Previously, an administrative penalty was applied to violations of the labor contract termination notice mentioned above. If the employer fails to inform the employee, the employer will be subject to a warning or a fine with amount from VND 500,000 to VND 1,000,000. However, the Decree 28/2020/ND-CP issued on March 1st, 2020 by the Government has repealed sanction for this behavior.

If the employee continues to work upon expiration of labor contract, both parties will be required to sign a new labor contract within the next 30 days, otherwise the signed contract will become an indefinite-term. Failure of the employer to inform the labor contract termination to the employee does not mean that the labor relationship is automatically extended after the expiration. If both parties fail to sign a new labor contract within the next 30 days, but the employee still do normal assigned job and is paid a full monthly salary, an indefinite-term labor contract is deemed as entered into by them. Any disputes arising out then will be settled based on provisions of indefinite term labor contract and laws.

The Labor Code 2019 repealed the employer’s informing responsibility upon expiration of labor contract except in a few circumstances such as the employee being sentenced to imprisonment, disciplined, expelled,… the employer is required to inform the employee in writing the termination of the labor contract.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with labour dispute lawyers in Vietnam of law firm speacializing in employment matters for efficiency.

Nguồn: https://antlawyers.vn/library/when-should-the-employer-send-notice-of-termination-of-labour-contract-to-employee-before-contract-expiration.html

The basic condition for cancelling the contract is the breach. However, it should be noted that not all breaches of contract will result in cancelling the contract. This is stipulated in both of general law and specialized law. According to Commercial law 2005 (“CL”), the sanction of cancelling the contract is applied in case of breaching act be a condition for the cancellation of the contract as agreed upon by the parties or in case of substantial breach of contractual obligations from a party. Specifically, contractual breach means the failure of a party to perform, to fully or properly perform its obligations according to the agreement between the parties or the provisions of CL. Substantial breach means a contractual breach by a party, which causes damage to the other party to an extent that the other party cannot achieve the purpose of the entry into the contract. Civil Code 2015 (“CC”) also stipulates correspondingly but it uses the term “serious breach”: “A party has the right to cancel the contract and shall not be liable to compensate for damage in the following cases: (i) A breaching act of one party is a condition for the cancellation of the contract as agreed upon by the parties; (ii) The other party seriously violates the obligations in the contract; (iii) Others circumstances as provided by law. Serious violation means the failure to fulfill obligations properly by a party which make the other party cannot achieve the purpose of the entry into the contract”. However, currently there is no specific guidance on identifying the substantial breach of contractual obligations and the serious breach of contractual obligations. Therefore, determining whether a party’s breach is considered as a substantial breach of contractual obligations or a serious breach of contractual obligations will be within the competence of the jurisdiction.

A lawfully concluded contract may be canceled when a party breaches its basic contractual obligations. After cancelling the contract, such contract shall be invalid from the time it is entered into, and the parties shall not have to continue performing their contractual obligations, except for their agreements on their post-cancellation rights and obligations and resolution of disputes. The parties shall have the right to claim benefits brought about their performance of their contractual obligations. If parties have indemnity obligations, their obligations must be performed concurrently. Where it is impossible to make the indemnity with benefits which one party has enjoyed, the obliged party must make the indemnity in cash. Breached parties are entitled to claim damages.

In conclusion, from the regulation of law, it can be seen that nature of contract is to benefit for the parties and not to be canceled. The cancellation is very serious so the contract can only be canceled in some certain conditions. The contract cannot be canceled as a sanction if there is no contract breach. Simultaneously, the party requesting cancellation also needs to know that such request is only accepted if there is enough foundation to affirm that the other party has substantial breach of contractual obligations or the serious breach of contractual obligations. Parties encountering potential dispute should consult with dispute lawyers in Vietnam for proper resolution.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Nguồn:https://antlawyers.vn/contract-lawyers-in-vietnam/what-are-conditions-for-cancellation-of-contract.html

Contract is an agreement enforced by law. In Vietnam, contract is a civil transaction which parties enter into voluntarily, each of whom intends to create, change, or terminate one or more rights or obligations between them according to Vietnam Civil Code. Contract plays an important roles in business transaction. Written contract provide individuals and businesses a legal document reflecting agreement, expectation and mechanism to resolve potential disagreement or disputes.

The lawyers in Vietnam drafting or reviewing contracts under Vietnam laws will need to initially review the legal resources in relevant to the transactions, research related documents and the parties involved to provide legal opinions, make suggestions and propose an optimal solution to the client for negotiation and contract finalization.

Basic terms and conditions of the contracts being rights and obligations of parties to the contracts, and other terms in regard to duration, quality, payment, dispute handling procedures, applicable law and/or jurisdiction, confidentiality, force majeure, intellectual property clauses…among others have to be carefully taken into considerations.

Further, a contract should ensure the following points to be covered:

There are specific contracts in Vietnam for various transactions being:

Each business transaction is different as such a contract is not a compilation of standard terms and conditions. Professional contract lawyers in Vietnam would consider the purpose of the contract, transaction type, significance of the deal, industry, Vietnam legal requirements and expectation of the client to prepare a legally enforceable contract for the client, to avoid misunderstanding and protect the client against legal disputes.

Nguồn: https://antlawyers.vn/library/contract-preparation.html

In contract dispute resolution, the average time to resolve a commercial contract dispute at the Court in Vietnam, even with the help of dispute lawyers in Vietnam whom know well the process would take long time through multiple proceedings. This period will last longer if there is a foreign party in the dispute, including service of notarization, legalization, authentication (or apostille) the documents. According to World Bank statistics, the cost of resolving a commercial dispute at the Court accounts for about 29% of the contract value (including attorneys’ fees, court fees, judgment execution fees).

The practice of resolving the dispute case at the Court appears to face many challenges of time lengthening and possible effective enforcement leading to cost of time and money. Therefore, the selection of dispute resolution in the mediation center is a possible option to resolve this issue.

Vietnam authorities and international agencies have taken active measures needed to promote the application of commercial mediation in international contracts, in order to resolve issues more quickly and effectively in international trade disputes. The application of commercial dispute resolution at mediation centers in Vietnam will save time and costs for dispute resolution. In addition, the dispute resolution at the mediation center will also help the parties maintain the relationship for future business transactions.

Until Aug 2019, in Vietnam, there are 7 commercial mediation centers licensed by the Ministry of Justice with a team of domestic and international certified mediators and lawyers who can contribute to resolving disputes in international trade contracts. The use of mediation centers in the settlement of disputes in Vietnam with the help of lawyers in Vietnam will help the parties to find common grounds and together save cost, time, keep confidentiality of the dispute and could continue to do business with each other.

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.

We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.