Logistics service contract under the current law of Vietnam

cs service contract? In practice: What is the current status of the law on logistics service contracts in Vietnam? Results and issues raised in the signing and performance of logistics service contracts in Vietnam today? About the solution: What are the views from the perspective of completing the current legal provisions on logistics service contracts? What are the solutions to improve some legal provisions on logistics service contracts and improve the performance of logistics service contracts in Vietnam today? 1.2.3. Research hypotheses and expected results Hypothesis 1: Logistics service contracts are specific commercial service contracts, the object of the contract is very diverse, more complex than many other commercial service contracts. Research results (intended): Systematize the theoretical and legal issues on logistics service contracts and the practice of concluding logistics service contracts. Hypothesis 2: Since Vietnam's accession to the WTO, participating in negotiations and signing many agreements, implementing international commitments on logistics, international economic integration and the explosion 9 of the 4.0 public Technology revolution, the number and value of logistics service contracts increase, richer forms of contracts, more complex contract content. Research results (intended): Assessing the status of logistics service activities in recent years, thereby highlighting the results and limitations in the signing and implementation of logistics service activities. Hypothesis 3: Inadequacies in Vietnam's legal provisions on logistics service contracts and weak awareness of businesses on logistics service contracts are the main cause of disagreements and disputes. Research results (intended): Clearly analyze the gaps in regulations and enterprises' awareness of logistics service contracts, and propose solutions to complete a number of legal provisions on logistics service contracts in Vietnam today and improve the effectiveness of logistics service contracts, including raising the awareness of stakeholders. 1.2.4. Research approach The thesis's research is in Law on Economy, so its approach is to analyze the theoretical and practical issues on logistics service contracts related to legal aspects from the perspective of the Law on Economy. Conclusion of Chapter 1 In Chapter 1, PhD student assesses the status of published works related to the thesis topic to identify previous works that have solved what is related to the subject of “Logistics service contracts under the current Law of Vietnam” and on that basis, researching inheritance and finding new topics. Through these studies, graduate students noticed: Firstly, logistics services are part of the supply chain with access to many different perspectives. Logistics service contracts are formed through the development of logistics service levels from 1PL to 5PL. Researching logistics service contracts is a necessary issue in the integration period, contributing to the improvement of the law is an urgent requirement, consistent with theory and practice. This is a new problem, there is always a change and rapid development due to the development of information technology so many legal issues have been arising affecting the adjusted legal model. It is necessary to continue researching, supplementing and amending a lot of documents in order to improve the effectiveness of laws, thereby promoting the conclusion of logistics service contracts and promoting the development of logistics services. Secondly, at present, in the world and in Vietnam, there have been many different works on logistics services, service contracts and logistics service contracts, but there is no complete and comprehensive research work on logistics services contracts to find inadequacies as well as offer complete solutions. Therefore, the PhD student chose the topic: “Logistics service 10 contracts under the current Law of Vietnam” as her doctoral thesis in jurisprudence. This is the first study of basic and comprehensive research on the theory and practice of logistics service contracts in Vietnam from the perspective of doctoral degree in law. The findings of the thesis are the theoretical and practical basis with reference to the development and completion of the law on service contracts in general and logistics service contracts in particular in the present time and future. Thirdly, in order to achieve the research purpose and scope of the research, the thesis is based on dialectical materialism methodology, historical materialism, the Party and the State's views on the market economy, logistics services in terms of trade liberalization and economic integration. At the same time, to conduct research on PhD students in a flexible combination of methods such as information collection, synthesis, analysis, evaluation, comparison, sociological surveys, expert interviews and other research methods suitable to each chapter of the thesis. Chapter 2 THEORETICAL ISSUES ABOUT LOGISTICS SERVICE CONTRACT AND LEGAL REGULATION ON LOGISTICS SERVICE CONTRACT 2.1. Rationale for logistics service contracts 2.1.1. Logistics service concept Currently there are many concepts of logistics services under many different approaches. From a juridical perspective, logistics is a commercial service whereby the service provider performs many services related to the planning, organization, implementation and control of the transport and storage of goods (including including services and related information) from the first point of departure to the final destination in the most efficient way to satisfy the customer's requirements. 2.1.2. Concept of logistics service contract From a legal perspective, a logistics service agreement is an agreement between a party called a service provider and a party called a service user. Service providers are obliged to provide one or more logistics services; and the service receiver is obliged to pay the agreed service charge and use. 2.1.3. Features of logistics service contracts Logistics service contracts have the following characteristics: Logistics service contracts are commercial legal agreements, complex and price / service charges are difficult to determine; Logistics service contract is a bilateral contract, consensus agreement or accession contract and compensation nature; logistics service contracts are highly risky; Logistics service contract may be a service contract for the benefit of 11 a third person; e-logistics service contracts with the participation of regulators; Logistics service contracts may have international elements. 2.1.4. Classification of logistics service contracts Based on the concept of logistics services: The logistics service segment is divided into logistics service provision to provide a logistics service and logistics service provision to carry out two or more logistics services. Based on the form of logistics service contracts: The logistics service contracts are divided into traditional logistics service contracts and electronic logistics services contracts. 2.1.5. The role of logistics service contracts Logistics service contracts have the following roles: Logistics service contracts are the basis for generating rights and obligations of entities; Logistics service contracts are the basis for resolving disputes between entities; Logistics service contracts serve as a basis for competent state agencies to inspect and supervise the law observance of subjects; Logistics service contracts are a tool for entities to enter the logistics service market; Through a logistics service contract, 3PL fulfills its role as a shuttle in multi-level intermediaries. 2.2. Adjust the law on logistics service contracts 2.2.1. Source of governing law of logistics service contracts The regulatory law of logistics service contracts varies, including national laws, international laws and treaties, bilateral and multilateral agreements, Vietnam's international commitments, practices and commercial habits. 2.2.2. Principles of signing and implementing logistics service contracts Conclusion and implementation of logistics service contracts include the following principles: Principles of freedom and voluntary contractual agreement; Principles of goodwill and honesty; Principles of application of commercial practices and habits; Principles of equality, mutual benefits; Principles of recognizing the legal validity of electronic data messages; Principles of application of consumer protection laws. 2.2.3. Order of signing logistics service contracts Offer to enter into a logistics service contract: Offer to enter into a logistics service contract: Those who wish to enter into a contract must disclose it to another entity with a proposal to sign a contract. Logistics service contracts are often the service users who express their will in advance because they have goods and demand and they will actively find suppliers to meet their prices and requirements. The offer to enter into a contract is usually done in various forms such as documents, words and other actions. Acceptance of entering into a logistics service contract: Acceptance of signing a logistics service contract is an agreement on the entire contents of the offer, expressed in a form such as a written, verbal or specific act. A form of 12 agreement to agree to enter into a contract shall be agreed upon by the two parties, immediate reply or a certain period of time agreed upon by the two parties, even silent can also be considered as agreeing to enter into a contract if the parties there are rules. When the offeror sets a response time, the acceptance of the contract is only valid when it is made within that period. 2.2.4. Subjects of the logistics service contract Logistics service providers: According to their financial capacity, logistics service providers can be divided into two types: Owners of assets and non- owners of assets. By service sector, logistics service providers are divided into: Transport service providers, distribution service providers, freight service providers and specialized logistics entities. Logistics services receivers: Receivers of logistics services are individuals or organizations involved in establishing and implementing logistics service contracts with the rights and obligations arising from contracts and responsible for the performance of their rights, obligations arising from that contract. 2.2.5. Form of logistics service contract Except for some logistics service contracts that are required to be made in writing (such as cargo insurance contracts, freight contracts ...), most of the contractual forms are decided by the parties themselves verbally, in writing or established by specific acts. 2.2.6. Main content of logistics service contract 2.2.6.1. Information provision of entities entering into logistics service contracts The contract is only established when there are two parties to the agreement, so the subject of the contract is mandatory, including information about the name of the agency / organization / individual, the address, tax code of such agency / organization / individual, name and title of the representative or person authorized to enter into the contract. 2.2.6.2. Terms of the object of the logistics service contract The object of a logistics service contract is that of a logistics service, which satisfies conditions such as that the service is not illegal, does not violate social ethics, does not violate the prohibition of the law. 2.2.6.3. Terms of service charge / price and payment method of logistics service contract Service fee/ price is the amount that a service user must pay to a service provider to receive benefits as a result of the work being the subject of a logistics service contract. This is an important clause of the contract and if there is any change during the contract performance, the parties must negotiate and renegotiate. 13 2.2.6.4. Terms of rights and obligations of objects of the Logistics service contract The service provider has the following main rights: Request the service receiver to provide information, documents and means to perform the service for the benefit of the service receiver; Changing service conditions for the benefit of the service receiver without necessarily waiting for the opinion of the receiver if waiting for the opinion will cause damage to the receiver, but immediately notify the receiver of the service; Request the service receiver to pay the wages as agreed in the contract; Unilaterally terminate the contract performance and claim damages, if the service hirer fails to perform its obligations or does not perform as agreed upon by the parties; Right to lien goods. The service provider has the following main obligations: The first is performing the service provision; the second is the obligation on behalf of customers to deal with related parties; the third is the obligation to preserve goods; the fourth is the obligation to warn risks; the fifth are other obligations such as keeping information confidential that they know during the time of service provision. In many contracts, the entities also stipulate that the parties must not recruit each other's personnel, not transfer rights and obligations to third parties or prescribe acts against corruption and bribery for individuals intending to benefit from signing of contracts. The service receiver has the following main rights: Request the service provider to perform the task in accordance with the quality, quantity, time limit, location and other contents agreed upon by the two parties; Unilaterally terminate the contract performance, claim damages if the service provider breaches the obligations. In the case of quality, the number of services not reached as agreed or the work is not completed on time due to the service provider's fault, the service receiver has the right to request a reduction of service charges and to claim damages. The service receiver has the following main obligations: The first is the obligation to cooperate and coordinate with the service provider; the second is payment obligation; the third is the obligation to use the service for the right purpose; the fourth is the obligation to warn of irregularities in goods; the fifth is other obligations such as keeping business secrets and information about partners, customers and personnel in the course of using the service, which are known to the receiver, not to recruit each other's personnel, not to pay commissions, not to claim certain benefits of entering into a contract. 2.2.6.5. Terms of resolution of violations and disputes arising from the logistics service contract 14 In order to ensure the rights and interests of the parties and ensure the compliance with the agreement in the contract, the parties should agree on the conditions of violation and compensation for damages. Logistics service contract is a commercial contract resolved in the order of commercial disputes. The common way is that the parties negotiate and mediate by themselves, in case no agreement is reached, the parties may resolve it by mechanisms recognized by the state such as lawsuits, commercial arbitration. 2.2.6.6. General terms of the logistics service contract In the case of a traditional logistics service contract, the parties agree specifically on the effective date of the contract, the duration of the contract, such as delivery time, time of service execution, time of contract termination, whether the contract is automatically renewed or not, how many languages in which the contract is written, which languages will be valid when resolving the dispute and number of copies managed by the parties. 2.2.7. Cases of liabitity exemption of the logistics service provider In fact, many incidents are beyond the control of the parties, leading to one or both parties not being able to perform the contract even if it is not agreed in the contract, then the law also stipulates cases of exemption from liability for such incidents. 2.2.8. Liability limit of of the logistics service provider In the logistics chain, goods and services are often through many stages, the value is very large, the service provider can not compensate the entire value of the loss if damage occurs. The service provider's liability limits are in accordance with international practices because of the fact that transportation losses such as broken goods, crashed goods, and damaged goods are inevitable. These losses are outside the subjective will of the service provider. 2.2.9. Conditions of validity of the logistics service contract The condition of validity of a logistics service contract is the same as that of the general contract, which is that the subject of the contract must be legal, contracting subjects must be completely voluntary, the purpose and contents of the contract are not contrary to law and social morality, procedures and forms of the contract (if so provided by law). 2.2.10. Invalid cases of the logistics service contract Based on legal procedures, invalid logistics service contracts are divided into two categories: Absolutely invalid logistics service contracts and relative invalid logistics service contract. Based on the invalidated scope, invalid logistics service contracts are divided into: Totally invalid logistics service contracts and partially invalid logistics service contracts. 15 The invalid logistics service contract does not give rise to, change or terminate the rights and obligations of the parties from the time of signing. The parties reimburse the benefits gained from the invalid contract. Conclusion of Chapter 2 A logistics service contract is a specific type of service contract formed by an agreement between a provider and a user of logistics services. The legal provisions on logistics service contracts exist independently as a part, an independent branch of the legal system of contracts in Vietnam, effectively regulating the relations of logistics service providers. Constructing the concepts of logistics service contracts as well as accurately identifying the nature and characteristics of this contract plays an important role in determining the legal structure consisting of two main parts: the internal structure (the main contents) and the external structure (the form and document system containing the normative). By the end of Chapter 2, the PhD student has clarified the following: Firstly, the PhD student has generalized the theory of logistics service contracts which explains the concept of logistics services and logistics service contracts. So far, researchers have not come to a general agreement on the concept of logistics services, there are many different views depending on the approach and level of research. Researching on logistics service concepts, concepts, characteristics, classifications and the role of logistics service contracts is a scientific basis for the study of the next content of the topic. Secondly, the PhD student pointed out the legal structure of the logistics service contract, which clarifies the law of adjustment, the principle of conclusion, the order of contract signing, subjects, forms and basic contents of logistics service contracts, valid conditions and invalid cases of logistics service contracts. Interpretation of these issues will serve as a basis for analyzing the current status of logistics service contracts under the current Vietnamese law in Chapter 3. Thirdly, the PhD student also analyze some concepts under the laws of countries on service contracts and logistics services. The process of finalizing a service contract cannot be without adjustments to ensure compatibility between Vietnamese laws and the laws of other countries in the world. Positive and civilized points of countries, regions and the world will be lessons for Vietnam to improve the legal provisions on logistics service contracts. Based on the experience from the research countries, the concept of logistics services varies from country to country, but they all acknowledge that this is a series of activities related to transport and freight. Some countries do not specify logistics services as a conditional business, and only certain business conditions 16 for specific services. This is one of the content the PhD student will compare, research, analyze and propose solutions in Chapter 4 of the dissertation. Chapter 3 CURRENT SITUATION OF LOGISTICS SERVICE CONTRACTS IN VIETNAM TODAY 3.1. Current situation of some legal provisions on logistics service contracts 3.1.1. Provisions on the subjects of logistics service contracts Logistics service provider: According to the Commercial Law 2005, logistics service business owners are called traders. Logistics service is a conditional business, this condition is specified in Section 61, Appendix 4 of the 2014 Law on Investment and Section 60, Appendix 4 of the Law amending and supplementing Article 6 and Appendix 4 of the List of sectors and business lines subject to conditional business of the Law on Investment. The entity providing logistics services shall perform the supply under the conditions specified in Decree No. 163/2017 / ND-CP. Logistics service user: Users of logistics services are organizations and individuals wishing to use logistics services and find these service providers to negotiate and sign logistics service contracts. In order to participate in the establishment and performance of the contract, the subject must have certain behavioral capacity in accordance with the provisions of the 2015 Civil code and regulations on electronic transactions if they are signed by an e-logistics service contract. 3.1.2. Provisions on the form of logistics service contracts Currently, according to the provisions of Commercial Law 2005, a logistics service contract is a commercial service contract and complies with the formality provisions of Article 74 on the form of service contract. 3.1.3. Provisions on the order of signing logistics service contracts The process of signing a logistics service contract in accordance with the general order of contract signing includes the following main steps: Proposing the signing of a contract and accepting the contract in accordance with the 2015 Civil Code, Chapter 4 of the 2005 Law on Electronic Transactions and Chapter 2 of Decree No. 52/2013 / ND-CP dated May 16, 2013 of the Government on e- commerce in case logistics service contracts are signed through electronic transactions. 3.1.4. Provisions on the subject of logistics service contracts The work done in the logistics service contract is logistics services. If customers require many services, they can be listed in the list / appendix attached to the contract as some of the contracts that the PhD student has collected during the research process at enterprises. 17 3.1.5. Provisions on fees / charges of logistics services, duration and payment method of logistics service contracts Service fee / charge is an important part of the logistics service contract and agreed by the parties. A special feature of this contract is that there is a variable service fee/ charge due to the fluctuations in gasoline prices of the market. The current term and payment method are flexible by law. The method of payment to the parties may be agreed by cash, bank transfer or by any means agreed upon by the parties. If there is no agreement and there is no payment habit between the parties, the payment period is the time when the service provision is completed (Article 87 of the Commercial Law 2005). 3.1.6. Provisions on rights and obligations of the subjects of logistics service contracts Rights and obligations of parties in logistics service contracts are defined in the Civil Code in 2015 and Commercial Law 2005. Accordingly, the service provider generally has the basic obligations prescribed in Articles 78 to 84 and the basic obligations of customers are specified in Article 85. Contracting parties in logistics service contracts, in addition to the above general rights and obligations, must also comply with the rights and obligations prescribed in Section 4 on logistics services of the Commercial Law 2005 (from Article 235 to Article 240). Articles 85, 87 and 236 of the Commercial Law 20