Legal update on May 2022 (Part 1)

BLawyers Vietnam - Legal update

Our Vietnam Legal Update #204 would lead you on 02 legal issues:

I. Guidance on the implementation of business investment projects

The Prime Minister’s Special Working Group on Reviewing, Removing Difficulties, Obstacles, and Promoting the Implementation of Investment Projects issued Official Letter No. 2541/CV-TCT to guide the implementation of business investment projects in accordance with the law. Some typical answers to these problems are as follows:

1. Question: Whether the investment projects to build the headquarters, offices; commercial, or service works need to meet the conditions for determining that an investment project using land is “part of a housing development program/ plan in accordance with the law on housing” as prescribed in Article 11 of the Decree No. 25/2020/ND-CP or not?

Answer: According to Article 11.3 of Decree No. 25/2020/ND-CP, the conditions for projects under housing development programs/ plans only apply in cases where the project uses land with housing construction investment objectives/activities. Therefore, in case an investment project to build headquarters, offices, commercial, and service works have no housing construction objectives/activities, we do not need to apply this condition.

2. Question: In case there are two or more investors who meet the preliminary requirements for capacity and experience, but then one investor requests in writing not to participate in the bidding for the project. As a result, there is only one investor left with preliminary capacity and experience, how to proceed?

Answer:

The preparation, submission, and preliminary assessment of the investor’s capacity and experience and investor selection are specified in Articles 13 and 16 of Decree No. 25/2020/ND-CP. Accordingly, this assessment is to determine the number of investors who meet the preliminary requirements on capacity and experience to serve as a basis for applying investor approval procedures or organizing an open bidding to select investors.

In case there are two or more interested investors who have been assessed to meet the preliminary requirements on capacity and experience, the project will have to organize an open bidding to select the investor for project implementation. The fact that an investor, after being assessed to meet the preliminary capacity and experience, has a written request not to participate in the bidding for the project implementation will not affect this issue.

3. Question: Does a project that requires the State to allocate or lease land through auction or bidding must undergo the procedures for getting the approval for investment from the provincial-level People’s Committee?

Answer: Investment projects that require the State to allocate or lease land through the auction of land use rights, or bidding to select investors, which do not fall into the cases specified in Article 30, Article 31, and Articles 32.1b, c, d of the Law on Investment, are not required to carry out procedures for getting the approval for investment before auctioning land use rights or bidding to select investors.

4. Question: What is the “other document determining the right to use the site for the implementation of an investment project” as prescribed in Article 33.1d of the Law on Investment?

Answer:

According to the Article 33.1.dd of the Law on Investment, the dossier for approval of the investment policy of the investment project proposed by the investor includes a copy of the document on the land use right or another document determining the right to use the land to implement an investment project in case the investment project does not request the State to allocate or lease land or permit the change of land use purpose.

According to Article 189 of Civil Code 2015, the right to use is the right to exploit the utility, to enjoy the yields and profits from the property; the right to use may be transferred to another person by agreement or by law. Accordingly, the right to use the location is expressed through forms such as real estate donation contracts, housing lease contracts, house rental contracts for other purposes, property loan contracts, property loan contracts, agreements on land use rights, etc.

Thus, the right to use the place will be shown in different documents according to each specific case as prescribed by the Civil Code.

II. Frequently asked legal questions category

Question: If the employer illegally terminates the labor contract illegally, what kind of benefits and allowances can an expat receive?

Answer: The employer illegally unilaterally terminates the labor contract if it is (i) without grounds for unilateral termination of the labor contract and/ or (ii) a violation of the advance notice. Then, the expat shall receive the following allowances and benefits:

a. In case the employer agrees to reinstate the expat to work, the expat shall receive the following benefits:

    • The amount of salary for the period during which the expat was not allowed to work;
    • Being contributed to social insurance, and health insurance for the period during which the expat was not allowed to work;
    • Paying an additional amount of at least a 02-month salary under the labor contract; and
    • An amount equivalent to the salary under the labor contract for unannounced days in case of breach of notice obligation.

b. In case the expat does not wish to return to work, in addition to the amount prescribed at point a, the expat shall additionally receive a severance allowance.

c. In case the employer does not wish to reinstate the expat and such expat agrees, in addition to the amounts prescribed at points a and b above, the expat shall receive the additional compensation equivalent to at least 02 months of salary under the labor contract.

For down-loading: 

Legal Update #204 (EN version)

Maybe you are interested in reading other Legal Update of BLawyers Vietnam: April 2022 (Part 2) | April 2022 (Part 1) |  March 2022 (Part 2)March 2022 (Part 1)February 2022 (Part 2)February 2022 (Part 1) | January 2022 (Part 3) | January 2022 (Part 2) | January 2022 (Part 1) | December 2021 (Part 5) | December 2021 (Part 4)

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