Responsibilities of social organizations in protecting the rights and interests of consumers under Vietnam’s law

ganizations in protecting the rights and interests of consumers has not been fully and convincingly argued. (2) Regarding the concept of responsibilities of social organizations in protecting the rights and interests of consumers, social organizations in protecting the rights and interests of consumers, the law on responsibilities of social organizations in protecting rights and interest of consumers, most of the studies have yet introduced these concepts. In fact, there are few works on the concept of consumer protection organizations and regulations on responsibilities of individuals of professional associations in protecting consumers' rights and interests individuals (Vien The Giang, Discussion paper at the Workshop on Socio-political organizations, socio-professional organizations, social organizations, communities and human rights). Secondly, from practical perspective: Because there has not been a clear identification of the legal concept of responsibilities of social organizations in protecting consumers’ rights and interests, there has not been any research providing criteria to assess the status of the law on responsibilities of social organizations in protecting consumer rights and interests, nor comprehensive and specific assessment of the current situation of the law on responsibilities of social organizations. In addition, the current status of implementation of the law on responsibility of social organizations in protecting consumers’ rights and interests has been studied by a number of domestic works such as research on the status of the role of Consumer Protection Association in protecting consumers’ rights and interests, but it has not yet highlighted issues such as the status of the law on responsibilities of social organizations in protecting consumers' rights and interest; the status of organization and operation of social organizations in protecting consumer’s rights and interests; the situation of human resources organizing the implementation of responsibilities of social 7 organizations in protecting consumers’ rights under the current Vietnam’s law. These gaps have led to the lack of practical basis for proposing solutions to improve the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam in the coming time. Thirdly, in terms of solutions and recommendations: 1) The results of literature review related to the topic of responsibilities of social organizations in protecting the rights and interests of consumers show that there is a lack of adequate analysis and argument about the views and requirements for improving the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam at present. Especially, in the context of implementing the 2013 Constitution and the Party's major guidelines on building a socialist rule-of-law state, developing a socialist-oriented market economy, promoting democracy, ensuring human rights, and integrating deeply into the international community. (2) Relating to the aforementioned problem is the lack of a generally accepted opinion system on the necessary legal institution model and basic legal policy framework on responsibilities of social organizations in protecting consumers' rights and interests in Vietnam at present. This is the basis for developing and promulgating legislation on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam in the coming time. (3) In addition, previous studies have not developed specific solutions for each of the components of the law on responsibilities of social organizations in Vietnam at present. 1.3. Issues to further studied in the Thesis Firstly, the thesis introduces new changes in the theoretical awareness of responsibilities of social organizations in protecting the rights and interests of consumers, the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam. By studying the theoretical grounds of responsibilities of social organizations in protecting the rights and interests of consumers, the concept of responsibilities of social organizations in protecting the rights and interests of consumers in the world and in Vietnam, the author builds up the concept of responsibilities of social organizations in protecting the rights and interests of consumers, the law on responsibilities of 8 social organizations in protecting the rights and interests of consumers, the characteristics of the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam at present. Secondly, the thesis provides a view on the need to develop a law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam, the main content and principles of the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam at present. Thirdly, the thesis studies experience in developing and adjusting the law on responsibilities of social organizations in protecting the rights and interests of consumers in some countries around the world so as to draw suggestion for Vietnam. Fourth, the thesis provides criteria to assess the current status of the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam at present; the current situation of adjustment and implementation of the law on responsibilities of social organizations in protecting the rights and interests of consumers in Vietnam such as: studying the situation of organizing and enforcing the law on responsibilities of social organizations in protecting consumers’ rights through the Consumer Protection Association, assessing the status of activities of a number social organizations in protecting the rights and interests of consumers. The research must clearly identify the achievements, limitations, inadequacies and causes of the achievements and limitations. Fifth, the thesis proposes orientation, solutions to impove the law and law enforcement of the law on responsibilities of social organizations in protecting consumers’rights an interests in Vietnam at present. Chapter 2 THEORETICAL ISSUES ON RESPONSIBILITIES OF SOCIAL ORGANIZATIONS IN PROTECTING THE RIGHTS AND INTERESTS OF CONSUMERS 9 2.1. Overview of responsibilities of social organizations in protecting the rights and interests of consumers 2.1.1. The concept of consumers Consumer is a term with a fairly wide range of descriptions. Clearly defining the connotation the concept of consumers is very important in order to protect the legitimate rights and interests of consumers, to avoiding the abuse of consumer protection mechanisms for self-seeking as well as to avoid excessive and unnecessary state interference in civil relations. The perceptions of consumers in each country can be defined differently, but in summing up these views emerge three issues of subject status, access, and purpose of using goods and services. 2.1.2. The concept of consumers’ rights Consumers’ rights are privileges, expressing the needs of individuals, families and the community in daily life. States, manufacturers and service providers are responsible for respecting, protecting and ensuring the rights of consumers. The rights of consumers are recognized and guaranteed in national and international laws. 2.1.3. The concept of social organization protecting the rights and interests of consumers “Consumer protection organizations are social organizations of consumers established on a voluntary and equal basis, regardless of religious and belief, ethnic groups, professional qualifications, and are representative organizations to protect the rights and interests of consumers in accordance with the law ”. 2.4.1. The concept and content of responsibilities of social organizations in protecting the rights and interests of consumers - The concept of responsibilities of social organizations in protecting the rights and interests of consumers: Responsibilities of social organizations protecting consumers' rights and interests are the tasks and the assigned tasks of social organizations to protect consumers, these organizations established on a voluntary, equal and non- discriminatory basis, regardless of religious beliefs, professional qualifications 10 and are representative to protect consumer’s rights and interests according to the provisions of law. - The content of responsibilities of social organizations in protecting the rights and interests of consumers Firstly, consumer education Second, data collection and product inspection Third, filing complaints on behalf of consumers Fourthly, filing sue on behalf of consumers Fifth, campaigning to boycott goods that does not guarantee quality Sixthly, developing networks of consumer protection associations Seventh, critical and social assessment Eighth, providing state management agencies for protection of the interests of consumers with information on violations of organizations or individuals trading goods and/or services 2.2. Theoretical issues of law on responsibilities of social organizations in protecting the rights and interests of consumers 2.2.1. Necessity of legal adjustment of responsibilities of social organizations in protecting consumers’ rights and interests Currently, the process of developing the knowledge economy, the increasing impact of the technological revolution (revolution of information technology, communication, new materials technology, biotechnology, etc.), globalization and the development e-commerce have led to further specialization in terms of quality, the distance between manufacturers and consumers is increasingly far apart, the growing difference between manufacturers and consumers in terms of knowledge about products, increasing difference in terms of the economic scale between traders and consumers. These make great difference between manufacturers and consumers in the actual position. In this context, if consumers do not have the support tools, it is highly likely that consumers will be abused by manufacturers and distributors. If only relying on its self-protection ability, consumers will be difficult to prevent and overcome the risks in participating in dealing with manufacturers, distributors of goods and services as well as in 11 using such goods or services. This has been proven by not only in industrialized countries but also in Vietnam. That is why, the presence of states and state intervention by law is necessary to make the relationship between manufacturers and distributors with consumers become healthier and fairer. As society grows, the field of consumer protection law will become more and more necessary. 2.2.2. Principles of the law on responsibilities of social organizations in protecting consumers’ rights and interests Activities of consumer protection organizations in protecting consumers’ rights and interests must adhere to the following basic principles: - All activities of consumers protection organizations must aim to support or represent consumers to protect legal rights and interests in accordance with the law. - Activities of consumers protections organizations are non-profit. - Other principles provided by laws relating to activities of social organizations. 2.2.3. Assessment criteria Firstly, the law on responsibilities of social organizations in protecting the rights and interests of consumers is not contrary to the Constitution; Secondly, focusing on assessing the impact of the law on responsibilities of social organizations in protecting consumers' rights and interests to consumers; Thirdly, the law on responsibilities of social organizations in protecting consumer’s rights and interests must ensure the validity; Fourthly, the law on responsibilities of social organizations in protecting consumers rights and interests must ensure openness and transparency. 2.3. Social organizations protecting consumers’ rights and interests in some countries and implications for Vietnam 2.3.1. International experience So far, most countries in the world have considered protecting consumers as one of the important activities to ensure the sustainable development of the 12 economy, and regulate responsibilities of organization in protecting consumers. Consumer protection organizations in some countries: - the United States - Malaysia - China - Singapore - India - France 2.3.2. Implications for Vietnam Firstly, most countries in the world have a legal framework to protect consumers' rights and interests with clear, specific and feasible adjustments. Secondly, among the measures to improve the implementation effectiveness of consumer protection laws, many countries attach great importance to measures to enhance propaganda and legal education, raise the awareness of organizations individuals manufacturing and trading in goods and services in complying with the law. Thirdly, the use of legal tools to protect legitimate rights and interests has become a self-consciousness of consumers in many countries around the world. Fourthly, many countries around the world attach great importance to improve quality inspection activities of goods and services. Fifthly, the sanctioning level for violations of the law of some developed countries is quite high and with deterrent effect. Chapter 3 CURRENT SITUATION OF RESPONSIBILITIES OF SOCIAL ORGANIZATIONS IN PROTECTING THE RIGHTS AND INTERESTS OF CONSUMERS UNDER VIETNAM’S LAW 3.1. Current situation of legal provisions on responsibilities of social organizations in protecting consumers’ rights and interests under Vietnam’s law 3.1.1. Development history 13 3.1.1.1. Before the enactment of the 2010 Law on the Protection of Consumers’ Rights 3.1.1.1. Afer the enactment of the 2010 Law on the Protection of Consumers’ Rights 3.1.2. Legal provisions on responsibilities of social organizations in protecting consumers in Vietnam Legally, the role of consumer protection associations in protecting consumers’ rights and interests has been recognized and regulated by the Government's Decree No. 69/2001/ND-CP dated October 2, 2001 detailing the implementation of the Ordinance on Protection of Consumer Rights of 1999 was later re-recorded in the Government's Decree No. 55/2008/ ND-CP dated April 24, 2008 detailing the implementation of the Ordinance on Consumer Protection. 1999 (replacing Decree No. 69/2001/ND-CP). According to Article 28 of the Law on the Protection of Consumers’ Rights of 2010, social organizations protect the rights and interest of consumers through following activities: “a) Instructing and assisting, counseling consumers upon request; b) Taking legal action on behalf of consumers or taking legal action by virtue of the public interests; c) Providing state management agencies for protection of the interests of consumers with information on violations of organizations or individuals trading goods and/or services; d) Independent doing survey, trial; announcing the results of survey and trial on the quality of goods and/or services done by them; providing information and/or warning to consumers about goods and/or services and bearing liabilities by laws for the information and/or warning, and requiring competent state agencies to handle violations of the legislation on protection of consumers’ interests; e) Participating in making laws, guidelines, policies, directions, plans and measures for protecting the interests of consumers; f) Performing the tasks assigned by state agencies as prescribed in Article 29 of this Law; 14 g) Participating in the propagation, dissemination, legal education and knowledge on consumption.” It can be said that the provisions on social organizations suing the case to protect consumers' rights and interests for the public benefit is one of the breakthrough provisions of the 2010 Law on the Protection Consumers’ Rights. The provisions on social organizations’ right to initiate a lawsuit to protect public interests have resolved practical problems for violations that affect a large number of consumers such as soy sauce containing carcinogens 3MCPD, the case of milk contaminated with melamineBecause under the current law, Vietnam has no regulations on class action. Article 162 of the Civil Procedure Code 2004 (amended in 2011), the right to initiate a lawsuit to protect rights and interests of others, public interests, state interests only states that “Agencies and organizations shall, within the scope of their respective tasks and powers, have the right to institute civil cases to request courts to protect the public interests and/or the State’s interests in the domains under their respective charge.” However, to be able to sue, social organizations participating in consumer protection must meet certain requirements, including: “1. Being legally established according to the provisions of law. 2. Having a guideline and purpose of operation for the interests of consumers or for the public interests related to consumers' interests. 3. Having operated for at least three (03) years from the establishment date to the date the social organization exercising its right to sue 4. Having operation scope of provincial level or higher. " In addition to ensuring the rights and interests of consumers who are involved in the case, avoiding abuses of the right to sue, the Law also requires social organizations participating in lawsuits to protect consumers' rights and interests to bear expenses incurred during the course of lawsuit. The Law on the Protection of Consumers’ Rights also provides that social organizations that protect consumers’ interests are supported funds and other conditions by the State prescribed by laws when performing the tasks assigned by state agencies: 15 - Participating in the propagation, dissemination, legal education and knowledge. - Instructing and training and raising awareness of consumers - Assisting, counseling consumers - Independent doing survey, trial, research the reflect the need of consumers. The Minister of Industry and Trade and the President of the Provincial People's Committee have competence in assigning tasks to social organizations involved in the protection of consumers' rights and interests. It can be said that the provisions of the Law on the Protection of Consumers’ rights as well as the implementing documents have become an important legal basis for the existence and development of social organizations protecting consumers’ rights and interests. In recent years, the organizations protecting consumers’ rights and interests are well-known such as Vietnam Standard and Consumers Association (transaction name: Vinastas) and many Consumer Protection Associations in localities (provinces and cities directly under the Central Government). 3.2. Practical performance of social organizations in protecting the rights and interests of consumers under Vietnam’s law at present 3.2.1. Consumer education Consumer education is a process of teaching, training and learning to enhance knowledge and skills of consumers. Educating consumers relates to knowledge transfer and skill development of consumers, consumer rights, consumer laws, standards and product quality ... With the significance of consumer education, social organizations perform their role through the following activities: - Firstly, propagandizing and disseminating to consumers about their rights and responsibilities. The global consumer movement explained the 8 common consumer rights that were recorded in the 1985 United Nations Guidelines on Consumer Protection, including: the right to satisfaction of basic needs; the right to safety, the right to information, the right to choose, the right to be heard or the right to be represented ... 16 - Secondly, social organizations educate about consumption style, consumer skills such as healthy, reasonable consumption, green consumption, consumption without depleting resources or affecting the environment. - Thirdly, giving warnings to consumers about violations of laws on consumer protection of organizations and individuals trading goods and services. 3.2.2. Representing consumers to file complaints for consumers’ rights and interests The right of consumers to complain and to proper complaint-handling is one of the basic rights of consumers specified in the 1985 United Nations Guideline on Consumer Protection. In Vietnam, consumers’ rights to complaint is recorded in many legal documents but notably documents such as the 2010 Law on the Protection of Consumers’ Rights, Decree 99/2011/ND-CP guiding the implementation of the Law on the Protection of Consumers’ Rights. In order to exercise the right to complaint, consumers may make complaints either directly or through social organizations. Social organizations are also responsible for instructing, supporting or representing consumers to bring complaints to the competent authorities as prescribed by law. Currently, VINASTAS and local consumer protection associations are the organizations that primarily perform the role of handling complaints of consumers in Vietnam. In practice, consumer complaint offices have been set up to assist consumers in making complaints and protect their legitimate rights and interests. The first complaint office of the Consumer Protection Association of Ho Chi Minh City was established in 1993. In 1994, the consumer complaint office of VINASTAS was established in Hanoi. Many complaint offices were set up and operated under the management of consumer protection associations. If these offices are well deployed, they will be a bridge between consumers and state management agencies. 3.2.3. Representing consumers in filing civil lawsuits for consumers’ rights and interests 17 Social organizations also have the right to initiate a lawsuit if authorized by consumers or initiate a lawsuit by itself for public interests. In practice, most consumers still do not grasp the rights that the law gives them, along with limited legal knowledge. In many cases, the value of disputes by consumers is usually not large, so they are reluctant to sue, however, the damages to society in these violations are often very large. Therefore, to empower social organizations to file the request of the consumers or for public interests is necessary, in accordance with the actual situation at present. 3.2.4. Social criticism and assessment In Vietnam, social organizations play a social critical and assessment role through the following activities: - Firstly, providing opinions on laws, regulations of the state and authorities at all levels related to the rights and interests of consumers, with the aim of facilitating consumer protection, balancing the interests of businesses with the interests of consumers, contributing to building a fair, democratic and civilized society .. - Secondly, social criticism of commercial activities in order to detect and fight against unethical tactics and actions in trade such as supplying bad quality goods and services to consumers, manufacturing and trading or selling counterfeit consumer goods, incomplete or false information in order to deceive consumers, or performing other commercial frauds in order to make profits on the disadvantages of consumers ... Criticizing commercial acts that need to concrete evidence, policy data, individual identification and clear address. Performing these tasks requires the coordination of social organizations and a large number of consumers. 3.2.5. Goods inspection and product testing Goods inspection and product testing are extremely important activities in protecting consumers' rights and interests in Vietnam. However, apparently, these activities in Vietnam have not been popularized. The Consumer Protection Association has not carried out these activities frequently. Only when there is a violation, if the consequences happen, the Association will inspect of products so as to determine violations business supplying products. 18 The problem is due to the lack of facilities, tools and equipment to inspect the product quality, limited budg