases specified in Clause 1, Article 247 of this Code.
Article 602.- The right
to demand return of property from a third person
In cases where the possessor or
user of a property without a legal basis has transferred the property to a
third person, when the lawful owner or possessor of the property demands the
return of the property, the third person shall have to return such property,
unless otherwise provided for by this Code; if the property has been paid for
in money, or in compensation, the third party shall be entitled to demand the
transferor to compensate for damage.
Article 603.- Payment
obligation
If the lawful owner, possessor
or the damage sufferer recovers the property, he/she shall have to reimburse
the necessary expenses paid by the possessor, user or beneficiary of the
property without a legal basis but in good faith for preserving or increasing
the value of the property.
Chapter XXI
LIABILITY
TO COMPENSATE FOR DAMAGE OUTSIDE CONTRACT
Section 1. GENERAL PROVISIONS
Article 604.- Grounds
for liability to compensate for damage
1. Those who intentionally or
unintentionally infringe upon the life, health, honor, dignity, prestige,
property, rights, or other legitimate interests of individuals or infringe upon
the honor, prestige and property of legal persons or other subjects and thereby
cause damage shall have to compensate.
2. In cases where the law
provides that the persons who cause damage must compensate even when they are
not at fault, such provision shall apply.
Article 605.- Principles
for damage compensation
1. Damage must be compensated in
full and in time. The parties may agree on the compensation levels, the form of
compensation either in cash, in kind, or by the performance of a task, and on
the mode of compensation either in lump sum or in installment, unless otherwise
provided for by law.
2. Persons who cause damage may
be entitled to reduction of compensation levels, if they unintentionally cause the
damage which is too great for their economic capabilities at present and in the
future.
3. When the compensation levels
are no longer suitable to reality, the persons who suffered from damage or the
persons who caused the damage may request the Court or other competent state
agencies to change the compensation levels.
Article 606.- Liability
capacity of individuals to compensate for damage
1. Persons aged full eighteen
years or older who cause damage shall have to compensate by themselves.
2. If a minor under fifteen
years old, whose father and/or mother are/is still alive, causes damage,
his/her father and/or mother shall have to compensate the whole damage; if the
property of his/her parents is not enough for compen-sation while the minor who
causes the damage has his/her own property, this property shall be used to make
up for the deficit, except for the cases specified in Article 621 of this Code.
If persons aged between full
fifteen years and under eighteen years cause damage, they must compensate for
the damage with their own property; if their property is not enough for
compensation, their parents shall have to make up for the deficit with their
own property.
3. If persons who are minors or
lose their civil act capacity cause damage but have their guardians, such
guardians shall be entitled to use the property of their wards to pay the
compensation; if the wards have no property or have not enough property for
compensation, the guardians shall have to compensate with their own property;
if the guardians can prove that they are not at fault in the guardianship, they
shall not have to use their property for compensation.
Article 607.- Statute of
limitations for initiating lawsuits to demand for damage compensation
The statute of limitations for
initiating lawsuits to demand for damage compensation shall be two years
counting from the date the legitimate rights and interests of individuals,
legal persons or other subjects are infringed upon.
Section 2. DETERMINATION OF
DAMAGE
Article 608.- Damage
caused by infringement upon property
In case of infringement upon
property, the damage to be compensated for shall cover:
1. The lost property;
2. The destroyed or damaged
property;
3. The interests associated with
the use or exploitation of such property;
4. The reasonable expenses for
preventing, limiting and remedying the damage.
Article 609.- Damage
caused by infringement upon health
1. Damage caused by infringement
upon health shall cover:
a/ Reasonable expenses for
treatment, nursing and the rehabilitation of health and/or lost or impaired
functions of the victims;
b/ The loss or reduction of the
victims' actual incomes; if the victims' actual incomes are not stable, thus
being unable to be determined, the average income earned for the same type of
work shall be applied;
c/ Reasonable expenses and the
loss of actual incomes of the persons who take care of the victims during the
time of treatment; if the victims lose their working capacity and need people
to care for them permanently, the damage shall also cover the reasonable
expenses for caring for the victims.
2. The persons who infringe upon
the health of others must compensate for damage as provided for in Clause 1 of
this Article and pay another sum of money as compensation for their mental
sufferings, which shall be agreed upon by the parties; if there is no such
agreement, the maximum level shall not exceed thirty months' minimum salary set
by the State.
Article 610.- Damage
caused by infringement upon life
1. Damage caused by infringement
upon life shall cover:
a/ Reasonable expenses for the
treatment, nursing and taking care of the victims before they die;
b/ Reasonable expenses for
funeral;
c/ Support allowances for
persons whom the victims have the obligation to support;
2. The persons who infringe upon
the lives of others shall have to compensate for damage as provided for in
Clause 1 of this Article and pay a sum of money as compensation for the mental
sufferings to the victims's next of kin in the first rank of inheritance; if
these persons are not available, the persons who the victims have directly
nurtured or the persons who have directly nurtured the victims shall enjoy this
sum of money. The levels of compensation for mental sufferings shall be agreed
upon by the parties; in the absence of such agreement, the maximum compensation
level shall not exceed sixty months' minimum salary set by the State.
Article 611.- Damage
caused by infringement upon honor, dignity or prestige
1. Damage caused by infringement
upon the honor, dignity or prestige of individuals or damage caused by
infringement upon the honor or prestige of legal persons or other subjects
shall cover:
a/ The reasonable expenses for
limiting and/or remedying the damage;
b/ The actually lost or reduced
income.
2. The persons who infringe upon
the honor, dignity or prestige of others must compensate for damage as provided
for in Clause 1 of this Article and pay a sum of money as compensation for
mental sufferings caused to such persons. The levels of compensation for mental
sufferings shall be agreed upon by the parties; if there is no such agreement,
the maximum compensation level shall not exceed ten months' minimum salary set
by the State.
Article 612.- Duration
for enjoyment of compensation for damage caused by infringement on life or
health
1. In cases where the victims
have completely lost their working capacity, they shall be entitled to enjoy
compensation until they die.
2. In cases where a victim dies,
the persons who were supported by the victim during his/her lifetime shall be
entitled to the support money for the following time limit:
a/ Minors or unborns who are the
issue of the decedent and still alive after birth shall be entitled to support
money until they reach full eighteen years of age, except for cases where the
persons who are aged between full fifteen and under eighteen years have already
participated in labor and earned incomes enough to support themselves;
b/ Adults who have no working
capacity shall be entitled to the support money until they die.
Section 3. COMPENSATION FOR
DAMAGE IN A NUMBER OF SPECIFIC CASES
Article
613.- Compensation for damage caused by acts beyond the limits of
legitimate self-defense
1. Persons causing damage in
case of legitimate self-defense shall not have to compensate the victims.
2. Persons acting beyond the
limits of legitimate self-defense and causing damage must compensate the
victims.
Article
614.- Compensation for damage caused by acts beyond the requirements of
emergency circumstances
1. Persons causing damage in
emergency circumstances shall not have to compensate the victims.
2. In cases where damage is
caused by acts beyond the requirements of an emergency circumstance, the
persons causing such damage must compensate the victims.
3. Persons causing emergency
circumstances that resulted in damage must compensate the victims.
Article
615.- Compensation for damage caused by persons using stimulants
1. A person who, due to the
consumption of alcohol or the use of other stimulants, falls into a state where
he/she is unable to cognize and control his/her own acts and thereby causes
damage to another person shall have to compensate.
2. When a person who
intentionally uses alcohol or other stimulants to make another person fall into
a state of being unable to cognize and control his/her own acts, and thereby
causes damage, shall have to compensate the victim.
Article
616.- Compensation for damage caused by more than one person
In cases where many persons
jointly cause damage, they shall have to jointly compensate the victim. The
compen-sation liability of each of the persons who have jointly caused the
damage shall be determined correspon-dingly to each person's fault; if the
extent of fault cannot be determined, they shall have to equally pay
compensation for the damage.
Article
617.- Compensation for damage in cases where victims are at fault
When a victim is also at fault
in causing the damage, the person who causes the damage shall have to pay only
the compensation corresponding to his/her fault; if the victim is totally at
fault, the person who causes the damage shall not have to compensate.
Article
618.- Compensation for damage caused by personnel of a legal person
Legal persons must compensate
for damage caused by their personnel while performing their assigned
tasks; if the legal persons have already compensated for the damage, they shall
have the right to request the persons who are at fault in causing the damage to
refund the amounts of compensation they have already paid to the victims as
provided for by law.
Article
619.- Compensation for damage caused by public servants
Agencies or organizations shall
have to compensate for damage caused by public servants under their management
while performing their public duties.
Agencies or organizations shall
have the responsibility to request public servants under their management to
refund the amount of money they have paid in compensation to the victims as
provided for by law, if the public servants are at fault while performing their
public duties.
Article
620.- Compensation for damage caused by competent personnel of agencies
conducting legal proceedings
Agencies conducting legal
proceedings must compensate for damage caused by their competent personnel
while performing tasks in the process of conducting legal proceedings.
Agencies conducting legal proceedings
shall have the responsibility to request their competent persons who have
caused damage to refund the amounts of money they have paid in compensation to
the victims as provided for by law, if that competent persons are at fault
while performing their tasks.
Article
621.- Compensation for damage caused by persons under fifteen years old,
or persons having lost their civil act capacity while under the direct
management of schools, hospitals or other organizations
1. For persons aged under
fifteen years who cause damage while at schools, the schools must compensate
for the damage caused.
2. For persons having lost their
civil act capacity who cause damage to others while being under the direct
management of hospitals or other organizations, the hospitals or such
organizations shall have to compensate for the damage caused.
3. In the cases specified in
Clause 1 and Clause 2 of this Article, if the schools, hospitals or other
organizations can prove that they are not at fault in the management thereof,
the fathers, mothers or guardians of such under-fifteen persons or persons
having lost their civil act capacity shall have to compensate.
Article
622.- Compensation for damage caused by employees or apprentices
Individuals, legal persons and
other subjects shall have to compensate for damage caused by their employees or
apprentices while performing the assigned tasks and be entitled to request the
employees or apprentices at fault to reimburse the amounts of money they have
paid in compensation to victims as provided for by law.
Article
623.- Compensation for damage caused by sources of extreme danger
1. Sources of extreme danger
include motorized means of transport, power transmission systems, industrial
factories in operation, weapons, explosives, inflammables, poisons, radioactive
substances, wild beasts and other sources of extreme danger specified by law.
The owner of a source of extreme
danger must comply with the regulations on maintenance, keeping, transportation
and use of sources of extreme danger in accordance with the provisions of law.
2. The owner of a source of
extreme danger shall have to compensate for damage caused by such source of
extreme danger; if he/she has assigned the possession or use of such source of
extreme danger to another person, such person shall have to compensate, unless
otherwise agreed upon.
3. The owner of, or the person
assigned by the owner to possess or use, a source of extreme danger shall have
to compensate for damage even if he/she is not at fault, except for the following
cases:
a/ Where the damage occurred
totally due to the intentional fault of the victim;
b/ Where the damage occurred due
to force majeure or emergency circumstance, unless otherwise provided
for by law.
4. In cases where a source of
extreme danger is illegally possessed or used, the illegal possessor or user
shall have to compensate for the damage.
If the owner of, or person
assigned by the owner to possess or use, a source of extreme danger is also at
fault in letting the source of extreme danger be illegally possessed or used,
he/she shall have to jointly compensate for the damage.
Article
624.- Compensation for damage caused by environmental pollution
Individuals, legal persons or
other subjects who pollute the environment and thereby cause damage shall have
to compensate as provided for by law, even in cases where the environment
polluters are not at fault.
Article
625.- Compensation for damage caused by animals
1. The owner of an animal shall
have to compensate for damage caused by the animal to another person; if the
victim is completely at fault in letting the animal cause the damage to
him/her, the owner of the animal shall not have to compensate.
2. In cases where a third party
is completely at fault for the damage caused by an animal to another person,
such third party shall have to compensate for damage; if the third party and
the owner of the animal are both at fault, they shall have to jointly
compensate for the damage.
3. In cases where an animal
which is illegally possessed or used causes damage, the illegal possessor or
user shall have to compensate.
4. In cases where the animal is
allowed to range freely according to practices and causes damage, the owner of
such animal shall have to compensate according to practices but not in
contravention of law and/or social ethics.
Article
626.- Compensation for damage caused by trees
The owners of trees shall have
to compensate for damage caused by their falling or broken trees, except in
cases where the damage is caused completely by the victim's fault or
a force majeure circumstance.
Article
627.- Compensation for damage caused by houses or other construction works
The owners of, or the persons
assigned by the owners to manage and/or use, houses or other construction
works, shall have to compensate for damage if they let such houses or other
construction works collapse, deteriorate or sink and slide, thereby causing
damage to other persons, except in cases where the damage is caused completely
by the victim's fault or a force majeure circumstance.
Article
628.- Compensation for damage caused by infringement upon corpses
1. Individuals, legal persons or
other subjects that infringe upon corpses shall have to compensate for
circumstance.
2. The damage caused by
infringement upon corpses shall cover reasonable expenses for limiting or
remedying the damage.
3. Persons infringing upon
corpses must pay a pecuniary compensation as provided for in Clause 2 of this
Article and another sum of money to make up for the mental sufferings caused to
the decedents' next of kin in the first rank of inheritance; if these people
are not available, the persons who have directly nurturned the decedents shall
be entitled to enjoy these sums of money. The levels of compensation for mental
sufferings shall be agreed upon by the parties; if there is no such agreement,
the maximum level shall not exceed thirty months' minimum salary set by the
State.
Article
629.- Compensation for damage caused by infringement upon tombs
Individuals, legal persons or
other subjects that cause damage to tombs of others shall have to compensate
for the damage. The damage caused by infringement upon tombs shall cover
reasonable expenses for limiting or remedying the damage.
Article
630.- Compensation for damage caused by infringement upon consumers' interests
Individuals, legal persons or
other subjects that undertake production and business without ensuring the
quality standards of goods, thus causing damage to any consumer, shall have to
compensate.
PART FOUR
INHERITANCE
Chapter XXII
GENERAL
PROVISIONS
Article
631.- Inheritance right of individuals
Every individual shall have the
right to make a testament to dispose of his/her property; to bequeath his/her
property to his/her heir(s) at law; and to inherit property under a testament
or according to law.
Article
632.- Individuals' right of equality in inheritance
Every individual shall be equal
in the right to bequeath his/her property to another person and the right to
inherit property under a testament or according to law.
Article 633.- Time and
place for opening inheritance
1. The time for opening
inheritance is the time the owner of property dies. In cases where the Court
declares that a person is dead, the time for opening the inheritance shall be
the date specified in Clause 2, Article 81 of this Code.
2. The place for opening
inheritance is the last place of residence of the estate leaver; if such place
cannot be identified, the place for opening inheritance shall be the place
where all or most of his/her estate is located.
Article 634.- Estate
Estate includes the decedent's
own property and his/her shares in property in common with others.
Article 635.- Heirs
If an heir is an individual,
he/she must be alive at the time of opening the inheritance, or must be born
and still alive after the time of opening the inheritance, but must be
conceived before the death of the estate leaver. In cases where a testamentary
heir is an agency or organization, such agency or organization must be in
existence at the time of opening the inheritance.
Article 636.- Time at
which the heir's rights and obligations arise
As from the time of opening the
inheritance, the heirs shall have the property rights and obligations left by
the decedents.
Article
637.- Performance of property obligations left by the decedent
1. The persons enjoying the
inheritance shall have the responsibility to perform the property obligations
within the limit of estate left by the decedent, unless otherwise agreed upon.
2. In cases where the estate has
not yet been divided, the property obligations left by the decedent shall be
performed by the estate administrator in accordance with the agreement among
the heirs.
3. In cases where the estate has
already been divided, then each of the heirs shall perform the property
obligations left by the decedent, which correspond to, but not exceed, the
portion of property he/she has received, unless otherwise agreed upon.
4. In cases where the State, an
agency or organization enjoys an estate under a testament, it shall also have
to perform the property obligations left by the decedent like an individual
heir.
Article 638.- Estate
administrators
1. An estate administrator is
the person who is appointed in the testament or appointed under the agreement
among the heirs.
2. In cases where the testament
does not appoint an estate administrator and the heirs have not yet appointed
an administrator, the person who possesses, uses, or administers the estate
shall continue to administer it until the heirs appoint an administrator of the
estate.
3. In cases where the heir(s)
has/have not been identified and there is still no administrator of the estate,
such estate shall be managed by a competent State agency.
Article
639.- Obligations of the estate administrator
1. The estate administrator
defined in Clause 1 and Clause 3, Article 638 of this Code shall have the
following obligations:
a/ To draw up the list of
estate; recover the property of the decedent, which is being possessed by other
persons, unless otherwise provided for by law;
b/ To preserve the estate; not
to sell, exchange, donate, mortgage, pledge or dispose of it in any other
manners, if not so consented in writing by the heirs;
c/ To notify the heirs of the
estate;
d/ To compensate for damage, if
he/she breaches his/her obligations, thereby causing damage;
e/ To hand back the estate at
the request of the heir(s).
2. The person who currently
possesses, uses or administers the estate as specified in Clause 2, Article 638
of this Code shall have the following obligations:
a/ To preserve the estate; not
to sell, exchange, donate, mortgage, pledge or dispose of it in any other
manners;
b/ To notify the heirs of the
estate;
c/ To compensate for damage, if
he/she breaches his/her obligations, thereby causing damage;
d/ To hand back the estate as
agreed upon with the estate leaver in a contract or at the request of the
heir(s).
Article 640.- Rights of
the estate administrator
1. The estate administrator
defined in Clause 1 and Clause 3, Article 638 of this Code shall have the
following rights:
a/ To represent the heirs in their
relations with a third party concerning the estate;
b/ To enjoy remuneration as
agreed upon with the heir(s).
2. The persons who currently
possess, use or administer the estate as defined in Clause 2, Article 638 of
this Code shall have the following rights:
a/ To continue using the estate
as agreed upon in the contract with the estate leaver or consented to by the
heirs.
b/ To enjoy remuneration as
agreed upon with the heirs.
Article
641.- Inheritance by persons entitled to mutually inherit each other's
estate who die simultaneously
In cases where the persons who
have the right to inherit each other's estate die simultaneously or are
considered to have died simultaneously because it is impossible to determine
who dies first, then they shall not have the right to inherit each other's
estate and the estate of each person shall be inherited by his/her respective
heir(s), except for case of inheritance by substitution as provided for in
Article 677 of this Code.
Article 642.- Disclaimer
of inheritance
1. An heir shall have the right
to disclaim an estate, except for cases where such disclaimer is aimed at
shirking his/her property obligations toward another person.
2. A disclaimer of estate must
be made in writing; the person who disclaims must notify other heirs, the
person tasked to divide the estate, the Notary Public Office or the People's
Committee of the commune, ward or township, where such inheritance is opened,
of the disclaimer of estate.
3. The time limit for
disclaiming an estate shall be six months counting from the date of opening the
inheritance. After six months counting from the date of opening the
inheritance, if there is no disclaimer of estate, the heirs are considered
having accepted the inheritance.
Article 643.- Persons
not entitled to enjoy estate
1. The following persons shall
not be entitled to enjoy estate:
a/ Persons who are convicted of
having intentionally infringed upon the life or health of the estate leavers,
or of having maltreated, or physically or mentally abused the estate leavers,
or of having seriously infringed upon the honor or dignity of such persons;
b/ Persons who seriously breach
their obligations to support the estate leavers;
c/ Persons who are convicted of
having intentionally infringed upon the life of other heirs for the purpose of
acquiring part or all of the portion of the estate to which such heirs are
entitled;
d/ Persons who deceive, coerce
or hinder the estate leavers while the latter make their testaments; persons
who forge, modify or destroy the testaments in order to acquire part or all of
the estates against the will of the estate leavers.
2. The persons defined in Clause
1 of this Article shall still be entitled to enjoy the estate, if the estate
leavers, though aware of their acts, still allow them to enjoy the estate under
the testaments.
Article 644.- Estates
without heirs shall belong to the State
In cases where there is no heir
under the testament or at law or where there is an heir who is, however, not
entitled to enjoy estate or disclaims his/her estate, the estate left after
fulfilling the property obligations and without any heir shall belong to the
State.
Article 645.- Statute of
limitations for initiating inheritance-related lawsuits
The statute of limitations for
an heir to request the division of estate, to determinate his/her rights to
inheritance or deny the inheritance rights of another person shall be ten years
counting from the time of opening the inheritance.
The statute of limitations for
initiating a lawsuit to demand an heir to fulfill the property obligations left
by the decedent shall be three years counting from the time of opening the
inheritance.
Chapter XXIII
TESTAMENTARY
INHERITANCE
Article 646.- Testaments
A testament is the expression of
an individual's will to transfer his/her own property to other person(s) after
his/her death.
Article 647.- Testators
1. A person who has attained
adulthood is entitled to make a testament, except in cases where such person is
affected by a mental disease or other ailment, which prevents him/her from
being aware of, or controlling his/her acts.
2. A person aged between full
fifteen years and under eighteen years may make a testament, if his/her father,
mother or guardian so agrees.
Article 648.- Rights of
the testator
The testator shall have the
following rights:
1. To designate his/her
heirs(s); to disinherit an heir;
2. To divide his/her estate for
each of his/her heirs;
3. To set aside part of his/her
estate for donation and/or worship;
4. To assign obligations to
his/her heir(s);
5. To designate a person to keep
the testament, the administrator of his/her estate and the distributor of the
estate.
Article 649.- Forms of
testament
A testament must be made in
writing; if the testament cannot be made in writing, it can be made orally.
Ethnic minority people shall be
entitled to make their testaments in their own ethnic minority scripts or
languages.
Article 650.- Written
testaments
A written testament may be:
1. A written testament made
without witnesses;
2. A written testament made in
the presence of witnesses;
3. A notarized written
testament;
4. An authenticated written
testament.
Article 651.- Oral
testaments
1. In cases where a human life
is threatened by a disease or other causes, which prevent him/her from making a
written testament, he/she may make an oral testament.
2. After three months counting
from the time the oral testament is made, if the testator is still alive and
clear-minded, such oral testament shall be automatically annulled.
Article 652.- Lawful
testaments
1. A testament shall be
considered lawful when it meets all the following conditions:
a/ The testator is clear-minded
while making the testament; he/she is not deceived, threatened or forced;
b/ The content of the testament
is not contrary to law and/or social ethics; the form of testament is not
contrary to the provisions of law.
2. The testament of a person
aged between full fifteen years and under eighteen years must be made in
writing and such person must get the consent of his/her parents or guardian.
3. The testament of a person who
is physically handicapped or who is illiterate must be put into writing by a
witness and notarized or authenticated.
4. A written testament without
notarization or authentication shall be considered lawful only if it satisfies
the conditions specified in Clause 1 of this Article.
5. An oral testament shall be
considered lawful if the oral testator expresses his/her last will before at
least two witnesses and immediately after that the witnesses write such down
and jointly sign or press their fingerprints. Within five days as from the date
the oral testator expresses his/her last will, the testament must be notarized
or authenticated.
Article 653.- Contents
of written testaments
1. A testament must contain:
a/ Day, month, year, on which
the testament is made;
b/ Full name and place of
residence of the testator;
c/ Full names of the person(s),
agency(ies) or organization(s) entitled to the estate or the clear definition
of conditions for individuals, agencies or organizations to enjoy the estate;
d/ The inheritance estate
bequeathed and the location of such estate;
e/ The person(s) appointed to
perform the obligations and the contents of such obligations.
2. No abbreviations or symbols
shall be used in testaments; if a testament comprises many pages, then each
page must be ordinally numbered and signed or fingerprinted by the testator.
Article 654.- Witnesses
to the making of testaments
Every person may serve as a
witness to the making of a testament, except the following persons:
1. Heirs under the testament or
at law of the testator;
2. Persons with property rights
and obligations related to the contents of the testament;
3. Persons who have not yet
reached full eighteen years or persons having no civil act capacity.
Article 655.- Written
testaments made without witnesses
The testator must
himself/herself write and sign the testament.
The making of written testaments
without witnesses must comply with the provisions of Article 653 of this Code.
Article 656.-Written
testaments made in the presence of witnesses
In cases where a testator is
unable to write the testament by himself/herself, he/she may ask another person
to write it, but in the presence of at least two witnesses. The testator must
sign or fingerprint the testament in the presence of the witnesses; the
witnesses shall certify the signature or fingerprint of the testator and sign
the testament.
The making of testaments must
comply with the provisions of Article 653 and Article 654 of this Code.
Article 657.- Testaments
notarized or authenticated
Testators may request the
notarization or authentication of their testaments.
Article 658.- Procedures
for making testaments at public notary offices or People's Committees of
communes, wards or townships
The making of testaments at
public notary offices or People's Committees of communes, wards or townships
must comply with the following procedures:
1. The testators shall announce
the contents of their testaments before the public notaries or persons of
commune/ward/township People's Committees, who are competent to authenticate
them. The public notaries or the persons competent to authenticate must record
in writing the contents stated by the testators. The testators shall sign or
fingerprint the testaments after certifying that their testaments have been
accurately recorded and correctly express their will. The public notaries or
the persons competent to authenticate of commune/ward/township People's
Committees then sign the testaments;
2. In cases where testators
cannot read, hear, sign or fingerprint the testaments, they must request the
assistance of witnesses who shall have to sign the testaments for certification
in the presence of the public notaries or the persons competent to authenticate
of commune/ward/township People's Committees. The public notaries or the
persons competent to authenticate of commune/ward/township People's Committees
shall certify the testaments in the presence of the testators and witnesses.
Article 659.- Persons
not allowed to notarize or authenticate testaments
The public notaries or competent
persons of commune/ward/township People's Committees must not notarize or
authenticate testaments if they are:
1. Testamentary heirs or at-law
heirs of the testators;
2. Persons whose fathers,
mothers, spouses or children are testamentary heirs or at-law heirs;
3. Persons having their property
rights and obligations related to the testaments' contents.
Article 660.- Written
testaments are as valid as notarized or authenticated testaments
Written testaments which have
the same validity as notarized or authenticated testaments shall include:
1. Testaments of army men in
active service, certified by commanders of army units of the company or higher
level, if such army men cannot request the notarization or authentication;
2. Testaments of persons
traveling on board sea-going vessels or aircraft, certified by the commanders
of such means of transport;
3. Testaments of persons
undergoing medical treatment at hospitals or other health or convalescent
establishments, certified by the persons in charge of such hospitals or
establishments;
4. Testaments of persons
conducting survey, exploration or research work in mountainous areas or on
islands, certified by the persons in charge of their units;
5. Testaments of Vietnamese
nationals residing abroad, certified by Vietnamese consular offices or
diplomatic missions in those countries;
6. Testaments of persons being
held in custody, serving their prison sentences or administrative handling
measures at re-education camps or medical establishments, certified by the
persons in charge of such establishments.
Article 661.- Testaments
made by public notaries at places of residence
1. Testators may request public
notaries to come to their places of residence to make their testaments.
2. The procedures for making
testaments at places of residence shall comply with the procedures for making
testaments at public notary offices under the provisions in Article 658 of this
Code.
Article 662.- Amendment,
supplementation, substitution and annulment of testaments
1. Testators may amend,
supplement, substitute or annul their testaments at any time.
2. In cases where a testator
makes any supplement to his/her testament, the already made testament and the
supplement shall have equal legal effect; if a part of the already made
testament and the supplement are contradictory, only the supplement shall have
legal effect.
3. In cases where a testator
replaces his/her testament with a new testament, then the previous testament
shall be annulled.
Article 663.- Joint
testament of husband and wife
Husband and wife may make a
joint testament to dispose of their common property.
Article 664.- Amendment,
supplementation, substitution and annulment of joint testaments
1. Husband or wife may amend,
supplement, substitute or annul their joint testament at any time.
2. When a wife or husband wishes
to amend, supplement, substitute or annul their joint testament, she or he must
get the consent of the other; if one of them has already died, the other can
only amend or supplement the testament related to his/her own part of property.
Article 665.- Custody of
testaments
1. A testator may request a
public notary office or another person to keep his/her testament in its/his/her
custody.
2. In cases where the public
notary office keeps the testament, it must maintain and preserve the testament
in accordance with the provisions of law on notary public.
3. The individual entrusted to
keep the testament shall have the following obligations:
a/ To keep its contents
confidential;
b/ To safeguard and preserve the
testament; if the testament is lost or damaged, he/she must immediately notify
the testator thereof;
c/ To hand back the testament to
the testator's heir(s) or to the person competent to announce the testament
upon the testator's death. The hand-over of the testament must be made in
writing with the signatures of the person who hands it over and the recipient,
and in the presence of two witnesses.
Article 666.- Lost or
damaged testaments
1. If from the time of opening
the inheritance, a testament is lost or damaged to such an extent that it does
not fully express the will of the testator nor is there any evidence to
demonstrate the true wish of the testator, the testament shall be deemed
non-existent and the provisions of law on inheritance at law shall apply.
2. In cases where the testament
is found out before the estate is divided, then the estate shall be divided
according to the testament.
Article 667.- Legal
effect of testaments
1. A testament shall take effect
as from the time of opening the inheritance.
2. A testament shall be
considered invalid wholly or partially in the following cases:
a/ The testamentary heirs die
before or at the same time with the testator;
b/ The agency or organization
designated as a heir is no longer in existence at the time of opening the
inheritance.
In cases where there are more
than one testamentary heir and one of them dies before or at the same time with
the testator, or one of the agencies or organizations designated as heirs is no
longer in existence at the time of opening the inheritance, then only the part
of the testament that relates to the person who died before or simultaneously
with the testator, or such defunct agency or organization shall be legally
ineffective.
3. A testament shall have no
legal effect if the estate left to the heir(s) is no longer in existence at the
time of opening the inheritance; if only part of such estate is still in
existence, then the testamentary part related to the remaining part of the
estate shall remain effective.
4. If a part of the testament is
unlawful but does not affect the validity of the rest of the testament, then
only such part shall have no legal effect.
5. If a person leaves more than
one testament regarding a property, then only the latest testament shall take
legal effect.
Article 668.- Legal
effect of joint testament of husband and wife
A joint testament of husband and
wife shall take effect as from the time the last of them dies or at the time
both the husband and wife die simultaneously.
Article 669.- Heirs
independent from contents of testaments
The following persons shall
still be entitled to an estate portion which is equivalent to two-thirds of the
portion given to an heir at law, if the estate is divided according to law, in
cases where they are not allowed by the testator to enjoy the estate or are
allowed to enjoy only a portion less than two-thirds of their due part, unless
they disclaim the estate according to the provisions of Article 642 or they are
not entitled to the estate according to the provisions of Article 643 of this
Code:
1. Minor children, father,
mother, wife or husband;
2. Adult children without
working capacity.
Article 670.- Estate
used for worshiping
1. In cases where a testator has
allocated part of the estate for worshiping, that part of his/her estate shall
not be divided for inheritance, but shall be entrusted to a person designated
in the testament for management to service the worship; if the designated
person fails to comply with the testament or with the heirs' agreement, the
heirs shall be entitled to entrust such part of the estate to another person
for management and use thereof for worshiping.
In cases where the estate leaver
does not designate an administrator of the worship estate, the heirs shall
designate a person to manage the worship estate.
In cases where all the
testamentary heirs have died, the estate portion reserved for worshiping shall
belong to the current lawful administrator of such estate among people entitled
to inheritance at law.
2. In cases where the whole
property of the decedent is not enough for fulfillment of his/her property
obligations, no part of the estate shall be reserved for worshiping.
Article
671.- Testamentary donation
1. A testamentary donation means
the reserve of part of an estate by a testator as gift to another person. The
testamentary donation must be clearly stated in the testament.
2. The testamentary donee shall
not have to fulfill any property obligation related to the testamentary
donation, except in cases where the whole estate is not enough for performance
of the property obligations of the donor, the testamentary donation shall be
also used to perform the remaining part of the obligations of such person.
Article
672.- Announcement of testaments
1. In cases where a written
testament is kept at a public notary office, the public notary shall be the
person to announce the testament.
2. In cases where the testator
appoints a testament announcer, the latter shall have the obligation to
announce the testament; if the testator does not appoint or has appointed a
testament announcer but the appointee refuses to announce the testament, the
surviving heirs shall agree to appoint the testament announcer.
3. After the time of opening the
inheritance, the testament announcer must send copies of the testament to all
concerned persons related to the contents of the testament.
4. The persons who receive
copies of the testament shall be entitled to request the comparison thereof
with the original.
5. In cases where the testament
is made in a foreign language, it must be translated into Vietnamese and must
be notarized.
Article
673.- Interpretation of testaments
In cases where the contents of a
testament are unclear leading to different interpretations, then the testament
announcer and the heirs must together interprete the testament contents, based
on the true will of the decedent before his/her death, taking into
consideration the relationship between the decedent and his/her testamentary
heir(s). Where such persons fail to agree on the interpretation of the contents
of the testament, such testament shall be deemed non-existent and the estate
shall be divided in accordance with the provisions of law on inheritance at
law.
In cases where a part of the
testament cannot be interpreted but does not affect the rest of the testament,
only the uninterpretable part shall be invalid.
Chapter XXIV
INHERITANCE
AT LAW
Article
674.- Inheritance at law
Inheritance at law is
inheritance in accordance with the ranks, conditions and order of inheritance
provided for by law.
Article 675.- Cases of
inheritance at law
1. Inheritance at law shall
apply in the following cases:
a/ There is no testament;
b/ The testament is unlawful;
c/ All the testamentary heirs
die before or at the same time with the testator; the agency or organization
designated as testamentary heir is no longer in existence at the time of
opening the inheritance;
d/ The persons designated as
testamentary heirs shall not have the right to inherit or have disclaimed their
inheritance rights.
2. Inheritance at law shall also
apply to the following parts of the estate:
a/ Part of the estate, which is
not disposed of in the testament;
b/ Part of the estate, which is
related to the invalid part of the testament;
c/ Part of the estate, which is
related to a testamentary heir, who, however, does not have the right to
inherit or who has disclaimed his/her inheritance rights, or who dies before or
at the same time with the testator; or related to an agency or organization
which is designated as testamentary heir, which is, however, no longer in
existence at the time of opening the inheritance.
Article 676.- Heirs at
law
1. Heirs at law are classified
in the following order:
a/ First rank of inheritance
shall include wife, husband, biological father, biological mother, adoptive
father, adoptive mother, biological children and adopted children of the
decedent;
b/ Second rank of inheritance
shall include paternal grandfather, paternal grandmother, maternal grandfather,
maternal grandmother, natural brother(s) and sister(s) of the decedent;
grand-children of whom the decedent is the paternal grandfather or
grand-mother, maternal grandfather or grandmother;
c/ Third rank of inheritance
shall include paternal and maternal great-grandparents; paternal and maternal
uncles and aunts by blood of the decedent; nephews and nieces of whom the
decedent is the paternal or maternal uncle or aunt by blood; great
grand-children of whom the decedent is the paternal or maternal great
grandparents.
2. Heirs belonging to the same
rank of inheritance shall be entitled to equal portions in the estate.
3. Heirs belonging to the
subsequent rank of inheritance shall be entitled to inheritance only if none of
the heirs of the preceding rank of inheritance is left as they have died, are
not entitled to the estate, are disinherited or disclaim the estate.
Article
677.- Inheritance by substitution
In cases where a child of an
estate leaver dies before or at the same time with the estate leaver, then
his/her grandchild shall be entitled to inherit the part of the estate that
his/her father or mother would have inherited if he or she is still alive; if
such grandchild also dies before or at the same time with the estate leaver,
then the great grandchild of the estate leaver shall be entitled to inherit the
part of the estate that his/her father or mother would have inherited if he or
she is still alive.
Article
678.- Inheritance relation-ship between adopted children and their
adoptive fathers, adoptive mothers and their biological parents
An adopted child and his/her
adoptive father and/or mother shall be entitled to inherit each other's estate
and also inherit the estate in accordance with the provisions of Articles 676
and 677 of this Code.
Article
679.- Inheritance relation-ship between stepchildren and their stepfathers
and/or stepmothers
If a stepchild and his/her
stepfather and/or stepmother have a relationship of mutual care and support as
between a biological father and a biological child or between a biological
mother and a biological child, they shall be entitled to inherit each other's
estate and also inherit the estate in accordance with the provisions of
Articles 676 and 677 of this Code.
Article
680.- Inheritance in cases where wife and husband have divided their
common property, are applying for divorce or have married another person
1. In cases where husband and
wife have divided their common property while their marriage still exists and
one of the spouses thereafter dies, then the survivor shall still be entitled
to inherit the other's estate.
2. In cases where wife and/or
husband have/has applied for divorce but the divorce has not yet been approved
or has already been approved by a court through a judgment or decision which is
not legally effective yet, and one of the spouses thereafter dies, then the
survivor shall still be entitled to inherit the other's estate.
3. A person who was still wife
or husband of the decedent at the time the latter dies shall still be entitled
to inherit the decedent's estate even if he/she later has married another
person.
Chapter XXV
PAYMENT
AND DIVISION OF ESTATE
Article 681.- Meeting of
heirs
1. After the notice on the
opening of the inheritance is made or the testament is announced, the heirs may
hold a meeting to agree on the following issues:
a/ The appointment of an
administrator of the estate, a distributor of the estate and the determination
of the rights and obligations of these people, if the estate leaver has failed
to make such appointments in the testament;
b/ The method of dividing the
estate.
2. Any agreement among the heirs
must be made in writing.
Article 682.- Estate
distributors
1. The estate distributor may
also be the estate administrator designated in the testament or appointed by
the heirs under their agreement.
2. The estate distributor must
divide the estate in strict accordance with the testament or as agreed upon by
the heirs at law.
3. The estate distributor is
entitled to remuneration, if so allowed by the estate leaver in the testament
or so agreed upon by the heirs.
Article 683.- Priority
order of payment
Property obligations and
expenses related to the inheritance shall be paid in the following order:
1. Reasonable funeral expenses
in accordance with practices;
2. Unpaid support allowance;
3. Support allowances for
dependents of the decedent;
4. Labor wage;
5. Compensation for damage;
6. Taxes and other debts owed to
the State;
7. Fines;
8. Other debts owed to any
individuals, legal persons or other subjects;
9. Expenses for the preservation
of the estate;
10. Other expenses.
Article 684.- Division
of estates in accordance with testaments
1. The estate shall be divided
according to the will of the testator; if the testament does not clearly
determine the share of each heir, then the estate shall be divided equally
among the persons indicated in the testament, unless otherwise agreed upon.
2. In cases where the testament
specifies the division of an estate in kind, the heirs shall be entitled to
receive their shares in kind together with the yields or profits gained
therefrom or must bear any depreciation in value of such shares in kind up to
the time of the division of the estate; if the shares in kind have been
destroyed due to another person's fault, the heirs shall be entitled to demand
compensation for such damage.
3. In cases where the testament
only specifies the division of the estate by percentages of the total value of
the estate, then such percentages shall be calculated on the basis of the
estate value remaining at the time of estate division.
Article 685.- Division
of estate by law
1. If at the time of estate
division, an heir of the same rank of inheritance has been conceived but not
yet born, then a part of the estate equal to the share which another heir of
the same rank is entitled to shall be set aside for inheritance by the unborn heir
if he/she is born alive; if this heir is still-born, then the other heirs shall
be entitled to his/her share.
2. The heirs shall have the
right to demand that the estate be divided in kind; if the estate cannot be
divided equally in kind, the heirs may agree on the evaluation of the assets in
kind and on the persons who shall receive them; if no agreement can be reached,
the assets in kind shall be sold for division.
Article
686.- Restrictions on division of estate
If by the will of the testator
or by the agreement of all heirs, the estate can only be divided after a
certain period of time, then it shall only be divided after the expiration of
that time limit.
In cases where the estate
division is requested and will seriously affect the life of the living spouse
and his/her family, the living spouse shall have the right to request the Court
to determine the estate shares to be enjoyed by the heirs but not to allow the
estate division within a certain time limit which, however, shall not exceed
three years as from the time of opening the inheritance; if the time limit set
by the Court has expired or the living spouse has married another person, the
other heirs may request the Court to permit the division of the estate.
Article 687.- Division
of estates in cases where new heirs appear or where heirs are disinherited
1. In cases where an estate has
been already divided and a new heir has appeared, the estate in kind shall not
be re-divided but the heirs who have received their respective shares of estate
must pay the new heir a sum of money corresponding to his/her share of estate
at the time of estate division in proportion to the received share of estate,
unless otherwise agreed upon.
2. In cases where an estate has
been already divided and an heir is disinherited, such heir must return his/her
share of estate or pay a sum of money corresponding to the value of the estate
he/she has enjoyed at the time of dividing the estate to the heirs, unless
otherwise agreed upon.
PART FIVE
PROVISIONS
ON THE TRANSFER OF LAND USE RIGHTS
Chapter XXVI
GENERAL
PROVISIONS
Article 688.- Bases for
establishment of land use rights
1. Land is under the State's
ownership and the Government's unified management.
2. Land use rights of
individuals, legal persons, households and other subjects shall be established
upon the land assignment or lease or the land use right recognition by the
State.
3. Land use rights of
individuals, legal persons, households and other subjects shall also be
established upon the transfer thereof by other persons in accordance with the
provisions of this Code and the land law.
Article 689.- Forms of
transfer of land use rights
1. The transfer of land use
rights shall be carried out through contracts, except for the case specified in
Clause 3 of this Article.
2. The contracts on land use
right transfer must be made in writing, notarized or authenticated in
accordance with the provisions of law.
3. The inheritance of land use
rights shall comply with the provisions of Articles 733 thru 735 of this Code.
Article 690.- Price for
transfer of land use rights
The price for a transfer of land
use rights shall be agreed upon by the parties or provided for by law.
Article 691.- Principles
for transfer of land use rights
1. Individuals, legal persons,
households and other subjects using land shall be entitled to transfer the land
use rights only when they are so permitted by law.
2. When transferring the land
use rights, the parties shall be entitled to agree on the contents of the
contract for the transfer of land use rights but must comply with the
provisions of this Code and the land law.
3. The transferee of the land
use rights must use the land for the right purposes and within the duration
stated in the land use right certificates and in compatibility with land use
plannings or plans in the localities at the time of land use right transfer.
Article 692.- Effect of
transfer of land use rights
The transfer of land use rights
shall take effect as from the time the land use rights are registered in
accordance with the provisions of land law.
Chapter XXVII
CONTRACTS
FOR EXCHANGE OF LAND USE RIGHTS
Article 693.- Contracts
for exchange of land use rights
A contract for exchange of land
use rights is an agreement between parties whereby the parties transfer land
and land use rights to each other in accordance with the provisions of this
Code and the land law.
Article 694.- Contents
of contracts for exchange of land use rights
A contract for exchange of land
use rights shall contain the following contents:
1. Names and addresses of the
parties;
2. Rights and obligations of the
parties;
3. Category, grade, acreage,
location, code number, boundaries and conditions of the land;
4. Time for the transfer of
land;
5. The land use term of the
exchanger; the remainder of the land use term for the exchange;
6. The difference in land use
right value, if any;
7. Rights of a third party to
the exchanged land, if any;
8. The parties' liabilities for
breach of the contract.
Article
695.- Obligations of parties to the exchange of land use rights
The parties to an exchange of
land use rights shall have the following obligations:
1. To transfer land to each
other in strict accordance with the land acreage, grade, category, location,
code number and conditions as agreed upon;
2. To use the land for the right
purposes and within the prescribed duration;
3. To pay fees for the exchange
of land use rights with respect to the area of land received and perform the
obligations of a land user as provided for by this Code and the land law;
4. To pay the difference, if the
value of the exchanged land use rights of one party is higher than that of the
other, unless otherwise agreed upon.
Article 696.- Rights of
parties to the exchange of land use rights
The parties to an exchange of
land use rights shall have the following rights:
1. To request the other party to
transfer the land in strict accordance with the land acreage, grade, category,
location, code number and conditions as agreed upon;
2. To request the other party to
hand over all the valid papers related to the land use rights;
3. To be granted a land use
right certificate for the exchanged land;
4. To use land in strict
accordance with the prescribed purpose and duration.
Chapter XXVIII
CONTRACTS
FOR ASSIGNMENT OF LAND USE RIGHTS
Article 697.- Contracts
for assignment of land use rights
A contract for the assignment of
land use rights is an agreement between parties whereby the land use right
assignor transfers the land and land use rights to the assignee and the
assignee shall pay money to the assignor in accordance with the provisions of
this Code and the land law.
Article 698.- Contents
of contracts for assignment of land use rights
A contract for the assignment of
land use rights shall include the following contents:
1. Names and addresses of the
parties;
2. Rights and obligations of the
parties;
3. Category, grade, acreage,
location, code number, boundaries and conditions of the land;
4. Land use term of the
assignor; the remainder of the land use term for the assignee;
5. Assignment price;
6. Mode and time of payment;
7. Rights of a third party to
the assigned land;
8. Other information related to
the land use rights;
9. The parties' liabilities for
breach of the contract.
Article
699.- Obligations of the land use right assignor
The land use right assignor
shall have the following obligations:
1. To transfer the land to the
assignee in strict accordance with the land acreage, grade, category, location,
code number and conditions as agreed upon;
2. To hand over the papers
related to the land use rights to the assignee.
Article 700.- Rights of
the land use right assignor
The land use right assignor
shall have the rights to receive money for the assignment of land use rights;
in cases where the assignee is late in making the payment, the provisions of
Article 305 of this Code shall apply.
Article
701.- Obligations of the land use right assignee
The land use right assignee
shall have the following obligations:
1. To pay money to the land use
right assignor in full, on time and by the agreed mode;
2. To register the land use
rights as provided for by the land law;
3. To ensure the rights of the
third party to the assigned land;
4. To perform other obligations
as provided for by the land law.
Article 702.- Rights of
the land use right assignee
The land use right assignee
shall have the following rights:
1. To request the land use right
assignor to hand over all papers related to the land use rights;
2. To request the land use right
assignor to transfer the land in strict accordance with the land acreage,
grade, category, location, code number and conditions as agreed upon;
3. To be granted a land use
right certificate for the assigned land;
4. To use land in accordance
with the right purposes and duration.
Chapter XXIX
CONTRACTS
FOR LAND USE RIGHT LEASE, SUBLEASE
Section 1. CONTRACTS FOR LAND
USE RIGHT LEASE
Article 703.- Contracts
for land use right lease
A contract for land use right
lease is an agreement between parties whereby the lessor shall transfer the
land to the lessee for use in a period of time, and the lessee must use such
land for the right purpose, pay the rent and return the land when the lease
term expires as provided for by this Code and the land law.
Article 704.- Contents
of contracts for land use right lease
A contract for land use right
lease shall contain the following contents:
1. Names and addresses of the
parties;
2. Rights and obligations of the
parties;
3. Category, grade, acreage,
location, code number, boundary and conditions of the land;
4. Lease term;
5. Lease price;
6. Mode and time of payment;
7. Rights of a third party to
the leased land;
8. The parties' liabilities for
breach of the contract;
9. Remedy of consequences when
the land use right lease contract expires.
Article
705.- Obligations of the land use right lessor
The land use right lessor shall
have the following obligations:
1. To register the lease of land
use rights;
2. To transfer land to the
lessee in accordance with the land acreage, location, code number, category and
conditions as agreed upon;
3. To lease land use rights within
the term of land allocation or lease;
4. To check and remind the
lessee to protect, preserve and use the land for the right purpose;
5. To pay land use tax, unless
otherwise agreed upon;
6. To inform the lessee of the
rights of the third party to the leased land.
Article 706.- Rights of
the land use right lessor
The land use right lessor shall
have the following rights:
1. To request the land use right
lessee to pay the rent in full;
2. To request the lessee to
immediately stop the use of land not for the right purpose, the destruction of
land or the reduction of its use value; if the lessee fails to immediately stop
such violations, the lessor shall be entitled to unilaterally terminate the
performance of the contract and request the lessee to return such land and
compensate for damage;
3. To request the lessee to
return the land upon expiration of the lease term.
Article
707.- Obligations of the land use right lessee
The land use right lessee shall
have the following obligations:
1. To use land for the right
purpose, within the boundary and the lease term;
2. Not to destroy the land or
reduce its use value and to fulfill other requirements as agreed upon in the
land use right lease contract;
3. To pay the rent in full, on
time, at the right place and by the agreed mode; in the event the use of land
fails to generate profits, the lessee shall still be obligated to pay the rent
in full, unless otherwise agreed upon;
4. To comply with the
regulations on environmental protection; not to cause damage to the legitimate
rights and interests of the surrounding land users;
5. To return the land in the
same conditions as when it was received upon the expiration of the lease term,
unless otherwise agreed upon.
Article 708.- Rights of
the land use right lessee
The land use right lessee shall
have the following rights:
1. To request the lessor to
transfer the land in strict accordance with the land acreage, location, code
number, grade, category and conditions as agreed upon;
2. To use the leased land in a
stable manner within the agreed duration;
3. To enjoy the yields and
profits from the use of land;
4. To unilaterally terminate the
performance of the contract as provided for in Article 426 of this Code;
5. To request the lessor to
reduce or exempt the rent in cases where the yields and/or profits are lost or
reduced due to force majeurecircumstances.
Article 709.- Delay in
payment of rent
When the lessee delays in paying
the rent for the lease of land use rights as agreed upon, the lessor may grant
an extension; if such extension has expired and the lessee fails to fulfill
his/her obligations, the lessor shall be entitled to unilaterally terminate the
performance of the contract and request the lessee to return the land. The
lessor shall be entitled to request the lessee to make the full payment for the
time during which the land use rights were leased, including the interest on
the amount of delayed payment at the basic interest rate set by the State Bank
corresponding to the period of delayed payment at the time of payment.
Article
710.- Compensation for damage caused by recovery of land
1. When the lessor or the lessee
intentionally breaches the obligations of the land user, thus leading to the
recovery of land by the State, the breaching party must compensate the other
party for the damage.
2. In cases where the contract
for the land use right lease is still valid, but for the national security,
defense requirements, national interests, public interests and economic
development, the State recovers the land, then the contract for the land use
right lease shall terminate ahead of time.
In cases where the lessee has
paid the rent fully in advance, the lessor must reimburse the lessee the
remaining rent corresponding to the period of time when the land has not been
used; if the lessee has not yet paid the rent, he/she/it must pay only an
amount corresponding to the period of time when the land has been used.
The lessor shall be compensated
by the State for the damage caused by the recovery of land in accordance with
provisions of law, and the lessee shall be compensated by the State for the
loss of yields from such land.
Article 711.- The right
to continue leasing land use rights when one party dies
1. In cases where the land use
right lessor being an individual dies, the lessee shall be entitled to continue
leasing land use rights until the lease term expires.
2. In cases where the land use
right lessee being an individual dies, the members of his/her household shall
be allowed to continue leasing land use rights until the lease term expires,
but must notify a competent state agency thereof.
Article 712.- Assignment
of land use rights during the term of a land use right lease
When term of a land use right
lease remains in effect, the lessor is still entitled to assign land use rights
to another person, if so permitted by a competent state agency, but must inform
the lessee thereof so that the latter performs his/her obligations to the land
use right assignee.
The lessee shall still be
entitled to continue the lease until the contractual term of the land use right
lease expires.
Article
713.- Termination of contracts for land use right lease
1. A contract for land use right
lease shall terminate in the following cases:
a/ The lease term expires and is
not extended;
b/ It is so agreed upon by the
parties;
c/ The State recovers the land;
d/ One of the parties
unilaterally terminates the performance of the contract or cancels the contract
as agreed upon or provided for by law;
e/ The land use right lessee
being an individual dies without any other members of his/her household or with
other members of his/her household but they do not have demand for continued
lease;
f) The leased land area is no
longer in existence due to a natural calamity;
g) Other cases specified by law.
2. When a land use right lease
contract terminates, the lessee must restore the land to its conditions as when
it was received, unless otherwise agreed upon or provided for by law. The
property attached to the land shall be settled under the parties' agreement.
Section 2. CONTRACTS FOR LAND
USE RIGHT SUBLEASE
Article 714.- Contracts
for land use right sublease
Unless otherwise provided for by
law, the provisions of Articles 703 thru 713 of this Code shall also apply to
contracts for land use right sublease.
Chapter XXX
CONTRACTS
FOR LAND USE RIGHT MORTGAGE
Article 715.-Contracts for
land use right mortgage
A contract for land use right
mortgage is an agreement between the parties whereby the land user (hereinafter
referred to as the mortgagor) shall use his/her land use rights to secure the
performance of civil obligations toward the other party (hereinafter referred
to as the mortgagee). The mortgagor may continue to use the land during the
mortgage term.
Article 716.- Scope of
land use right mortgage
1. Land use rights may be
mortgaged in part or in whole.
2. In cases where a land user
mortgages his/her land use rights, his/her houses, other construction works,
planted forests, tree gardens and other assets which are attached to land,
shall belong to the mortgaged property only when it is so agreed upon.
Article
717.- Obligations of the land use right mortgagor
The land use right mortgagor
shall have the following obligations:
1. To hand over the land use
right certificate to the mortgagee;
2. To fill the mortgage registration
procedures; to cancel the mortgage registration when the mortgage contract
terminates;
3. To use the land for the right
purpose, not to destroy or reduce the value of the mortgaged land;
4. To repay the loan on time and
by the mode agreed upon in the contract.
Article 718.- Rights of
the land use right mortgagor
The land use right mortgagor
shall have the following rights:
1. To use the land within the
mortgage term;
2. To receive the loan from the
land use right mortgage by the agreed mode;
3. To enjoy the yields and/or
profits gained, except in cases where the yields and/or profits also belong to
the mortgaged property;
4. To exchange, assign, lease or
sublease the mortgaged land use rights if so consented by the mortgagor;
5. To receive back the land use
right certificate after the mortgage obligations have been fulfilled.
Article
719.- Obligations of the land use right mortgagee
The land use right mortgagee
shall have the following obligations:
1. To register the mortgage
together with the mortgagor;
2. To return the land use right
certificate when the mortgagor has fulfilled the obligations secured by the
mortgage.
Article 720.- Rights of
the land use right mortgagee
The land use right mortgagee
shall have the following rights:
1. To examine and remind the
land use right mortgagor to protect and preserve the land and use it for the
right purpose;
2. To enjoy the priority in debt
settlement in cases where the mortgaged land use rights are handled.
Article 721.- Handling
of mortgaged land use rights
When the term for the
performance of the obligations secured by the mortgage of land use rights is
due, and the mortgagor has still failed to perform or performed improperly
his/her obligations, the mortgaged land use rights shall be handled as agreed upon;
if there is no such agreement or the mortgaged land use rights cannot be
handled as agreed upon, the mortgagee shall be entitled to initiate a lawsuit
at the court.
Chapter XXXI
CONTRACTS
FOR LAND USE RIGHT DONATION
Article 722.- Contracts
for land use right donation
A contract for the donation of
land use rights is an agreement between the parties whereby the donor transfers
his/her land use rights to the donee without requesting any compensation, and
the donee agrees to receive them in accordance with the provisions of this Code
and the land law.
Article 723.- Contents
of contracts for land use right donation
A contract for land use right
donation shall contain the following contents:
1. Names and addresses of the
parties;
2. The reasons for donation of
the land use rights;
3. The rights and obligations of
the parties;
4. The land category, grade,
acreage, location, code number, boundary and conditions;
5. The remaining land use
duration of the donor;
6. A third party's rights to the
donated land;
7. The parties' liabilities for
breach of the contract.
Article
724.- Obligations of the land use right donor
The land use right donor shall
have the following obligations:
1. To transfer the land in
strict accordance with the agreed land acreage, grade, category, location, code
number and conditions;
2. To hand over the papers
related to the land use rights to the donee for carrying out the procedures for
land use right registration.
Article
725.- Obligations of the land use right donee
The land use right donee shall
have the following obligations:
1. To register the land use
rights at a competent state agency defined by the land law;
2. To ensure a third party's
rights to the donated land;
3. To perform other obligations
as provided for by the land law.
Article 726.- Rights of
the land use right donee
The land use right donee shall
have the following rights:
1. To request the donor to
transfer the land in strict accordance with the agreed land acreage, grade,
category, location, code number and conditions;
2. To use the land for the right
purpose and within the set time limit;
3. To be granted the land use
right certificate.
Chapter XXXII
CONTRACTS
FOR CAPITAL CONTRIBUTION WITH LAND USE RIGHT VALUE
Article 727.- Contracts
for capital contribution with the land use right value
A contract for capital
contribution with the land use right value is an agreement between the parties
whereby the land user (hereinafter referred to as the capital contributor)
contributes his/her capital with the land use right value for production and/or
business cooperation with other individuals, legal persons, family households
and/or other subjects under the provisions of this Code and the land law.
Article 728.- Contents
of the contracts for capital contribution with the land use right value
A contract for capital
contribution with the land use right value shall contain the following
contents:
1. Names and addresses of the
parties;
2. Rights and obligations of the
parties;
3. The land category, grade,
acreage, location, code number, boundary and conditions;
4. The remaining land use
duration of the capital contributor;
5. The time limit for capital
contribution;
6. The land use right value
contributed as capital;
7. A third party's rights to the
land contributed as capital;
8. The parties' liabilities for
breach of the contract.
Article
729.- Obligations of parties contributing capital with the land use right
value
A party contributing capital
with the land use right value shall have the following obligations:
1. To transfer the land in strict
accordance with the time limit, the land acreage, grade, category, location,
code number and conditions as agreed upon in the contract;
2. To register the land use
rights at a competent state agency as provided for by the land law.
Article 730.- Rights of
parties contributing capital with the land use right value
A party contributing capital
with the land use right value shall have the following rights:
1. To enjoy profits according to
the proportion of capital contribution with the land use right value;
2. To assign, bequeath the
capital portion contributed with the land use right value, unless otherwise
agreed upon or provided for by law;
3. To receive back the land use
rights contributed as capital as agreed upon or upon the expiration of the
capital contribution time limit;
4. To cancel the contract and
demand compensation for damage if the party receiving the contributed capital
fails to pay the profits on time or fails to make full payment thereof.
Article
731.- Obligations of parties receiving capital contributed with the land
use right value
A party receiving capital
contributed with the land use right value shall have the following obligations:
1. To pay profit portion to the
party contributing capital with the land use right value on time and by the
mode agreed upon in the contract;
2. To ensure a third party's
rights to the land contributed as capital;
3. To fulfill other obligations
provided for by the land law.
Article 732.- Rights of
parties receiving capital contributed with the land use right value
A party receiving capital
contributed with the land use right value shall have the following rights:
1. To request the party
contributing capital with the land use right value to transfer the land in
strict accordance with the time limit, the land acreage, grade, category,
location, code number and conditions as agreed upon in the contract;
2. To use the land for the right
purposes and within the agreed time limit;
3. To be granted a land use
right certificate in cases where the contributed capital-receiving party is a
legal person, except for cases of capital contribution in business cooperation
contracts.
Chapter XXXIII
INHERITANCE
OF LAND USE RIGHTS
Article
733.- Inheritance of land use rights
The inheritance of land use
rights means the transfer of land use rights from the decedent to his/her
heir(s) under the provisions of this Code and the land law.
Article
734.- Individuals entitled to bequeath land use rights
Individuals who are assigned or
leased land by the State or are transferred the land use rights shall have the
right to bequeath the land use rights as provided for in Part Four of this Code
and the land law.
Article
735.- Inheritance of the rights to use land assigned to households by the
State
If a member of a family
household assigned land by the State dies, such member's land use rights shall
be left to his/her heirs in accordance with the provisions of Part Four of this
Code and the land law.
PART SIX
INTELLECTUAL
PROPERTY RIGHTS AND TECHNOLOGY TRANSFER
Chapter XXXIV
COPYRIGHT
AND RELATED RIGHTS
Section 1. COPYRIGHT
Article 736.- The author
1. A person who has created a
literary, artistic or scientific work (hereinafter referred collectively to as
works) is the author of such work.
In cases where two or more
persons jointly create a work, such persons are co-authors.
2. Persons who have created
derivative works from other persons' works, including works translated from one
language into another, recreated, transformed, adapted, compiled, annotated or
selected works, are authors of such derivative works.
Article 737.- Objects of
copyright
Objects of copyright shall
include all works created in the literary, artistic or scientific field and
expressed in any form and by any means, regardless of their contents and value,
and without depending on any procedures.
Article 738.- Contents
of copyright
1. Copyright shall include
personal rights and property rights to works.
2. Personal rights in copyright
shall include the rights:
a/ To name the works;
b/ To put real names or pen
names in the works; to have real names or pen names mentioned when the works
are publicized, used;
c/ To publicize or to permit
other persons to publicize the works;
d/ To protect the integrity of
the works, not to permit other persons to amend, garble or distort the works.
3. The property rights in
copyright shall include the rights:
a/ To duplicate the works;
b/ To permit the creation of
derivative works;
c/ To distribute, import the
originals and copies of the works;
d/ To disseminate the works to
the public;
e/ To lease the originals or
copies of computer programs.
Article 739.- Time at
which copyright arises and the effect of copyright
1. Copyright shall arise from
the date a work is created and expressed in a given material form.
2. Personal rights in copyright
shall exist indefinitely, except the right to publicize or to permit other
persons to publicize the works as provided for by the law on intellectual
property.
3. Property rights in copyright
shall exist within the time limit specified by the law on intellectual property.
Article 740.- Owners of
copyright
1. Personal rights belong to the
authors.
2. In cases where works are
created not on the basis of the performance of assigned tasks or job assignment
contracts, the property rights shall belong to the authors.
3. In cases where works are
created on the basis of the performance of assigned tasks or job assignment
contracts, property rights shall belong to agencies or organizations which have
assigned the tasks or the parties that have assigned the contractual jobs,
unless otherwise agreed upon.
In cases where property rights
do not belong to the authors, the authors shall have the right to receive
remuneration or royalties to be paid by the property right owners in accordance
with the law on intellectual property.
Article 741.- Division
of rights of co-authors
In cases where a work is created
by co-authors, in which each part created by each co-author can be separated
for independent use, the provisions of Article 740 of this Code shall apply to
each part of the work, which is used independently, unless otherwise agreed
upon by the co-authors.
Article 742.- Transfer
of copyright
1. Personal rights provided for
at Points a, b and d, Clause 2, Article 738 of this Code cannot be transferred.
Personal rights specified at Point
c, Clause 2, Article 738 of this Code can be transferred under the conditions
set by the law on intellectual property.
2. Property rights can be
transferred in whole or in part under contracts or be bequeathed, inherited.
Article 743.- Contracts
for transfer of property rights in copyright
The transfer of part or whole of
the property rights in copyright shall be effected on the contractual basis.
The contracts for transfer of copyright must be made in writing.
Section 2. RIGHTS RELATED TO
COPYRIGHT
Article 744.- Objects of
copyright-related rights
Objects of copyright-related
rights (hereinafter referred to as the related rights) shall include
performances by performers; audio records, video records; broadcasts by
broadcasting organizations and satellite signals carrying coded programs.
Article 745.- Owners and
contents of the rights to performances
1. The rights to performances
shall include personal rights of performers and property rights of investors
for realization of the performances.
2. Personal rights of performers
shall include the right to have their names mentioned in the performances or
transmission of audio records, video records of the performances and the right
to protect the integrity of the image of the performances.
3. Property rights of investors
for realization of performances shall include the right to perform and to
forbid other persons to perform the following acts:
a/ Audio recording, video
recording the performances;
b/ Duplicating, distributing
originals or copies of the audio records or video records of the performances;
c/ Broadcasting or transmitting
in other ways the performances to the public.
Article 746.- Owners and
contents of the rights to audio records, video records
1. The rights to audio records,
video records shall belong to investors in the creation of such audio records
or video records.
2. The rights to audio records,
video records shall include the right to perform and to forbid other persons to
perform the following acts:
a/ Duplicating in whole or part
of the audio records, video records;
b/ Distributing, importing the
originals or copies of the audio records, video records;
c/ Leasing the originals or
copies of audio records, video records for commercial purposes.
Article 747.- Owners and
contents of the rights to broadcasts
1. The rights to broadcasts
shall belong to the broadcasting organi-zations.
2. The rights to broadcasts
shall include the rights to perform or forbid other persons to perform the
following acts:
a/ Recording, duplicating the
records; broadcasting, re-broadcasting part or whole of a broadcast;
b/ Distributing the records or
duplicates of the records of broadcasts.
Article 748.- Owners and
contents of the rights to satellite signals carrying coded programs
1. The rights to satellite
signals carrying coded programs shall belong to the persons who are the first
to transmit the satellite signals carrying such coded programs.
2. The rights to satellite
signals carrying coded programs shall include the rights to perform, to permit
or forbid other persons to perform the following acts:
a/ Producing, assembling,
modifying, importing, selling, leasing equipment or systems for decoding the
coded satellite signals;
b/ Receiving, redistributing
decoded signals when not so permitted by the holders of the rights to the coded
satellite signals.
Article 749.- Transfer
of related rights
1. Property rights in the
related rights defined in Articles 745, 746, 747 and 748 of this Code can be
transferred.
2. The transfer of related
rights shall be made in writing under contracts.
Chapter XXXV
INDUSTRIAL
PROPERTY RIGHTS AND THE RIGHTS TO PLANT VARIETIES
Article 750.- Objects
of industrial property rights and the rights to plant varieties
1. Objects of industrial
property rights shall include inventions, industrial designs, semi-conductor
integrated circuit layout designs, business secrets, trademarks, trade names,
geographical indications.
2. Objects of the rights to
plant varieties are propagating materials and plant varieties.
Article 751.- Contents
of industrial property rights and the rights to plant varieties
1. Industrial property rights to
inventions, industrial designs, semi-conductor integrated circuit layout
designs, and the rights to plant varieties shall include the personal rights
and the property rights, which are provided for as follows:
a/ Personal rights to
inventions, industrial designs, semi-conductor integrated circuit layout
designs, plant varieties shall belong to the persons who have directly created
their inventions, industrial designs, semi-conductor integrated circuit layout
designs or plant varieties with their creative labor, including the right to be
named as authors in the protection titles issued by the State, in documents
publicizing or introducing such inventions, industrial designs, semi-conductor
integrated circuit layout designs or plant varieties;
b/ Property rights to
inventions, industrial designs, semi-conductor integrated circuit layout
designs or plant varieties shall belong to owners of such objects, including
the right to use, to permit or forbid other persons to use such inventions,
industrial designs, semi-conductor integrated circuit layout designs or plant
varieties.
2. Industrial property rights to
business secrets shall belong to the organizations or individuals that obtain
the information to be lawfully formed into business secrets and keep
confidential such information, including:
a/ Exploiting, using business
secrets;
b/ Permitting or forbidding
other persons to approach, use or disclose the business secrets.
3. Industrial property rights to
trademarks or trade names shall belong to the owners of such trademarks or
trade names, including:
a/ Using trademarks, trade names
in business;
b/ Permitting or forbidding
other persons to use trademarks which are so coincident or similar to the
extent of causing confusion with their own trademarks; forbidding other persons
to use trade names which cause confusion with their own business activities.
4. The rights to own
geographical indications shall belong to the State. The rights to use
geographical indications aiming to indicate origins, sources of products shall
belong to organizations or individuals that satisfy the conditions set by the
law on intellectual property.
5. The rights to fight unfair
competition shall belong to organizations or individuals that conduct business
activities under competitive conditions.
Article 752.- Bases for
establishing industrial property rights and the rights to plant varieties
1. Industrial property rights to
inventions, industrial designs, semi-conductor integrated circuit layout
designs, trademarks, geographical indications and the rights to plant varieties
shall be established on the basis of decisions of competent state agencies when
carrying out the registration of such objects in accordance with the provisions
of law on intellectual property.
2. Industrial property rights to
trade names shall be established on the basis of lawful use of such trade
names.
3. Industrial property rights to
business secrets shall be established on the basis of acquiring the information
to be lawfully formed into business secrets and keeping confidential such
information.
4. The rights to fight unfair
competition shall be established on the basis of competitive activities in
business.
Article 753.- Transfer
of industrial property rights and the rights to plant varieties
1. Industrial property rights to
inventions, industrial designs, semi-conductor integrated circuit layout
designs, business secrets, trademarks, and the rights to plant varieties can be
transferred in whole or in part under contracts or be bequeathed or inherited.
2. The rights to trade names can
only be transferred together with the transfer of the entire business
establishments and business activities under such trade names.
3. The rights to geographical indications
must not be transferred.
4. For contracts on transfer of
industrial property rights arising on the basis of registration, only when such
contracts are registered shall they have the legal validity for a third party.
Chapter XXXVI
TECHNOLOGY
TRANSFER
Article 754.- Technology
transfer rights
The following organizations and
individuals shall be entitled to transfer the rights to use, the rights to own
technologies:
1. Technology owners;
2. Organizations or individuals
that are permitted by technology owners to transfer the right to use and the
right to own the technology.
Article 755.- Objects of
technology transfer
1. The objects of technology
transfer shall include technical know-hows; technical knowledge of technology
in the form of technological schemes, technical solutions, formulas, technical
para-meters, technical diagrams or drawings, computer programs, data
information on the transferred technologies; solutions to rationalization of
production, technological renewal, exclusive business licensing and other
objects specified by the law on technology transfer.
2. In cases where technology is
an object entitled to intellectual property right protection, the transfer of
such technology must be carried out simultanously with the transfer of intellectual
property rights in accordance with the provisions of law on intellectual
property.
Article
756.- Technologies which must not be transferred
1. Technologies which do not
meet the provisions of law on labor safety, labor hygiene, assurance of
people's health and environmental protection.
2. Other cases specified by law.
Article 757.- Contracts
for technology transfer
1. Technology transfer shall be
carried out on the basis of written contracts.
2. Technology transfer contracts
must be registered at competent state agencies, if so provided for by law.
3. The amendment,
supplementation, extension, cancellation of technology transfer contracts must
be made in written contracts; for technology transfer contracts defined in
Clause 2 of this Article, the amendment, supplementation, extension,
cancellation thereof must be registered at competent state agencies.
PART SEVEN
CIVIL
RELATIONS INVOLVING FOREIGN ELEMENTS
Article 758.- Civil
relations involving foreign elements
Civil relations involving
foreign elements mean civil relations in which at least one party is a foreign
agency, organization or individual or overseas Vietnamese or civil relations
between the parties being Vietnamese citizens, organizations but the bases for
establishing, altering or terminating those relations are foreign laws, arise
overseas or assets related to such relations are located overseas.
Article
759.- Application of civil law of the Socialist Republic of Vietnam,
treaties, foreign laws and international practices
1. The provisions of the civil
law of the Socialist Republic of Vietnam shall apply to civil relations
involving foreign elements, unless otherwise provided for by this Code.
2. In cases where a treaty to
which the Socialist Republic of Vietnam has signed or acceded contains provisions
different from the provisions of this Code, the provisions of such treaty shall
apply.
3. In cases where the
application of foreign laws is referred to by this Code and other legal
documents of the Socialist Republic of Vietnam or by the treaties to which the
Socialist Republic of Vietnam is a contracting party, such foreign laws shall
apply, provided that such application or the consequence thereof is not
contrary to the basic principles of the law of the Socialist Republic of
Vietnam; in cases where such foreign laws refer back to the law of the
Socialist Republic of Vietnam, then the law of the Socialist Republic of
Vietnam shall apply.
Foreign laws shall also apply in
cases where the parties have so agreed upon in contracts, if such agreement is
not contrary to the provisions of this Code and other legal documents of the
Socialist Republic of Vietnam.
4. In cases where the civil
relations involving foreign elements are not governed by this Code and other
legal documents of the Socialist Republic of Vietnam, the treaties to which the
Socialist Republic of Vietnam is a contracting party or civil contracts between
the parties, the international practices shall apply, provided that such
application or the consequence thereof is not contrary to the basic principles
of the law of the Socialist Republic of Vietnam.
Article 760.- Bases for
the application of laws to stateless persons or foreigners with two or more
foreign nationalities
1. In cases where this Code or
other legal documents of the Socialist Republic of Vietnam refer to the
application of the laws of foreign countries of which the foreigners are
citizens, the laws applicable to stateless persons shall be the laws of the
countries where such persons permanently reside; if such persons have no permanent
residences, the law of the Socialist Republic of Vietnam shall apply.
2. In cases where this Code or
other legal documents of the Socialist Republic of Vietnam refer to the
application of laws of countries of which the foreigners are citizens, the laws
applicable to foreigners with two or more nationalities shall be the laws of
the countries of which such persons bear the nationalities and where they
reside at the time when the civil relations arise; if such persons do not
reside in one of the countries of which they bear the nationalities, the laws
of the countries of which such persons bear their respective nationalities and
have the closest relations regarding the civil rights and duties shall apply.
Article 761.- Civil
legal capacity of foreigners
1. The civil legal capacity of a
foreigner shall be determined according to the law of the country of which
he/she bears the nationality.
2. Foreigners shall have the
civil legal capacity in Vietnam as Vietnamese citizens, except in cases where
the law of the Socialist Republic of Vietnam otherwise provides for.
Article 762.- Civil act
capacity of foreigners
1. The civil act capacity of a
foreigner shall be determined according to the law of the country where he/she
is a citizen, except in cases where the law of the Socialist Republic of
Vietnam otherwise provides for.
2. In cases where a foreigner
establishes and/or performs civil transactions in Vietnam, his/her civil act
capacity shall be determined according to the law of the Socialist Republic of
Vietnam.
Article
763.- Determination of persons as having no, having lost or having been
restricted in, civil act capacity
1. The determination of persons
as having no, having lost or having been restricted in, civil act capacity must
comply with the laws of the countries of which such persons bear the
nationalities.
2. In cases where foreigners
reside in Vietnam, the determination of such persons as having no, having lost
or having been restricted in, civil act capacity must comply with the law of
the Socialist Republic of Vietnam.
Article
764.- Determination of persons as missing or dead
1. The determination of a person
as missing or dead must comply with the law of the country of which such person
bears the nationality at the time before acquiring the last information on
his/her missing or death.
2. In cases where a foreigner
resides in Vietnam, the determination of such person as missing or dead must
comply with the law of the Socialist Republic of Vietnam.
Article 765.- Civil
legal capacity of foreign legal persons
1. The civil legal capacity of a
foreign legal person shall be determined according to the law of the country
where such foreign legal person has been established, except for the case
specified in Clause 2 of this Article.
2. In cases where a foreign
legal person establishes and/or performs civil transactions in Vietnam, the
civil legal capacity of such foreign legal person shall be determined in
accordance with the law of the Socialist Republic of Vietnam.
Article 766.- Property
ownership rights
1. The establishment,
implementation, alteration and termination of property ownership rights and the
contents of such rights shall be determined according to the law of the country
where such property is located, except for the cases specified in Clauses 2 and
4 of this Article.
2. The ownership rights to
movable property on the way of transportation shall be determined according to
the law of the country of destination, unless otherwise agreed upon.
3. The differentiation between
movable and immovable property shall be deter-mined in accordance with the law
of the country where such property is located.
4. The determination of the
ownership rights to civil aircraft and sea-going vessels in Vietnam must comply
with the law on civil aviation and the maritime law of the Socialist Republic
of Vietnam.
Article 767.- At-law
inheritance involving foreign elements
1. The inheritance at law must
comply with the laws of the countries of which the estate leavers bear the
nationalities before their death.
2. The inheritance rights to
immovables must comply with the laws of the countries where such immovables are
located.
3. Heirless estates being
immovables shall belong to the States of the countries where such immovables
are located.
4. Heirless estates being
movables shall belong to the States of the countries of which the estate
leavers bear the nationalities.
Article
768.- Testamentary inheritance
1. The capacity to make, change
and cancel testaments must comply with the laws of the countries where the
testators are citizens.
2. Forms of testament must
comply with the laws of the countries where the testaments are made.
Article 769.- Civil
contracts
1. The rights and obligations of
the parties to a civil contract shall be determined in accordance with the law
of the country where the contract is performed, unless otherwise agreed upon.
A civil contract entered into
and performed entirely in Vietnam must comply with the law of the Socialist
Republic of Vietnam.
In cases where a civil contract
does not specify the place of performance, the determination of the place of
performance of the contract must comply with the law of the Socialist Republic
of Vietnam.
2. Civil contracts relating to
immovables in Vietnam must comply with the law of the Socialist Republic of
Vietnam.
Article 770.- Forms of
civil contract
1. Forms of a contract must
comply with the law of the country where the contract is entered into. Where a
contract is entered into in a foreign country, which violates the regulations
on contractual forms under the law of that country but is not contrary to the
contractual form provided for by the law of the Socialist Republic of Vietnam,
the form of the contract entered into in the foreign country shall still be
recognized in Vietnam.
2. The forms of contracts related
to the construction of works or transfer of ownership rights to works, houses
and other immovables in the Vietnamese territory must comply with the law of
the Socialist Republic of Vietnam.
Article 771.- Civil
contracts entered in absentia
In cases where a contract is
entered in absentia, the determination of the place where the contract is
entered into must comply with the law of the country where the individual
resides or where the legal person is headquartered, that has proposed the entry
into the contract.
The time for entry into a
contract in absentia shall be determined in accordance with the law of the
party proposing the entry into the contract if this party receives the reply of
acceptance from the party to which the entry is proposed.
Article 772.- Unilateral
civil transactions
In unilateral civil
transactions, the rights and obligations of the party that voluntarily performs
the unilateral civil transactions shall be determined in accordance with the
law of the country where such party resides or conducts principal operations.
Article
773.- Compensation for damage outside contract
1. Compensation for damage
outside contract shall be determined in accordance with the law of the country
where the act causing such damage takes place or where the actual consequences
of such act arise.
2. Compensation for damage
caused by an aircraft flying in international airspace or by a sea-going ship
sailing in international waters shall be determined in accordance with the law
of the country of which such aircraft or ship bears the nationality, unless
otherwise provided for by the maritime or aviation law of the Socialist
Republic of Vietnam.
3. In cases where the act
causing damage occurs outside the territory of the Socialist Republic of
Vietnam and the person who causes the damage and the victim are both Vietnamese
citizens or legal persons, the law of the Socialist Republic of Vietnam shall
apply.
Article 774.- Copyright
involving foreign elements
The copyright of foreign
individuals and/or legal persons over the work that is publicized and
disseminated for the first time in Vietnam, or created and performed in a
certain form in Vietnam, shall be protected under the provisions of the law of
the Socialist Republic of Vietnam and treaties to which the Socialist Republic
of Vietnam is a contracting party.
Article 775.- Industrial
property rights and the rights to plant varieties, which involve foreign
elements
Industrial property rights or
the rights to plant varieties of foreign individuals or legal persons to the objects
of industrial property rights or objects of the rights to plant varieties that
have been granted protection titles or recognized by the Vietnamese State shall
be protected under the provisions of the law of the Socialist Republic of
Vietnam and treaties to which the Socialist Republic of Vietnam is a
contracting party.
Article 776.- Technology
transfer involving foreign elements
Technology transfer between
Vietnamese individuals or legal persons and foreign individuals or legal
persons, and technology transfer from any foreign country into Vietnam and from
Vietnam to any foreign country, must comply with the provisions of this Code
and other legal documents of Vietnam on techno-logy transfer and with treaties
to which Vietnam is a contracting party or the laws of the foreign countries,
if the application or the consequence thereof is not contrary to the basic
principles of the law of the Socialist Republic of Vietnam.
Article 777.- Statute of
limitations for lawsuits
The statute of limitations for
lawsuits regarding civil relations involving foreign elements shall be
determined in accordance with the laws of the countries which are applied to
the corresponding civil relations involving foreign elements.
This Code was passed on June 14,
2005, by the 10Ith National Assembly of the Socialist Republic of Vietnam, at
its 7th session.
THE NATIONAL
ASSEMBLY
CHAIRMAN Nguyen Van An |
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