Principles of Dutch law

What is ‘law’ anyway?

To understand the law, you first have to approach the law as a lawyer would, and this, of course, from the perspective of a civil law system, since the private law of the Netherlands is grafted upon Roman-Germanic law. The law consists of nothing more then a large number of rules of behaviour (or rules of conduct). The law, in other words, is just a set of appointments between all people ordering how to behave with regard to what they consider to be correct and fair. In the past people made these rules themselves. That today is no longer possible. For this reason the people of a society have transferred this competence to the government, which establishes and maintains these rules for them. In a modern democracy the people can only elect once in a few years the members of Parliament, the Municipality Council and other public bodies. These members together influence the acting and organisation of the government. The various institutions of the government decide, each on their own legal and geographical territory, which rules are issued, how they work in practice and how they are or have to be interpreted in the case of a dispute. Legislation, implementation and jurisdiction are these days an exclusive task of the government. The government is the only institute in society that is allowed to use violence to enforce the compliance with its rules. This violence expresses itself in imposing a fine or a prison sentence, that sometimes even can lead to the death of the one who has broken a rule. No other person is allowed to use violence to get his way. The people of a country are submitted to the rules of the government because they have agreed upon this themselves. It’s the only way to prevent chaos and to impede that the strongest and most aggressive persons can take ‘the law’ into their own hands. Other criteria than random violence must ascertain whether someone is damaged in his interests and, because of this, has the right to claim a certain behaviour from another person. These criteria are retrieved in the law, which takes into account everybody’s interest and the interest of the society as a whole. The starting point of the law is always what is reasonable and fair, given all circumstances.

The law as a collection of rules of behaviour

The law exists of a large number of binding appointments that have to be observed by everyone. Those appointments have been laid down in laws. They regulate how persons must behave mutually and what they can expect from each other, for example with respect to their property or to what other persons may or may not do. A rule of law is a right or duty that is recognised as such by law. This means that the right or duty finds its basis in law, so that the government can enforce the compliance with it, if necessary with the assistance of judicial authorities and the police. With this, the rules of law distinguish themselves from other rules of conduct, which for example result from decorum, religion or morality.

Rules of law are rules of conduct. The law of a State consists of all the rules of behaviour that people within that society have agreed upon in order to regulate their mutual relations, as well to each other as to property and other objects. But in contrast to other rules that prescribe a certain behaviour, the rules of law are enforceable.

Religious rules of behaviour are imposed by a not perceptible higher power. They can be subdivided into two types. On the one hand in rules of behaviour which indicate what is right and what is wrong (you are not allowed to kill another person, you will not commit adultery). On the other hand there are standards which specifically stipulate how a religion must be confessed. These rules of behaviour differ of course according to the religion in question. One religion stipulates for example that one must make the sign of the cross when praying, the other that you must kneel towards Mecca.
Besides religion also morality has always influenced the behaviour of people. Moral rules of behaviour are not coming from a higher power, like a God, such as religious rules do. They are accepted by society as the dominating way to think. Of course, people should behave accordingly. The widely accepted conception that people are equal or that parents must take care for their children, is a rule of morality or, if you want, ethics. Moral rules change in course of time. Not so long ago it was by no means commonly accepted that people of every race or sexual disposition were equal.
Rules of decorum contain the good manners in the broadest sense of the word. The boy in the bus who cedes his seat to an older lady or the man who raises his hat when greeting a friend act in compliance with decorum. The behaviour of these gentlemen is dictated by what society regards as the correct way to do in such circumstances.

Also the law tries to influence human behaviour in a certain way. But in what do rules of law differ from other rules of behaviour? The answer must be: ‘in fact only in their enforceability’. Characteristic for rules of behaviour issued by the government, is that everyone has to obey them and that the government can en will enforce the compliance with these rules, if need be, by exercising violence. Everyone who breaks the law, no matter who, must pay a fine or has to suffer another punishment, like a prison sentence. In this way the observance of a rule of law is guaranteed. The other rules of behaviour have no means of punishment that apply to everyone. There is neither a central institute that can check and enforce the observance of the rule of behaviour. He who breaks rules of decorum only needs to fear reprobate responses from his surroundings. He who acts contrary to morality possibly is touched by a sting of conscience. He who violates a religious rule can awaken the rage of God or the aversion of the members of a religious community. These sanctions aren’t concrete at all. Many shrug thus their shoulders. Such rules of behaviour have no effect on them. They don’t influence their behaviour, nor their decisions how to live and act. The law, however, knows how to force people to behave in a certain way and is able to implement it. It doesn’t resign when a rule is broken, but tries to hurt the offender at his most sensitive spot (personal freedom, property, financial situation), to secure the observance of its rules. In some countries persons who have committed a serious crime can even pay for it with their lives. But in the Netherlands the death penalty doesn’t exist anymore.

Civil law

The law is subdivided in several areas that regulate various kinds of relationships between different persons. Criminal law, for example, controls the relationship between the government and citizens who have committed a crime or an indictable offence (felony). Administrative law gives rules which settle the relationship between the government and citizens concerning public matters. Civil law regulates relationships between citizens mutually, for instance those which come from a family connection or marriage. This includes the law of matrimonial property and inheritance. Furthermore it sets rules for legal entities, like limited private companies (Ltd.), associations and foundations. But most of all, civil law arranges the way citizens are entitled to existing property and how property rights may arise and can be delimited of that of others. This part is called the law of valuable rights (‘droit patrimonial’) and includes property law and the law of contracts and obligations.

In the Netherlands civil law is mainly regulated in the Civil Code, named ‘Burgerlijk Wetboek’ (BW). This code has been renewed in 1992 and is now one of the most modern codes on the field of civil law in Europe.

Valuable rights (‘droit patrimonial’)

The field of civil law that is indicated with the French words ‘droit patrimonial’ (‘vermogensrecht’) regulates the relationships of people to assets and financial based relationships between private persons. The rights that are set by this field of law are called patrimonial rights (‘vermogensrechten’). All rights with a certain value are patrimonial rights. For this reason these rights will be named ‘valuable rights’ on this internet site, because it makes clear immediately what really is meant. Article 3:6 DCC defines valuable rights as rights which can be transferred or which intend to give its proprietor material benefit or which have been given in exchange for material benefit that has already been given or will be given in future. Rights in rem (ownership, easement, long leasehold, apartment right, right of superficies, pledge, mortgage) and rights in personam (obligatory claims) are valuable rights. The same goes for intellectual property rights (copyrights, trade marks, patents), which however aren’t the subject of this internet site.

The relationship between a person and an asset is called a ‘property right’. In principle the law specifies which powers and possibilities the proprietor of a property right has with regard to the asset to which his property right is attached. Property rights are elaborated in the Civil Code of the Netherlands, which not only describes what the entitled person may do with a specific asset, but also how he can defend himself against other persons who disturb him in exercising his rights to that asset. These powers only exist because the law says so.

A financial based relationship between two persons is usually an obligation. An obligatory claim of a person against another person with regard to a certain performance, which claim forms a part of the obligation, is in itself an asset that belongs to someone and that can be encumbered with a limited property right.

It’s important to recognise that also with regard to the law of valuable rights, and therefore in property law, the rules only indicate a certain behaviour or prohibit persons to act in a specific way. Even property law consists solely of a large number of binding appointments that have to be observed by everyone. Those appointments have been laid down in laws. They regulate how persons must behave mutually and what they can expect from each other, for example with respect to an asset or to a promise to perform something. A valuable right represents in this sense a bundle of powers to an asset or to a performance, recognised as such by law. This means that the right to execute these powers finds its basis in law, so that the entitled person has the possibility to enforce the observance of his valuable right, if need be, with the help of judicial authorities and the police force. Again it is to be mentioned that a valuable right is not a visible or tangible thing, which can be touched or even picked up. Every legal right, thus also a valuable right or property right, is – as a rule of behaviour – invisible, therefore incorporeal, although it may include certain rights of use and exclusive powers to an asset that in itself is tangible, for example to a car or a house. Nevertheless the right of ownership to that car is incorporeal, since it’s just a rule of behaviour which is recognized by law as a legal rule that has to be observed by everyone, including the owner.

Opposite to the valuable right of the proprietor (entitled person), there is always a legal duty of one or more other persons. A legal duty can be defined as every duty that the law imposes upon a person. Because it’s a duty that is labelled as such by law, the person who is charged with it, can be forced to comply with it. If he doesn’t meet his duties, he will be condemned to pay for damages or he might receive another punishment. With authorisation of the court, the police can put him in jail or take the chargeable performance of him, which may even result in a public sale of his properties. The person whose valuable right has been violated, is compensated in this way. In this respect a legal duty differs from a duty imposed by religion, decorum or morality. Depending on the nature of the valuable right, it’s possible that the whole world has to respect the rights and powers of its proprietor (rights in rem) or that just one person or one specific group of persons has to observe them (rights in personam).

Property rights

Property rights lay a fictitious connection between a person on the one hand and an object on the other. Dutch law only accepts natural persons (humans) and legal entities as persons to whom a property right may belong. Animals, plants and other things are not accepted as persons. They can’t own, posses or hold property rights. In fact, they themselves are objects to which a property right can be linked.

A property right can be related to several objects. In property law the object is usually a thing (movable or immovable tangible object) or a performance to be fulfilled by another person. The property right stipulates within this relationship which powers its proprietor has in relation to that object. It also explains to what extent other persons have to respect these powers of the proprietor over that object. In this way every property right can be analysed up to a number of intangible, though enforceable rules of behaviour concerning a specific object, which rules have to be observed by the proprietor of the property right as well as by all other people.

This theoretical explanation can be clarified with an example. The starting point is the most important property right in Dutch civil law: the right of ownership, which in the Netherlands can only be attached to a movable or immovable thing.

What does it really mean when one says that Peter is the owner of a house that is situated at Churchstreet 20 in the city of Eindhoven. One might answer: ‘that it’s his house’, ‘that he can call it his own’. That’s correct of course, but then one approaches the property from the normal point of view. To understand the legal meaning of this sentence, one must look a bit further. When it is stated that Peter is the owner of a house at Churchstreet 20 in Eindhoven, it actually means that Peter under civil law is entitled to exercise all the powers with respect to this house insofar civil law grants these rights and powers to a person who has obtained a right of ownership in agreement with the law. If one analyses this further, the next picture arises. Civil law first describes what the content of the right of ownership in general is, therefore which powers a random owner of property normally has. It stipulates, in addition, that Peter has acquired such a right of ownership of the house, since he has met the requirements as set by civil law in order to get a property right that is recognized as a right of ownership. From the previous rules, two other rules result. First, that all other persons must withhold themselves from behaviour that could disturb the owner – this is Peter – in exercising his powers over the house. Peter must always be able to use the house in conformity with the powers he has according to his right of ownership; no other person is allowed to take these powers from him. Secondly, the previous rules make clear that Peter is able to enforce that everyone has to recognize and observe his legal position, if necessary by asking the court and police for assistance. The right of ownership includes in that sense a number of rules of behaviour which stipulate on the one hand what Peter can do with the house and on the other hand what all other persons may and may not do with respect to that same house. The law only consists of invisible and intangible, but nevertheless enforceable rules of behaviour.

Enforceable legal arrangements regarding property rights in a thing
(right of ownership of a house)

Similar to this, property rights to other objects than tangible things can be analysed. Again an example, but now by means of the most important property right to a performance: the obligatory claim of a creditor against his debtor.

When one says that John is entitled to a performance that William has to fulfil, this doesn’t mean that John has a property right in William himself. That’s not possible, because property rights, like the claim of a creditor, can only be attached to certain objects, not to persons. If one says that John has a claim against William, this means that John can demand from William that he carries out the performance to which he has engaged himself and that, if he doesn’t perform it, John may enforce his claim or, where this is impossible, demand a compensation for damages. The claim reflects within this relationship what creditor John according to civil law may expect in general of his debtor William and which measures he can take if William doesn’t satisfy his debt properly. The content of John’s claim is defined by civil law. Civil law specifies how the creditor and debtor have to behave towards each other with respect to the object of the property right of the creditor – i.e. the claim to the performance of the debtor. The fact that the law recognises the claim of the creditor as a valuable right, means that the creditor, who is entitled to this performance, is able to enforce the compliance with it.

Enforceable legal arrangements regarding obligations
(obligatory claim to use a car)

From the examples and schemes above it becomes clear once more that the law is nothing else than the sum of thousands of rules of behaviour (appointments) that must be observed by everyone. When everyone feels and acts as if these rules represent the reality, then these rules automatically become reality, at least the legal reality. The government ensures that this fiction is kept alive. What the content of these legal rules is and which powers the entitled persons have, is told by civil law. The law also indicates which kind of property rights can arise, how the proprietor may get such rights, how he can transfer them to another person and how they will end. It’s the job of a lawyer to understand and work with these rules. He studies the law to retrieve how different relationships are regulated by law and what the impact is of these rules in a concrete situation. If required, he makes sure that the legal position of his client, as recognised by law, will hold. He may even start legal proceedings in court to get a judgement in favour of his client, with which he can order a bailiff or the police to repair the situation in conformity with the law.

SOURCE: http://www.dutchcivillaw.com/content/legalsystem022.htm

JOINT CIRCULAR

DETAILING AND GUIDING THE REGULATION ON FOREIGN EXPERTS IMPLEMENTING ODA PROGRAMS AND PROJECTS PROMULGATED TOGETHER WITH THE PRIME MINISTER’S DECISION NO. 119/2009/QD-TTg OF OCTOBER 1, 2009

Pursuant to the Government’s Decree No. 131/2006/ND-CP of November 9, 2006, promulgating the Regulation on management and use of official development assistance (ODA);
Pursuant to the Government’s Decree No. 116/2008/ND-CP of November 14, 2008. defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;
Pursuant to the Government’s Decree No. 118/2008/ND-CP of November 27,2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;
Pursuant to the Prime Minister’s Decision No. 119/2009/QD-TTg of October 1, 2009, promulgating the Regulation on foreign experts implementing ODA programs and projects;
The Ministry of Planning and Investment and the Ministry of Finance jointly detail and guide the Regulation on foreign experts implementing ODA programs and projects promulgated together with the Prime Minister s Decision No. 119/2009/QD-TTg of October 1, 2009, as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular applies to ODA-funded programs and projects under Clauses 1 and 2. Article 1 of the Regulation on ODA management and use promulgated together with the Government’s Decree No. 131/2006/ND-CP of November 9, 2006.

Article 2. Subjects of application

This Circular applies to foreign experts (below referred to as experts) defined in Clause 5. Article 3 of the Regulation on foreign experts implementing ODA programs and projects promulgated together with the Prime Minister’s Decision No. 119/2009/QD-TTg of October 1, 2009 (below referred to as the Regulation) and applies only to experts whose contracts take effect from November 20. 2009. on.

Chapter II

CERTIFICATION FOR AND MANAGEMENT OF EXPERTS

Article 3. Certification for experts

1. Dossier of certification for experts:

Based on the scope of regulation specified in Article 1 and subjects of application defined in Article 2 of this Circular, within 30 working days after an expert contract takes effect, the project owner shall send to the managing agency an official letter requesting certification for an expert, enclosed with a dossier comprising:

- The expert’s written commitment that he does not have Vietnamese citizenship.

-Certified copies of passports of the expert and his/her family members, containing the page with a Vietnam entry visa (if any) and the page appended with the entry/exit seal of the immigration management agency.

-Originals or certified copies of the following documents: (i) decision approving the results of bidding for consultancy services (for an individual expert or a group of experts): and (ii) approved bidding documents (including a list of consultants).

- Written approvals of the Vietnamese and foreign parties in case of modifications and supplements to list of experts and consultants in approved bidding documents.

- Copy of the consultancy contract of the expert (individual expert or a group of experts) signed with the contractor and a competent agency of the Vietnamese or foreign party.

2. Procedures for giving certification for experts:

a/ Within 15 working days after receiving a complete and valid dossier from the project owner, the managing agency shall give certification for the expert according to form No. 1 enclosed with this Circular – not printed herein (with a seal appended on every two adjoining pages) and send 8 originals to the project owner.

b/ Pending such certification, the project owner or contractor (company) that signs the contract with the expert shall notify the tax office of the locality where he/she/it is headquartered of the expert’s eligibility for personal income tax exemption in case his/her tax obligations arise.

3. Thirty days before an expert finishes his/her working duration in Vietnam, the project owner shall report such to the managing agency and provincial-level tax office. Customs Department and Public Security office of the locality where he/she/it is headquartered.

Article 4. Personal income tax exemption procedures and dossiers and time limit for tax offices to give tax exemption

1. The project owner or contractor (company) that signs a contract with an expert shall send a dossier of request for personal income tax exemption for the expert to the tax office of the locality where he/she/it is headquartered. Such a dossier comprises:

- Official letter of the project owner or contractor (company) requesting exemption from personal income tax for the expert.

- The managing agency’s certification of the expert’s eligibility for privileges and immunities, made according to form No. 1 enclosed with this Circular (not printed herein).

- Documents related to tax-exempt incomes of the expert (contract, income payment documents, etc.).

2. Within 15 working days after receiving a complete and valid dossier under Point 1 above, the tax office shall issue certification of personal income tax exemption for the expert according to form No. 2 enclosed with this Circular (not printed herein).

Article 5. Customs procedures

Customs procedures for temporary import, re-export, transfer and destruction of exported and imported belongings and luggage and vehicles of experts comply with current regulations.

Article 6. Reporting on. inspection and supervision of, the implementation of the

Regulation

1. Within 15 days after the end of a reporting period (biannual and annual), the project owner

shall send reports on management and employment of experts to the managing agency.

2. Within 20 days after the year-end. the managing agency shall send to the Ministry of Planning and Investment a summary report on the management and employment of experts.

3. The Ministry of Planning and Investment shall inspect, supervise and summarize the implementation of the Regulation and report thereon to the Prime Minister before January 31 every year.

Chapter III

IMPLEMENTATION PROVISIONS

Article 7. Effect

This Circular takes effect 45 days from the date of its signing and replaces Circular No. 02/ 2000/TT-BKH of January 12, 2000. guiding the implementation of the Regulation on foreign experts promulgated together with the Prime Minister’s Decision No. 211/1998/QD-TTg of October 31,1998; Circular No. 52/2000/TT-BTC of June 5, 2000. guiding exemption from taxes and fees for foreign experts implementing ODA programs and projects; and Circular No. 01/2001/TT-TCHQ of February 9, 2001, guiding customs procedures for exported and imported belongings and luggage and vehicles of foreign experts under the Prime Minister’s Decision No. 211/1998/QD-TTg of October 31, 1998.

Any problems arising in the course of implementation should be reported to the Ministry of Planning and Investment and the Ministry of Finance for timely guidance.-

TRANSLATED BY LAWSOFT

THE GOVERNMENT
——-
No. 71/2010/ND-CP

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———

Hanoi, June 23, 2010

DECREE DETAILING AND GUIDING THE IMPLEMENTATION OF THE HOUSING LAW

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 29, 2005 Housing Law;
Pursuant to June 18, 2009 Law No. 34/2009/QH12 Amending and Supplementing Article 126 of the Housing Law and Article 121 of the Land Law;
Pursuant to June 19, 2009 Law No. 38/2009/ QH12 amending and supplementing a number of articles of the laws concerning capital construction investment;
At the proposal of the Minister of Construction,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides a number of provisions of the Housing Law regarding house ownership, housing development, use management of houses, house-related transactions and state management of houses.

Article 2. Subjects of application

This Decree applies lo the following subjects:

1. Domestic organizations and individuals; overseas Vietnamese: foreign organizations and individuals that invest in housing development in Vietnam;

2. Organizations and individuals that own houses, use houses and participate in house-related transactions in Vietnam:

3. Housing state management agencies at all levels.

4. Organizations and individuals not mentioned in Clauses I, 2 and 3 of this Article but involved in housing-related activities.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Commercial house means a house built by an organization or individual of any economic sector for sale or lease to meet the market demand and under the market mechanism;

2. Social house means a house built by the State or an organization or individual of any economic sector for sale or lease to or lease-purchase by a subject defined in Article 53 or 54 of the Housing Law and this Decree under the State-prescribed mechanism:

3. Official-duty house means a house built by the State for lease to a person defined in Article 60 of the Housing Law and this Decree while he/she in office under the Housing Law and this Decree:

4. Urban villa means a detached house (or a building originally built as a house but currently used for another purpose) with its own yard garden, fence and entrance, no more than 3 main floors (excluding the staircase roof, loft and basement floor) and at least 3 sides looking to the yard or garden, built on an area not exceeding 50% of the total land area, and situated in a functional zone under an urban master plan approved by a competent authority;

5. Condominium means a house with 2 or more stories, passageways, stairs and a system of infrastructure works for common use by many households and individuals. Each condominium has areas under private ownership of households or individuals and the investor and areas under common ownership of its owners:

6. Lease-purchase of a social house means the advance payment of a certain sum of money by the lessee-purchaser of the house as agreed upon in the lease-purchase contract, who will pay the remaining payable amount as a rental on a monthly or periodical basis. Upon the expiration of the lease-purchase term, the house lessee-purchaser who has fully paid the rental will be granted a house ownership certificate by a competent state agency.

Chapter II

HOUSING DEVELOPMENT

Section I. HOUSING DEVELOPMENT PROJECTS

Article 4. Types of housing development projects

Housing development projects may be of either of the following two types:

1. Housing development projects for the purpose of investing in building a system of technical and social infrastructure and building houses and other architectural works under approved master plans (below collectively referred to as housing area development projects – grade-I projects), under which technical infrastructure works are built by grade-I investors, while houses and other architectural works (grade-II projects) are built by grade-I or grade-II investors;

2. Housing development projects for the purpose of investing in building only an independent housing work or a group of housing works, including also works for multiple use purposes as houses, offices, commercial and service centers (below collectively referred to as houses for multiple use purposes) on land areas where a technical infrastructure system is available (grade-II projects in housing area development projects defined in Clause 1 of this Article or in new urban centers) or independent housing development projects in renovated urban centers (below collectively referred to as independent housing development projects).

Article 5. Requirements on housing development projects

1. Before investing in building houses (including also houses in new urban centers), investors shall request competent state agencies to approve their investment (unless bidding is needed to select investors under Article 14 of this Decree), and organize the formulation. appraisal and approval of housing development projects under the Housing Law. this Decree and relevant regulations.

2. Before formulating housing development projects, investors shall work out and submit to competent People’s Committees in localities where these projects are to be implemented for approval l:500-scalc detailed construction plans under the law on construction planning, unless 1:500-scale detailed construction plans have been approved for the project areas and investors propose no adjustment to or are not required to work out these plans under the law on construction planning.

The order and procedures for formulating, appraising and approving l:500-sca!e detailed construction plans comply with the law on construction planning and these plans shall be publicized under Article 81 of this Decree.

3. Housing development projects must conform to local land use, urban construction and rural residential area master plans, urban designs and housing development programs in each period and satisfy housing development requirements specified in Articles 24. 25 and 26 of the Housing Law.

4. The designing of houses in housing development projects must conform to construction regulations and standards and designing standards of condominiums, detached houses and villas provided in the Housing Law and this Decree.

5. For housing area development projects, technical and social infrastructure systems must be completely built. For independent housing development projects, the connection to common technical infrastructure systems of the region must be ensured.

6. A housing development project dossier must contain explanations and basic designs made according to Article 6 of this Decree.

Article 6. Contents of housing development project dossiers

1. A housing development project dossier must contain:

a/ Project explanations:

- The name of the project;

- The necessity and legal grounds of the project:

- Objectives and form of investment; construction location: size of the project; land use demand; natural conditions of the project area;

- Implementation solutions: plans on compensation for ground clearance and resettlement (if any); plan on use of construction technologies; construction regulations and standards applicable to the project; environmental impact assessment; plan on fire prevention and fighting; solutions to building and connecting technical infrastructure works to the region’s common technical infrastructure; accessibility to the region’s social infrastructure;

- Public parking area and parking area for vehicles (including bicycles, wheelchairs for the disabled, motorbikes and automobiles) of households and individuals living in the project area after the houses are completely built;

- Area for building the social infrastructure system (kindergartens, schools, health care and service establishments, sport and entertainment facilities, parks), unless the project area already has such social infrastructure works;

- Land area reserved for building social houses (if any);

- Numbers and ratios of houses of different kinds (villas, detached houses and condominium apartments), total floor area of houses; plan on product sale (number of houses for sale, lease or lease-purchase);

- Proposed mechanisms applicable to the project (land use. finance and others);

- The project implementation duration and schedule (schedule for each phase) and project management mode;

- Total investment capital, capital sources, forms of capital raising, capital recoverability;

- The State’s responsibility for building technical infrastructure works outside the project’s fence or running through the project area;

- Works to be transferred without indemnification;

- Plans on management and operation of the project and public-utility works within the project (models of organization, modes of operation management and service charges).

b/ Basic designs of the project.

- Explanations of basic designs: Brief description of the project location; the technical infrastructure system of the project and its connection to the region’s common technical infrastructure system; environmental protection plan; fire prevention and fighting plan; architectural plans of works of the first-phase component project;

- Basic design drawings: The project’s general site plan, sectional drawings, site drawings and solutions to main force-bearing structures of works of the first-phase component project; drawings of the project’s technical infrastructure system connected to the region’s common technical infrastructure.

2. An independent housing development project dossier must contain:

a/ The project explanations, which include the contents specified at Point a. Clause 1 of this Article, except the request for the State’s investment in building technical infrastructure works outside the fence or running through the project area and identification of works to be transferred without indemnification;

b/ The project’s basic designs, which shall be made under the construction law.

3. The appraisal of basic designs of housing development projects specified in Clauses I and 2 of this Article must comply with the construction law.

Article 7. Competence to appraise and approve housing development projects or approve investment in these projects

1. Housing development projects built with state budget funds shall be appraised and approved as follows:

a/ For houses built with local budget funds, investors shall formulate and submit projects thereon to chairpersons of People’s Committees of provinces or centrally run cities (below collectively referred to as provincial-level People’s Committees) for appraisal and approval. Based on specific local conditions, chairpersons of provincial-level People’s Committees may authorize chairpersons of People’s Committees of districts, towns or provincial cities (below collectively referred to as district-level People’s Committees) to appraise and approve housing development projects capitalized at under VND 30 billion.

Before approving a housing development project, the chairperson of a provincial-level or district-level People’s Committee (when authorized) shall organize the appraisal of the project. The time limit for appraising and approving a housing development project is 45 days after a competent state agency receives the investor’s report enclosed with the project dossier.

Provincial-level Construction Departments shall receive project dossiers and assume the prime responsibility for. and coordinate with concerned local agencies in, appraising housing development projects before submitting them to chairpersons of provincial-level People’s Committees for approval. In case chairpersons of district-level People’s Committees are authorized to approve housing development projects, district-level housing management agencies shall receive project dossiers and assume the prime responsibility for appraising projects;

b/ For houses built with central budget funds, units assigned to act as project investors shall request in writing provincial-level People’s Committees in localities in which housing development projects are to be implemented to approve investment in these projects with contents specified at Point b. Clause 2 of this Article before the projects are formulated, except projects in which investment is decided by the Prime Minister.

After obtaining written investment approval of provincial-level People’s Committees, investors shall formulate and submit projects to investment deciders for appraisal and approval. The time limit for a provincial-level People’s Committee to approve investment is 30 days while the time limit for project appraisal and approval is 45 days after a competent state agency receives a complete dossier under regulations:

c/ Details of a decision approving a housing development project as specified at Points a and b of this Clause include:

- The name of the project (housing area development project or independent housing development project);

- The name of the investor; investment objectives and form;

- The project location and size; land use area and boundaries; number of inhabitants;

-Technical infrastructure works: roads, power supply, water supply and drainage, garbage treatment, information and communications, fire and explosion prevention and fighting: social infrastructure works: kindergartens, schools, health care and service establishments, sports and entertainment facilities and parks (if any);

- Ratios and numbers of houses of different kinds (villas, detached houses, condominium apartments); subjects eligible for house lease and rent rates;

- Public parking area and parking lot for households and individuals living in the project area after the houses are completely built;

- Total investment of the project;

- Project implementation duration and schedule (schedule for each phase);

- Main rights and obligations of the investor;

- Plans on management and operation of the project and the condominium after construction investment (models of organization, modes of operation management and service charges).

2. Housing development projects (excluding projects of grade-II investors) invested with non-state budget funds (regardless of land areas occupied by projects) shall be appraised and approved as follows:

a/ Investors shall send reports to provincial-level People’s Committees for written investment approval of their housing development projects-For a housing development project to build less than 500 houses (including villas, detached houses and condominium apartments), the investor shall report to the district-level People’s Committees for a written investment approval, unless this project is subject to bidding for investor selection as specified in Article 14 of this Decree;

b/ A written investment approval in a housing development project specified at Point a of this Clause or Point b. Clause 1 of this Article contain the following details:

- The name of the project (housing area development project or independent housing development project);

- The name of the investor, except cases of bidding for investor selection specified in Article 14 of this Decree;

- Investment objectives and form; project location and size; land area occupied by the project; number of inhabitants;

- Building of technical and social infrastructure works: kindergartens, schools, health care and service establishments, sports and entertainment facilities, and parks (if any);

- Ratios and numbers of houses of different kinds (villas, detached houses, condominium apartments); total housing floor area:

- Plan on marketing of products: sale, lease or lease-purchase of houses (clearly indicating floor area and number of houses for sale, lease or lease-purchase);

- Public parking area and parking lot for households and individuals living in the project area after the houses arc completely built;

- Land area reserved for building social houses (if any);

- Responsibilities of the investor and local administration:

- The project implementation duration and schedule (schedules for each phase);

For a housing area development project, there must be following additional details: plan on handover of technical infrastructure works to the locality after construction is completed; the responsibility to build social infrastructure works (if these works arc built by the local administration, the time limit for the local administration to complete the building must be clearly stated; past that time limit, the investor may build these works or invite other investors to participate in the building);

c/ Provincial- or district-level People’s Committees shall examine project dossiers and give written investment approval within 30 days after receiving reports of investors enclosed with project dossiers;

d/ After obtaining written investment approval, investors shall formulate, appraise and approve housing development projects according to contents of such written approval, this Decree and relevant laws.

3. For a housing development project (regardless of investment capital sources and land areas occupied by projects) to build 2.500 houses or more (including villas, detached houses and condominium apartments in new urban centers, and houses for multiple use purposes), the investor shall send a report to the provincial-level People’s Committee for consideration and submission to the Prime Minister for investment approval of this project (housing area development project or independent housing development project) before formulating, appraising and approving the project.

Within 10 working days after receiving the report of the investor, the provincial-level People’s Committee shall examine the report and seek written comments of the Ministry of Construction, the Ministry of Natural Resources and Environment, the Ministry of Planning and Investment and the Ministry of Finance on the following matters: land use planning, construction planning, project implementation duration and schedule, ratios of houses of different kinds, the investor’s capacity and other relevant matters under the state management by these ministries, before submitting the project dossier to the Prime Minister. The time limit for collecting comments of these ministries is 20 days after receiving the report of the investor, and these ministries shall give their comments to the provincial-level People’s Committee within such time limit.

For a housing area development project (or an independent housing development project), a dossier to be submitted to the Prime Minister comprises the report of the investor requesting the provincial-level People’s Committee to report the project to the Prime Minister for approval of investment, the report of the provincial-level People’s Committee to the Prime Minister for investment approval, showing the contents specified at Point b. Clause 2 of this Article, a 1:2.000-scale construction plan already approved by a competent authority and comments of the ministries specified in this Clause.

Within 10 days after obtaining the Prime Minister’s approval, the provincial-level People’s Committee shall notify it in writing to the investor for proceeding with the formulation, appraisal and approval of the housing development project under the construction law and this Decree. For a state budget-funded housing development project, the investor shall formulate the project before submitting it to a competent authority for appraisal and approval under Clause I of this Article. For a housing development project in which investment is decided by the Prime Minister, the Ministry of Construction shall assume the prime responsibility for appraising and submitting the project to the Prime Minister for approval.

4. If the investor of an approved housing development project wishes to make a change in any of the following contents: investment objectives; project size; land area occupied by the project: number of houses to built; and project implementation schedule, it shall request in writing a competent state agency defined in Clause 1 or 2 of this Article to give a written approval of added contents of the project before carrying out the building. For a project to build 2,500 houses or more (including villas, detached houses, condominium apartments in new urban centers, and houses for multiple use purposes). the investor shall request the provincial-level People’s Committee to consider and make a report on added contents of the project (housing area development project or independent housing development project) to the Prime Minister for approval. The time limit for issuing such written approval is 20 days after receiving a written request of the investor or the provincial-level People’s Committee.

The Ministry of Construction shall set forms of reports of investors requesting provincial- or district-level People’s Committees to approve investment as specified in Clause 2 of this Article, reports of investors requesting provincial-level People’s Committees to report their projects to the Prime Minister for investment approval, and

reports on housing development projects of provincial-level People’s Committees to the Prime Minister for approval of investment in these projects as specified in Clause 3 of this Article; and forms of project-approving decisions and written investment approval as specified in Clauses 1 and 2 of this Article, and guide the implementation of the provisions of this Article.

Article 8. Implementation of housing development projects

1. When investing in building houses, investors of housing development projects shall comply with the Housing Law, this Decree and the construction law.

2. Investors of housing development projects shall apply for construction licenses before commencing the construction of houses and other architectural works of their projects, unless they are exempt from construction licenses under the construction law.

3. Investors of housing area development projects shall completely build technical infrastructure systems according to approved project contents. In case they are obliged to build social infrastructure works under project-approving decisions or written investment approvals of competent state agencies, investors shall strictly comply with contents and implementation schedules of projects already approved.

4. Grade-I investors of housing area development projects may transfer rights to use land areas with technical infrastructure to grade-II investors for building houses after technical infrastructure works have been built according to project contents and schedules and shall comply with approved project contents or contents of investment approval of competent state agencies. Grade-1 investors shall manage technical infrastructure systems of their housing area development projects before handing over them to local administrations and supply electricity and water for grade-II investors to build houses, and inspect and supervise compliance with master plans, architecture designs and investment contents already licensed by competent state agencies and schedules of building technical works within the scope of projects of grade-II investors.

5. Grade-II investors are not required to apply for investment approval by competent state agencies but shall build houses and other architectural works according to contents of land use rights transfer contracts signed with grade-I investors, and comply with master plans. architecture designs and investment schedules of approved projects and investment contents already licensed by competent state agencies for grade-I investors.

In case a grade-II investor violates the construction master plan and order or investment contents in the course of building houses and other architectural works, the concerned grade-I investor may request this grade-II investor to temporarily stop the building and report the violation to a competent agency for handling.

Article 9. Raising of capital for investment in building houses

1. In case the investor of a housing area development or new urban center project (grade-I investor) wishes to raise capital for building technical infrastructure works in land areas for building houses and building houses in the housing area or urban center, it may raise capital by the following modes:

a/ Signing contracts for borrowing capital from credit institutions and investment funds or issue bonds under law to raise capital in addition to its own capital for building houses. Lenders or bond purchasers will have no preemptive right to purchase houses or register for purchase of houses:

b/ Signing a capital contribution or investment cooperation contract with a grade-II investor for the purpose of transferring the rights to use a land area with technical infrastructure to the latter;

c/ Signing capital contribution or investment cooperation contracts or memoranda with other organizations and individuals for building houses, which must state that parties contributing capital or to investment cooperation will be divided profits (in cash or shares) or products being houses in proportion to their capital contribution portions as agreed. In case the parties agree to divide products being houses, they shall comply with the provisions of Point d. Clause 3 of this Article on the number of houses allowed to be divided;

d/ Signing a business cooperation contract with a real estate trading enterprise for building houses, which must state that parties to business cooperation will receive divided profits (in cash or shares) or products being houses as agreed. In case the parties agree to divide products being houses, they shall comply with the provisions of Point d. Clause 3 of this Article on the number of houses allowed to be divided:

e/ Raising capital in the form of advanced payment for house purchase from subjects eligible to own houses in Vietnam under the Housing Law by signing with the latter contracts for future house purchase and sale.

2. In case investors of independent housing development projects (including also grade-II investors of projects on development of housing areas, new urban centers or houses for multiple use purposes) wish to raise capital for building houses, they may only raise capital by modes specified at Points a. c. d and e. Clause 1 of this Article.

3. When raising capital for building houses, an investor defined in Clause 1 or 2 of this Article must satisfy the following conditions:

a/ For the case specified at Point b, Clause 1 of this Article, the investor may sign a capital contribution or investment cooperation contract with a grade-II investor only after completing the ground clearance for and commencing the building of technical infrastructure works of the project. After completing technical infrastructure works corresponding to contents and schedule of the project, the grade-I investor may sign a contract for land use rights transfer to the grade-II investor.

In case the grade-II investor wishes to raise capital to build houses on a land area transferred from grade-I investor, it may sign a contract for raising capital only after signing the land use rights transfer contract with the grade-I investor, reaching an agreement that it may raise capital for building houses when satisfying all the conditions for raising capital as specified in this Clause. In case land use rights have not yet been transferred from the grade-1 investor to the grade-II investor under the land law. the capital raising must be approved in writing by the grade-I investor.

b/ For the case specified at Point c. Clause 1 of this Article, the investor may sign a capita! contribution or investment cooperation contract or memorandum only after having its housing development project approved, commenced the building of houses and notified such to the provincial-level Construction Department in the locality in which its housing development project is implemented under Point f of this Clause:

c/ For the case specified at Point d. Clause 1 of this Article, the investor may sign an investment cooperation contract only after having its housing project approved, completed the ground clearance, made a written record of the handover of the project’s boundary markers, and notified such to the provincial-level Construction Department in the locality in which its housing project is implemented under Point f of this Clause;

In case a party to business cooperation, which has received divided products being houses, wishes to sell or lease these houses, it may not directly sign house purchase and sale or lease contracts but the investor (the party having land use rights) shall directly sign contracts with purchasers or lessees when satisfying the conditions specified in this Clause. Incase a party to business cooperation has taken over houses and obtained certificates of ownership of houses divided to it, it may directly sign contracts for purchase and sale or lease of such houses under the Housing Law and this Decree;

d/ For the case of raising capital by the mode specified at Point c or d. Clause 1 of this Article in which a contract contains an agreement on division of products being houses, the investor may only divide not through a real estate trading floor to capital contributors a maximum 20% of the project’s total number of houses (total number of commercial houses for grade-I projects or independent housing development projects other than grade-II projects), but shall notify such to the provincial-level Construction Department in the locality in which the housing development project is implemented for certification under Clause 1. Article 60 of this Decree. The investor may sell or lease the remaining number of the project’s houses under Points t and f of this Clause;

e/ For the case of capital raising by the mode specified at Point e. Clause 1 of this Article, the investor may sign house purchase and sale contracts after having technical designs of these houses approved, completely built house foundations, completed procedures for house purchase and sale through a real estate trading floor under the law on real estate business and notified such to the provincial-level Construction Department in the locality in which the housing development project is implemented under Point f of this Clause.

The building of a house foundation (including those of houses for multiple use purposes) as specified at this Point shall be considered completed when the foundation framework is built completely (covering also base treatment work, if any) or to the lowest floor of the house and technically tested for takeover under the construction law;

f/ For the case- of capital raising by the mode specified at Point b. c or e. Clause 1 of this Article, the investor shall notify such in writing to the provincial-level Construction Department in the locality in which the housing development project is implemented at least 15 days before signing a capital raising contract.

Such a notice must clearly indicate the mode of capital raising and capital amount which needs to be raised. In case of capital raising by the mode specified at Point b, Clause 1 of this Article, the land area to be transferred and the name of the investor to be transferred land use rights must be indicated. In case of capital raising by the mode specified at Point c. Clause 1 of this Article, names and addresses of organizations and individuals that contribute capital or join investment cooperation must be indicated , and there is an agreement on division of products being houses, the number and type of houses to be divided and names and addresses of organizations and individuals entitled to divided houses must be indicated. In case of capital raising by the mode specified at Point c. Clause 1 of this Article, the number and type of houses (detached houses, villages or condominium apartments) and addresses of houses to be sold must be indicated. The investor may sign capital raising contracts or house purchase and sale contracts only when fully satisfying the conditions specified in this Article.

4. Investors of housing development projects shall use raised capital for the purpose of building houses under these projects but not for other purposes or for other housing development projects. In cases in which capital is raised not by the modes and without satisfying all the conditions specified in this Article, capital raising contracts shall be regarded legally invalid and capital raisers shall be handled under current regulations.

The Ministry of Construction shall detail the capital raising specified in this Article.

Article 10. Completion of construction of housing development projects

Upon completing construction, the investor of a housing development project shall:

1. Report on project results to the provincial-or district-level People’s Committee in the locality in which the project is implemented. For a housing development project subject to the Prime Minister’s investment approval under Clause 3. Article 7 of this Decree, the investor shall send an additional report to the Ministry of

2. Complete dossiers and documents to be archived under the Housing Law. this Decree and the construction law;

3. Conduct takeover test of works under Article 11 of this Decree;

4. Hand over technical and social infrastructure works to the local administration or the specialized management agency according to contents of the approved project or the written investment approval;

5. Make a finalization report under the financial law;

6. Carry out procedures for a competent agency to grant certificates of ownership of houses and construction works within the project area to their owners;

7. Coordinate with the local administration in solving administrative management problems in the project area:

8. Manage the operation of works not required to be handed over to the local administration or a specialized management agency.

Article 11. Takeover test of works in housing development projects

1. For a housing area development project, the investor shall:

a/ Organize a takeover test of the whole system of technical and social infrastructure works if it has built these works according to the contents of the approved project and satisfies the requirements under the construction law. For a housing area development project consisting of component projects, it shall organize takeover test of the technical infrastructure system and works of each component project;

b/ Carry out procedures to apply for a certificate of work quality standard conformity under the construction law;

c/ Provide project management services.

2. For an independent housing development project, the investor shall:

a/ Organize a takeover test of the whole system of technical infrastructure works, fire prevention and fighting equipment, wastewater and garbage treatment facilities of the project;

b/ Organize a takeover test of quality of houses and other architectural works under the construction law;

c/ Carry out procedures to apply for a certificate of work quality standard conformity under the construction law.

3. Dossiers of housing development projects and documents on takeover test and handover of works as specified in this Article must be kept at units managing the operation of the projects and provincial-level Construction Departments (if these projects are subject to approval or investment approval by provincial-level People’s Committees) or at district-level housing management agencies in localities in which these projects are implemented (if these projects are subject to approval or investment approval by district-level People’s Committees) for monitoring and examination.

Section 2. COMMERCIAL HOUSING DEVELOPMENT

Article 12. Investors of commercial housing development projects

1. Investors of commercial housing development projects (investors of housing area development projects and investors of independent housing development projects) include:

a/ Domestic enterprises established and operating under the Enterprise Law;

b/ Wholly foreign-owned enterprises, joint-venture enterprises; and enterprises of overseas Vietnamese conducting investment activities in Vietnam under the Investment Law;

c/ Cooperatives established and operating under the Cooperative Law.

2. Conditions for registration to act as investors of commercial housing development projects:

a/ Having obtained a real estate business registration or an investment certificate covering real estate investment and having sufficient legal capital as prescribed by Vietnam’s law;

b/ Contributing an amount of equity capital for project implementation which accounts for at least 15% of the project’s total investment, for projects occupying an area of under 20 hectares. or at least 20% of the project’s total investment, for projects occupying an area of 20 hectares or more.

Article 13. Selection of investors of commercial housing development projects

1. Investors of commercial housing development projects shall be selected in any of the following forms:

a/ Bidding for selection of investors of commercial housing development projects implemented in areas where ground clearance has not yet been carried out under Article 14 of this Decree;

b/ Auction of land-use rights under the land law;

c/ Appointment of investors in the following cases:

- Within the time limit specified in Clause 2. Article 14 of this Decree, there is only one investor who satisfies all conditions specified in Article 12 of this Decree registering to act as the investor of a commercial housing development project;

- An investor who has acquired lawful land use rights under the land law for a land plot suitable to housing development plans and satisfies all conditions specified in Article 12 of this Decree registers to act as the project investor;

- Cases specified in Clause 5, Article 73 of this Decree.

2. For cases in which the investor of a housing development project is selected through a non-bidding method specified at Point b or c. Clause 1 of this Article, the investor shall carry out procedures of application for investment approval and organize the formulation, appraisal and approval of the housing development project according to Article 7 of this Decree.

Article 14. Bidding for selection of investors of commercial housing development projects

1. Based on local housing development programs, provincial-level People’s Committees shall direct the publicization in websites of provincial-level People’s Committees and provincial-level Construction Departments of the following details which shall serve as grounds for investors to register to act as investors of commercial housing development projects:

a/ The ].:2.000-scale plans on construction of urban centers and rural residential quarters;

b/ The location, boundary and area of each land plot planned for commercial housing development in their localities:

c/ Land use conditions (land is allocated or leased, lease duration and land areas for resettlement; the table of prices of land in each area and investors’ financial obligations

according to regulations):

d/ Planning and architectural requirements. the number and types of houses, technical and social infrastructure systems and other architectural works within the project area; and project implementation schedules;

e/ The overall plan on compensation, ground clearance and resettlement (if any);

f/ Requirements on project management and operation after the construction is completed;

g/ Conditions for participation in bidding for selection of housing development project investors:

h/ The time for receiving bid dossiers.

2. Within 30 days after a provincial-level People’s Committee publicizes information under Clause 1 of this Article, if there are 2 or more investors who satisfy all conditions specified in Article 12 of this Decree filing written registrations for acting as the investor of a housing development project to the provincial-level Construction Department, the provincial-level Construction Department shall publicize on its website a list of investors, notify investors of relevant information for them to prepare hid dossiers and propose the provincial-level People’s Committee to organize bidding for selection of the project investor according to this Article.

3. Conditions for participation in bidding:

a/ Satisfying all conditions specified in Article 12 of this Decree:

b/ Having proposed in the bid dossier a total investment of the project which must not be lower than the project’s estimated investment slated in the bidding dossier (below referred to as the floor price);

c/Having made proposals on project contents, under Point b, Clause 2. Article 7 of this Decree;

d/ Being capable of raising funds and mobilizing other sources for the project implementation;

e/ Having a bid dossier as prescribed in Clause 4 of this Article;

f/ Having paid security for bidding participation equal to 3% of the floor price specified in the bidding dossier.

4. A bid dossier comprises the following documents:

a/ Papers evidencing the investor’s legal grounds, professional capabilities, experience, financial capabilities and satisfaction of other conditions prescribed in Clause 3 of this Article;

b/ The written explanation and diagrams expressing econo-technical solutions to fulfill requirements defined in Clause 1 of this Article: details of the investment approval document issued by a competent state agency, for investors falling in the cases specified in Clause II of this Article;

c/ The investor’s other capabilities and advantages (if any) when being assigned to act as the project investor.

5. Based on Clauses 1. 3 and 4 of this Article, the provincial-level Construction Department shall make and issue the bidding dossier, explicitly stating all requirements specified in Clause I of this Article, the project’s floor price and other relevant requirements.

Investors shall buy the bidding dossier, prepare and submit their bid dossiers, together with an amount of security for bidding participation, to the provincial level Construction Department of the locality where the housing development project will be implemented. The lime limit for receiving bid dossiers is 20 days after the expiration of the information publicization time limit prescribed in Clause 2 of this Article and stated in the bidding dossier; for cases specified at Point a. Clause 11 of this Article, the lime limit for receiving bid dossiers will be counted from the date of issuance of the investment approval document by a district-level People’s Committee.

After receiving bid dossiers, the provincial-level Construction Department shall propose the provincial-level People’s Committee to set up an expert team for selection of the project investor and promulgate specific regulations on bidding organization and issue working regulations of the expert team. The expert team shall elaborate evaluation criteria and a specific marking scale based on contents of the bidding dossier and requirements defined in Clause 1 of this Article to assess and give points to each bid dossier.

6. Conditions for organization of bidding for selection of the investor of a housing development project:

a/ There are 2 or more investors who satisfy all conditions prescribed in Clause 3 of this Article participating in the bidding;

b/ The l:2,000-scale construction plan has been approved;

c/ An overall plan on compensation, ground clearance and resettlement has been elaborated;

d/ A plan on bidding organization has been worked out.

7. Investors of commercial housing development projects will be selected through international bidding or domestic bidding. The method and process of organizing bidding for selection of investors of housing development projects will be the same as those applicable to bidding for selection of investors for implementation of other projects involving land use.

8. After obtaining bidding results, the expert team shall notify in writing these results to the provincial-level Construction Department for reporting to the provincial-level People’s Committee for consideration and issuance of a decision on the selection of the project investor. For projects falling under the investment approval competence of provincial-level People’s Committees, the provincial-level People’s Committee shall concurrently give investment approval in the investor-selecting decision. Projects falling beyond the investment approval competence of provincial-level People’s Committees shall comply with Clause 11 of this Article.

The time limit for organizing a bidding for selection of investors of housing development projects is 90 days after the provincial-level Construction Department receives bid dossiers.

9. Within 30 days after the issuance of a decision on the selection of the housing development project investor, the provincial- level Construction Department shall refund amounts paid as bidding participation security (o investors who have participated in bidding but are not selected to act as the project investor. For the investor who is selected, the security amount will be refunded within 10 days after the bid solicitor receives an amount paid by the investor as security for the project investment (equal to between 5% and 10% of the total investment proposed by the selected investor). For cases in which an investor violates bidding regulations issued by the provincial-level People’s Committee, the paid amount of bidding participation security will be remitted into the state budget.

10. Within 3 months after the issuance of a decision on the selection of the project investor, if the selected investor fails to comply with provisions of Article 7 of this Decree, the provincial-level People’s Committee shall cancel bidding results for re organization of bidding.

11. Projects falling beyond the investment approval competence of provincial-level People’s Committees comply with the following regulations:

a/ For projects falling under the investment approval competence of district-level People’s Committees, upon the expiration of the information publicization time limit defined in Clause 2 of this Article, the provincial level People’s Committee shall consult in writing the district-level People’s Committee. The time limit for the provincial level People’s Committee to send consultation documents and the district-level People’s Committee to issue an investment approval document is 30 days after the expiration of the information publicization time limit specified in Clause 2 of this Article.

After obtaining an investment approval document issued by the district-level People’s Committee, the provincial-level Construction Department shall receive bid dossiers and propose the provincial-level People’s Committee to set up an expert team for selection of the project investor to organize bidding under this Article; the time for receiving bid dossiers complies with Clause 5 of this Article and the time limit for bidding organization complies with Clause 8 of this Article:

b/ For projects falling under the investment approval competence of the Prime Minister, the provincial-level People’s Committee shall consult ministries defined in Clause 3. Article 7 of this Decree. The time limit for the provincial-level People’s Committee lo send consultation documents and ministries to give replies is 20 days after the expiration of the information publicization time limit specified in Clause 2 of this Article.

After obtaining opinions of concerned ministries, the provincial-level Construction Department shall receive bid dossiers within the time limit specified in Clause 5 of this Article. Within 10 days after the deadline for receipt of bid dossiers, the provincial-level People’s Committee shall make a report proposing the Prime Minister to approve investment in the housing development project, enclosed with opinions of concerned ministries, the list of investors participating in bidding and the 1:2,000-scale construction plan.

After obtaining the Prime Minister’s written approval, the provincial-level People’s Committee shall organize bidding under this Article and report bidding results to the Prime Minister.

12. The entity selected to act as the housing development project investor shall elaborate and submit the 1:500-scale detailed construction plan for appraisal and approval under Article 5 of this Decree, and formulate and submit the housing development project for appraisal and approval tinder Article 7 of this Decree in accordance with contents of the investment approval document issued by the competent authority.

Article 15. Rights of investors of commercial housing development projects

1. To request competent agencies to supply information for the implementation of commercial housing development projects.

2. To exercise land users’ rights provided by the land law. Grade-I investors may transfer land use rights with technical infrastructure facilities to grade-Il investors for housing investment in strict accordance with this Decree.

3. To select modes of project management.

4. To enjoy preferential policies provided by law.

To sell or lease houses and construction works within their projects, excluding infrastructure facilities which must be transferred under decisions of competent state agencies, in accordance with the Housing Law. this Decree and the law on real estate business, .

6. To exercise other rights specified by law.

Article 16. Obligations of investors of commercial housing development projects

1. To organize the formulation, appraisal and approval of housing development projects and construction of houses in accordance with the Housing Law, this Decree and relevant legal documents promulgated by competent state agencies; to implement projects in compliance with the approved or adjusted schedules and contents of their projects.

2. To publicize information related to housing development projects specified in Clause 3. Article 36 of the Housing Law after obtaining decisions approving projects.

3. To raise funds for house construction under Articles 9 and 60 of this Decree.

4. Foreign organizations and individuals that invest in the construction of houses for lease under their investment certificates issued by Vietnamese competent authorities and approved housing development projects may not sell these houses.

For cases in which grade-I investors transfer land use rights to grade-II investors, they may sign land use right transfer contracts only after completing the construction of technical infrastructure facilities in conformity with the approved contents and schedule of the projects.

5. For housing development projects implemented in cities, towns or new urban centers planned for development into cities or towns, investors may not transfer land use rights in the form of selling grounds without built houses to households and individuals but shall build houses for sale under this Decree. Other cases comply with the land law.

6. To reserve land with technical infrastructure in commercial housing and new urban center development projects for building social houses under Clause 2. Article 32 of this Decree.

7. To carry out procedures for competent state agencies to grant land use right certificates and certificates of house and land-attached asset ownership rights, for houses built for sale, and hand over papers related to the houses to purchasers within 50 days after the handover of (he houses, unless purchasers wish to carry out procedures by themselves.

For cases in which investors are permitted to build houses on land leased by the State for sale to domestic organizations and individuals and overseas Vietnamese who are eligible for owning homes in Vietnam, they shall carry out procedures for the recognition of the purchasers’ rights to permanently use land by competent state agencies and pay land use levy to the State under law.

8. To provide house warranty under Article 74 of the Housing Law and this Decree.

9. To conduct maintenance of leased houses under their ownership (if any) and technical and social infrastructure facilities within the project area not yet transferred or not subject to transfer under law.

10. To carry out house use and technical infrastructure management services and other relevant services within the project area under law; to manage facilities already put into operation according to their assigned tasks or pending their transfer to public-utility service organizations or specialized management organizations.

11. To manage the order and security in project areas already put into operation before the transfer of the administrative management work to local administrations.

12. To assume the prime responsibility for setting up administration boards of condominiums under the Housing Law and regulations on the use management of condominiums issued by the Construction Ministry.

13. To comply with Articles 10 and 11 of this Decree.

14. To fulfill financial obligations and other obligations prescribed in this Decree and relevant laws.

Section 3. DEVELOPMENT AND MANAGEMENT OE OFFICIAL-DUTY HOUSES

Article 17. Development of official-duty houses

1. Projects on development of official duty houses may be of any of the following 3 types:

a/ Projects on development of official-duty houses for lease to local officials under investment decisions of provincial-level People’s Committees:

b/ Projects on development of official-duty houses for lease to central officials under investment decisions of the Prime Minister;

c/ Projects on development of official-duty houses for lease to officials managed by the Ministry of Public Security or the Ministry of National Defense under investment decisions of the Ministry of Public Security or the Ministry of National Defense after obtaining the Prime Minister’s approval.

2. Selection of investors of projects on development of official-duly houses:

a/ Provincial-level People’s Committees shall decide to select investors of projects defined at Point a. Clause 1 of this Article;

b/ The Prime Minister shall decide to select investors of projects defined at Point b. Clause 1 of this Article;

c/ The Ministry of Public Security or the Ministry of National Defense shall decide to select projects defined at Point c. Clause 1 of this Article.

Article 18. Formulation, appraisal and approval of projects on development of official-duty houses

1. Projects on development of official-duty houses will be formulated according to Article 6 of this Decree.

2. For projects implemented under investment decisions of provincial-level People’s Committees, provincial-level Construction Departments shall assume the prime responsibility for, and coordinate with concerned local agencies in, appraising projects before submitting them to chairpersons of provincial-level People’s Committees for approval. If provincial level People’s Committee chairpersons authorize district-level People’s Committee chairpersons to issue investment decisions (for projects capitalized at under VND 30 billion). Clause 1, Article 7 of this Decree shall apply.

3. For projects implemented under investment decisions of the Prime Minister, the Ministry of Construction shall assume the prime responsibility for, and coordinate with concerned ministries and branches in, appraising projects before submitting them to the Prime Minister for approval.

4. For projects implemented under investment decisions of Ministry of Public Security or the Ministry of National Defense, the Ministry of Public Security or the Ministry of National Defense shall consult the Ministry of Construction, the Ministry of Natural Resources and Environment, the Ministry of Finance and the Ministry of Planning and Investment before appraising and approving projects.

5. The approval of projects on development of official-duty houses complies with Point c. Clause 1. Article 7 of this Decree.

6. For remote, deep-lying, extreme difficulty-hit and border areas and islands, investment in official-duty houses may be incorporated into projects on the building of working offices, schools or health establishments and official-duty houses may be built within (he areas of these works but a fence must be built on the boundary between official-duty houses and working places.

Article 19. Investment capital for the building of official-duty houses

1. For official duty houses which is built for lease to local officials, investment capital shall be allocated from local budgets.

Based on local demands for official-duty houses, the provincial-level People’s Committee-shall elaborate a capital plan for submission to the provincial level People’s Council for decision. Localities eligible for annual assistance from the central budget which meet with difficulty in raising funds for the building of official-duty houses shall report such to the Ministry of Construction for the latter to coordinate with the Ministry of Finance and the Ministry of Planning and Investment in submitting their cases to the Prime Minister for decision.

2. For official-duty houses which is built for lease to central officials (including houses of the Ministry of National Defense and the Ministry of Public Security), investment capital shall be allocated from the central budget.

Agencies assigned to build official-duty houses for lease to central officials shall notify in writing their capital needs for building of official-duty houses to the Ministry of Construction for the latter to assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment and the Ministry of Finance in. elaborating capital plans for submission to the Prime Minister for decision.

3. Investment capital for building of official-duty houses shall be allocated from the following sources:

a/ The central budget under the Prime Minister’s decisions: local budgets under decisions of provincial-level People’s Councils;

b/ Deductions from proceeds from the sale of houses and transfer of land use- rights, with regard to houses and land areas which are planned for building of working offices but no longer used for these purposes under the Prime Minister’s decisions.

Article 20. Land for building official-duty houses

1. When elaborating and approving land use master plans and mater plans on construction of urban centers and rural residential quarters. People’s Committees at various levels shall determine land areas for building official-duty houses according to Clause 1. Article 17 of this Decree.

2. Agencies assigned to build official-duty houses for lease to central officials shall notify in writing the demand for official-duty houses to the Ministry of Construction for (he latter to coordinate with provincial-level People’s Committees in determining land areas for the building of official-duty houses for inclusion into local land use master plans and plans.

Based on the Ministry of Construction’s request, provincial-level People’s Committees shall elaborate land use master plans and plans and determine land areas for the building of official-duty houses according to this Decree.

3. Land areas allocated for implementation of projects on development of official-duty houses are exempted from land use levy.

Article 21. Types and standard areas of official-duty houses

1. The standard area, quality and category of an official-duty house leased to an eligible person must be conformable with his/her entitlements so as to create conditions for he/she to fulfill his/ her tasks.

2. Cadres and civil servants holding leading positions such as Political Bureau member, Deputy Prime Minister or equivalent or higher positions who are eligible to lease official-duty houses will be entitled to lease villas. Other subjects will be entitled to lease condominium apartments or low-story houses (detached houses or one-story houses with many rooms) in areas where condominiums are unavailable.

3. Official-duty houses include villas, condominiums, detached houses and one-story houses with many rooms. The standard area of official-duty houses leased to each subject shall be provided and adjusted by the Prime Minister at the proposal of the Ministry of Construction based on national socio-economic development in each period.

4. The Ministry of Construction shall guide in detail the model designs and typical designs of official-duty houses of different types defined in this Article.

Article 22. Investment in the building of official-duty houses

1. The designing, cost estimation and selection of design consultants and constructors of official-duty houses must comply with the construction law and the law on the management and use of state budget capital.

2. Design consultants shall apply regulations on design standards and construction technology solutions and use proper materials so as to ensure construction schedule and quality and reduce construction costs.

Article 23. Subjects entitled to lease official-duty houses

1. Leaders of the Party and the State who are entitled to live in official-duty houses during their terms of office.

2. Cadres and civil servants of Party and State agencies and socio-political organizations who are shifted or transferred from local agencies to central agencies, from central agencies to local agencies or from one locality to another in a definite period of time under decisions of competent authorities may lease official-duty houses during their periods of service, if they satisfy all conditions specified in Article 24 of this Decree.

3. Officers and professional army men in people’s armed forces who are mobilized for defense or security purposes.

4. Teachers who are assigned to work in deep-lying, remote, extreme difficulty-hit, border and island communes.

5. Physicians and health workers who are assigned to work in deep-lying, remote, extreme difficulty-hit, border and island communes or assigned to work at hospitals or health centers of lower-levels for a definite period of time.

Article 24. Conditions for lease of official-duty houses

1. Subjects defined in Clause 1, Article 23 of this Decree shall be arranged official-duty houses in accordance with security requirements.

2. Subjects defined in Clauses 2, 3, 4 and 5. Article 23 of this Decree who are entitled to lease official-duty houses must be those who have no house under their ownership or have not yet been entitled to purchase, lease or lease-purchase of social houses in localities where they move to work.

Article 25. Arrangement and allocation of official-duty houses and signing official-duty house lease contracts

1. Subjects defined in Clause 1. Article 23 of this Decree shall be arranged to lease official- duty houses under decisions of competent authorities. The Ministry of National Defense and the Ministry of Public Security shall decide on subjects under their management who are entitled to lease official-duty houses.

2. Subjects entitled to lease official-duty houses defined in Clause 2, 3, 4 and 5, Article 23 of this Decree shall file applications for lease of official-duty houses with certification by their managing agencies and organizations.

3. Agencies and organizations where persons who wish to lease official-duty houses work shall gather applications for lease of official-duty houses of subjects defined in Article 2 of this Article and send a document to units assigned to manage and operate official-duty houses.

4. On the basis of decisions on the arrangement of official-duty houses issued by competent authorities, the Ministry of Public Security or the Ministry of National Defense, for cases specified in Clause 1 of this Article; or applications of persons who wish to lease houses and the written request of agencies or organizations directly managing applicants, for cases specified in Clause 3 of this Article, units assigned to manage and operate official-duty houses shall sign lease contracts with house lessees or agencies directly managing house lessees.

Article 26. Official-duty house rent rates

1. Rent rates of official-duty houses shall be determined on the following principles:

a/ Necessary expenses for the management, operation and maintenance of houses in the course of house use (excluding expenses for depreciation of construction investment capital) shall be fully calculated;

b/ Land use levy shall not be calculated;

c/ Rent rates of official-duty houses shall be adjusted once every five years.

2. Based on the principles specified in Clause 1 of this Article and the method of determining rent rates of official-duty houses guided by the Ministry of Construction, provincial-level Construction Departments shall formulate the bracket of official-duty house rent rates for submission to provincial-level People’s Committees for promulgation and uniform application in localities. On the basis of rent rate brackets promulgated by provincial-level People’s Committees, official-duty house managing agencies shall propose investment deciding persons to approve the rent rates of official-duty houses under their management.

Article 27. Payment of official-duty house rents

1. Persons entitled to lease official-duty houses shall pay rents under signed lease contracts and in accordance with the time of salary payment by the State as prescribed. For cases in which a lessee fails to pay rent for 3 consecutive months, the official-duly house managing unit may request the agency directly managing the lessee to deduct the lessee’s salaries for rent payment. The agency directly managing the lessee shall deduct the lessee’s salaries to pay rent to the official duty house managing unit.

2. For cases in which official-duty house managing units sign lease contracts with agencies directly managing official-duty house lessees, these agencies shall deduct salaries of lessees to make payment to official-duty house managing units.

Article 28. Use management of official-duty houses

1. Official duty houses may only be used for lease. The management, maintenance and renovation of official-duty houses comply with regulations on the management, maintenance and renovation of houses under the state ownership.

2. Persons who have decided on investment in official-duty house projects shall select a unit to manage official-duty houses after the construction completes.

3. The management of official-duty houses arc entitled to mechanisms applicable to public-utility services as guided by the Ministry of Finance.

The Ministry of Construction shall provide for and guide the management and use of official-duty houses for uniform application nationwide.

Article 29. Rights and obligations of official-duty house lessees

1. To use houses for proper purposes and preserve houses and attached assets; and to refrain from renovating or repairing official-duty houses at their own will.

2.To refrain from transforming or sub leasing houses in any form, and to return houses to official-duty ho use managing units within 3 months after the time when they become ineligible for lease of official-duty houses or no longer wish to lease these houses.

3. To pay monthly rent according to Article 27 of this Decree. Charges for other services for daily-life activities shall be paid according to law.

4. To use official-duty houses for themselves and their family members.

5. For those who arc eligible to lease official-duty houses but there is no official-duty house for lease to them, their managing agencies or organizations shall lease other houses of a type and standard areas equivalent to their entitlements and deduct their salaries to pay rent.

If the house rent is higher than the official-duty house rent rate payable by the lessee into the state budget, the difference shall be paid by the central budget, for central officials, or by local budgets, for local officials.

6. When a lessee is required to return official-duty houses under Point a. Clause 6. Article 30 of this Decree but he/she has no house under his/ her ownership or is not yet entitled to purchase, lease or lease-purchase social houses at his/her place of residence, the agency or organization where this person is working shall coordinate with the People’s Committee of the province or centrally run city where this person resides in creating conditions for him/her to purchase, lease or lease-purchase a social house or providing housing support in other forms.

Article 30. Responsibilities of official-duty house managing units

1. To lease houses to proper subjects and under the conditions specified in Articles 23 and 24 of this Decree.

2. To gather and keep dossiers of official-duty houses.

3. To coordinate with local functional agencies in assuring security and order for official-duty houses. Functional agencies in charge of security and order shall collaborate with official-duty house managing units when requested.

4. To maintain and manage official-duty houses under the Housing Law. this Decree and the construction law.

5. To collect house rent from official-duty house lessees.

6. To recover official-duty houses in the following cases:

a/ The lessee becomes ineligible for lease of official-duly houses:

b/ The lessee moves to another locality:

c/ The lessee wishes to return official duty houses:

d/ The lessee dies;

e/ The lessee uses official-duty houses for improper purposes or fails to fulfill obligations of official-duty house lessees.

Section 4. DEVELOPMENT AND MANAGEMENT OF SOCIAL HOUSES

Article 31. Development of social houses

1. Social houses are built for purchase, lease or lease-purchase by subjects defined in Article 37 of this Decree. Social houses are divided into the following 2 types:

a/ Social houses which arc built by the State with state budget capital for lease;

b/ Social houses which are built with non-state capital for sale, lease or lease-purchase under this Decree.

2. Social houses defined in Clause 1 of this Article must be closely managed. Units assigned to manage and operate social houses shall sell, lease and offer lease-purchase of social houses to proper subjects under conditions prescribed in this Decree and may not change the use purposes of social houses.

3. Responsibilities of the Ministry of Construction for developing social houses:

a/ Based on the national housing development orientations and strategies and practical situations, to formulate and submit to the Prime Minister for approval national target programs on housing support and social housing development for those who need state housing supports;

b/ To direct the implementation of national target programs on housing support and social housing development mentioned at Point a of this Clause;

c/ To guide design standards: eligible subjects, conditions and process of selection of subjects eligible for purchase, lease or lease purchase of social houses; methods of determining sale prices, rent rates and lease-purchase prices of social houses and management of social houses prescribed in this Section.

4. Responsibilities of provincial-level People’s Committees for developing social houses;

a/ To approve and publicize detailed construction plans, housing development master plans, land areas and specific locations for social housing development in association with projects on development of commercial houses, new urban centers, economic zones, industrial parks, export-processing zones and hi-tech parks:

b/ To elaborate 5-ycar and annual social housing development plans and programs, specifying types of houses, demands for housing spaces and structure of apartments for sale, lease or lease purchase, specific balance of investment capital in accordance with Article 52 of the Housing Law; to adopt mechanisms to encourage and attract organizations and individuals of all economic sectors to invest in social housing development;

c/ To approve according to their competence or authorize district-level People’s Committees to approve social housing development projects funded with local budges; to approve investment in social housing development projects funded with non-state budget sources and direct and inspect the implementation of these projects.

Article 32. Land for social housing development

1. When elaborating and approving land use master plans and master plans on construction of urban centers, rural residential quarters, economic zones, industrial parks, export-processing zones and hi-tech parks in their localities, provincial-level People’s Committees or district-level People’s Committees shall determine and allocate land areas for building social houses.

2. For localities with high demands for social houses, based on their practical conditions, provincial-level People’s Committees shall consider and decide to request investors of commercial housing development projects occupying 10 hectares of land or more to set aside 20% of land areas with technical infrastructure facilities for building social houses.

For cases in which investors transfer land areas specified in this Clause to local administrations for building social houses, expenses for compensation for ground clearance and expenses for investment in technical infrastructure construction with regard to land areas for building social houses shall be refunded to investors or cleared against their financial obligations toward the stale budget.

3. For land areas for building social houses for workers in industrial parks, export-processing zones, economic zones and hi-tech parks (below referred to as industrial parks), the following regulations shall apply:

a/ For industrial parks which are under construction, local industrial park management boards or industrial park infrastructure-dealing enterprises shall organize ground clearance and invest in the construction of technical infrastructure for workers" dormitories and transfer them to project investors for building workers’ dormitories. Expenses for compensation, ground clearance and investment in infrastructure facilities for workers" dormitories shall be included in rents for industrial parks’ land;

b/ For industrial parks which have been put into operation, provincial-level People’s Committees shall revise and supplement their zoning plans, recover land and make compensation for ground clearance for land allocation to infrastructure-dealing enterprises or real estate enterprises for building houses for lease to workers. Expenses for ground clearance-shall be deducted from land use levy or land rent amounts retained by local administrations.

Article 33. Investors of social housing development projects

1. For social housing development projects funded with the state budget, the investment deciders shall select investors.

2. For social housing development projects funded with non-state budget sources, investors shall be selected as follows:

a/ For cases of building social houses under projects on development of commercial houses or new urban centers prescribed in Clause 2. Article 32 of this Decree, investors of projects on development of commercial houses or new urban centers shall concurrently act as investors of social housing development projects. If investors of projects on development of commercial houses or new urban centers refuse to act as investors of social housing development projects, provincial-level People’s Committees shall assign another investor to invest in the building of social houses for sale, lease or lease-purchase:

b/ For cases in which investors that have land under their lawful ownership in conformity with housing construction plans register to act as investors, they will be selected to act as investors of social housing development projects.

c/ For cases in which investors are allocated land by the State for building social houses, these investors shall act as investors of social housing development projects.

Article 34. Incentives for investors of social housing development projects

Investors of social housing development projects funded with non-state budget sources are entitled to the following incentives:

1. Exemption from land use levy and land rent for land areas within areas of approved social

housing development projects:

2. Preferential value-added tax rates under the law on value-added tax:

3. Exemption from, reduction of, and incentives regarding enterprise income tax under the law on enterprise income tax:

4. Investment credit supports from such sources as preferential credit loans or interest rate subsidies under regulations: loans from housing development funds for housing saving funds (if any); and whole or partial loan interest support from provincial-level People’s Committees;

5. Whole or partial support funds for building technical infrastructure under social housing development projects;

6. Free-of-charge provision of model designs and typical designs of houses and scientific and technical advances on construction and installation by the Ministry of Construction so as to reduce construction costs: appointment of contractors for consultancy, construction and installation or equipment procurement contracts:

7. Enterprises that invest in the building of houses for lease to industrial park workers without collection of house rent or with house rent not exceeding the rent rates of social houses prescribed by provincial level People’s Committees and enterprises that rent houses for their workers, expenses for house construction or rent shall be calculated as reasonable expenses included in production costs upon calculating enterprise income tax.

The Ministry of Finance shall guide according to its competence or propose competent agencies to provide for value-added tax and enterprise income tax exemption and reduction specified in Clauses 2 and 3 of this Article.

Article 35. Formulation, appraisal and approval of social housing development projects

1. For housing development projects funded with the state budget, units assigned to act as project investors shall formulate and submit projects to provincial- or district-level People’s Committees for appraisal and approval under Article 7 of this Decree. For cases in which houses are built with the central budget. Point b. Clause 1, Article 7 of this Decree shall apply.

2. For housing development projects funded with non-state budget sources, investors shall propose provincial-or district-level People’s Committees to issue investment approval documents according to Article 7 of this Decree. After obtaining the investment approval document, investors shall organize the project formulation, appraisal and approval under this Decree and the construction law.

Social housing development projects of 2,500 apartments or more must comply with Clause 3. Article 7 of this Decree.

Article 36. Social house design standards

1. Design standards for social houses are specified as follows:

a/ For social houses in urban centers which are built with the state budget, design standards comply with Clauses 1 and 2, Article 47 of the Housing Law. In other areas, it is permitted to build detached houses or one-story houses with many rooms;

b/ For houses built with non-state budget sources for industrial park workers and laborers and low-income earners in urban areas, the maximum floor area of each apartment must not exceed 70 m2. while the number of stories is not restricted. Investors may increase construction density and land use coefficient by 1.5 times over that prescribed in current construction regulations in conformity with plans approved competent agencies.

2. The selection of design consultants and constructors for social houses must comply with law.

3. Design consultants shall base themselves on construction technical regulations and standards and designs standards applicable to social houses to design houses, ensuring quality and reducing construction costs while model designs and typical designs are encouraged to be applied.

Article 37. Subjects eligible for purchase, lease or lease-purchase of social houses

1. Cadres, civil servants and public employees defined by the law on cadres, civil servants and public employees.

2. Officers and professional army men in people’s armed forces who are salaried by the slate budget.

3. Industrial park workers.

4. Persons who have returned official-duty houses under Point a. Clause 3, Article 30 of this Decree.

5. Students of public and people-founded universities, colleges, professional secondary schools, vocational colleges and vocational intermediate schools entitled to lease houses during their study period.

6. Low-income earners in urban centers as specified by provincial-level People’s Committees.

Article 38. Conditions for purchase, lease or lease-purchase of social houses

1. Persons entitled to lease social houses built by the State with the state budget must satisfy the following conditions:

a/ Having no house under their ownership and having not yet been allowed to purchase, lease or lease-purchase social houses or received housing supports from the State in any form or having houses under their ownership with an average of below 5 m2 of floor area/person or having only makeshift or ragged houses:

b/ Earning a low monthly household income as prescribed by provincial-level People’s Committees, except for the cases prescribed in Clause 5, Article 37 of this Decree.

2. To be eligible to purchase, lease or lease-purchase social houses built with non-state budget funds, entities must satisfy the following conditions:

a/ The conditions specified at Point a. Clause 1 of this Article;

b/ Having a monthly household income lower than the local average income level prescribed by the provincial-level People’s Committee;

c/ Having a household registration book evidencing permanent residence or long-term temporary residence in the locality in which the social housing development project is implemented, in case of purchase or lease purchase of social houses;

d/ Being capable of making the first-time payment equal to 20% of the value of the house to be lease-purchased, in addition to the conditions specified at Points a. b and c of this Clause, in case of lease-purchase of social houses.

3. Pursuant to this Decree, the Construction Ministry’s guidance and local practical conditions, provincial-level People’s Committees shall determine average and low income levels and conditions for purchase, lease or lease-purchase of social houses in their localities in each period, and publish them in local mass media and on websites of provincial-level People’s Committees and Construction Departments.

Article 39. Sale, lease or lease-purchase prices of social houses

1. The lease price of a social house built with slate budget funds shall be determined on the following principles:

a/ All expenses arc included to ensure recovery of construction investment capital and maintenance, management and operation of the social house;

b/ Provincial-level People’s Committees shall issue a bracket of lease prices of social houses for application in their localities.

2. The sale, lease or lease-purchase price of a social house built with non-state budget funds shall be determined on the following principles:

a/ The sale price of a social house built by a project investor must cover all expenses to ensure recovery of construction investment capital, loan interest (if any) and minimum profit under regulations. State-granted incentives specified in Article 34 of this Decree must not be included in the sale price. In case of sale on deferred or installment payment, the purchaser shall make the first-time payment not exceeding 20% of the price of the house, unless otherwise agreed by the involved parties. The minimum duration for purchase of a house on deferred or installment payment is 10 years after a house purchase and sale contract is signed;

b/ The lease or lease-purchase price of a social house built by a project investor must cover all expenses to ensure recovery of construction investment capital, loan interest (if any), expenses for maintenance, management and operation of the house, and profits under regulations. State-granted incentives must not be included in the lease or lease-purchase price. The minimum duration for recovery of capital for a house on lease is 20 years after a house lease contract is signed.

In case of lease-purchase of a house, the lease-purchaser shall make the first-time payment equal to 20% of the value of such house. The minimum duration for lease-purchase of a house is 10 years after a house lease-purchase contract is signed;

c/ Provincial-level People’s Committees shall appraise sale, lease and lease-purchase prices of social houses built with non-state budget funds in their localities.

Article 40. Use management of social houses

1. For social houses built with state budget funds, investment deciders shall select units to manage the operation of these houses. If 2 or more units register to manage the operation of these houses, they shall be selected through bidding.

2. For social houses built with non-state budget funds, investors shall manage the use and operation of" these houses.

3. Social house operation management services are subject to mechanisms like public-utility services under the Finance Ministry’s guidance.

4. Units managing the operation of social houses may provide other services within these houses to collect charges for offsetting operation management and maintenance expenses and reducing house rents.

5. Lessees or lease-purchasers of social houses may not transfer these houses in any form during the lease or lease-purchase period. Purchasers or lease purchasers of social houses may sell or lease these houses only after having paid the whole money amount to investors and obtained house ownership certificates, after at least 10 years from the time a house purchase and sale or lease-purchase contract is signed.

If the purchaser of a social house wishes to sell it before a 10-year time, he/she may sell it only to the State, the investor or an entity eligible to buy social houses under localities’ regulations at a price not higher than the price of a social house of the same type at the time of sale. If the house purchase and sale violates this Clause, the signed purchase and sale contract will be invalid and the violation shall be handled under Clause 4. Article 58 of this Decree.

Section 5. CONSTRUCTION OF DETACHED HOUSES BY HOUSEHOLDS AND INDIVIDUAL

Article 41. Requirements on the construction of detached houses by households and individuals

1. Households and individuals may only build houses on land areas with land use right papers granted under the land law on which construction is not banned under the construction law.

2. Before building a detached house, a household or an individual shall carry out procedures to obtain a construction license from a competent agency, unless such license is exempt under the construction law.

3. Agencies competent to grant house construction licenses shall base themselves on construction standards and regulations and 1:500-scale detailed construction plans or plans on rural residential quarters in areas with approved plans to grant house construction licenses to households and individuals within the time limit prescribed by the construction law.

Article 42. Survey, designing and construction of detached houses by households and individuals

1. The survey and designing of detached houses by households and individuals must comply with the construction law. Detached houses in urban areas each with a total floor area of 250 m2 or more or with 3 or more stories (including the basement) must be designed by capable construction designing activity or construction designing practice organizations or individuals.

For detached houses in urban areas each with a total floor area of 250 m2 or more or with 3 or more stories (including the basement), households and individuals shall hire capable contractors to build them under the construction law.

Households and individuals shall build houses according to designs and granted construction licenses, observe the construction law during construction and take responsibility for the quality of houses.

The construction of houses must ensure safety for people and assets; if causing damage to others, violators shall pay compensation under law.

Article 43. Quality management of detached houses of households and individuals

1. The construction of detached houses in urban areas by households and individuals must ensure requirements of connection to common technical infrastructure systems in the areas.

2. Households and individuals that build detached houses in urban areas each with a total floor area of 1.000 m2 or more or with 6 or more stories (including the basement) shall, before putting such houses into use, obtain force-bearing safety certificates from functional bodies under the construction law.

3. In case a household or an individual builds a house in an urban area with 2 or more stories, each story having 2 or more self-contained apartments (with separate living rooms, kitchens and toilets), each apartment must have a minimum floor area of 30 nr and comply with Article 70 of the Housing Law regarding condominiums.

4. Ownership certificates shall not be granted by the Slate for houses specified in Clause 2 of this Article that have no force-bearing safety certificates granted by functional bodies; houses with many apartments that fail to satisfy the conditions specified in Clause 3 of this Article; or houses that have no construction licenses as required.

5. Households and individuals that have houses which fully satisfy the conditions specified in Clause 3 of this Article may. upon their request, obtain ownership certificates granted by competent state agencies for each apartment within the houses. Only after obtaining ownership certificates can they sell or lease these apartments. Upon selling such apartments, households and individuals shall carry out procedures to transfer land use rights to purchasers in the form of common use land.

6. The use management of houses with many owners or users complies with regulations on use management of urban condominiums.

Chapter III

OWNERSHIP AND USE MANAGEMENT OF HOUSES

Section 1. GENERAL PROVISIONS

Article 44. Lawful establishment of houses A house may be lawfully established through:

1. Building under the Housing Law, this Decree and the construction law;

2. Purchase, donation, exchange or inheritance under the Housing Law, this Decree, the law on real estate business and the civil law;

3. Other forms provided for by law.

Article 45. Recognition of house ownership

1. Organizations and individuals eligible to own houses in Vietnam under the Housing Law and possessing papers evidencing the lawful establishment of houses under Article 44 of this Decree may have ownership of such houses recognized by the State without having to satisfy the conditions on household registration books evidencing permanent residence or on business registration in localities where exist the houses, except the case specified at Point c. Clause 2, Article 38 of this Decree.

In case households and individuals own houses before the effective date of this Decree through contracts to purchase and sell houses to be formed in the future under housing development projects, their ownership of these houses shall be recognized under the Construction Ministry’s guidance.

2. Competent state agencies shall recognize ownership of houses through granting land use right certificates or house and land-attached asset ownership certificates to house owners under law.

3. Competent state agencies shall, pursuant to regulations on grant of land use right certificates or house and land-attached asset ownership certificates and this Decree, grant ownership certificates for houses to their owners. These certificates will not be granted for houses which fail to fully satisfy the conditions for having their ownership recognized under the Housing Law and this Decree.

Article 46. House warranty

1. Within the house warranty duration specified in Article 74 of the Housing Law, sellers shall provide warranty for houses, unless these houses are damaged by natural disasters, enemy sabotage or users.

2. Warranty for a house (including houses with multiple use purposes) covers repair and remedying of damages in the house’s main structure (beam, column, floor, ceiling, roof, wall, and tiled and. plastered parts), or equipment installed in the house, such as door systems, fuel supply systems, daily-life and lighting electricity supply lines, daily-life water supply and wastewater drainage systems: and remedies in case of slant, subsidence or settlement of the house. Sellers shall provide warranty for other equipment installed to houses within the time limit prescribed by manufacturers of such equipment.

3. In case organizations or individuals that build or sell houses refuse to perform the warranty obligation under Article 74 of the Housing Law and this Article, house owners may initiate lawsuits at people’s courts. If causing damage to others, violators shall pay compensation or be examined for penal liability under law.

Article 47. House maintenance

1. Owners of houses shall maintain their houses under the Housing Law and relevant laws, unless otherwise agreed by owners and users. In case the owner of a house is unidentifiable, the current user of such house shall maintain it.

2. For a house with many owners, these owners shall maintain parts under private ownership and agree to contribute funds for maintaining areas under common ownership. If no agreement can be reached, expenses for maintaining areas under common ownership shall he divided in proportion to the area under each owner’s private ownership.

The contribution of funds for the maintenance of condominiums complies with Article 51 of this Decree.

3. Contents and process of maintenance and management of house maintenance dossiers comply with the law on maintenance of construction works.

Article 48. House renovation

1. Owners of houses may renovate their houses and shall ensure safety for humans and assets, keep clean the surrounding environment and comply with the construction law.

2. In case construction licenses are required for the renovation of houses, owners may renovate their houses only after obtaining such licenses.

3. The renovation of houses under common ownership must be approved in writing by owners. Owners shall contribute funds for renovating areas under common ownership.

The renovation of old condominiums complies with Article 52 of this Decree.

Section 2. USE MANAGEMENT OF CONDOMINIUMS

Article 49. Areas under private ownership and areas under common ownership within condominiums with many owners

1. Areas under private ownership and equipment for private use within a condominium with many owners include:

a/ The area inside an apartment (including balcony and loggia attached to such apartment) of the apartment owner: other areas within a condominium sold by the investor to each apartment owner or to other organizations or individuals;

b/ The area under the investor’s private ownership (the investor retains and neither sells such area nor allocates the value of such area into the price of apartments sold to apartment owners),

c/ Equipment for private use within an apartment or within other areas under private ownership of the apartment owner or other owners.

Owners of apartments or other areas within condominiums specified at Points a and b of this Clause are collectively referred to as condominium owners.

2. Parts under common ownership of a condominium with many owners, including areas and equipment for the condominiums common use. are stipulated as follows:

a/ The area under common ownership of the condominium owners includes space, corridors, staircases, lifts, terrace, frames, columns, force-bearing walls, surrounding walls, apartment-dividing walls, floor, roof, emergency exit, septic tanks, walking paths, playing grounds and other parts not under private ownership of the condominium owners;

b/ Other areas not under private ownership of the condominium owners as specified in Clause 1 of this Article;

c/ Places for vehicles (bicycles, vehicles for the disabled and motorbikes) shall be built according to construction regulations and may be arranged in the basement, ground floor or another area inside or outside the condominium. Car parks shall be built according to construction regulations but decided by the investor to be under common or private ownership of the condominium owners under Clause 1 of this Article;

d/ Equipment for the condominiums common use as specified in Clause 3. Article 70 of the Housing Law.

Areas under common ownership specified in this Clause are for common use by condominium owners under the Housing Law. this Decree and regulations on use management of condominiums.

3. Condominium parts under private ownership and parts under common ownership specified in this Article must be indicated in contracts on purchase and sale of condominium apartments.

Article 50. Operation management of condominiums

1. A condominium with many owners must have a management board elected by condominium owners and users under Article 71 of the Housing Law and regulations on use management of condominiums. The investor shall make preparations for forming a condominium management board under the Housing Law.

2. The condominium management board has the rights and responsibilities defined in Article 72 of the Housing Law and regulations on use management of condominiums. For condominiums that are social houses, the powers and responsibilities of the condominium management board comply with the Construction Ministry’s guidance.

3. The operation of condominiums shall be managed by enterprises capable of managing the operation of condominiums.

4. Condominium operation management services are eligible for mechanisms like public-utility services under the Finance Ministry’s guidance.

5. Condominium use service charges, including charges for car-keeping, must not exceed service charge levels prescribed by provincial-level People’s Committees, unless otherwise agreed by the involved parties.

6. For a condominium with the sole owner, this owner shall him/her/itself organize the operation management of such condominium.

The Ministry of Construction shall issue regulations on use management of condominiums for uniform application nationwide.

Article 51. Funds for maintenance of parts under common ownership of condominiums with many owners

1. Funds for the maintenance of parts under common ownership of a condominium with many owners are specified as follows:

a/ In case the investor signs an apartment sale contract on or after the effective date of the Housing Law, he/she/it shall pay:

- 2% of the house sales, for the house area on sale, which shall be included in the money amount from the sale of the apartment or other areas to be paid by the purchaser and must be indicated in the house purchase and sale contract;

- 2% of the value of the house area which the investor does not sell (excluding the area for common use), which shall be calculated based on the highest sale price of the apartment of such condominium.

b/ The amounts specified at Point a of this Clause shall be deducted before tax (the State does not collect tax on these amounts) and deposited at commercial banks and managed by condominium management boards and used for the maintenance of parts under common ownership under regulations on use management of condominiums;

c/ In case the investor signed an apartment sale contract before the effective date of the Housing Law but did not yet collect 2% of the sales, the condominium owners shall contribute funds for maintaining parts under common ownership. These funds may be collected only when maintenance requirements arise and shall be determined for each specific maintenance job.

2. If the maintenance funds specified at Points a and b. Clause 1 of this Article are insufficient for the maintenance of parts under common ownership, condominium owners shall additionally contribute funds in proportion to the area under private ownership of each of them. When a condominium is to be dismantled while the maintenance funds specified in Clause 1 of this Article have not been used up, the unused funds may be used to support resettlement for rebuilding the condominium or put into the condominium maintenance fund after the condominium is rebuilt.

Article 52. Renovation and dismantlement of condominiums

1. When an old condominium is seriously damaged or degraded and in danger of collapse as concluded by a competent agency in charge of quality inspection of construction works, the provincial-level People’s Committee shall relocate households currently living in such condominium to another place in order to dismantle this condominium.

Households shall move out of the condomi­nium under a decision of the provincial-level People’s Committee and are entitled to the rights and benefits like in case of ground clearance.

2. For a condominium with many owners which is to be dismantled for rebuilding at the request of these owners, such dismantlement must be approved by two-thirds of total owners of the condominium. The disapproving owners will be coerced by the provincial-level People’s Committee to move and shall pay coercion expenses.

The State shall grant incentives for owners that voluntarily move to other places of residence (do not resettle in rebuilt condominiums) after condominiums are rebuilt.

3. For an old condominium which is not yet subject to dismantlement under Clause I of this Article but whose owners wish to upgrade or expand it, such upgrading or expansion must be approved by two-thirds of total owners of the condominium and comply with the construction law and construction planning.

Condominium renovation must adhere to the principles of socialization, ensuring that new condominiums are better than the old ones in housing quality and living environment. The State encourages renovation of degraded old condominiums in line with the general infrastructure project of the whole area.

4. Pursuant to the Housing Law and this Decree, the Ministry of Construction shall submit to the Government for promulgation specific policies on renovation and reconstruction of old condominiums.

Section 3. USE MANAGEMENT OF URBAN VILLUS

Article 53. Principles of use management of villas

1. The use management of villas must comply with approved plans, this Decree and relevant laws.

2. The maintenance, renovation and reconstruction of villas must comply with approved plans, regulations on maintenance of construction works, this Decree and the law on management of cultural heritages.

3. State-owned villas shall be managed under regulations on management of state owned properly. Villas which are used as public-duty houses must comply with regulations on management and use of public-duty houses under the Housing Law and this Decree.

4. The Ministry of Construction shall promulgate regulations on use management of villas for uniform application nationwide.

Article 54. Classification of villas

Villas shall be classified into the following three groups:

1. Group-1 villas include villas ranked as historical cultural relics under the law on cultural heritages, and villas of typical value in architecture and til11- IC1 ll houses which are jointly determined and listed by competent provincial-level agencies in charge of construction, architecture and culture and submitted to provincial-level People’s Committees for approval. Group-1 villas must have their external architecture, internal structure, construction density, number of stories and height preserved;

2. Group-2 villas include villas other than those defined in group 1 which have architectural value as jointly determined and listed by competent provincial-level agencies in charge of construction and architecture and submitted to provincial-level People’s Committees for approval. Group-2 villas must have their external architecture preserved;

3. Group-3 villas include villas other than those defined in Clauses 1 and 2 of this Article.

Article 55, .Maintenance of villas

1. The maintenance of villas that are historical-cultural relics must comply with regulations on repair, embellishment, preserva­tion and restoration of historical-cultural relics.

2. The maintenance of group-1 villas involving changes in color or construction materials must be approved by provincial-level People’s Committees of localities where exist such villas before maintenance.

Article 56. Renovation and reconstruction of villas

1. The renovation or reconstruction of villas for which construction licenses are required may be conducted only after this license is obtained.

2. The renovation and reconstruction of group-1 and group-2 villas must also comply with the following regulations:

a/ For group-1 villas:

- Their original state must not be changed;

- Old villas may not be dismantled. Those which are seriously damaged or in danger of collapse as concluded by functional units in charge of quality inspection of construction works must be dismantled and rebuilt according to their original architecture with proper materials and planning (regarding construction density, number of stories and height!;

- For villas that are historical-cultural relics, their renovation and reconstruction must comply with regulations on preservation, embellishment and restoration of historical-cultural relics;

- Structural addition with other materials for the purpose of expanding the area or outside space of villas is disallowed.

b/ For group 2 villas:

Their external architecture must be preserved;

- Those which are seriously damaged or in danger of collapse as concluded by functional units in charge of quality inspection of construction works must be dismantled and rebuilt according to their original external architecture and planning (regarding construction density, number of stories and height).

Chapter IV

HOUSE-RELATED TRANSACTIONS

Article 57. Purchase and sale of houses under common ownership in the absence of co-owner(s)

1. The purchase and sale of houses under common ownership must comply with Article 96 of the Housing Law.

2. In case of purchase and sale of a house under common ownership in the absence of a co-owner while his/her place of residence is unidentifiable, the remaining co-owners shall, before selling such house, request in writing the court to declare the absent co-owner missing under law.

Based on the house sale price indicated in the house purchase and sale contract, the remaining co-owners shall deposit a house sale amount in proportion to the value of house ownership of the co-owner declared missing into a commercial bank in the locality where exists the house. When the co-owner declared missing returns and requests, this bank shall return both principal and interest to him/her at an interest rate on time deposits at the time of money receipt.

3. In case the co-owner declared missing is dead or is declared by the court as dead, the deposited amount mentioned in Clause 2 of this Article shall be divided to his/her lawful heirs under the civil law.

Article 58. Lease-purchase of social houses

1. The lease-purchase of a social house must be effected under a contract signed between the investor and lease -purchaser.

2. After advancing 20% of" the value of the house on lease-purchase, the lease-purchaser may pay the remainder of the rent within a period of time agreed by the investor and lease-purchaser. which must be at least 10 years after a house lease-purchase contract is signed.

3. Upon the expiration of the lease purchase duration and if the lease-purchaser has fully paid the remainder of the rent under Clause 2 of this Article, the investor shall carry out procedures for a competent state agency to grant a land use right certificate or house and land-attached asset ownership certificate to the lease-purchaser.

4. The investor may unilaterally suspend the performance of a house lease-purchase contract and recover the house currently on lease purchase in any of the following cases:

a/The lease purchaser fails to pay rents for 3 consecutive months without a plausible reason;

b/ The lease-purchaser repairs or demolishes at his/her/its own will the structure of. or renovates or expands, the house;

c/ The lease-purchaser sells the house in contravention of Article 40 of this Decree or transfers the lease-purchase right to another person without obtaining approval of the lessor.

In the cases specified at Points a and b of this Clause, the lease-purchaser may receive back 20% of the paid rent (without interest thereon); in the case specified at Point c of this Clause, the lease-purchaser will not receive back 20% of the paid rent.

5. Disputes over house lease-purchase contracts shall be settled through conciliation. If conciliation fails, the involved parties may request courts to settle disputes under law.

Article 59. Exchange of houses

1. House exchange transactions under (he Housing Law are applicable only in cases the involved parties exchange houses and transfer the ownership of houses between (hem but not applicable in cases of exchanging the right to use houses.

2. House-exchanging parties shall comply with the order and procedures for house exchange and fulfill all financial obligations towards the State under regulations.

Article 60. House related transactions via real estate trading floors

1. In case of dividing no more than 20% of house products not through real estate trading doors under Point d. Clause 3, Article 9 of this Decree, the investor shall notify in writing the quantity, addresses and types of houses to be divided, enclosed with the list of names and addresses of eligible house recipients, to the provincial-level Construction Department of the locality where (he house project is implemented for certification in replacement of a written certification of the sale of products through real estate trading floors.

The provincial-level Construction Department shall, pursuant to Article 9 of this Decree and based on the quantity of houses according to designs and plans of approved projects, certify only once the list of eligible house recipients, types, addresses and areas of houses within 20 days after receiving the investor’s notice, and keep a copy of this list for monitoring and examination. The investor of the house development project shall divide houses in the allowed quantity to proper addresses and recipients according to types and areas of houses as certified by the provincial-level Construction Department. House recipients may not transfer the right to own divided houses to other organizations or individuals.

The investor may sell or lease the remaining quantity of houses under each project through real estate trading floors according to the order and procedures specified in the law on real estate business and this Decree.

2. After completely building the foundation of a house under Point e. Clause 3. Article 9 of this Decree, the investor may sign house purchase and sale contracts with house product recipients defined in Clause 1 of this Article in replacement of previously signed contracts and documents. House purchase and sale contracts in this case and the provincial-level Construction Department’s written certification specified in Clause 1 of this Article serve as legal grounds for a competent state agency to grant a land use right certificate or house and laud-attached asset ownership certificate to the house purchaser.

Investors may sign contracts to sell or lease houses subject to sale or lease through real estate trading floors only when they fully satisfy the conditions specified at Points e and f. Clause 3. Article 9 of this Decree.

3. Organizations or individuals with houses divided or purchased through real estate trading floors under Clauses 1 and 2 of this Article, when reselling these houses to others, shall comply with the following regulations:

a/ They may sell these houses to entities eligible to own houses in Vietnam under the Housing Law only after signing house purchase and sale contracts with the investor;

b/ Enterprises with the real estate trading function shall sell these houses through real estate trading floors under the law on real estate business;

c/ Households, individuals or other organizations are not required to sell these houses through real estate trading floors but shall sell them under the Housing Law and this Decree. Those that have not yet been handed the houses and granted ownership certificates for such houses shall sell the houses under the Construction Ministry’s guidance.

4. Real estate trading floors may not invest in, purchase and sell or lease houses, but may only act as intermediaries to sell or lease houses as authorized by investors and enjoy through-floor trading charges under the law on real estate business. If committing violations, they will have the real estate trading function withdrawn by the State and shall be handled under the law on sanctioning of administrative violations in real estate business.

5. Contracts on purchase and sale or lease of houses in contravention of this Article will be legally invalid and purchasers may not be granted land use right certificates or house and land attached asset ownership certificates for the purchased houses. House sellers and lessees shall pay compensation to house purchasers and lessees.

Article 61. Mortgage of houses

1. House mortgage must be conducted via contracts and comply with (he Housing Law and relevant laws.

2. Organizations and individuals that purchase houses to be formed in the future from real estate trading enterprises may mortgage such houses at credit institutions for taking out loans. Procedures for mortgage of houses to be built in the future comply with the State Bank’s guidance.

Article 62. House-related transactions involving overseas Vietnamese and foreign organizations and individuals

1. Overseas Vietnamese participating in transactions related to purchase and sale, donation or inheritance of houses in Vietnam must satisfy the following requirements:

a/ Being eligible to own houses and fully satisfying the conditions for owning houses in Vietnam under the Housing Law;

b/ Purchasing and selling, donating or inheriting houses under the Housing Law and this Decree;

c/ Persons other than those defined in Article 1 of Law No. 34/2009/QH12 Amending and Supplementing Article 126 of the Housing Law and Article 121 of the Land Law or persons eligible to own a house in Vietnam under the Housing Law but currently owning a house in Vietnam who are donated or inherit another house may enjoy only the value of this house under Article 72 of this Decree.

2. Overseas Vietnamese and foreign organizations and individuals that lease houses in Vietnam shall comply with the following regulations:

a/ They fully satisfy the conditions for leasing houses in Vietnam under Article 131 of the Housing Law;

b/ House lease contracts must be made in writing under Article 93 of the Housing Law and this Decree;

c/ They shall fully exercise their rights and perform their obligations under the Housing Law, the Civil Code and this Decree.

3. House owners who are overseas Vietnamese may sign contracts to lease or authorize others to manage their houses during the time they do not use them.

These owners shall produce documents on their dispatch or rotation to work in other localities or outside the Vietnamese territory, issued by agencies or organizations where they are working. If not falling in these cases, they shall make written commitments not to use on a temporary basis such houses when having contracts to lease or authorize others to manage their houses notarized or certified.

Article 63. Types of house contract

1. The purchase and sale, lease, lease-purchase, donation, exchange, mortgage. lending, letting free of charge, or authorized management of houses must be expressed in writing (referred to as house contracts). House contracts must comply with Clause 2, Article 93 of the Housing Law. the Civil Code and this Decree. For house-donating organizations, donation documents are required.

2. For contracts on purchase and sale of newly built houses (including available houses and houses to be built in the future), in addition to the requirements specified in Clause 1 of this Article, a house purchase and sale contract must clearly indicate the duration and responsibility for warranty of the house under the Housing Law and this Decree; land use right value in the house sale price and the seller’s responsibility to pay land use levy to the State. For a condominium apartment, such a contract must also indicate the area under common ownership and area under private ownership of the condominium owner; the fund amount to be contributed for maintenance equal to 2% of the house sales; and the method of calculating the area of the apartment concerned. House purchase and sale contracts signed with sellers being real estate trading enterprises need not to be notarized or certified.

In case of purchase and sale of a house through auction, a house purchase and sale contract must, in addition to the requirements specified in the Housing Law and this Decree. also comply with the law on property auction.

3. Contracts on lease or lease-purchase of social houses must specify the rights and obligations of the involved parties and need not to be notarized or certified.

A contract on lease of a social house must have a definite term of up to 5 years. Upon the expiration of the term, the lessee may have the contract extended by a competent agency if he/ she/it fully observes regulations on house lease during the lease and is still eligible for renting a social house. A contract on lease-purchase of a social house shall be signed as agreed between the investor and lease-purchaser pursuant to this Decree.

4. A contract on lease of a public-duty house must specify the rights and obligations of the involved parties and need not to be notarized or certified. .Such a contract must have a definite term corresponding to the period the lessee holds the position under a decision on his/her dispatch or rotation, which, however, must not exceed 5 years. Upon the expiration of the term, if the current lessee is still eligible for leasing a public-duty house under the Housing Law and this Decree and has fully paid the rent, the public-duty house-managing unit shall sign another contract with a term complying with this Clause.

5. A contract on lease of a commercial house must specify the rights and obligations of the involved parties under the Housing Law and Civil Code. In case an individual lessor a house for less than 6 months or the lesser is a real estate trading enterprise, a house lease contract needs not to be notarized or certified.

6. A contract on authorized management, care, use, sale or lease of a house must be notarized or certified. The involved parties may sign this contract and a competent notarization or certification agency may notarize or certify it as specified in this Clause only after such house is completely built (for available houses).

7. Contracts on exchange, donation, mortgage, lending or letting free of charge of houses shall be made under the Housing Law and the Civil Code.

Competence to notarize or certify house contracts specified in this Article complies with current law,

9. The Ministry of Construction shall stipulate and issue forms of contracts on purchase and sale of houses. lease of houses (including commercial houses, public-duty houses and social houses) lease-purchase, donation or exchange of houses specified in this Article.

Article 64. Time of house ownership transfer for transactions related to purchase and sale, donation, exchange, lease-purchase or inheritance of houses

1. The time of house ownership transfer in case of house purchase and sale is the date a house purchase and sale contract is notarized or certified. In case of house purchase and sale in which the seller is a real estate trading enterprise. the time of house ownership transfer is the time the seller hands over the house to the purchaser as agreed in the contract,

2. The time of house ownership transfer in case of house donation is the date a house donation contract is notarized or certified. In case of house donation by an entity, the time of transfer of ownership of the house to the donee is the date the donor signs the donation document.

3. The time of house ownership transfer in case of house exchange is the date a house exchange contract is notarized or certified. In case the house-exchanging parties are real estate trading enterprises, the time of transfer of the. ownership of the exchanged house is the time of house handover as agreed in the house exchange contract.

4. The time of house ownership transfer in case of house lease-purchase is the time the lease-purchaser is granted a certificate of ownership of the lease-purchased house under Clause 3. Article 58 of this Decree.

5. The time of house ownership transfer in case of house inheritance is the time of opening inheritance. Heirs to the houses shall be identified under the civil law.

6. The time of house ownership transfer in case of purchase of houses on deferred or installment payment is the date the purchaser makes full payment to the seller, unless otherwise agreed by the parties.

Chapter V

RIGHTS OF OVERSEAS VIETNAMESE AND FOREIGN ORGANIZATIONS AND INDIVIDUALS TO OWN HOUSES IN VIETNAM

Article 65. Rights of overseas Vietnamese and foreign organizations and individuals to own houses in Vietnam

1. Overseas Vietnamese may own houses in Vietnam if they fall into the categories and fully meet the conditions specified in Article 1 of Law No. 34/2009/QH12 Amending and Supplemen­ting Article 126 of the Housing Law and Article 121 of the Land Law. Overseas Vietnamese may own houses stably and permanently.

2. Foreign organizations and individuals that invest in building houses in Vietnam under the investment law may own houses under the Housing Law. Those buying houses in Vietnam may own houses under the National Assembly’s Resolution No. 19/2008/QH12 of June 3, 2008. allowing foreign organizations and individuals to buy and own houses in Vietnam on a trial basis, and guiding documents.

Article 66. Papers evidencing overseas Vietnamese’s eligibility to own houses in Vietnam

1. Overseas Vietnamese eligible to own houses in Vietnam under Article 1 of Law No. 34/2009/QH12 Amending and Supplementing Article 126 of the Housing Law and Article 121 of the Land Law must possess the following papers to evidence their eligibility:

a/ Those bearing Vietnamese nationality must possess a valid Vietnamese passport. Those holding a foreign passport must produce one of the papers evidencing their Vietnamese nationality under the nationality law;

b/ Those of Vietnamese origin must possess a foreign passport together with a written certification of their Vietnamese origin issued by a competent Vietnamese authority.

2. Overseas Vietnamese below may own (an unlimited number of) houses in Vietnam through purchase, donation or inheritance, or exchange of houses or transfer of residential land use rights under housing development projects of real estate trading enterprises (for projects in areas where transfer of land use rights through sale of groundwork is permitted under the land law) to build houses for themselves and their family members in Vietnam:

a/ Those specified at Point a. Clause 1 of this Article;

b/Those specified at Point b. Clause 1 of this Article who must:

- Make direct investment in Vietnam under the investment law and possess an investment or business registration certificate issued by a competent Vietnamese authority:

- Make contributions to the country, including those entitled to incentives under the Ordinance on Preferential Treatment of People Who Rendered Meritorious Services to the Revolution and producing papers evidencing their entitlement to preferential treatment issued by a competent Vietnamese authority; those with records and achievements in the cause of national liberation or construction and awarded an order or a medal by the President or a certificate of merit by the Prime Minister; members of executive committees of Vietnamese socio-political organizations and the Vietnam Fatherland Front Committees at the provincial or higher level and being certified by those organizations; members of central executive committees of associations, key figures of movements and organizations of overseas Vietnamese having relations with the homeland and those making active contributions or assistance to Vietnam’s overseas representative agencies or external activities overseas and being certified by the State Committee for Overseas Vietnamese or Vietnamese overseas diplomatic missions;

- Be culturists and scientists, including holders of Vietnamese or foreign academic titles or degrees in science, education, culture and arts, physical training and sports, and economic and social experts working in Vietnam. They must be invited by leaders of the Party or the State, ministers, heads of ministerial-level agencies or government-attached agencies, chairpersons of provincial-level People’s Committees, heads of universities, colleges, academies or research institutes of Vietnam to work as experts, collaborators or lecturers for these agencies or organizations and such invitation is certified by the agencies or organizations concerned;

- Possess special expertise or skills with certificates of their expertise or skills issued by Vietnamese professional associations or ministerial-level agencies in charge of such expertise or skills together with permits for professional practice in Vietnam issued by a competent Vietnamese authority (for cases in which such permits are required by law) or work permits issued by a competent Vietnamese authority (for cases in which professional practice permits are not required); or.

- Have a Vietnamese spouse living at home and possess a marriage certificate issued by a competent Vietnamese or foreign authority enclosed with the permanent residence book and people identity card of the Vietnamese spouse.

Those possessing papers issued by foreign authorities must have them translated into Vietnamese arid certified by Vietnamese notary offices.

3. Overseas Vietnamese of Vietnamese origin other than those specified at Point b. Clause 2 of this Article who possess the papers specified at Point b, Clause 1 of this Article and a visa exemption certificate issued by a competent Vietnamese authority may own a detached house or an apartment in Vietnam.

If they receive another house as inheritance or donation while having already owned a house in Vietnam, they may choose to own only one house. They may donate or sell the other house to those eligible to own houses in Vietnam to enjoy the house’s value under Article 72 of this Decree .

Article 67. Papers evidencing overseas Vietnamese’s residence in Vietnam

1. Overseas Vietnamese holding a Vietnamese passport must possess either of the following papers issued by the police of the ward, commune or township (below referred to as ward-level police) in which they reside:

a/ Temporary residence book;

b/ Written certification of temporary residence registration in the locality.

Overseas Vietnamese holding a Vietnamese passport must make an application and produce their passports lo the ward-level police when requesting issuance of the papers specified in this Clause. Within 3 days after receiving an application, the ward-level police shall grant either of the papers specified in this Clause to overseas Vietnamese.

2. Overseas Vietnamese holding a foreign passport must possess either of the following papers issued by the Vietnamese immigration management agency:

a/ Temporary residence card:

b/ Passport stamped with a mark on temporary residence in Vietnam for 3 months or more.

Article 68. Procedures for control of overseas Vietnamese’s ownership of one house in Vietnam

For overseas Vietnamese eligible to own one house under the Housing Law, the agency competent to grant certificates of land use rights and house and land-attached asset ownership shall comply with the following provisions:

1. Before granting a certificate of land use rights and house and land-attached asset ownership rights, a district-level People’s Committee shall check information on overseas Vietnamese’s house ownership posted on the website of the Ministry of Construction.

When an applicant for a certificate of land use rights and house and land-attached asset ownership rights is not listed on the website of the Ministry of Construction, the district-level People’s Committee shall sign such certificate and carry out procedures to hand over the certificate lo the owner. When an applicant is listed on the website of the Ministry of Construction, the district-level People’s Committee shall return the application dossier to the applicant and issue a written reply clearly stating the reason;

2. Within 2 working days after signing a certificate of land use rights and house and land-attached asset ownership, the district-level People’s Committee shall send the Ministry of Construction a notice of the full name, passport number and date and place of issue of the buyer. donee or heir of a house, the address of the house granted with the certificate, the number and date of issue of the certificate for the Ministry of Construction to publish such information on its website;

3. When a house owner under this Article has sold or given as donation or inheritance the house to another person, the district-level People’s Committee shall send a notice to the Ministry of Construction for the latter to remove the name of such house owner from the list on its website;

4. Chairpersons of district-level People’s Committees shall take responsibility for their delayed notification or failure to notify the Ministry of Construction of house ownership or transfer of house ownership by house owners specified in this Article.

The Ministry of Construction shall issue the form of report of district level People’s Committees to the Ministry of Construction under this Article.

Article 69. Handling of overseas Vietnamese’s violations of regulations on ownership of one house in Vietnam

1. Overseas Vietnamese eligible to own one house in Vietnam under the Housing Law who falsify papers or commit other violations to own more than one house in Vietnam may not obtain a certificate of ownership for such house. If having obtained a certificate, they shall sell the house within 120 days after their violations are detected and be sanctioned under the law on administrative sanctioning in housing management and development.

2. Past the time limit set in Clause 1 of this Article, a violator who fails to sell the house is subject to revocation of the granted certificate of house ownership and the unsold house will come under the ownership of the Vietnamese State.

3. Cadres, civil servants and involved persons who violate the Housing Law and this Decree shall be handled under the law on cadres and civil servants and relevant laws.

Article 70. House ownership by foreign organizations and individuals in Vietnam

1. Foreign organizations and individuals may own houses in Vietnam through investment in building houses for lease or may buy apartments under projects on commercial housing development.

2. Foreign organizations and individuals that invest in building houses for lease may be granted by competent state agencies certificates of land use rights and house and land-attached asset ownership for those houses. The house ownership duration is the period stated in their investment certificates, which shall be clearly written in the certificates of land use rights and house and land-attached asset ownership.

3. Investors of projects to build houses for sale may not be granted certificates of land use rights and house and land-attached asset ownership by the State. After construction is completed, investors may sell these houses to organizations and individuals eligible to own houses in Vietnam under the Housing Law, the law on real estate business and this Decree.

Investors shall carry out procedures to request competent state agencies to grant certificates of laud use rights and house and land-attached asset ownership to house buyers within 50 days after handing over houses to buyers, unless house buyers voluntarily carry out such procedures.

4. The order and procedures for granting certificates of land use rights and house and land-attached asset ownership to foreign organizations and individuals comply with the law on grant of certificates of land use rights and house and land-attached asset ownership.

Article 71. Overseas Vietnamese and foreign organizations and individuals renting houses in Vietnam

1. Eligible lessees and conditions for renting houses in Vietnam:

a/ Foreign organizations licensed to operate in Vietnam;

b/ Foreigners permitted to enter Vietnam for 3 consecutive months or more;

c/Overseas Vietnamese currently in Vietnam wishing to rent houses.

2. The house rent order and procedures, rights and obligations of house lessees comply with Clause 2, Article 62 of (his Decree.

Article 72. Cases of enjoyment of house value

1. When receiving a house as donation or inheritance, the following foreign organizations and individuals and overseas Vietnamese may not obtain a certificate of house ownership but may only enjoy the value of that house:

a/ Foreign organizations and individuals ineligible to own houses in Vietnam;

b/ Foreigners eligible to own only an apartment under projects on commercial housing development that are owning an apartment in Vietnam at the time of receiving a house as donation or inheritance;

c/ Foreign organizations and individuals eligible to own apartments under projects on commercial housing development that receive as donation or inheritance houses other than apartments under projects on commercial housing development;

d/ Overseas Vietnamese permitted to reside in Vietnam for less than 3 months;

e/ Overseas Vietnamese eligible to own only one house in Vietnam who are owning a house in Vietnam at the time of receiving a house as donation or inheritance.

2. Organizations and individuals receiving houses as donation or inheritance under Clause 1 of this Article may sell or authorize others to sell those houses when possessing the following papers:

a/ House donation contracts or inheritance papers made under Article 93 of the Housing Law, this Decree and the civil law of Vietnam;

b/ Any of the papers evidencing the house ownership of the party giving the house as donation or inheritance as follows:

- House ownership certificate granted under the Housing Law;

- Certificate of house ownership and residential land use rights granted under the Government’s Decree No. 60/CPof July 5,1994, on rights to own houses and use residential land in urban areas;

- House ownership certificate granted under the Government’s Decree No. 95/2005/ND-CP of July 15, 2005, on grant of certificates of rights to own houses and construction works;

- Land use right certificate granted under the land law, which mentions the house of the party giving it as donation or inheritance;

- Certificate of use land rights and house and land-attached ownership granted under the land law.

c/ Written authorization of house sale made under Vietnam’s civil law (when authorizing another person to sell houses).

Chapter VI

STATE MANAGEMENT OF HOUSING

Article 73. Formulation of national housing development orientations

1. Based on the national socio-economic development strategy for each period, the Ministry of Construction shall formulate and submit to the Prime Minister for promulgation national housing development orientations and strategies for every ten-year period as a basis for housing research and policy making and for localities to formulate their housing development programs.

2. National housing development orientations and strategies cover:

a/ Overview of the housing status nationwide;

b/ Analysis and assessment of results, problems and causes of housing development and management;

c/ Clear determination of viewpoints, objectives and demands for housing development in the coming period, specifying key programs, viewpoints, objectives, requirements and basic targets for development of commercial, social and official-duty houses and houses for social policy beneficiaries;

d/ Clear determination of solutions to achieving housing development objectives, including mechanisms and policies on planning, land, technical infrastructure, finance and credit, and implementation measures;

e/ Other relevant matters.

3. Based on the national socio-economic development and housing development strategies, the Ministry of Construction shall study and propose the Prime Minister to adopt key housing development policies to solve housing difficulties for target groups by region and area.

4. Basic housing development targets set in national housing development orientations and strategies must be included in national socio­economic development tasks in each period. During implementation, preliminary assessment and reviews shall be conducted to make prompt amendments, adjustments and supplements to the set orientations arid programs to suit realities. Upon completion, final review and assessment of implementation shall be conducted.

5. Based on socio-economic development of regions and key economic regions, the Ministry of Construction shall propose the Prime Minister to consider and decide on particular mechanisms and select financially viable and experienced investors to formulate large-scale housing development projects or those involving different localities in order to promote regional development and ensure social security. When a provincial-level People’s Committee makes such a proposal, it shall consult the Ministry of Construction before submission to the Prime Minister for consideration and decision.

Article 74. Formulation of local housing development programs and plans

1. Based on national housing development orientations and strategies promulgated by the Prime Minister, current national mechanisms and policies on housing development and management and local socio-economic development tasks, chairpersons of provincial-level People’s Committees shall direct the formulation of housing development programs and plans for every five and ten or more years and submit them to provincial-level People’s Councils for approval before promulgation.

2. A local housing development program or plan has the following major contents:

a/ Overview of the housing status of the locality;

b/ Analysis and assessment of results, problems and causes of housing development and management of the locality;

c/ Program or plan on housing development, specifying each area and each target group in the locality as follows:

- For housing in urban areas: To clearly state the status of different types of houses (dangerous degraded condominiums, makeshift residential buildings, slums, buildings with unqualified technical infrastructure), difficulties and problems in house building and upgrading; and housing needs of each target group and to plan housing development for each year.

The program must propose solutions on land, ground clearance, resettlement, areas planned for housing development projects, funding sources for housing development investment, mechanisms and policies on finance and land for housing development, norms on average house area per capita and plans on provision of accommodation for each target group in urban areas;

- For housing in rural areas: To clearly state the housing status in each area, housing of ethnic minority people (if any), house-building customs of inhabitants, average land area for house building, difficulties and problems in housing development, housing needs of inhabitants and housing development plan for each year.

The program must propose land, areas planned for house building, plans to raise funds for house building, forms of support for house building and norms on average house area per capita;

- For housing for industrial park workers (if any): To clearly state the housing status and needs of industrial park workers, to plan and set aside land for house building, to work out plans to raise funds for house building investment and plans on arrangement of housing for workers in each year;

- For housing for other groups of people in the locality, including students, poor people in urban and rural areas, cadres and civil servants, official-duty performers, and people with meritorious services to the revolution: To clearly state the housing status and needs of each group and plans on house building for each group and housing support modes (provision of houses for lease, lease-purchase, support of funds, materials and supplies for house building, allocation of land for house building, preferential credit):

d/ Other relevant matters;

e/ The housing development program must clearly set the implementation schedule and specific tasks and responsibilities of provincial-level departments, divisions, sectors and local administrations at all levels during implementation.

3. Basic norms on housing development in housing development programs and plans shall be included in local socio-economic development tasks in each period. Annually, to conduct reviews and assessments and amend and adjust inappropriate contents. Upon completion of a program or plan, to conduct final review and assessment of its implementation.

4. Provincial-level People’s Committees shall report on their local housing development programs and plans to the Prime Minister and submit them to the Ministry of Construction for monitoring and examination. People’s Committees of centrally run cities shall, after municipal People’s Councils approve local housing development programs and plans, submit them to the Prime Minister for approval prior to implementation.

5. Provincial-level People’s Committees shall allocate local budget funds for surveys, exploration and formulation of their local housing development programs and plans.

Article 75. Formation of housing development funds

1. The housing development fund of a locality is formed from:

a/ Revenues from sale and lease of state-owned houses in the locality:

b/ 10% of land use levies on commercial housing development and new urban center projects in the locality. Specific land use levies are considered and set by provincial-level People’s Councils.

c/ Annual local budget supports decided by provincial-level People’s Councils;

d/ Funds raised from other lawful sources under law;

e/ Voluntary supports and contributions from other domestic and overseas organizations and individuals.

2. Based on local realities, the chairperson of a provincial-level People’s Committee shall consider and decide to form the local housing development fund from the sources specified in Clause 1 of this Article and promulgate a Regulation on management of this fund in adherence to the following principles:

a/ The housing development fund is a state finance institution operating on the principle of capital preservation, self-financing and non­profit:

b/ The housing development fund is managed and operates under its organization and operation charter promulgated by the provincial-level People’s Committee and relevant laws;

c/ The housing development fund is entitled to tax and budget remittance exemption and reduc­tion under the Ministry of Finance’s guidance:

d/ The housing development fund is used lo develop state-owned social houses within the locality.

The Ministry of Finance shall assume the prime responsibility for and coordinate with the Ministry of Construction in, guiding the organization and operation of local housing development funds.

3. Based on the conditions of each locality, provincial-level People’s Committees may entrust local development investment funds to manage the operation of housing development funds under Clause 2 of this Article.

4. In addition to housing development funds stipulated in this Article, the Ministry of Construction shall assume the prime responsibility for, and coordinate with concerned ministries and branches in, studying and proposing the Prime Minister to promulgate a decision on the formation, operation, management mechanism, funding sources, lending mechanism and eligible borrowers of the house saving funds to provide loans for those with housing difficulties to buy houses or support enterprises to take loans to build social houses.

Article 76. Management and provision of housing information

1. Agencies responsible for managing housing dossiers:

a/ Provincial-level Construction Departments shall manage housing dossiers of organizations; overseas Vietnamese implementing investment projects on house construction in Vietnam; and foreigners; and houses under common ownership of organizations and individuals;

b/ District-level housing management divisions shall manage housing dossiers of individuals (including nationals and overseas Vietnamese owning houses attached with residential land use rights,!.

2. A housing dossier has details specified in Clause 3, Article 66 of the Housing Law and other house-related papers.

3. Housing dossier management agencies shall provide information on houses for the agencies specified in Clause 7 of this Article and organizations and individuals with rights and obligations related to those houses at their request.

4. Information on a house means information relating to the current state and legal status of the house and residential land stated in the housing dossier.

5. An organization or individual wishing to receive housing information shall make a written request specifying the full name and address of the requester, information to be provided and purpose of using such information.

6. Information may be provided in writing, online or copies or extracts of dossiers.

7. An organization or individual requesting housing information shall pay an information provision charge to housing dossier management agencies, unless competent state agencies request such information for the state management of housing, or investigation agencies. People’s Procuracies or People’s Courts request such information for investigation and settlement of housing-related disputes, complaints and denunciations and court cases.

The Ministry of Finance shall coordinate with the Ministry of Construction in setting charge rates and the proportion of collected charge amounts to be remitted into the state budget and a regime on use of the information provision charge under (his Article.

Article 77. Surveys, statistics and formation of databases on housing

1. Housing surveys and statistics shall be made every five and ten years according to the following provisions:

a/ Every ten years, the Ministry of Construction shall coordinate with the Ministry of Planning and Investment and provincial-level People’s Committees in surveying and making housing statistics along with the national census on population and housing;

b/ Every live years (in the middle of each national census on population and housing), the Ministry of Construction shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment and provincial-level People’s Committees in. conducting pilot and sample surveys on housing in some communes, wards and townships of a number of provinces and cities in different regions and parts of the country to make statistics on housing development for making policies on housing development nationwide.

Before conducting a housing survey under this Point, the Ministry of Construction shall formulate a survey plan, estimate funds and report them to the Prime Minister for consideration and decision.

2. Funds for surveys, statistical work and formation of databases on housing under this Article shall be allocated from the state budget.

Article 78. Training and refresher training in housing development and management and real estate market

1. Cadres and civil servants of levels and branches engaged in housing and real estate market development and management shall attend training or refresher training in housing and real estate market development and management at least once every three years. Agencies and units involved in housing and real estate domains shall send and create conditions for their cadres and civil servants to attend training and refresher teaming under this Article.

Individuals and enterprises engaged in the management and operation of condominiums (including housing works with multiple use purposes) shall attend training and refresher training in knowledge, expertise and skills on condominium management and operation under the Ministry of Construction’s guidance.

2. The Ministry of Construction shall provide training plans, programs and contents and coordinate with concerned agencies and legalities in organizing training and refresher training to improved knowledge on housing and real estate market development and management for cadres and civil servants engaged in housing management and development and individuals and organizations engaged in condominium management and operation under this Article.

3. Agencies and units sending their staff to training courses shall pay training expenses to training institutions.

Article 79. Responsibilities of the Ministry of Construction

1. To assist the Government in performing the unified state management of housing nationwide,

2. To study and propose the Prime Minister to promulgate national housing development orientations and strategies for each period under this Decree.

3. To study and propose the Government or the Prime Minister to amend, supplement or promulgate, or to amend, supplement or promulgate according to its competence, documents on housing management and development under the Housing Law and this Decree.

4. To directly direct the implementation of national strategies, programs and targets on housing approved by the Prime Minister.

5. To examine, inspect and solve according to its competence or propose the Government or the Prime Minister to solve difficulties and problems of ministries, branches, agencies, organizations and individuals in the implementation of the Housing Law and this Decree; to monitor and examine other ministries and branches in implementing housing-related regulations.

6. To perform assigned tasks under this Decree and the Prime Minister’s direction.

7. To annually and irregularly report to the Government or the Prime Minister on the implementation of the Housing Law and this Decree nationwide.

Article 80. Responsibilities of concerned ministries and branches for state management of housing

1. Ministries and ministerial-level agencies shall, within their tasks and powers, coordinate with the Ministry of Construction in performing the state management of housing.

2. To study, amend, supplement and promulgate documents related to housing management and development according to their functions and tasks assigned by the Government or to coordinate with the Ministry of Construction in studying and drafting policies on. directing and guiding the implementation of, and examining and inspecting the observance of law on. housing management and development by concerned branches, levels, agencies, organizations and individuals.

Article 81. Responsibilities of localities for state management of housing

1. Provincial-level People’s Committees shall:

a/ Perform the state management of housing in their localities:

b/ Formulate and implement their local housing development programs and plans. including general housing development programs and plans and local target programs on housing support for social policy beneficiaries with housing difficulties:

c/ Publish on their websites and websites of provincial-level Construction Departments

l:2,000-scale construction master plans and l:500-scale detailed construction plans, housing development projects under construction, cases of project transfer, change of project investors and implementation progress of housing development projects in their localities;

d/ Plan and set aside land areas for the construction of social and official-duty houses under this Decree;

e/ Manage official duty and social houses built with local budget funds:

f/ List villas for management under this Decree and relevant laws;

g/ Direct, guide, organize, examine and inspect housing management and development

in their localities according to their assigned functions and tasks;

h/ Educate and mobilize organizations and individuals to observe the law on housing management and development;

i/ Handle according to their competence or propose competent agencies to handle violations of the housing law;

j/ Assume the prime responsibility for. or coordinate with ministries and branches in, performing (heir assigned tasks under the Housing Law. and this Decree;

k/ Annually or irregularly report to their superiors on the implementation of the Housing Law and this Decree in their localities.

2. Provincial-level Construction Departments shall assist provincial-level People’s Committees in performing the state management of housing and the real estate market in their localities.

3. District-level People’s Committees shall perform the state management of housing and the real estate market in their localities according to their assigned functions and tasks.

4. Chairpersons of provincial- and district level People’s Committees shall take respon­sibility before law for their delay or failure in the implementation of the Housing Law and this Decree.

Article 82. Steering committees for policies on housing and real estate market

1. The Prime Minister shall decide on the establishment of the central steering committee for policies on housing and real estate market which shall assist the Prime Minister in studying, directing and coordinating the settlement of important inter-sectoral issues related to policies to manage and develop housing and the real estate market nationwide.

2. The central steering committee for policies on housing and real estate market has the tasks and powers of directing, urging, guiding and examining ministries, branches and localities in implementing housing development programs and guidelines and policies on housing and real estate market; commenting major and important policies related to housing and real estate market; proposing the Prime Minister and competent agencies to consider, amend, supplement or terminate the implementation of documents related to housing and real estate market promulgated by ministries, branches and provincial-level People’s Committees in contravention of the law on housing and real estate market.

3. Based on the tasks and powers of the central steering committee for policies on housing and real estate market, chairpersons of provincial-level People’s Committees shall decide on the establishment of provincial-level steering committees for policies on housing and real estate market which shall assist chairpersons of provincial level People’s Committees in directing the implementation of policies related to housing and real estate market in their localities.

4. Members of and expert teams assisting steering committees for policies on housing and real estate market shall work on a part-time basis and may enjoy allowances under the Prime Minister’s regulations. Funds for the operation of these committees shall be allocated from the state budget of the same level.

5. The Prime Minister shall define the functions, tasks, powers and operation regulations of the central steering committee and its assisting organizations and chairpersons of provincial level People’s Committees shall provide those of local committees.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 83. Effect

1. This Decree takes effect on August 8, 2010.

2. This Decree replaces the Government’s Decree No. 90/200G/ND-CP of September 6, 2006, detailing and guiding the implementation of the Housing Law.

3. Housing development projects which have been formulated and submitted for approval under the Government’s Decree No. 90/2006/ ND-CP of September 6. 2006. detailing and guiding the implementation of the Housing Law, but have not been approved by provincial- or district-level People’s Committees, or have been approved (including houses to be built in new urban centers) but have proposed project modifications under Clause 4, Article 7 of this Decree, shall be formulated, appraised, approved or approved for investment or supplementation of housing development project contents (housing building development projects or independent housing development projects) under this Decree.

4. To annul provisions on housing development, recognition of house ownership, housing management and use, housing transactions and state management of housing provided in the Government’s decrees and legal documents promulgated by ministries, branches and provincial-level People’s Committees before the effective date of this Decree, which are contrary to this Decree.

Article 84. Implementation provision

Ministers, heads of ministerial-level agencies and government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung

TRANSLATED BY LAWSOFT

THE NATIONAL ASSEMBLY ——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 25/2008/QH12

Hanoi, June 17, 2009

LAW  ON HEALTH INSURANCE

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law on Health Insurance.

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope and subjects of application

1. This Law provides the health insurance regime and policies, including participants, premium rates, responsibilities and methods of payment of health insurance premiums; health insurance cards; eligible health insurance beneficiaries; medical care for the insured; payment of costs of medical care covered by health insurance; health insurance fund; and rights and responsibilities of parties involved in health insurance.

2. This Law applies to domestic and foreign organizations and individuals in Vietnam that are involved in health insurance.

3. This Law does not apply to commercial health insurance.

Article 2. Interpretation of terms

In this Law, the terms below are construed as follows:

1. Health insurance is a form of insurance applied in the health care sector for non-profit purposes, organized by the State and joined by responsible persons under this Law.

2. All-people health insurance means health insurance joined by all persons prescribed in this Law.

3. Health insurance fund means a financial facility set up from health insurance premium payments and other lawful collections, which is used to cover costs of medical care for the insured, managerial costs of health insurance institutions and other lawful costs related to health insurance.

4. Employers include state agencies, public non-business units, people’s armed forces units, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, enterprises, cooperatives, individual business households and other organizations; foreign organizations; and international organizations operating in the Vietnamese territory, which are responsible for making health insurance contributions.

5. Health insurance-covered primary care provider means the first medical examination and treatment establishment registered by an insured and indicated in the health insurance card.

6. Health insurance assessment means professional activities conducted by a health insurance institution to evaluate the reasonableness of medical care services provided to an insured serving as a basis for the payment of costs of health insurance-covered medical care.

Article 3. Health insurance principles

1. Ensuring the sharing of risks among the insured.

2. Health insurance premiums shall be determined in percentage of wage, remuneration, pension, allowance or minimum salary in the administrative sector (below referred to as the minimum salary).

3. Health insurance benefits shall be based on the seriousness of sickness and category of beneficiaries within the scope of the insured’s benefits.

4. Costs of health insurance-covered medical care shall be jointly paid by the health insurance fund and the insured.

5. The health insurance fund shall be managed in a centralized, unified, public and transparent manner, ensuring the balance between revenue and expenditure, and be protected by the State.

Article 4. State policies on health insurance

1. The State pays, or assists payment of, health insurance premiums for people with meritorious services to the revolution and a number of social beneficiary groups.

2. The State adopts preferential policies for the health insurance fund’s investments in order to preserve and increase the fund. The fund’s revenues and profits from its investments are tax-free.

3. The State creates favorable conditions for organizations and individuals to join health insurance or pays health insurance premiums for several beneficiary groups.

4. The State encourages investment in technological development and advanced technical facilities for health insurance management.

Article 5. State management agencies in charge of health insurance

1. The Government performs the unified state management of health insurance.

2. The Ministry of Health shall take responsibility before the Government for performing the state management of health insurance.

3. Ministries and ministerial-level agencies shall, within the ambit of their tasks and powers, coordinate with the Ministry of Health in performing the state management of health insurance.

4. People’s Committees at all levels shall, within the ambit of their tasks and powers, perform the state management of health insurance in localities.

Article 6. The Ministry of Health’s responsibilities for health insurance

To assume the prime responsibility for, and coordinate with other ministries, ministerial-level agencies and relevant agencies and organizations in. performing the following tasks:

1. Formulating health insurance policies and law, organizing the health care system, professional and technical lines and financial sources for the protection, care and improvement of people’s health, based on all-people health insurance;

2. Formulating strategies, planning and master plans on development of health insurance;

3. Promulgating lists of drugs, medical supplies and technical services which the insured is entitled to, and professional and technical regulations on health insurance-covered medical care;

4. Working out and submitting to the Government solutions to ensure the balance of the health insurance fund;

5. Popularizing and disseminating health insurance policies and law;

6. Directing and guiding the implementation of the health insurance regime;

7. Inspecting, examining and handling violations in, and settling complaints and denunciations about, health insurance;

8. Monitoring, assessing and reviewing activities in the health insurance domain;

9. Organizing scientific research and international cooperation on health insurance.

Article 7. The Finance Ministry’s responsibilities for health insurance

1. To coordinate with the Ministry of Health, concerned agencies and organizations in formulating health insurance-related Financial policies and regulations.

2. To inspect and examine the implementation of legal provisions on financial mechanisms applicable to health insurance and the health insurance fund.

Article 8. Responsibilities of People’s Committees at all levels for health insurance

1. Within the ambit of their tasks and powers, People’s Committees at all levels shall:

a/ Direct and organize the implementation of policies and law on health insurance;

b/ Ensure funding to pay health insurance premiums for persons eligible for premium payment or support from the state budget under this Law;

c/ Popularize and disseminate health insurance policies and law;

d/ Inspect, examine and handle violations of, and settle complaints and denunciations about, health insurance.

2. Apart from the responsibilities defined in Clause 1 of this Article, People’s Committees of provinces and centrally run cities shall also manage and use funding sources under Clause 2, Article 35 of this Law.

Article 9. Health insurance institutions

1. Health insurance institutions function to implement health insurance regimes, policies and law, and manage and use the health insurance fund.

2. The Government shall specify the organization, functions, tasks and powers of health insurance institutions.

Article 10. Audit of the health insurance fund

Once every three years, the State Audit shall audit the health insurance fund and report the results to the National Assembly.

If requested by the National Assembly, the National Assembly Standing Committee or the Government, the State Audit shall conduct extraordinary audit of the health insurance fund.

Article 11. Prohibited acts

1. Failing to pay or fully pay health insurance premiums under this Law.

2. Committing fraud related to or forging health insurance files or cards.

3. Using collected health insurance premiums or the health insurance fund for improper purposes.

4. Obstructing, troubling or causing harms to the insured and parties involved in health insurance in the exercise of their lawful rights and enjoyment of their benefits.

5. Deliberately making false reports or providing false information and data on health insurance.

6. Abusing one’s position, power or professional operations to act in contravention of the health insurance law.

Chapter II

THE INSURED, RATES, LIABILITIES AND METHODS OF PAYMENT OF HEALTH INSURANCE PREMIUMS

Article 12. The insured

1. Laborers working under indefinite-term labor contracts or labor contracts of full three-month or longer term according to the labor law; business managers who enjoy salaries or remunerations under the salary and remuneration law; cadres, civil servants and employees prescribed by law (below collectively referred to as employees).

2. Professional officers and non-commissioned officers and officers and non-commissioned officers specialized in technical areas who are serving in the people’s security force.

3. Persons on pension or monthly working capacity loss allowance.

4. People on monthly social insurance allowance for labor accident or occupational disease.

5. People who have stopped enjoying working capacity loss allowances and are enjoying monthly allowances from the state budget.

6. Commune, ward or township cadres who have stopped working and are enjoying monthly social insurance allowances.

7. Commune, ward or township cadres who have stopped working and are enjoying monthly allowances from the state budget.

8. People on unemployment allowance.

9. People with meritorious services to the revolution.

10. War veterans as defined by the war veteran law.

11. People who personally participated in the anti-US resistance war for national salvation under the Government’s regulations.

12. Incumbent National Assembly deputies and People’s Council deputies at all levels.

13. People on monthly social welfare allowance as prescribed by law.

14. Poor household members; ethnic minority people living in areas with difficult or exceptionally difficult socio-economic conditions.

15. Relatives of people with meritorious services to the revolution as prescribed by the law on preferential treatment toward people with meritorious services to the revolution.

16. Relatives of the following people as prescribed in the laws on People’s Army officers, military service, people’s public security and cipher officers:

a/ On-service officers, career army men of the People’s Army; non-commissioned officers and soldiers who are serving in the People’s Army;

b/ Professional officers and non-commissioned officers and specialized technical officers and non-commissioned officers who are working in the people’s security force; non-commissioned officers and soldiers who are serving in the people’s security force for a given period;

c/ Career officers and army men doing cipher work in the Government Cipher Committee and those doing cipher work and salaried according to the stafe payroll of People’s Army officers or the state payroll of People’s Army career men who are neither army men nor policemen.

17. Children aged under 6 years.

18. People who have donated parts of their bodies under the law on donation, taking and transplantation of tissues and human organs and donation and taking of cadavers.

19. Foreigners studying in Vietnam who are granted scholarships from the Vietnamese State’s budget.

20. Members of households living just above the poverty line.

21. Pupils and students.

22. Members of agricultural, forestry, fishery and salt-making households.

23. Relatives of employees defined in Clause 1 of this Article whom the employees have to rear and who live together with them in the same families.

24. Members of cooperatives or individual business households.

25. Other persons according to the Government’s regulations.

Article 13. Health insurance premium rates and responsibilities to pay health insurance premiums

1. Health insurance premium rates and responsibilities to pay health insurance premiums are prescribed as follows:

a/ The monthly premium rate applicable to persons defined in Clauses 1 and 2, Article 12 of this Law is equal up to 6% of the employee’s monthly salary or remuneration, with the employer paying two thirds of the amount and the employee one-third. In the period when the employee takes maternity leave or rears an adopted child of under 4 months according to the social insurance law, the employee and employer are not required to pay health insurance premium and this period is still counted in their consecutive health insurance participation time for entitlement to health insurance benefits;

b/ The monthly premium rate applicable to persons defined in Clause 3, Article 12 of this Law is equal up to 6% of their pension or working capacity loss allowance, and such premiums shall be paid by the social insurance institution;

c/ The monthly premium rate applicable to persons defined in Clauses 4,5 and 6, Article 12 of this Law is equal up to 6% of the minimum salary and such premiums shall be paid by the social insurance institution;

d/ The monthly premium rate applicable to persons defined in Clause 8, Article 12 of this Law is equal up to 6% of their unemployment allowance and such premiums shall be paid by the social insurance institution;

e/ The monthly premium rate applicable to persons defined in Clauses 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, Article 12 of this Law is equal up to 6% of the minimum salary and such premiums shall be paid by the state budget;

f/ The monthly premium rate applicable to persons defined in Clause 19, Article 12 of this Law is equal up to 6% of the minimum salary and such premiums shall be paid by the scholarship-awarding agencies, organizations or units;

g/ The monthly premium rate applicable to persons defined in Clauses 20, 21 and 22, Article 12 of this Law is equal up to 6% of the minimum salary and such premiums shall be paid by these persons;

The state budget shall pay part of health insurance premiums for persons defined in Clauses 20 and 21, Article 12 of this Law and those defined in Clause 22, Article 12 of this Law who have average living standards;

h/ The monthly premium rate applicable to persons defined in Clause 23, Article 12 of this Law is up to 6% of the minimum salary and paid by the employees;

i/ The monthly premium rate applicable to persons defined in Clause 24, Article 12 of this

Law is equal up to 6% of the minimum salary and such premiums shall be paid by these persons;

j/ The monthly premium rate applicable to persons defined in Clause 25, Article 12 of this Law is equal up to 6% of the minimum salary.

2. In case an insured concurrently belongs to different categories specified in Article 12 of this Law, he/she shall pay health insurance premiums like those in the first category which he/she belongs to in the order of priority defined in Article 12 of this Law.

In case a person defined in Clause 1, Article 12 of this Law has additionally one or several indefinite-term labor contracts or labor contracts of 3-month or longer term, he/she shall pay health insurance premium according to the contract with the highest salary or remuneration level.

3. The Government shall specify premium and support rates referred to in Clause 1 of this Article.

Article 14. Salaries, remuneration, allowances serving as a basis for health insurance premium payment

1. Employees salaried under state regulations shall pay health insurance premiums based on their monthly salaries paid according to their ranks or grades, and position, extra-seniority or trade seniority allowances (if any).

2. Employees salaried or remunerated according to their employers’ regulations shall pay social insurance premiums based on their monthly salaries or remunerations indicated in their labor contracts.

3. Persons on monthly pension, working capacity loss allowance or job-loss allowance shall pay health insurance premiums based on their monthly pensions, working capacity loss allowances or job-loss allowances.

4. Other persons shall pay health insurance premiums based on the minimum salary.

5. The maximum remuneration or salary level used for the calculation of health insurance premiums is 20 times the minimum salary.

Article 15. Methods of payment of health insurance premiums

1. Monthly, employers shall pay health insurance premiums for employees and make deductions from the latter’s salaries and remuneration for payment of health insurance premiums into the health insurance fund.

2. For agricultural, forestry, fishery and salt-making enterprises which do not pay salaries on a monthly basis, employers shall, once every three or six months, pay health insurance premiums for employees and make health insurance premiums from the latter’s salaries or remuneration for paying into the health insurance fund.

3. Monthly, social insurance institutions shall pay health insurance premiums for persons defined in Clauses 3, 4, 5, 6 and 8, Article 12 of this Law, into the health insurance fund.

4. Annually, agencies and organizations managing persons defined in Clauses 7, 9, 10, 11. 12, 13, 14, 17 and 18, Article 12 of this Law shall pay health insurance premiums for these persons into the health insurance fund.

5. Annually, agencies and organizations managing people with meritorious services to the revolution and persons defined at Points a, b and c, Clause 16, Article 12 of this Law shall pay health insurance premiums for their relatives into the health insurance fund.

6. Monthly, scholarship-awarding agencies, organizations and units shall pay health insurance premiums for persons defined in Clause 19, Article 12 of this Law, into the health insurance fund.

7. The Government shall specify methods of payment of health insurance premiums for persons defined in Clauses 20, 21, 22, 23, 24 and 25, Article 12 of this Law.

Chapter III

HEALTH INSURANCE CARDS

Article 16. Health insurance cards

1. A health insurance card is granted to an insured as a basis for enjoying health insurance benefits under this Law.

2. Everyone may be granted only one health insurance card.

3. The time when a health insurance card becomes valid is prescribed as follows:

a/ For an insured defined in Clause 3, Article 50 of this Law who pays health insurance premiums continuously from the second time on or an insured defined in Clause 2, Article 51 of this Law, his/her health insurance card will become valid on the date of payment of health insurance premiums.

b/ For an insured defined in Clause 3, Article 50 of this Law who pays health insurance premiums for the first time or fails to pay health insurance premiums continuously, his/her health insurance card will become valid 30 days after the date of payment of health insurance premiums; particularly for entitlement to hi-tech services, his/her health insurance card will become valid 180 days after the date of payment of health insurance premiums;

c/ With regard to a child under 6 years, his/her health insurance card is valid until he/she reaches full 72 months of age.

4. A health insurance card is invalid in the following cases:

a/ Its validity duration expires;

b/ It has been modified or erased;

c/ The card holder no longer joins health insurance.

5. Health insurance institutions shall provide the model of health insurance card, manage health insurance cards uniformly nationwide, and issue health insurance cards attached with photos of the insured by January 1, 2014 at the latest.

Article 17. Grant of health insurance cards

1. A dossier of request for the grant of a health insurance card comprises:

a/ A written registration of health insurance participation by an agency or organization responsible for paying health insurance premiums defined in Clause 1, Article 13 of this Law;

b/ A list of the insured, made by the agency or organization responsible for paying health insurance premiums defined in Clause 1, Article 13 of this Law or by the representative of the voluntary insured;

c/ A written declaration of the individual or household participating in health insurance.

2. A dossier of request for the grant of a health insurance card to an under-6 child comprises:

a/ A copy of the birth proof paper or birth certificate. In case the child has no such a paper or certificate, a written certification by the People’s Committee of the commune, ward or township where the child’s father, mother or guardian resides is required;

b/ A list or written request for the grant of health insurance cards by the People’s Committee of the commune, ward or township where the child resides.

3. Within 10 working days after receiving a complete dossier prescribed in Clauses 1 and 2 of this Article, the health insurance institution shall grant a health insurance card to the insured.

Article 18. Re-grant of health insurance cards

1. Health insurance cards may be re-granted to replace the lost ones.

2. A person who loses his/her health insurance card shall file a written request for the re-grant of the card.

3. Within 7 working days after receiving a written request for the re-grant of a card, the health insurance institution shall re-grant the card to the insured. Pending the re-grant of a card, the card holder is still entitled to health insurance benefits.

4. A person who is re-granted a health insurance card shall pay a charge. The Minister of Health shall set charge rates for the re-grant of health insurance cards.

Article 19. Exchange of health insurance cards

1. A health insurance card may be exchanged in the following cases:

a/ It is torn, rumpled or damaged:

b/ The registered primary care provider is changed;

c/ The information printed in the card is incorrect:

2. A dossier of request for the exchange of a health insurance card comprises:

a/ The insured’s written request for card exchange;

b/ The health insurance card.

3. Within 7 working days after receiving a complete dossier prescribed in Clause 2 of this Article, the health insurance institution shall exchange the card for the insured. Pending the card exchange, the card holder is still entitled to health insurance benefits.

4. A person who has a torn, rumpled or damaged health insurance card exchanged shall pay a charge. The Minister of Finance shall set charge rates for the exchange of health insurance cards.

Article 20. Revocation, seizure of health insurance cards

1. A health insurance card may be revoked in the following cases:

a/ There is fraud in its grant;

b/ The card holder no longer joins health insurance.

2. A health insurance card shall be seized when a person seeks medical care services with another’s card. A person whose health insurance card is seized shall show up in order to receive back the card and pay a fine in accordance with law.

Chapter IV

SCOPE OF HEALTH INSURANCE BENEFITS

Article 21. Scope of health insurance benefits

1. The insured has the following costs covered by the health insurance fund:

a/ Costs of medical examination and treatment, function rehabilitation, regular pregnancy check-ups and birth giving;

b/ Costs of medical examination for screening and early diagnosis of some diseases;

c/ Costs of transferal from district hospitals to higher-level hospitals, for persons defined in Clauses 9, 13. 14, 17 and 20, Article 12 of this Law in case of emergency or for inpatients who need technical transferal.

2. The Minister of Health shall specify Point b, Clause 1 of this Article: and assume the prime responsibility for. and coordinate with relevant agencies in. promulgating lists of medicines, chemicals, medical supplies and equipment as well as technical services which the insured is entitled to.

Article 22. Levels of health insurance benefits

1. An insured who uses medical care services defined in Articles 26, 27 and 28 of this Law has medical care costs covered by the health insurance fund at the following levels:

a/ 100% of the costs, for persons defined in Clauses 2, 9 and 17, Article 12 of this Law;

b/ 100% of the costs, for cases in which the cost of a check-up is below the level prescribed by the Government and conducted at a commune hospital;

c/ 95% of the costs, for persons defined in Clauses 3, 13 and 14, Article 12 of this Law;

d/ 80% of the costs, for other persons.

2. If the insured belongs to different categories, he/she is eligible for the highest benefit for an insured of a category.

3. The Government shall specify levels of medical care costs paid for the cases of transferal to higher-level hospitals, medical examination and treatment at upon request, and use of hi-tech and expensive services and other cases not specified in Clause 1 of this Article.

Article 23. Cases not eligible for health insurance benefits

1. Cases specified in Clause 1 of Article 21 in which costs have been paid by the state budget.

2. Convalescence at sanatoria or convalescence establishments.

3. Medical check-up.

4. Prenatal tests and diagnosis for non-treatment purposes.

5. Use of obstetric supportive techniques, family planning services or abortion services, except for cases of discontinuation of pregnancy due to fetal or maternal diseases.

6. Use of aesthetic services.

7. Treatment of squint, short-sightedness and refractive defects.

8. Use of prostheses including artificial limbs, eyes, teeth, glasses, hearing aids or movement aids in medical examination, treatment and function rehabilitation.

9. Medical examination, treatment and function rehabilitation in case of occupational diseases, labor accidents or disasters.

10. Medical examination and treatment in case of suicide or self-inflicted injuries.

11. Medical examination and treatment for addiction to drugs, alcohol or other habit-forming substances.

12. Medical examination and treatment of physical or mental injuries caused by the injured’s law-breaking acts.

13. Medical assessment, forensic examination, forensic mental examination.

14. Participation in clinical trials or scientific research.

Chapter V

ORGANIZATION OF MEDICAL CARE FOR THE INSURED

Article 24. Health insurance-covered medical care providers

1. A health insurance-covered medical care provider is a health establishment which signs a medical care contract with a health insurance institution.

2. Health insurance-covered medical care providers include:

a/ Commune health stations and the equivalent, maternity houses;

b/ General and specialized clinics;

c/ General and specialized hospitals.

Article 25. Contracts on health insurance-covered medical care

1. A health insurance-covered medical care contract is a written agreement between a health insurance institution and a medical establishment on the provision of health insurance-covered medical care services and payment for these services.

2. A health insurance-covered medical care contract has the following principal details:

a/ Service beneficiaries and quality requirements;

b/ Method of payment of medical care costs;

c/ Rights and duties of the contractual parties;

d/ Term of the contract;

e/ Liabilities for breach of the contract;

f/ Conditions for modification, liquidation and termination of the contract.

3. Any agreement on conditions for modification, liquidation and termination of a contract defined at Point e. Clause 2 of this Article must not interrupt medical care for the concerned insured.

4. The Ministry of Health shall provide a model contract on health insurance-covered medical care.

Article 26. Registration for health insurance-covered medical care services

1. The insured may register for health insurance-covered primary care services at medical establishments of commune and district or equivalent levels, except for cases in which they are entitled to register at provincial or central medical establishments under regulations of the Minister of Health.

If an insured works on a mobile basis or moves in a different locality, he/she may seek primary care services at a medical establishment of corresponding technical line in the locality where he/she works or resides under regulations of the Minister of Health.

2. The insured may change the registered primary care provider at the beginning of every quarter.

3. The name of the primary care provider shall be specified in a health insurance card.

Article 27. Treatment-line transfer

For a case falling beyond the professional and technical capacity of a health insurance-covered medical care provider, such provider may transfer the patient to another provider according to regulations on technical transfer.

Article 28. Procedures for health insurance-covered medical care

1. An insured seeking medical care service shall present his/her health insurance card attached with his/her photo; a card without photo must be produced together with a written proof of persona identity of the card holder; for children under 6 years, only health insurance cards need to be produced.

2. In case of emergency, an insured may seek medical care services at any medical establishment and shall produce his/her health insurance card together with papers defined in Clause 1 of this Article before he/she is discharged from hospital.

3. In case of treatment-line transferal, an insured shall obtain a transferal dossier from the concerned medical establishment.

4. In case of re-examination to meet treatment requirements, an insured shall obtain a note of appointment from the concerned medical establishment.

Article 29. Health insurance assessment

1. Health insurance assessment covers:

a/ Scrutinizing medical care procedures;

b/ Checking and evaluating the order of treatment, prescription, and the use of medicines, chemicals, medical supplies and technical services for patients;

c/ Inspecting and determining costs of health insurance-covered medical care.

2. Health insurance assessment must ensure accuracy, publicity and transparency.

3. Health insurance institutions shall conduct health insurance assessment and take responsibility before law for assessment results.

Chapter VI

PAYMENT OF COSTS OF HEALTH INSURANCE-COVERED MEDICAL CARE

Article 30. Methods of payment of costs of insured medical care

1. Costs of health insurance-covered medical care shall be paid by one of the following methods:

a/ Rate-based payment, which means payment according to medical care cost norms and the premium rate fixed on each health insurance card as registered with a health insurance-covered medical care provider during a certain period;

b/ Service charge-based payment, which means payment on the basis of costs of medicines, chemicals, medical supplies and equipment as well as technical services provided for patients;

c/ Disease-based payment, which means payment according to medical care costs pre-determined for each case based on diagnosis.

2. The Government shall specify the application of methods of payment of health insurance-covered medical care costs defined in Clause 1 of this Article.

Article 31. Payment of costs of health insurance-covered medical care

1. Health insurance institutions shall pay costs of health insurance-covered medical care to medical care providers according to health insurance-covered medical care, contracts

2. Health insurance institutions shall pay medical care costs directly to health insurance card holders who use medical care services in the following cases:

a/ At a health insurance-covered medical care provider which has no health insurance-covered medical care contract;

b/ The medical care is provided not in accordance with Articles 26, 27 and 28 of this Law;

c/ In foreign countries;

d/ Other special cases as specified by the Minister of Health.

3. The Ministry of Health shall assume the prime responsibility for, and coordinate with the Ministry of Finance in, specifying payment procedures and levels for cases defined in Clause 2 of this Article.

4. Health insurance institutions shall pay medical care costs on the basis of hospital charges according to the Government’s regulations.

Article 32. Advancement, payment, settlement of costs of health insurance-covered medical care

1. Health insurance institutions shall quarterly pay in advance to health insurance-covered medical care providers at least 80% of the costs of health insurance-covered medical care of the preceding quarter which have been settled. With regard to a health insurance-covered medical care provider which signs a health insurance-covered medical care contract for the first time, the first advance will at least equal 80% of the medical care cost of one quarter under the signed contract.

2. An health insurance-covered medical care provider and a health insurance institution shall make payment and settlement on a quarterly basis as follows:

a/ In the first month of every quarter, the health insurance-covered medical care provider shall send a report on settlement of costs of health insurance-covered medical care in the previous quarter to the health insurance institution;

b/ Within 30 days after receiving the settlement report from the health insurance-covered medical care provider, the health insurance institution shall consider and notify the latter of the results of settlement. Within 15 days after notifying the settlement results, the health insurance institution shall complete the settlement with the health insurance-covered medical care provider.

3. Within 40 days after receiving a complete dossier of request for payment of medical care costs from an insured under Points a and b, Clause 2, Article 31 of this Law or 60 days, for cases defined at Points c and d. Clause 2, Article 31 of this Law, the health insurance institution shall pay the medical care costs to that insured.

Chapter VII

HEALTH INSURANCE FUND

Article 33. Sources for setting up the health insurance fund

1. Health insurance premiums prescribed in this Law.

2. Profits from investments by the fund.

3. Financial aid from domestic and foreign organizations.

4. Other lawful revenues.

Article 34. Management of the health insurance fund

1. The health insurance fund shall be managed in a centralized, uniform, public and transparent manner with management decentralization within the system of health insurance institutions.

2. The Government shall specify the management of the health insurance fund; decide on financial sources to ensure health insurance-covered medical care in case the health insurance fund faces a revenue-expenditure imbalance.

Article 35. Use of the health insurance fund

1. The health insurance fund is used for the following purposes:

a/ Payment of health insurance-covered medical care costs;

b/ Payment of costs of organizational management of health insurance institutions, according to the administrative spending norms applicable to state agencies;

c/ Investment for preservation and growth purposes on the principle of safety and efficiency;

d/ Setting up of a provision fund for health insurance-covered medical care. The provision must be at least equal to the total costs of health insurance-covered medical care of the two consecutive previous quarters and not exceed the total health insurance-covered medical care costs of the two last consecutive years.

2. In case a province or centrally run city’s health insurance premium payments are bigger than the health insurance-covered medical care costs, the locality may use part of the balance for the provision of medical care services.

3. The Government shall detail this Article.

Chapter VIII

RIGHTS AND RESPONSIBILITIES OF PARTIES INVOLVED IN HEALTH INSURANCE

Article 36. Rights of the insured

1. To be granted health insurance cards if paying health insurance premiums.

To select a primary care provider under Clause 1, Article 26 of this Law.

3. To be entitled to medical care.

4. To get medical care costs paid by health insurance institutions.

5. To request health insurance institutions, health insurance-covered medical care providers and relevant agencies to explain and provide information on health insurance.

6. To complain about or denounce violations of the health insurance law.

Article 37. Responsibilities of the insured

1. To pay health insurance premiums fully and on time.

2. To use health insurance cards for proper purposes, not to lend their cards to others.

3. To abide by the provisions of Article 28 of this Law when using medical care services.

4. To comply with regulations and guidance of health insurance institutions and medical establishments when using medical care services.

5. To pay medical care costs to medical establishments, in addition to the costs-covered by the health insurance fund.

Article 38. Rights of organizations and individuals paying health insurance premiums

1. To request health insurance institutions and competent state agencies to explain and provide information on health insurance regimes.

2. To complain about and denounce violations of the health insurance law.

Article 39. Responsibilities of organizations and individuals paying health insurance premiums

1. To make dossiers of request for the grant of health insurance cards.

2. To pay health insurance premiums fully and on schedule.

3. To hand health insurance cards to the insured.

4. To provide full and accurate information and documents related to the health insurance duties of employers and their representatives to the insured upon request of health insurance institutions, employees or their representatives.

5. To be subject to examination and inspection of the observance of the health insurance law.

Article 40. Rights of health insurance institutions

1. To request employers, representatives of the insured and the insured to provide full and accurate information and documents related to their health insurance duties.

2. To inspect and evaluate the provision of health insurance-covered medical care services; to revoke or seize health insurance cards, for cases defined in Article 20 of this Law.

3. To request health insurance-covered medical care providers to provide patient files and records and medical care documents for health insurance assessment.

4. To refuse payment of costs of health insurance-covered medical care which violate this Law or the health insurance-covered medical care contracts.

5. To request persons who are liable to pay damages to the insured to refund medical care costs which have been paid by health insurance institutions.

6. To propose competent state agencies to revise health insurance policies or law and handle organizations and individuals that violate the health insurance law.

Article 41. Responsibilities of health insurance institutions

1. To popularize and disseminate health insurance policies and law.

2. To provide dossier and procedural guidance, to organize the implementation of health insurance regimes in a quick, simple and convenient manner for the insured.

3. To collect health insurance premiums and grant health insurance cards.

4. To manage and use the health insurance fund.

5. To sign health insurance-covered medical care contracts with medical establishments.

6. To pay health insurance-covered medical care costs.

7. To provide information on health insurance-covered medical care providers and guide the insured in selecting primary care providers.

8. To check the quality of medical care services; to conduct health insurance assessment.

9. To protect interests of the insured: to settle according to their competence petitions, complaints and denunciations on health insurance regimes.

10. To archive files and data on health insurance according to law; to apply information technology to health insurance management and establish a national database on health insurance.

11. To organize statistics and reporting work, provide professional guidance on health insurance; to make reports on the management and use of the health insurance fund on a periodical basis or upon request.

12. To organize professional training and retraining, scientific research and international cooperation on health insurance.

Article 42. Rights of health insurance-covered medical care providers

1. To request health insurance institutions to provide full and accurate information on the insured and the fund allocated to them for the provision of medical care for the insured.

2. To be entitled to fund advance and payment of medical care costs by health insurance institutions in accordance with the signed health insurance-covered medical care contracts.

3. To propose competent state agencies to handle organizations and individuals that violate the health insurance law.

Article 43. Responsibilities of health insurance-covered medical care providers

1. To provide quality medical care services according to simple and convenient procedures for the insured.

2. To provide patient files and records and documents on medical care and the payment of medical care costs at the request of health insurance institutions and competent state agencies.

3. To ensure necessary conditions for health insurance institutions to conduct assessment; to coordinate with health insurance institutions in propagating and explaining health insurance regimes to the insured.

4. To inspect, detect and inform health insurance institutions of the misuse of health insurance cards; to coordinate with health insurance institutions in revoking and seizing health insurance cards in cases defined in Article 20 of this Law.

5. To manage and use money from the health insurance fund strictly according to law.

6. To make statistics and reports on health insurance in accordance with law.

Article 44. Rights of organizations representing employees and those representing employers

1. To request health insurance institutions, care providers and employers to provide full and accurate information on health insurance for employees.

2. To request competent state agencies to handle violations of the health insurance law which affect the lawful rights and interests of employees and employers.

Article 45. Duties of organizations representing employees and those representing employers

1. To popularize and disseminate health insurance policies and law to employees and employers.

2. To participate in the formulation of health insurance policies and law. and propose amendments or supplements thereto.

3. To join in the supervision of enforcement of the health insurance law.

Chapter IX

INSPECTION, COMPLAINT, DENUNCIATION, SETTLEMENT OF DISPUTES AND HANDLING OF VIOLATIONS IN HEALTH INSURANCE

Article 46. Health insurance inspectorate

The health insurance inspectorate shall conduct specialized inspection in the health insurance domain.

Article 47. Complaint, denunciation on health insurance

The lodging and settlement of complaints about administrative decisions and administrative acts related to health insurance; the lodging and settlement of denunciations about violations of the health insurance law comply with the law on complaints and denunciations.

Article 48. Health insurance disputes

1. Health insurance disputes are disputes related to health insurance rights, duties and liabilities of the following:

a/ The insured defined in Article 12 of this Law and their representatives;

b/ Health insurance premium-paying organizations and individuals defined in Clause 1, Article 13 of this Law;

c/ Health insurance institutions;

d/ Health insurance-covered medical care providers.

2. Health insurance disputes shall be settled as follows:

a/ The disputing parties shall reconcile their dispute;

b/ In case of unsuccessful reconciliation, the disputing parties may initiate a lawsuit at a court in accordance with law.

Article 49. Handling of violations

1. Any person who violates the provision of this Law and relevant provisions of law on health insurance shall, depending on the nature and severity of their violations, be disciplined, administratively sanctioned or examined for penal liability; and, if causing damage, they shall pay compensation in accordance with law.

2. Agencies, organizations and employers that are responsible to pay health insurance premiums but fail to pay or fully pay them shall, according to law, fully pay the deficit together with the interest arising in the late payment period at the prime interest rate announced by the Slate Bank; if failing to do so, upon request of persons competent to handle administrative violations, banks or other credit institutions, the state treasury shall make deductions from their deposit accounts to pay the arrears and interest arising on these arrears into the account of the health insurance fund.

Chapter X

IMPLEMENTATION PROVISIONS

Article 50. Transitional provisions

1. Health insurance cards and free medical care cards granted to under-6 children before the effective date of this Law will be valid:

a/ Until their expiration, for cards valid through

December 31, 2009;

b/ Until December 31, 2009, for cards valid beyond December 31, 2009.

2. The benefits of persons who were granted health insurance cards before this Law takes effect will be effective according to current legal provisions on health insurance until December 31, 2009.

3. Persons defined in Clauses 21, 22, 23, 24 and 25, Article 12 of this Law may, pending the implementation of Points b, c, d and e, Clause 2, Article 51 of this Law, voluntarily participate in health insurance under the Government’s regulations.

Article 51. Effect

1. This Law takes effect on July 1, 2009.

2. The roadmap for achieving all-people health insurance is provided for as follows:

a/ Persons defined in Clauses 1 thru 20, Article 12 of this Law shall participate in health insurance from the effective date of this Law.

b/ Persons defined in Clause 21, Article 12 of this Law shall participate in health insurance from January 1, 2010;

c/ Persons defined in Clause 22, Article 12 of this Law shall participate in health insurance from January 1, 2012;

d/ Persons defined in Clauses 23 and 24, Article 12 of this Law shall participate in health insurance from January 1, 2014;

e/ Persons defined in Clause 25, Article 12 of this Law shall participate in health insurance under the Government’s regulations from January 1, 2014 at the latest.

Article 52. Implementation detailing and guidance

The Government shall detail and guide the implementation of the articles and clauses of this Law as assigned, and guide other necessary provisions of this Law to meet state management requirements.

This Law was passed on November 14, 2008. by the XII^th National Assembly of the Socialist Republic of Vietnam at its 4^th session

CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Phu Trong

THE NATIONAL ASSEMBLY

——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 35/2009/QH12

Hanoi, June 18, 2009

LAW  ON STATE COMPENSATION LIABILITY

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law on State Compensation Liability Law.

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Law provides for the State’s liability to pay compensation to individuals and organizations suffering from damage caused by official-duty performers in administrative management, legal proceedings and judgment enforcement activities; compensation procedures; the rights and obligations of individuals and organizations suffering from damage; compensation funds and the reimbursement liability of official-duty performers who have caused the damage.

Article 2. Compensation-eligible entitles

Individuals and organizations suffering from material damage and/or mental sufferings (below collectively referred to as sufferers) in cases provided by this Law are eligible for compensation by the State.

Article 3. Interpretation of terms

In this Law. the terms below are construed as follows:

1. An official-duty performer means a person who is elected, approved, recruited or appointed to a position in a state agency to perform the tasks of administrative management, legal proceedings or judgment enforcement, or a person who is assigned by a competent state agency to perform tasks related to administrative management. legal proceedings or judgment enforcement.

2. An illegal act of an official-duty performer which has caused damage means an act of non­performance or unlawful performance of a task or power, which is affirmed in a document of a competent state agency.

3. Document affirming an illegal act of an official-duty performer means a decision on settlement of a complaint or denunciation of a person competent to settle complaints or denunciations or a judgment or decision of a competent procedure-conducting agency.

4. Compensation-liable agency means the agency directly managing the official-duty performer who commits an illegal act causing damage or another agency as defined by this Law.

Article 4. The right to claim compensation

1. Sufferers are entitled to request compensation-liable agencies to settle compensation upon the availability of competent state agencies* documents affirming that the official-duty performers’ acts are illegal or of documents of competent agencies in criminal proceedings affirming that the sufferers fall into compensation cases defined in Article 26 of this Law.

2. In the course of lodging their complaints or instituting administrative lawsuits, sufferers are entitled to request persons competent to settle complaints or courts to settle compensation.

Article 5. Statute of limitations for lodging compensation claims

1. The statute of limitation for lodging compensation claims defined in Clause 1. Article 4 of this Law is 2 years counting from the date competent state agencies promulgate the documents affirming that the official-duty performers’ acts are illegal or from the date the legally effective judgments or rulings of criminal procedure-conducting agencies affirm that the sufferers fall into compensation-eligible cases defined in Article 26 of this Law.

2. The statute of limitations for lodging compensation claims defined in Clause 2. Article 4 of this Law is determined under the law on complaints and denunciations and the law on procedures for settlement of administrative cases.

3. If in the course of settling complaints or administrative cases, in which the official-duty performers" illegal acts and actual damage have been determined but no compensation has been made yet, the statute of limitations for lodging compensation claims complies with Clause 1 of this Article.

Article 6. Grounds for determination of compensation liability

1. The state compensation liability in activities of administrative management, civil proceedings, administrative proceedings and judgment enforcement shall be determined on the following grounds:

a/ The availability of competent state agencies’ documents affirming that official-duty performers’ acts are illegal and fall within the scope of compensation liability prescribed in Articles 13. 28. 38 and 39 of this Law;

b/ The actual damage caused by illegal acts of official-duty performers to sufferers.

2. The state compensation liability in criminal proceedings shall be determined on the following grounds:

a/ The availability of judgments or decisions of competent state agencies in criminal proceedings affirming that the sufferers fall into compensation-eligible cases defined in Article 26 of this Law:

b/ The actual damage caused by criminal procedure-conducting persons to sufferers.

3. The State will not compensate for damage caused in the following circumstances:

a/ The sufferer is at fault:

b/ The sufferer conceals evidence and documents or provides untruthful documents during the settlement of his/her matter or case;

c/ Force majeure or emergency cases.

Article 7. Principles for compensation settlement

The compensation settlement must comply with the following principles:

1. Being timely, public and lawful;

2. Being conducted on the basis of negotiations between compensation-liable agencies and sufferers or their lawful representatives;

3. Being paid once in cash, unless otherwise agreed upon by the parties.

Article 8. Tasks and powers of compensation-liable agencies

Compensation-liable agencies have the following tasks and powers:

1. To receive and handle compensation claims of sufferers;

2. To verify the damage, to negotiate with sufferers and issue compensation settlement decisions;

3. To participate in court proceedings in the capacity as plaintiffs in case sufferers institute lawsuits at court for compensation settlement;

4. To make payments to sufferers and settle compensation funds;

5. To request official-duty performers to reimburse to the state budget compensation amounts paid by the State to sufferers;

6. To settle compensation-related complaints and denunciations under the law on complaints and denunciations;

7. To restore or propose competent agencies or organizations to restore the legitimate rights and interests of sufferers;

8. To report on compensation settlement according to law.

Article 9. Rights and obligations of sufferers

1. Sufferers have the following rights:

a/ To request the State to pay damages and restore their honor as provided by this Law;

b/ To be compensated by compensation-liable agencies or to have their compensation claims settled by courts and be notified of the compensation settlement;

c/ To complain about or denounce illegal decisions or acts of competent persons in compensation settlement under the law on complaints and denunciations;

d/ To complain about or appeal against court judgments or rulings according to the procedure law;

e/ To request competent agencies or organizations to restore their legitimate rights and interests.

2. Sufferers have the following obligations:

a/ To promptly, fully and honestly provide documents and evidence related to their compensation claims;

b/ To prove the damage actually occurred.

Article 10. Rights and obligations of damage-causing official-duty performers

1. Official-duty performers who have caused damage have the following rights:

a/ To receive decisions related to compensation settlement;

b/ To lodge their complaints, denunciations or institute lawsuits against illegal decisions or acts of competent persons in the settlement of compensation as provided for by law:

c/ To have other rights as prescribed by law.

2. Official-duty performers who have caused damage have the following obligations:

a/ To promptly, fully and honestly provide information and documents related to the settlement of compensation at the request of compensation-liable agencies or courts;

b/ To reimburse to the state budget compensa­tion amounts paid by the State to sufferers under decisions of competent state agencies:

c/ To have other obligations as prescribed by law.

Article 11. State management responsibilities for compensation work

1. The Government has the following responsibilities:

a/ To perform the unified state management of compensation work in administrative management and judgment enforcement;

b/ To coordinate with the Supreme People’s Court and the Supreme People’s Procuracy in the management of compensation work in procedural activities;

c/ To promulgate according to its competence or propose competent agencies to promulgate legal documents on state compensation liability:

d/ To annually make statistics on and review compensation work; to report on compensation work to the National Assembly or its Standing Committee upon request.

The Ministry of Justice shall assist the Government in performing the tasks specified in this Clause.

2. Ministries, ministerial-level agencies and provincial-level People’s Committees shall, within the ambit of their tasks and powers, perform the state management of compensation work and annually report to the Ministry of Justice on their respective compensation work.

3. The Ministry of Finance shall formulate and submit to competent state agencies for promulgation or promulgate according to its competence legal documents on the use and settlement of the state budget for compensation.

4. The Supreme People’s Court and the Supreme People’s Procuracy shall, within the scope of their respective tasks and powers, manage compensation work and coordinate with the Government in performing the state management of compensation work; annually notify the Ministry of Justice of their respective compensation work.

5. The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall, within the ambit of their tasks and powers, detail and guide the implementation of this Article.

Article 12. Prohibited acts

1. Forging dossiers, documents and papers for compensation.

2. Acting in connivance among sufferers, persons responsible for compensation settlement and concerned people for self-seeking purposes in compensation.

3. Abusing positions and powers to illegally intervene in the course of compensation settlement.

4. Failing to settle compensation or settling compensation in contravention of law.

Chapter II

STATE COMPENSATION LIABILITY IN ADMINISTRATIVE MANAGEMENT ACTIVITIES

Section I. SCOPE OF LIABILITY AND COM PENS A TION-LIA BLE A GENCIES

Article 13. Scope of compensation liability in administrative management activities

The State is liable to compensate for damage caused by illegal acts of official-duty performers in the following cases:

1. Issuing decisions on sanctioning administrative violations:

2 Applying measures to ward off administrative violations and secure the handling of administrative violations;

3. Applying measures to force the dismantlement of houses, constructions, architectural objects and measures for coercive enforcement of other decisions on sanctioning administrative violations;

4. Applying administrative measures of confining people to a reformatory, rehabilitation establishment or medical establishment;

5. Granting, revoking business registration certificates, investment certificates, permits and papers of permit validity;

6. Imposing taxes, charges and fees; collecting taxes, charges and fees; collecting tax arrears; collecting land use levies;

7. Applying customs procedures;

8. Allocating land, leasing land or recovering land, permitting land use purpose change, compensating for and supporting ground clearance and resettlement; granting or revoking certificates of rights to use land and own houses and other assets attached to land;

9. Issuing decisions on handling of competition-related matters and cases:

10. Issuing protection titles to ineligible persons; issuing protection titles to ineligible industrial property objects; issuing decisions on termination of the validity of protection titles;

11. Refusing to grant business registration certificates, investment certificates, permits and papers of permit validity, protection titles to eligible subjects;

12. Other compensation-eligible cases prescribed by law.

Article 14. Compensation-liable agencies

1. Administrative agencies directly managing official-duty performers who commit damage-causing illegal acts are liable to pay compensation.

2. Apart from cases defined in Clause 1 of this Article, compensation-liable agencies shall be determined as follows:

a/ If agencies managing official-duty performers in question have been separated, merged, consolidated or dissolved, the agencies inheriting their functions and tasks shall pay compensation. If no agencies inherit the functions and tasks of the dissolved agencies, the agencies which have issued the dissolution decisions shall pay compensation;

b/ If at the time of handling compensation claims, damage-causing official-duty performers no longer work in their managing agencies, the agencies managing those official-duty performers at the time of causing the damage shall pay compensation;

c/ In case of authorized or mandated performance of official duties, authorizing or mandating agencies shall pay compensation. If authorized or mandated agencies perform official duties at variance with authorized or mandated contents, thus causing damage, they shall pay compensation;

d/ If many official-duty performers from different agencies jointly cause damage, the line management agencies taking principal responsibility for the matters or cases shall pay compensation;

e/ If many official-duty performers from central agencies and local agencies jointly cause damage, central agencies shall pay compensation.

Section 2. COMPENSATION SETTLEMENT PROCEDURES

Article 15. Requests for determination of illegal acts of official-duty performers

1. Individuals and organizations, when holding that they suffer from damage caused by official-duty performers, are entitled to request persons competent to settle complaints to examine and conclude on illegal acts of official-duty performers.

2. Within the time limit prescribed by the law on complaints and denunciations, the persons competent to settle complaints shall examine and conclude in writing whether the official-duty performers’ acts are illegal.

3. The procedures for determination of illegal acts of official-duty performers comply with the law on complaints and denunciations. In complaint settlement decisions, damage-causing illegal acts of official-duty performers must be determined.

Article 16. Compensation claim dossiers

1. Upon receiving documents affirming that the official-duty performers’ illegal acts fall into cases defined in Article 13 of this Law, sufferers shall file their compensation claims with compensation-liable agencies defined in Article 14 of this Law.

2. A compensation claim contains the following principal details:

a/ Full name and address of the compensation claimant;

b/ Reasons for compensation claim;

c/ The extent of damage and the claimed compensation amount.

3. A compensation claim must be enclosed with a competent state agency’s document affirming the illegal act of the official-duty performer and documents and evidence related to the compensation claim.

Article 17. Handling of compensation claims

1. Upon receiving compensation claim dossiers, compensation-liable agencies shall check and determine the validity of the claims and enclosed papers; if the dossiers are incomplete, they shall instruct the sufferers to supplement them.

2. Within 5 working days after the receipt of valid compensation claims and papers. If determining that the claims fall under their handling responsibility, dossier-receiving agencies shall handle them and notify sufferers thereof in writing; if the compensation claims do not fall under their handling responsibility, they shall return them and guide sufferers to file their claims with competent agencies for compensation settlement.

Article 18. Damage verification

1. Within 20 days after accepting compensation claims, compensation-liable agencies shall completely verify the damage for use as a ground for determination of compensation amounts. For matters involving many complicated circumstances or to be verified at different places, the verification time limit may prolong but must not exceed 40 days.

2. Based on the nature and contents of matters, compensation-liable agencies may organize the valuation of property, examination of property damage, examination of health damage or acquire opinions of relevant agencies on the settlement of compensation. Expenses for such valuation and examination shall be covered by the state budget.

3. If sufferers disagree with valuation or examination results and request re-valuation or re-examination, which is agreed upon by compensation-liable agencies, re-valuation or re­examination costs shall be paid by sufferers, unless valuation or examination results prove that re-evaluation or re-examination requests are grounded.

Article 19. Negotiations on compensation

1. Within 30 days after the end of damage verification, compensation-liable agencies shall organize negotiations with sufferers on the settlement of compensation. If matters or cases involve many complicated circumstances, the negotiation time limit may prolong but must not exceed 45 days.

2. Participants in negotiations will be representatives of compensation-liable agencies and sufferers or their lawful representatives. When necessary, damage-causing official-duty performers will be invited to participate in negotiations.

Representatives of compensation-liable agencies must be persons competent to reach compensation agreement with sufferers and take responsibility before their agencies.

3. Negotiation venues will be offices of compensation-liable agencies or offices of People’s Committees of communes, wards or townships where sufferers reside, unless otherwise agreed upon by the concerned parties.

4. Negotiations shall be recorded in writing. A negotiation record must contain the following principal details:

a/ Date of negotiation;

b/ Negotiation venue and participants:

c/ Opinions of negotiation parties:

d/ Successfully or unsuccessfully negotiated contents.

5. A negotiation record must be signed by the parties and sent to the sufferer immediately after the conclusion of negotiations.

5. Negotiation results will serve as a basis for making decisions on compensation.

Article 20. Decision on compensation settlement

1. Within 10 days after the conclusion of negotiations, compensation-liable agencies shall issue compensation settlement decisions. A compensation settlement decision must contain the following principal details:

a/ Full name and address of the compensation claimant:

b/ Brief reasons for compensation claim;

c/ Grounds for determination of the compensation liability;

d/ Compensation amount;

e/ The right to institute a lawsuit at court in case of disagreement with the compensation settlement decision;

f/ Effect of the compensation settlement decision.

2. Compensation settlement decisions shall be sent to sufferers, immediate superior agencies of compensation-liable agencies and damage-causing official-duty performers.

Article 21. Effect of compensation settlement decisions

Compensation settlement decisions take effect 15 days after sufferers receive the decisions, except where sufferers disagree therewith and institute lawsuits at court.

Section 3. SETTLEMENT OF COM PENS A TION CLA IMS AT COURT

Article 22. Institution of lawsuits to request courts to settle compensation

1. Past 15 days after the time limit for issuing compensation settlement decisions prescribed in Article 20 of this Law expires, if compensation-liable agencies fail to issue such decisions or after sufferers receive but disagree with the decisions, sufferers are entitled to initiate lawsuits at competent courts defined in Article 23 of this Law to request the settlement of compensation.

If sufferers can prove that objective obstacles or force majeure circumstances have rendered them unable to institute lawsuits on time, the duration when the objective obstacles or force majeure circumstances exist will not be counted into the lawsuit time limit prescribed in this Clause.

2. Sufferers may not institute lawsuits requesting courts to settle compensation after the compensation settlement decisions have taken effect.

Article 23. Competence and procedures for settlement of compensation claims at court

1. Courts competent to settle compensation claims are district-level People’s Courts of localities where sufferers reside or work or where the damaged organizations are headquartered or where the damage occurs, depending on the sufferers’ choice, or other cases prescribed by the civil procedure law.

2. The procedures for settlement of compensation claims at court comply with the law on civil procedures.

Section 4. SETTLEMENT OF COMPENSATION CLAIMS IN THE COURSE OF SETTLEMENT OF ADMINISTRATIVE CASES

Article 24. Compensation claims in the course of instituting administrative lawsuits

1. If in the course of instituting administrative lawsuits, lawsuit-instituting parties hold that the illegal acts of official-duty performers have caused damage, they may request courts competent to settle administrative cases to settle the compensation. In this case, a lawsuit petition must also contain the following details:

a/ Request for affirmation of the illegal act of the official-duty performer concerned;

b/ Details of the compensation claim;

c/ The damage and claimed compensation amount;

d/ Documents and evidence related to the compensation claim.

2. The procedures for settlement of compensation claims in the course of settlement of administrative cases comply with the law on procedures for settlement of administrative cases.

Article 25. Contents of settlement of compensation claims in court judgments or rulings

1. If there arises a compensation claim in the course of settlement of an administrative case, the court judgment or ruling must also contain the following details:

a/ Brief reason for the compensation claim;

b/ Grounds for determination of the compensation liability:

c/ Compensation amount;

d/ Form of compensation.

2 The compensation liability and compensation amounts shall be determined under this Law.

Chapter III

STATE COMPENSATION LIABILITY IN LEGAL PROCEEDINGS

Section I. SCOPE OF COMPENSATION LIABILITY

Article 26. Scope of compensation liability in criminal proceedings

The State shall compensate for damage in the following cases:

1. Agencies competent in criminal proceedings issue decisions annulling the decisions on custody as the persons held in custody do not commit any illegal act;

2. Agencies competent in criminal proceedings issue judgments or decisions affirming that detainees or persons who have completely served or are serving their termed imprisonment, life sentence, persons who are sentenced to death or persons who have been executed under death sentences did not commit any criminal acts;

3. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted, who were prosecuted and brought to trial or against whom judgments were enforced without being held in custody or detained, or who served their prison terms did not commit any criminal acts:

4. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted, who were prosecuted and brought to trial for several offenses in the same case or who have completely served their prison terms did not commit any or some of these offenses and the penalty term imposed for remaining offenses is shorter than the duration they were temporarily detained or served their imprisonment sentences, and these persons are entitled to compensation for the temporary detention or imprisonment duration in excess of the aggregate term imposed for the offenses which they have committed:

5. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted or who were prosecuted and brought to trial for various offenses in the same case and sentenced to death but the death penalty has not yet been executed, did not commit the offense subject to the death penalty while the aggregate term for remaining offences is shorter than the duration of their temporary detention: and these persons are entitled to compensation for their temporary detention duration in excess of the aggregate term imposed for the offenses they have committed:

6. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons who were tried for various offenses under different judgments and subject to different penalties already aggregated by the court did commit one or some of these offenses while the term for remaining offenses is shorter than their temporary detention or imprisonment duration; and these persons are entitled to compensation for their temporary detention or imprisonment duration in excess of the aggregate term imposed for the offenses they have committed:

7. Organizations or individuals suffering from property damage due to property seizure, custody, distraint, confiscation or handling related to cases defined in Clauses 1. 2 and 3 of this Article are entitled to compensation.

Article 27. Cases ineligible for compensation in criminal proceedings

1. Persons who are exempt from penal liability under law.

2. Deliberately making false declarations or providing other untruthful documents or exhibits in order to admit guilt for other persons or to cover up crimes.

3. Persons against whom criminal cases were instituted, who were prosecuted and brought to trial for various offenses in the same case or for whom the court decided to aggregate the penalties under various judgments, who were held in custody, detained, completely served their imprisonment sentences, or who were sentenced to death but the death penalty has not yet been executed, but later agencies competent in criminal proceedings issue judgments or decisions affirming that those persons did not commit one or some of these offenses but they do not fall into cases defined in Clauses 4, 5 and 6, Article 26 of this Law.

4. Persons against whom criminal cases were instituted or who were prosecuted in criminal cases instituted at the request of victims, but the cases were terminated as the victims have withdrawn their requests for institution of criminal cases, unless their illegal acts do not constitute a criminal offense.

5. Persons against whom criminal cases were instituted or who were prosecuted and tried strictly in accordance with legal documents effective at the time of prosecution and trial but at the time when the judgments or decisions take effect new legal documents are promulgated and took effect after the date of prosecution or trial they no longer bear penal liability.

Article 28. Scope of compensation liability in civil and administrative proceedings

The State shall compensate for damage caused by illegal acts of civil procedure- or administrative procedure-conducting persons in the following cases:

1. They applied provisional urgent measures by themselves.

2. They applied provisional urgent measures other than those requested by individuals, agencies or organizations:

3. They applied provisional urgent measures beyond individuals’, agencies’ or organizations’ requests.

4. They issued judgments or decisions which were, to their clear knowledge, were illegal or deliberately distorted the case files.

Section 2. COMPENSATION-LIABLE AGENCIES

Article 29. Compensation-liable agencies in criminal proceedings

1. Agencies liable for compensation in criminal proceedings are those defined in Articles 30. 31 and 32 of this Law. If these agencies have been separated, merged, consolidated, dissolved or mandated to perform the official duty, compensation-liable agencies shall be determined under Points a and c. Clause 2, Article 14 of this Law.

2. Agencies liable for compensation in criminal proceedings shall compensate for damage caused in previous procedural stages.

Article 30. Compensation liabilities of investigative agencies and agencies tasked to conduct a number of investigative activities in criminal proceedings

Investigative agencies and agencies tasked to conduct a number of investigative activities shall pay compensation in the following cases:

1. They issued custody decisions but such decisions were then annulled by decisions of competent procuracies as the persons held in custody did not commit any illegal act:

2. They issued decisions to institute criminal cases against the accused but such decisions were not ratified by competent procuracies as the accused did not commit any criminal act.

Article 31. Compensation liability of People’s Procuracies in criminal proceedings

Procuracies shall compensate for damage in the following cases:

1. They ratified the decisions to extend the custody duration made by competent investigate agencies but the persons held in custody did not commit any illegal act;

2. They ratified detention orders of competent investigative agencies or issued detention or detention extension orders and later competent agencies in criminal proceedings issued decisions affirming that such persons did not commit any criminal act;

3. First-instance courts returned files for additional investigation and later competent agencies issued decisions terminating the investigation as the persons in question did not commit any criminal act;

4. They issued prosecution decisions but first-instance courts declared the defendants not guilty as they did not commit any criminal act and the first-instance judgments have taken legal effect;

5. Appellate courts uphold first-instance courts* judgments or rulings declaring the defendants not guilty as they did not commit any criminal act;

6. Appellate courts uphold first-instance courts’ judgments or rulings declaring the defendants not guilty as they did not commit any criminal act and later courts conducting trial according to cassation or reopening procedures still uphold the appellate courts’ judgments or rulings declaring the defendants not guilty as they did not commit any criminal act.

Article 32. Compensation liability of People’s Courts in criminal proceedings

1. The first-instance court shall compensate for damage in the following cases:

a/ It declares the defendant guilty but the appellate court quashes the first-instance judgment, declared the defendant not guilty and terminated the case as that person did not commit any criminal act or quash the first-instance judgment for re-investigation and later the defendant’s investigation and case are terminated as he/she did not commit any criminal act, or quashes the first-instance for re-trial and later the defendant is declared not guilty as he/she did not commit any criminal act;

b/ It declares the defendant guilty and the first-instance judgment has taken legal effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment and terminates the case as that person did not commit any criminal act;

c/ It declares the defendant guilty and the judgment has taken effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-investigation and the defendant’s investigation and case are terminated as he/she did not commit any criminal act;

d/ It declares the defendant guilty and the judgment has taken effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-trial and the defendant is declared not guilty as he/she did not commit any criminal act.

2. The appellate court shall compensate for damage in the following cases:

a/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment and terminates the case as that person did not commit any criminal act:

b/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-investigation and later the defendant’s investigation and case is terminated as he/she did not commit any criminal act;

c/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-trial and later the defendant is declared not guilty as he/she did not commit any criminal act.

3. People’s Courts of provinces and centrally run cities and military courts of military zones or equivalent level shall compensate for damage when the Judges’ Committees of the People’s Courts of provinces or centrally run cities or the military courts of military zones or equivalent level conducting trial according to cassation or reopening procedures uphold subordinate courts’ judgments declaring defendants guilty, in the following cases:

a/ The Criminal Tribunal of the Supreme People’s Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges’ Committees of the People’s Courts of provinces or centrally run cities or the military courts of military zones or equivalent level and suspends the cases as the defendants did not commit any criminal act;

b/ The Criminal Tribunal of the Supreme People’s Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges’ Committees of the People’s Courts of provinces or centrally run cities or the military courts of military zones or equivalent level for re­investigation and later the defendants’ investigation and cases are terminated as they did not commit any criminal act;

c/ The Criminal Tribunal of the Supreme People’s Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges’ Committees of the People’s Courts of provinces or centrally run cities or the military courts of military zones or equivalent level for re-trial and later the defendants are declared not guilty as they did not commit any criminal act.

4. The Supreme People’s Court shall compensate for damage when the appellate court of the Supreme People’s Court, the Criminal Tribunal of the Supreme People’s Court or the Central Military Court (below collectively referred to as competent court) conducting trial according to cassation or reopening procedures upholds the subordinate courts’ judgments declaring the defendants guilty in the following cases:

a/ The Judges’ Council of the Supreme People’s Court quashes cassation or reopening rulings of competent courts under the Supreme People’s Court and terminates the cases as the defendants did not commit any criminal act;

b/ The Judges’ Council of the Supreme People’s Court quashes cassation or reopening rulings of competent courts under the Supreme People’s Court for re-investigation and later the defendants’ investigations and cases are terminated as they did not commit any criminal act;

c/ The Judges’ Council of the Supreme People’s Court quashes cassation or reopening rulings of competent courts under the Supreme People’s Court for re-trial and later the defendants are declared not guilty as they did not commit any criminal act.

Article 33. Compensation liability of People’s Courts in civil and administrative proceedings

1. Courts competent to issue rulings on application of provisional urgent measures defined in Clauses 1, 2 and 3, Article 28 of this Law shall compensate.

2. First-instance courts shall compensate if their legally effective first-instance judgments or rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

3. Appellate courts shall compensate for damage if their legally effective appellate judgments or rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

4. Courts conducting trial according to cassation or reopening procedures shall compensate if their legally effective cassation or reopening rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

5. If courts defined in Clauses 1, 2, 3 and 4 of this Article are separated, merged, consolidated or dissolved, compensation-liable agencies shall be identified under Point a, Clause 2, Article 14 of this Law.

Section 3. COMPENSATION SETTLEMENT PROCEDURES

Article 34. Dossiers of claims for compensation at criminal procedure- conducting agencies

1. Upon receipt of judgments or decisions of criminal procedure-conducting agencies affirming that they fall into compensation-eligible cases defined in Article 26 of this Law sufferers shall file compensation claims with compensation-liable agencies according to the following provisions:

a/ Persons suffering from damage due to custody decisions or decisions to institute criminal cases against the accused issued by investigative agencies or agencies tasked to conduct a number of investigative activities defined in Article 30 of this Law shall file compensation claims with the investigative agencies or the agencies tasked to conduct a number of investigative activities which have issued such decisions:

b/ Persons suffering from damage due to procuracies’ decisions defined in Article 31 of this Law shall file compensation claims with the procuracies which have issued such decisions:

c/ Persons suffering from damage due to judgments or rulings of competent courts defined in Article 32 of this Law shall file compensation claims with the courts which have made such judgments or rulings.

2. A claim for compensation in criminal proceedings defined in Clause 1 of this Article contains the following principal details:

a/ Full name and address of the compensation claimant:

b/ Reasons for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be the judgment or decision affirming that the claimant falls into one of compensation-eligible cases defined in Article 26 of this Law and documents and evidence related to the compensation claim.

Article 35. Dossiers of compensation claims at civil or administrative procedure-conducting agencies

1. Upon receipt of documents affirming illegal acts of official-duty performers who have committed acts defined in Article 28 of this Law, sufferers shall file compensation claims with compensation-liable agencies according to the following provisions:

a/ Persons suffering from damage due to courts’ application of provisional urgent measures defined in Clauses 1, 2 and 3. Article 28 of this Law shall file compensation claims with the courts which have issued rulings to apply such provisional urgent measures;

b/ Persons suffering from damage due to court judgments or rulings defined in Clause 4. Article 28 of this Law shall file compensation claims with the courts which have made such judgments or rulings.

2. A claim for compensation in civil or administrative proceedings defined in Clause 1 of this Article contains the following principal details:

a/ Full name and address of the compensation claimant;

b/ Reasons for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be documents affirming the illegal act of the official-duty performer and documents and evidence related to the compensation claim.

Article 36. Handling, verification, negotiation, issuance and effect of decisions on settlement of compensation in legal proceedings

The handling, verification, negotiation and issuance and effect of decisions on settlement of compensation in criminal, civil or administrative proceedings comply with Articles 17, 18, 19, 20 and 21 of this Law.

Article 37. Settlement of claims for compensation in legal proceedings at courts

The initiation of lawsuits requesting courts to settle compensation and the competence and procedures for settlement of compensation at courts in legal proceedings comply with Articles 22 and 23 of this Law.

Chapter IV

STATE COMPENSATION LIABILITY IN JUDGMENT ENFORCEMENT ACTIVITIES

Section I. SCOPE OF LIABILITY AND LIABLE-COMPENSATION AGENCIES

Article 38. Scope of liability for compensation in civil judgment enforcement

The State shall compensate for damage caused by illegal acts of official-duty performers in the following cases:

1. Issuing or deliberately failing to issue decisions on:

a/ Judgment enforcement;

b/ Revocation, amendment, supplementation or cancellation of judgment enforcement decisions:

c/ Application of measures to secure judgment enforcement:

d/ Coercion of judgment execution:

e/ Execution of court rulings on application of provisional urgent measures:

f/ Postponement of judgment enforcement:

g/ Suspension or termination of judgment enforcement;

h/ Resumption of judgment enforcement.

2. Organizing or deliberately failing to organize the execution of decisions defined in Clause 1 of this Article.

Article 39. Scope of compensation liability in criminal judgment enforcement

The State shall compensate for damage caused by illegal acts of official-duty performers in the following cases:

1. Issuing decisions on execution of the death penalty against persons fully meeting the conditions defined in Article 35 of the Penal Code;

2. Jailing people beyond the prison terms under court judgments or rulings;

3. Declining to execute decisions on judgment enforcement postponement for convicts or decisions on suspension of execution of imprisonment judgment;

4. Declining to execute decisions on commutation of imprisonment sentences, decisions on special reprieve or amnesty.

Article 40. Agencies liable to compensate in judgment enforcement

1. Agencies liable to compensate in criminal judgment enforcement are prisons, detention centers, remand home-managing agencies, competent public security offices and courts issuing judgment enforcement decisions.

2. Agencies liable to compensate in civil judgment enforcement are civil judgment enforcement agencies directly managing official-duty performers who have committed illegal acts causing damage.

3. If agencies defined in Clauses 1 and 2 of this Article are separated, merged, consolidated or dissolved or damage-causing official duty performers no longer work in such agencies at the time of handling the compensation claims, or they performed the official duty under authorization or mandate, compensation-liable agencies shall be determined under Points a, b and c. Clause 2. Article 14 of this Law.

Section 2. COMPENSATION SETTLEMENT PROCEDURES

Article 41. Dossiers of compensation claims at civil judgment enforcement agencies

1. Upon receipt of documents affirming the official-duty performers’ illegal acts defined in Article 38 of this Law, sufferers shall file compensation claims with competent agencies specified in Clauses 2 and 3, Article 40 of this Law.

2. A claim for compensation in civil judgment enforcement contains the following principal details:

a/ Full name and address of the compensation claimant:

b/ Reasons for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be the document affirming the illegal act of the official-duty performer and documents and evidence related to the compensation claim.

Article 42. Dossiers of compensation claims at criminal judgment enforcement agencies

1. Upon receipt of documents affirming the illegal acts of official-duty performers and their compensation-eligible cases as defined in Article 39 of this Law, sufferers or their relatives shall file compensation claims with compensation-liable agencies according to the following provisions:

a/ Persons who are jailed beyond the sentence-serving duration under court judgments or rulings, as provided for in Clause 2, Article 39 of this Law, shall file compensation claims with the prisons, detention centers or remand home-managing agencies which have made such excessive jail;

b/ Persons suffering from damage due to non-execution of decisions on postponement of imprisonment penalty, suspension of execution of imprisonment penalty, commutation of imprisonment terms, special reprieve or amnesty, defined in Clauses 3 and 4. Article 39 of this Law, shall file compensation claims with competent public security offices;

c/ Relatives of persons suffering from damage due to decisions on execution of the death penalty, defined in Clause 1, Article 39 of this Law, shall file compensation claims with competent courts having issued such decisions.

2. A claim for compensation in criminal judgment enforcement, defined in Clause 1 of this Article, contains the following principal details:

a/ Full name and address of the compensation claimant;

b/ Reason for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be the document affirming the illegal act of the official-duty performer and documents and evidence related to the compensation claim.

Article 43. Handling, verification, negotiation and issuance of decisions on settlement of compensation in judgment enforcement

The handling, verification, negotiation and issuance and effect of decisions on compensation in judgment enforcement comply with Articles 17, 18, 19, 20 and 21 of this Law.

Article 44. Handling of claims for compensation in judgment enforcement at courts

The initiation of lawsuits requesting courts to settle compensation and the competence and procedures for settlement of compensation at courts in judgment enforcement comply with Articles 22 and 23 of this Law.

Chapter V

COMPENSATED DAMAGE

Article 45. Damage caused by asset infringement

1. If the assets have been already auctioned or lost, the damage will be determined on the basis of the market prices of assets of the same kind or assets with the same properties and technical standards and the wear-out of the auctioned or lost assets at the time of compensation.

2. If the assets have been out of order, the damage will be determined as related expenses for the asset repair and restoration, calculated according to the market prices at the time of compensation; if the assets have been out of repair or restoration, the damage will be determined under Clause 1 of this Article.

3. If the assets have been left unused or unexploited, the damage will be determined as lost actual incomes. For assets on lease on the market, lost actual incomes will be determined commensurate to the rentals of assets of the same kind or assets with the same technical standards, properties, utility and quality at the time of compensation; for assets not on lease on the market, lost actual incomes will be determined as incomes brought about by the damaged assets under normal conditions before the time the damage is caused; if distrained assets are assigned to sufferers or other persons for management, reasonable expenses for the prevention, restriction and redress of damage to the assets will be determined as the compensated damage.

4. Money amounts already remitted into the state budget under decisions of competent state agencies, confiscated or kept for judgment enforcement, and money amounts deposited as security at competent agencies will be returned to sufferers or their relatives; if such money amounts are interest-bearing loans, lawful interest amounts shall also be returned; if such money amounts are interest-free loans, they shall be returned to sufferers or their relatives together with interest amounts calculated at the prime interest rate announced by the State Bank of Vietnam at the time of compensation.

Article 46. Damage due to loss of or decrease in actual incomes

1. Individuals and organizations with identifiable incomes are entitled to compensation for their unearned actual incomes.

2. For individuals with regular but unstable incomes, compensation amounts will be determined based on their average incomes of three consecutive months prior to the time the damage is caused.

3. For individuals with unstable incomes which cannot be specifically identified due to the lack of grounds or with seasonal incomes, the average income level of local labor of the same type shall apply. If the average income level cannot be determined, the damages will be determined based on the common minimum wage applicable to state agencies at the time of compensation (below collectively referred to as the minimum wage).

Article 47. Damage due to mental suffering

1. Damage due to mental suffering during the administrative custody or confinement in a reformatory, rehabilitation establishment or medical establishment will be determined as equal to two days’ minimum wage for one day in administrative custody or in a reformatory, rehabilitation establishment or medical establishment.

2. Damage due to mental suffering in cases of being held in custody, detained or serving an imprisonment penalty will be determined as equal to three days’ minimum wage for one day of being held in custody, detained or serving an imprisonment penalty.

3. Damage due to mental suffering in case of death of sufferers will be determined as equal to three hundred sixty months’ minimum wage.

4. Damage due to mental suffering in case of infringement upon health will be determined based on the extent of health damage but must not exceed thirty months’ minimum wage.

5. Damage due mental suffering in case of institution of a criminal case, prosecution, trial or judgment enforcement without being held in custody or detained will be determined as equal to one day’s minimum wage for one day of institution of a criminal case, prosecution, trial, non-custodial reform or serving of a suspended sentence. The duration used for calculating the compensation amount shall be determined from the date of issuance of the decision to institute a criminal case against the accused to the date of issuance of the judgment or decision by a competent agency affirming that such person falls into a compensation-eligible case specified in Clause 3, Article 26 of this Law.

Article 48. Material loss due to the death of sufferers

1. Reasonable expenses for medical treatment, health fostering and care for the sufferer before his/her death.

2. Funeral costs prescribed by the law on social insurance.

3. Alimonies for persons to whom the sufferer is currently obliged to provide. Monthly alimonies shall be determined as equal to the minimum wage, unless they are otherwise provided by law or determined under effective decisions of competent state agencies.

Article 49. Material loss due to health damage

1. Reasonable expenses for medical treatment, health fostering and recovery and functional rehabilitation for sufferers.

2. Lost or reduced actual incomes of sufferers, as provided for in Article 46 of this Law.

3. Reasonable expenses for, and lost actual incomes of. persons who look after sufferers during hospitalization.

4. In case a sufferer loses his/her working capacity and needs a regular caretaker, the damages will cover reasonable expenses for caring the sufferer and alimonies for persons to whom the sufferer is currently obliged to provide. Monthly alimonies are determined as equal to the minimum wage, unless they are otherwise provided by law or determined under effective decisions of competent state agencies.

Article 50. Return of assets

Assets seized, held in custody, distrained or confiscated will be returned immediately after the decisions on asset seizure, custody, distraint or confiscation are cancelled.

Article 51. Honor restoration for sufferers in criminal proceedings

1. Sufferers defined in Clauses 1, 2 and 3, Article 26 of this Law or their lawful representatives are entitled to claim for honor restoration within 3 months, counting from the date the compensation settlement decisions take effect.

2. Within 30 days after receiving a written claim for honor restoration filed by a sufferer or his/her lawful representative, the compensation-liable agency which has handled the case shall make public apologies and corrections.

3. Public apologies and corrections shall be made in the following forms:

a/ Direct apologies and public corrections made at residence or working places of the sufferers with the participation of representatives of the administrations of the localities where the sufferers reside or representatives of the agencies in which the sufferers work, and representatives of a socio-political organization of which the sufferers are members;

b/ Apologies and corrections published on a central newspaper and a local newspaper for three consecutive issues at the request of the sufferers or their lawful representatives.

4. If the sufferers have died, their relatives are entitled to claim for honor restoration.

Chapter VI

COMPENSATION FUNDS AND PAYMENT PROCEDURES

Article 52. Compensation funds

1. If central agencies are liable to compensate, compensation funds will be ensured by the central budget.

2. If local agencies are liable to compensate, compensation funds will be ensured by local budgets.

Article 53. Estimation of compensation funds

Annually, based on the preceding year’s actual compensations, finance agencies at all levels shall coordinate with agencies and units of the same level in formulating compensation fund estimates for inclusion in their respective budget estimates and submit them to competent state agencies for decision in accordance with the law on the state budget, which will be allocated to agencies and units when there are claims for damages.

Article 54. Order and procedures for allocating and paying compensation amounts

1. Within 5 working days after the effective date of compensation settlement judgments or decisions, compensation-liable agencies shall immediately transfer compensation claim dossiers to finance agencies of the same level; if they are funded with central budget funds, they shall transfer the dossiers to their superior managing agencies.

Within 5 working days after the receipt of dossiers, dossier-receiving agencies shall check the validity of compensation claim dossiers for fund allocation or send written requests to the finance agencies of the same level for allocation of compensation funds; if the dossiers are invalid, they shall guide the compensation-liable agencies to supplement the dossiers or shall amend, supplement the compensation settlement decisions. The dossier supplementation duration must not exceed 15 days.

2. A compensation claim dossier comprises:

a/ The written request for allocation of compensation funds, with full and specific details on   the   compensation-eligible   person compensation amounts for each specific damage and the total sum requested to be allocated for compensation;

b/ A copy of the competent state agency’s document affirming the illegal act of the official-duty performer;

c/ The legally effective compensation settlement judgment or decision of a competent agency

3. Within 10 days after the receipt of valid compensation claim dossiers, competent finance agencies shall allocate funds to compensation-liable agencies for payment to sufferers.

4. After the receipt of funds allocated by financial agencies, compensation-liable agencies shall, within 5 working days, pay compensation amounts to sufferers or their relatives.

5. If compensation-liable agencies decline to voluntarily implement the legally effective compensation settlement judgments or rulings of courts, compensation-eligible persons may request civil judgment enforcement agencies to enforce them under the law on civil judgment enforcement.

Article 55. Settlement of compensation funds

At the end of a budget year, compensation-liable agencies and units shall settle compensation funds already paid and synthesize them in their respective annual budget settlements for submission to competent agencies under the law on the state budget.

Chapter VII

REIMBURSEMENT LIABILITY

Article 56. Reimbursement obligation and handling of responsible official-duty performers

1. Official-duty performers who are at fault in causing damage are obliged to reimburse to the state budget money amounts already paid as compensation to sufferers under decisions of competent agencies.

2. Official-duty performers who unintentionally cause damage prescribed in Article 26 of this Law are not liable to reimbursement.

3. Apart from reimbursing money amounts stated in Clause 1 of this Article, official-duty performers shall, depending on the nature and severity of their violations, be disciplined or examined for penal liability according to law.

Article 57. Grounds for determination of reimbursed amounts

1. Grounds for determination of reimbursed amounts comprise:

a/ The degree of fault of official-duty performers;

b/ The extent of damage caused; c/ Financial conditions of official-duty performers.

The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall determine amounts to be reimbursed by official-duty performers.

2. If many official-duty performers cause the damage, they shall bear joint liability for the reimbursement; compensation-liable agencies shall assume the prime responsibility for, and coordinate with agencies managing official-duty performers who have caused the damage in, unanimously determining the amount to be reimbursed by each of these performers.

Article 58. Order of and procedures for deciding on reimbursement

1. Within 20 days after completing the payment of compensation amounts, compensation-liable agencies shall set up a council for considering reimbursement liabilities in order to determine reimbursement liabilities of and amounts to be reimbursed by official-duty performers who have caused the damage.

In case the damage is caused by many official-duty performers from different agencies, such council shall be participated by representatives of concerned agencies to determine the reimbursement liability of and amount to be reimbursed by each of these official-duty performers.

The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall provide for the establishment, composition, tasks and powers of a council for considering reimbursement liabilities of official-duty performers.

2. Within 30 days after the compensation payment is completed, competent persons defined in Article 59 of this Law shall issue reimbursement decisions. A reimbursement decision shall be sent to the person with the reimbursement obligation and the immediate superior agency of the compensation-liable agency.

Article 59. Competence to issue reimbursement decisions

1. Heads of compensation-liable agencies are competent to issue reimbursement decisions.

2. If heads of compensation-liable agencies are persons with the reimbursement obligation, heads of immediate superior agencies of those persons are competent to issue reimbursement decisions.

Article 60. Complaints and lawsuits against reimbursement decisions

If official-duty performers with the reimbursement liability disagree with reimbursement decisions, they are entitled to lodge complaints about, or initiate lawsuits against, such reimbursement decisions under the law on complaints and denunciations and the law on procedures for settlement of administrative cases.

Article 61. Effect of reimbursement decisions

1. Reimbursement decisions will take effect 15 days after their signing if the damage-causing official-duty performers do not lodge any complaints or initiate any lawsuits against such decisions.

2. Based on legally effective reimbursement decisions, compensation-liable agencies shall collect reimbursed amounts and remit them into the state budget.

Article 62. Reimbursement

1. Reimbursement may be made in a lump sum or in installments.

2. If reimbursement is made by gradual deduction from monthly salaries of official-duty performers, the minimum deduction level must not be lower than 10% and the maximum deduction level must not exceed 30% of monthly salaries.

Article 63. Management and use of reimbursed money

Compensation-liable agencies shall fully and promptly remit reimbursed amounts into the state budget. The management and use of reimbursed amounts comply with the law on state budget.

Chapter VIII

IMPLEMENTATION PROVISIONS

Article 64. Non-collection of court costs, fees, other charges and taxes in the course of compensation settlement

1. When exercising their right to claim for damage compensation to which the State is liable under this Law. sufferers are not required to pay court costs, fees and other charges.

2. The damages received by sufferers are not liable to personal income tax and enterprise income tax.

Article 65. Effect

1. This Law takes effect on January 1, 2010.

2. The following legal documents cease to be effective on the date this Law takes effect:

a/ The National Assembly Standing Committee’s Resolution No. 388/2003/NQ-UBTVQH11 of March 17, 2003, on compensation for damage caused to unjustly condemned people by competent persons in criminal proceedings, and guiding documents;

b/ The Government’s Decree No. 47/CP of May 3, 1997, on compensation for damage caused by civil servants or competent persons of procedure-conducting agencies, and guiding documents.

Article 66. Transitional provisions

1. Damage compensation claims which have been accepted by competent state agencies but not yet settled or are being settled under Resolution No.388/2003/NQ-UBTVQH11 of March 17, 2003, of the National Assembly Standing Committee on compensation for damage caused to unjustly condemned people by competent persons in criminal proceedings or the Government’s Decree No.47/CP of May 3. 1997. on compensation for damage caused by civil servants or competent persons of procedure-conducting agencies, before the effective date of this Law. will be further settled under these legal documents.

2. Cases eligible for compensation under Resolution No.388/2003/NQ-UBTVQH11 of March 17, 2003, of the National Assembly Standing Committee, on compensation for damage caused to unjustly condemned people by competent persons in criminal proceedings and the Government’s Decree No.47/CP of May 3, 1997. on compensation for damage caused by civil servants or competent persons of procedure-conducting agencies, for which the statute of limitations has not yet expired under these documents by the effective date of this Law and for which claims for state compensation have not yet been made or have been already made but not yet handled, will be settled under this Law.

Article 67. Implementation detailing and guidance

The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall detail and guide the implementation of this Law’s articles and clauses assigned to them and guide oilier necessary contents of this Law to meet state management requirements.

This Law was passed on June 18, 2009, by the XII^th National Assembly of the Socialist Republic of Vietnam at its 5^th session.

CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Phu Trong

THE NATIONAL ASSEMBLY

——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 38/2009/QH12

Hanoi, June 19, 2009

LAW AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE LAWS CONCERNING CAPITAL CONSTRUCTION INVESTMENT

ursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10;
The National Assembly promulgates the Law Amending and Supplementing a Number of Articles of Construction Law No. 16/2003/QH11, Bidding Law No. 61/2005/QH11, Enterprise Law No. 60/2005/QH11. Land Law No. 13/2003/ QH11 and Housing Law No. 56/2005/QH11 Concerning Capital Construction Investment.

Article 1. To amend and supplement a number of articles of the Construction Law.

1. To amend and supplement Article 7 as follows:

"Article 7. Construction activity capability and construction practice capability

1. Organizations and individuals that meet all conditions on construction activity capability and construction practice capability may participate in the following activities:

a/ Consultancy on construction planning designing, formulation and evaluation of investment projects, construction designing, construction valuation, construction supervision, and management of work construction investment projects;

b/ Work construction survey:

c/ Work construction;

d/ Specialized construction testing:

e/ Quality inspection of construction works;

f/ Certification of force-bearing safety of construction works and certification of quality conformity of construction works.

2. To conduct construction activities, individuals must possess construction practice capability which is ranked based on their professional qualifications certified by a professional training institution, and professional experience and ethics, except special cases as prescribed by the Government.

To provide consultancy on construction planning designing, construction designing, construction supervision or work construction survey, individuals must possess relevant practice certificates and take personal responsibility for their jobs.

3. Construction activity organizations must possess construction activity capability which is ranked based on the construction practice capability of their individual members, and their construction activity experience, financial capacity, equipment and managerial capacity.

4. To conduct construction activities within the territory of the Socialist Republic of Vietnam, foreign organizations and individuals must possess full capability as specified in Clauses 2 and 3 of this Article and have activity permits issued by a competent state management agency.

5. The Government shall specify construction activity capability of organizations, construction practice capability of individuals and issuance of construction practice certificates to individuals.’"

2. To amend and supplement Article 40 as follows:

"Article 40. Adjustment of work construction investment projects funded with 30% or more of state capital

1. A work construction investment project funded with 30% or more of stale capital shall be adjusted in any of the following cases:

a/ The project is affected by an earthquake, storm, flood, tsunami, fire, enemy sabotage or mother force majeure event;

b/ There appear elements that bring about higher efficiency to the project;

c/ A change in construction planning directly affects the project’s location, size and objectives;

d/ Other cases as prescribed by the Government.

2. When a project adjustment will result in relocation or a change in the size and objectives of the project and in an increase in its approved total investment, the investor shall report it to the investment decider for decision. The investor may him/her/itself decide to adjust a project if such adjustment does not result in relocation or a change in the size and objectives of a project and in an increase in the approved total investment.

3 Project adjustments must be evaluated before making decision."

3. To add the following Article 40a to Article 40:

"Article 40a. Supervision and assessment of work construction investment projects

1. A work construction investment project must be supervised and assessed, depending on the kind of its funding source:

a/ For a project funded with 30% or more of state capital, the competent state agency shall supervise and assess the whole investment process based on approved contents and criteria;

b/ For a project funded with capital of other sources, the competent state agency shall supervise and assess the project’s objectives, conformity with relevant plannings, land use, investment progress and environmental protection.

2. The Government shall specify supervision and assessment contents and the organization of supervision and assessment of work construction investment projects."

4. To amend and supplement Article 43 as follows:

"Article 43. Management of expenses of work construction investment projects

1. The management of expenses of work construction investment projects must ensure the projects’ investment objectives and effectiveness and suit used funding sources and investment stages.

2. The State shall manage expenses of work construction investment projects and guide methods of formulating and managing expenses of work construction investment projects. Construction state management agencies shall publicize econo-technical norms and criteria and relevant information- for reference by investors when determining investment expenses.

3. Work construction investors shall manage expenses of work construction investment projects from the stage of investment preparation to the time works are put into operation and use.

Investors may hire institutional or individual consultants to formulate, verify and control expenses of work construction investment projects, depending on used funding sources and practical conditions of construction works."

5. To amend and supplement Article 54 as follows:

"Article 54. Steps of work construction designing

1. Work construction designing covers basic designing, technical designing, working drawing designing and other designing steps in line with international practice. A basic design shall be made at the stage of formulating a work construction investment project; subsequent designing steps shall be performed at the stage of implementing a work construction investment project.

2. Depending on the size, nature and complexity of a work, work construction designing may be conducted through different steps. The investment decider shall decide on designing steps upon approving a project.

3. The Government shall specify designing steps for each kind of work."

6. To amend and supplement Article 55 as follows:

"Article 55. Competition for and selection of architectural designs of construction works

1. Competition for or selection of architectural designs must be organized for large public works with special architectural requirements; invest-ment deciders shall decide on the organization of competition for or selection of architectural designs of these works. Investors shall decide on the organization of competition for or selection of architectural designs of other works.

2. Expenses for the organization of competition for or selection of architectural designs of a construction work shall be included in the total investment of that work.

3. Authors of winning or selected architectural designs of works may have their copyright protected and be selected with priority for formulating work construction investment projects and making construction designs if they fully satisfy capability conditions as prescribed.

4. The Government shall specify the organization of competition for or selection of architectural designs of construction works."

7. To amend and supplement Article 59 as follows:

"Article 59. Appraisal and approval of work construction designs

1. A construction design must be appraised and approved. The design appraiser and approver shall take responsibility before law for his/her/ its appraisal and approval results.

2. The investment decider shall take accountability for the appraisal of the basic design and other contents of a work construction investment project when appraising it before approval. When necessary, the investment decider shall consult in writing concerned agencies on the basic design.

A project approval must clearly indicate basic design solutions to be observed and basic design solutions the investor may change in subsequent designing steps.

3. The investor shall appraise and approve subsequent designing steps in conformity with the approved basic design.

4. The Government shall specify contents of appraisal and approval of work construction designs."

Article 2. To amend and supplement a number of articles of the Bidding Law.

1. To amend and supplement Clauses 30 and 39, Article 4 as follows:

"30. Evaluation price means a price determined on the same ground of technical, financial and commercial elements and shall be used for comparing and rating bids with regard to procurement, construction and installation or EPC bidding packages. Evaluation prices cover bid prices proposed by contractors to undertake bidding packages after correcting errors and necessary expenses for operation and maintenance and other expenses related to the progress, quality or origin of goods or works within bidding packages through their use duration."

"39. Bidding appraisal means the inspection and assessment of bidding plans, bidding dossiers and contractor selection results by agencies or organizations with the appraising function, which serves as a basis for competent persons or investors to consider and make decision in accordance with this Law. The appraisal of contractor selection results does not mean re-assessment of bids."

2. To amend and supplement Article 11 as follows:

"Article 11. Assurance of competitiveness in bidding

1. Contractors participating in bidding for bidding packages under projects specified in Article 1 of this Law must satisfy the following requirements on competitiveness:

a/ The bidding contractor must be organizationally independent and not dependent on the same managing agency of and be financially independent from the contractor providing consultancy on making bidding dossiers and assessing bids;

b/ The contractor providing supervision consultancy on contract performance must be organizationally independent from and not dependent on the same managing agency of and be financially independent from the contract-performing contractor;

c/ The contractor participating in bidding for bidding packages under a project must be organizationally independent from and not dependent on the same managing agency of and be financially independent from the project investor.

2. The Government shall specify assurance of competitiveness in bidding."

3. To add the following Clauses 18 and 19 to Article 12:

"18. The bid solicitor’s failure to sell bidding dossiers to contractors within the time limit specified in bid invitation notices or bid invitation letters.

19. Employing foreign laborers while local laborers are capable of and satisfy requirements for performing bidding packages."

4. To amend and supplement Points c and e, Clause 1, and Clause 3, Article 20 as follows:

"1. Contractor designation is applicable to the following:

c/ Bidding packages classified as national secrets: bidding packages under urgent projects in the national interests:

e/ Bidding packages valued within the limit permitted for contractor designation or having other special requirements as prescribed by the Government."

"3. Before designating contractors for bidding packages specified at Points b, c. d and e. Clause 1 of this Article, cost estimates for these bidding packages must be approved in accordance with law; for bidding packages specified at Point e. contractor designation must also be more effective than bidding."

5. To amend and supplement Clauses 1 and 3, Article 29 as follows:

"1. Bid-evaluating methods must be reflected through evaluation criteria in bidding dossiers. Bid-evaluating criteria include criteria for evaluating capability and experience in case pre-qualification selection is not applied: criteria for technical evaluation; criteria for general evaluation of consultancy service bidding packages or contents for determining evaluation prices on the same technical, financial and commercial grounds in order to compare and rate bids for procurement, construction and installation or EPC bidding packages."

"3. For procurement, construction and installation and EPC bidding packages, the marking method or method of evaluation using the "satisfactory" or "unsatisfactory" criterion will be applied for technical evaluation. When formulating technical evaluation criteria in the form of a point scale, prescribed minimum technical requirements must not be lower than 70% of total technical points, or not lower than 80%. for bidding packages with high technical requirements. Bids which have passed technical evaluation shall be compared and rated based on evaluation prices on the same technical, financial and commercial grounds. The bid of a contractor having the lowest evaluation price on the same ground will be ranked first.

The Government shall specify the evaluation of bids."

6. To amend and supplement Clause 5, Article 31 as follows:

"5. The maximum duration for evaluating a bid is forty five days, for domestic bidding, or sixty days, for international bidding, from the bid-opening date to the date the bid solicitor submits bidding results to the investor for approval."

7. To amend and supplement Point a, Clause 1, Article 32 as follows:

"a/ Based on the nature and size of a bidding package, the pre-qualification selection of contractors shall be conducted before an open bidding is organized in order to select fully capable and experienced contractors as required by the bidding package to participate in the bidding."

8. To amend and supplement Clause 2, Article 33 as follows:

"2. Receipt and management of bids

Bid solicitors shall receive and manage bids submitted as required by bidding dossiers under regulations on management of "secret" dossiers. Bids submitted after the bid closing will be regarded as improper and shall be rejected."

9. To amend and supplement Point b, Clause 2, Article 35 as follows:

"b/ For procurement, construction and installation or EPC bidding packages, evaluation prices on the same technical, financial and commercial grounds shall be determined to compare and rate bids. For consultancy service bidding packages, general evaluation shall be conducted to compare and rate bids: particularly, consultancy service bidding packages with high technical requirements, financial proposals of the contractors technically ranked first shall be considered."

10. To amend and supplement Clause 4, Article 38 as follows:

"4. Offering the lowest evaluation price on the same ground;"

11. To amend and supplement Article 39 as follows:

"Article 39. Submission of bidding results for approval and appraisal

1. The bid solicitor shall make a report on bidding results and submit it to the investor for consideration, decision and further sending to a responsible agency or organization for appraisal.

2. The appraising agency or organization shall, based on the bid solicitor’s report, make an evaluation report on bidding results and submit it to the investor for consideration and decision."

12. To amend and supplement Clause 1, Article 40 as follows:

"1. Investors shall consider and approve bidding results on the basis of reports on bidding results and evaluation reports on bidding results."

13. To amend and supplement Clause 1, Article 41 as follows:

"1. Bidding results shall be announced right after obtaining investors’ decisions approving bidding results."

14. To amend and supplement Clause 3, Article 42 as follows:

"3. In case of unsuccessful negotiation and finalization of a contract, the investor shall consider and select next-ranked contractors. If the next-ranked contractors still fail to meet requirements, the case shall be considered and handled under regulations."

15. To amend and supplement Clause 2, Article 43 as follows:

"2. Based on investors’ decisions, bid solicitors shall notify bidding contractors of the cancellation of bidding."

16. To amend and supplement Article 46 as follows:

"Article 46. Contract formulation principles

1. A contract must be formulated in accordance with this Law and other relevant laws.

2. For contractors forming a partnership, the contract signed with the investor must be signed by all partners.

3. The contractual price must not exceed the winning bid price."

17. To amend and supplement Clauses 2 and 3, Article 57 as follows:

"2. The adjustment of a signed contract may be made only in the contract performance duration and must be considered and decided by the investor. The adjusted contractual price must not result in an increase in the approved total investment, unless it is permitted by a person with investment-deciding competence.

3. In case reasonable jobs arising beyond those indicated in a contract do not result in a change in the investment objective or total investment, the investor shall reach agreement with the contractor that has signed the contract on additionally calculating arising jobs and sign a contract annex. If they cannot reach such agreement, those arising jobs will constitute a new biding package for which contractors shall be selected in accordance with this Law."

18. To amend and supplement Article 60 as follows:

"Article 60. Responsibilities of competent persons

1. To decide on forms of contractor selection, including contractor designation specified in Clause 1, Article 20 of this Law.

2. To approve bidding plans.

3. To settle petitions related to bidding.

4. To handle violations of the bidding law in accordance with Article 15 of this Law and other relevant laws.

5. To cancel or terminate biddings or refuse to recognize contractor selection results upon detecting acts of violating the bidding law or other relevant laws.

6. To lake responsibility before law for their decisions."

19. To add the following Clauses 13,14 and 15 to Article 61:

"13. To approve bidding dossiers.

14. To approve contractor selection results.

15. To decide on the handling of bidding circumstances."

20. To amend and supplement Point c, Clause 1, Article 70 as follows:

"c/ Investors shall decide on the handling of bidding circumstances and take responsibility before law for their decisions."

21. To amend and supplement Points a and c, Clause 1, Article 75 as follows:

"a/ Caution shall be imposed on organizations and individuals that violate this Law. except cases specified in Article 12 of this Law; successful bidders that intentionally fail to negotiate and finalize contracts or have negotiated and finalized contracts but do not sign them; contractors that have signed contracts but intentionally fail to perform part or the whole of the contracts; or contractors that perform consultancy service, procurement, construction and installation or EPC bidding packages but fail to ensure their quality and progress as agreed in the contracts;"

"c/ Organizations and individuals that violate Article 12 of this Law or have committed three or more acts of violation and been cautioned under Point a of this Clause shall be banned from participation in bidding activities."

Article 3.

To amend and supplement Point a. Clause 2. Article 170 of the Enterprise Law as follows:

"a/ To re-register and manage and operate under this Law and other relevant laws: re-registration shall be made within five years from the effective date of this Law;"

Article 4.

To amend and supplement a number of articles of the Land Law.

1. To amend and supplement Clause 20, Article 4 as follows:

"20. Certificates of land use rights and ownership over houses and other assets attached to land are certificates issued by competent state agencies to persons with land use rights and ownership over houses and other assets attached to land in order to protect their lawful rights and interests."

2. To amend and supplement Clause 1, Article 10 as follows:

"1. The State will issue certificates of land use rights and ownership over houses and other assets attached to land to persons with land use rights and ownership over houses and other assets attached to land."

3. To amend and supplement Article 48 as follows:

"Article 48. Certificates of land use rights and ownership over houses and other assets attached to land

1. Certificates of land use rights and ownership over houses and other assets attached to land shall be issued to persons with land use rights and ownership over houses and other assets attached to land and made according to a form provided by the Ministry of Natural Resources and Environment. For houses and other assets attached to land, competent state agencies shall certify ownership over these houses and assets in certificates of land use rights and ownership over houses and other assets attached to land under this Clause only at the request of their owners.

2. Land use right certificates, house ownership and residential land use right certificates, house ownership certificates or construction work ownership certificates already issued under the land law. housing law, construction law or civil law before August 1, 2009, remain valid and are not required to be renewed into certificates of land use rights and ownership over houses and other assets attached to land under this Law. Holders of old certificates that wish to have their certificates renewed may do so under this Law without having to pay a fee.

Upon transferring land use rights or ownership over houses and other assets attached to land, transferees will be issued certificates of land use rights and ownership over houses and other assets attached to land under this Law.

Those who have not yet been issued any of the certificates specified in this Clause will be issued certificates of land use rights and ownership over houses and other assets attached to land under this Law.

3. The Government shall specify dossiers, order and procedures for the issuance of certificates of land use rights and ownership over houses and other assets attached to land."

4. To add the following Clause 10 to Article

"10. Other cases as prescribed by the Government."

5. To amend and supplement Article 52 as follows:

"Article 52. Competence to issue certificates of land use rights and ownership over houses and other assets attached to land

1. People’s Committees of provinces and centrally run cities may issue certificates of land use rights and ownership over houses and other assets attached to land to organizations, religious establishments and overseas Vietnamese that are allocated or leased land to implement investment projects, and foreign organizations and individuals.

2. People’s Committees of rural districts, urban districts, towns and provincial cities may issue certificates of land use rights and ownership over houses and other assets attached to land to households, individuals, population communities and overseas Vietnamese that own houses associated with the right to use residential land.

3. Agencies competent to issue certificates of land use rights and ownership over houses and other assets attached to land defined in Clause 1 of this Article may authorize such issuance to natural resources and environment management agencies of the same level.

The Government shall specify conditions for authorization for the issuance of certificates of land use rights and ownership over houses and other assets attached to land.

4. Provincial- and district-level natural resources and environment management agencies shall act as focal points in receiving dossiers and carrying out procedures for submission to People’s Committees of the same level defined in Clauses 1 and 2 of this Article to issue certificates of land use rights and ownership over houses and other assets attached to land."

6. To replace the phrase "Land use right certificates" in the title of Section 5. Chapter II; Clause 3. Article 4: and Articles 6, 42, 43, 46, 47, 49, 50, 51, 90,105, 106, 119, 122, 124 thru 131, 136, 144 and 146 of the Land Law with the phrase "certificates of land use rights and ownership over houses and other assets attached to land."

7. To annul Article 123 of the Land Law.

Article 5. To amend and supplement a number of articles of the Housing Law.

To amend and supplement Clause 1. Article 132 as follows:

"1. Having been issued certificates of land use rights and ownership over houses and other assets attached to land under law."

2. To replace the phrase "House ownership certificates" in Articles 10, 21, 22, 36, 57, 78, 93, 95, 125 and 139: Clause 2, Article 66: and Point b, Clause 2, Article 106, of the Housing Law with the phrase "Certificates of land use rights and ownership over houses and other assets attached to land."

3. To replace the phrase "any of the papers specified in Article 15 of this Law" in Clause 3, Article 66 of the Housing Law with the phrase "papers evidencing lawful establishment."

4. To replace the phrase "in the order specified in Article 16 of this Law" in Clause 5, Article 93 of the Housing Law with the phrase "as prescribed by the Government."

5. To remove the phrase "in accordance with this Law" in Clause 6, Article 21; Clause 1, Article 22: Point b, Clause 2, Article 106; and Clause 2, Article 125, of the Housing Law.

6. To remove the phrase "under Article 16 of this Law" in Clause 3. Article 105 of the Housing Law.

7. To annul Articles 11 thru 20.127.128.130, 138 and 152 of the Housing Law.

Article 6. The Government shall guide the uniform application of terms which have the same meaning but are expressed in different ways in the laws concerning capital construction investment.

Article 7.

1. This Law takes effect on August 1, 2009.

2. The Government shall detail and guide articles and clauses as assigned in the Law, and guide other necessary contents of this Law to meet state management requirements.

This Law was passed on June 19, 2009, by the XII^th National Assembly of the Socialist Republic of Vietnam at its 5^th session.

CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Phu Trong

ALI ACAR – Master Student, at Onati International Institute for the Sociology of Law

ABSTRACT

This article describes the concept of legal culture. After taking up a discussion on whether law can be transferable or not, which is seen as a product of the culture of a given society, the concept of legal culture and its different perceptions by various scholars constitutes the subject of the paper. Since there has not been much done in the field of legal culture in Turkey up to now except for a few studies, this is a crucial area for exploration and will be accomplished by scrutinizing the sociological, economical, and political implications of Turkish law.

INTRODUCTION

The law in Turkey has been changing very fast due to EU membership process. However, it seems that the connection between law and society, the relations between law and other societal institutions are avoided in this process. As far as it is known, there has been very little academic work done on the topic up until now in Turkey. Therefore, this article intends to deal with the issue at a theoretical level.

What is certain is that not only has a series of laws been amended, but what is uncertain is whether the culture behind that law is transferable or not .Especially when human rights are in question, this aspect of the issue is unavoidable. However, as it can be seen in the Turkish political scene, this process is very tender and various groups in society practice a range of conflicts to overcome.

One of the most continuous legal debates is whether rules that are products of a specific culture can be transformed or not. However, even if rules (or standards) can be transformed, it is important to touch, inter alia, on the legal culture of a given society in socio-legal research, since the implementation of those rules would be attained or not within a specific culture. Therefore, I shall ask what is legal culture? What does this concept include? Is it measurable sociologically? Is it a concept, or as some scholars claim, a “paradigm or a methodological approach?”1

Is it impossible to develop a concept of legal culture… “to indicate a significant explanatory variable in empirical research in sociology of law?”2

Can we have indicators to measure it empirically?3 What is it then, when one states that law is not obeyed in a country and having an idea on the legal culture of that country may save a life?4 Where does this idea stem from? Is this an observation or an idea, or just a reductive way of looking at reality?

Before dealing with legal culture, first a discussion on important threshold question needs to occur, namely whether law is transferable or not. International law rules (not only in the field of human rights, but also in other fields, such IPR law, trade law, etc.) along with domestic changes, or reforms as they are called, have been recognized by the Turkish state as a positive response to EU negotiations and international diplomacy requirements. In this regard, only the influence of the EU seems to create a transition that can be identified as a very large transplant in the legal system of Turkey in general and in the human rights law in particular. Thus, one shall put the finger on the theory of legal transplant (or reception of law).

I. Legal Transplant

In the theory of legal transplant (transfer, reception, or transformation- whatever it is called), there are different opinions on the subject. Thibaut, a German legal thinker, claimed, following the natural law theory at the beginning of the nineteenth century, that law is a product of human reason, and it can, thus, have the common elements in different countries. Accordingly, legal transplant would then be possible. On the other hand, Friedrich Karl von Savigny, another German legal theorist, took the opposite point of view in his reply to Thibaut. According to Savigny, law reflects the culture of a given society, and thus reception in another culture is not possible, because law is a product of that society and of its particular attributes or idiosyncrasies, like other institutions such as language, family, religion and so on.5 These contested opinions between two thinkers was taken up and evaluated by Professor Cahit Can who in his unpublished thesis, stated that Savigny‟s position in terms of reception was conservative and aimed at providing an instrument to delay the revolutionary influences of his time. Thibaut, in this sense, was regarded as progressive, since his idea was found to be supportive of the bourgeoisie revolutionary movement on-going at that time.6

In the contemporary era, these two contested opinions are somehow shared by various scholars. Alan Watson, known as a legal historian, follows the Thibaut opinion but with different justification. In his book, Legal Transplant – An Approach to Comparative Law, Watson gives a large number of examples in order to prove how Roman law was transplanted into different countries, especially by Scotland. William Ewald, in his critiques of the Watson understanding of legal transplant, defines the perception of law and of the reception of some scholars as opponents or adherents of mirror theory. Mirror theory basically states that law reflects or mirrors the social, economical, and political relations of a given society.7 This idea can also be found in writings of a famous sociologist – Durkheim. The very basic interpretation of his theory is that in societies which have organic solidarity, the penalties or law will be remedial and individual.” On the other hand, in societies where mechanical solidarity is in force, penalties in the legal system will be revengeful and collective8. However, Durkheim‟s opinion is more holistic.

In the theories of legal transplant, one common element exists in that all scholars‟ opinions focus on private law reception rather than public law — some do so on purpose. For example, Savigny, in his book on Roman law,9 clearly defines his aim that he focuses on private law. Ewald, in his article, makes a distinction between private and public law by referring to the books and articles of Watson, which he says they don‟t make a distinction between two fields of law.10

Moreover, there is no specific theory on the reception of international law and more specifically of international human rights laws. This is maybe because of the characteristic of international law, since its status is arguably indefinite and lacks enforcement mechanisms. However, when we look at the rules, standards, and covenants in human rights and/or other fields, such as international trade law it can be seen that they are somehow subjected to reception by the rest of the world countries, because in order to exist in and to be recognized by the international community, adopting these rules seems to be a requirement. It is particularly true for EU membership with the standards set by the Copenhagen criteria and the acquis.11 On the other hand, these norms may or may not be implemented in a specific culture.

II. Legal Culture in general

The concept of “culture” is among the key, vague, broadest12 and most controversial concepts of social sciences, which range from sociology to anthropology from philosophy to law.13 Therefore, the definition may differentiate, depending on different social sciences and also on different approaches within a particular social science.14 According to one scholar, “culture consists of learned behaviours, attitudes and values;” thus, legal culture also encompasses the same components that concern legal issues.15 Wallerstein criticizes this use of the concept and then alleges that it is an ideological usage, after giving almost the same definition which is “when we talk of traits which are neither universal nor idiosyncratic we often use the term „culture‟ to describe the collection of such traits, or of such behaviours, or of such values, or of such beliefs. In short, in this usage, each group has its specific culture.”16

Coming to the concept of legal culture; “sociologists have found the concept useful for analyses of the ethics and practices of legal organizations. Anthropologists, using a more holistic approach, have characterized the legal cultures of entire societies.”17 When the concept of legal culture is in use in the sociology of law, scholars agree neither on the definition nor on the methods to research or to measure it. The concept is deemed to be vague and open-ended.18

Besides, some scholars accept different term(s). Therefore, trying to define legal culture is very complex and difficult.19

Another scholar, Lawrence Friedman, as a strong supporter of using the concept of legal culture, shares almost the same definition and uses the concept of legal culture by insisting on determining some indicators to measure it. To him, legal culture means “the idea, values, attitudes and opinions, people in some society hold with regard to law and the legal system.”20 In another definition of the concept, he changes this description slightly. Accordingly, the legal culture “refers to ideas, values, expectations and attitudes towards law and legal institutions, which some public or some part of the public holds.”21 He claims that legal culture is measurable by some indicators.22 In order to do so, he divides the definition into two sub-terms: internal and external legal culture. Internal legal culture refers to the attitudes and behaviors of legal professionals, while external legal culture refers to those of lay people.23 This division is reminiscent of von Savigy, the German legal theorist, as Professor Cotterrell tells us. According to von Savigny, the consciousness of law of (lay) people in modern times is represented by legal professionals. When Savigny uses the term “technical” (technische) element of law, its meaning seems to be similar to that of Friedman‟s internal legal culture, and by using the term “political” (politische) element of law he meant the same as the external legal culture of Friedman. By the technical element of law, Savigny wanted to refer the law which is in the hands of legal professionals. By the political element of law, he refers to the law which lives in the consciousness of people, in their behaviors and so on.24

Conversely, Roger Cotterrell refuses to use the concept of legal culture but prefers to use the term “legal ideology” instead. As he shows in his critiques of Lawrence Friedman, the definitions of legal culture, he claims, are ambiguous and insufficient to measure legal consciousness, attitudes and behaviors of society as a whole. Because “legal culture does not appear as a unitary concept, but indicates an immense, multi-textured overlay of levels and regions of culture, varying in content, scope and influence and in their relation to the institutions, practices, knowledge of state legal systems and its theoretical framework is inapplicable for the empirical researches.”25 According to him, “like legal culture in Friedman‟s formulation, legal ideology can be regarded not as unity but rather as an overlay of currents of ideas, beliefs, values and attitudes embedded in, expressed through and shaped by practice.”26 Otherwise, Friedman‟s definition reduces the meaning of law to the state law only, he claims. However, to Cotterell, not just in old societies or in tribal communities but also in the modern (western) societies, the law is also pluralistic. There are other forms of law different than state laws. Therefore, he wishes to use the term legal ideology rather than the term legal culture. Then, Professor Cotterrell remarks that “the concept of legal ideology can be considered to be tied in a relatively specific way to legal doctrine and can be regarded,” he goes on, “as made up of value elements and cognitive ideas presupposed in, expressed through and shaped by the practices of developing, interpreting, and applying legal doctrine within a legal system.”27 However, why the concept of legal ideology is necessarily linked with legal doctrine and with legal professionals is not clear. How is it different than legal culture if the legal professionals are the bearers of the legal ideology28? Does this concept assume that legal professionals and people in society necessarily interrelate with each other, or that they affect each other? Is it really so in every society? If so, how?

In another theory, Hayrettin Ökçesiz brings an important expansion to the discussion. In his theory, he combines the natural requirements with the requirements of the human condition, then defines the characteristics of legal culture. In his attempt to examine the concept of “sovereignty,” he suggests a “seven triplets” framework29 to analyze the concept. In this framework, the structure of legal culture can be analyzed under seven triplets. Seven triplets means: 1) three identities: human, individual and person; 2) three integrities: biological, spiritual and psychological; 3) three fundamental necessities: freedom, security and equality; 4) three components of idea of law: equality, security and freedom; 5) three dimensions of law: norm, fact, value; 6) three dimensions of rule of law: equality, security and freedom; 7) three fields of politics: private sphere, public sphere and official sphere. All three dimensions which are related to security, freedom and equality seem to combine natural and cultural necessities and therefore constitute the characteristics of law. Professor Ökçesiz‟s theory gives the impression that it is normative; since the theory does not encompass historical explanations, it thus seems to be far from being an analytical tool for socio-legal research. Of course, this does not reduce the value and importance of the theory. It is worthy to think about how the theory can be used as an analytical tool to research on legal culture.

Along with other scholars, Volkmar Gessner demonstrates more a comprehensive framework to research legal culture.

Field 1: Legal-theoretical and legal dogmatic comparison

Field 2: Legal comparison

Field 3: Comparative implementation research

Field 4: Comparison of legal systems/legal culture30.

In this construction, he defines all the components of legal cultures. We can then reach a result that combines all the indicators. His construction also gives an answer to Cotterrell‟s criticisms to Friedman. According to Professor Gessner, the legal culture embraces several components, from norms to courts, from judges‟ to lawyers‟, from NGOs to lay people‟s values, attitudes, consciousness, established and learned behaviours concerning law. This framework is not restrictive and gives an opportunity to grasp national and international components and their interaction, such as the effects of international rules and/or institutions, NGOs, organizations. Also it does not necessarily and strictly put a value into the framework. In one sense, this means that these components, i.e. the actors, may clash with one another or cooperate, depending on the connections to the other conditions in society.

The courts and especially the high courts constitute an important part of his framework. Although Professor Gessner does not mean that the high courts are the only institutions to research or to measure the legal culture, nevertheless the high courts´ decisions play an important role in showing the general outlook of legal culture in this construction, but again this is not the only way to get this view. This last point is important to take into consideration while researching the internal legal culture (if there is one) in Turkey in the terms of Friedman, but it requires combining different effects on and interrelation of courts.

Remembering that Friedrich Karl von Savigny stated in the 19th century that the legal consciousness of the people, which they had before the modern era, began to be represented by the legal professional in modern societies by the division of labor and also since people began to forget their own laws.31

Although this claim does not totally reflect that fact, nevertheless it has some important indication in the modern times. This is particularly true in a society where the modern type of positivistic law is imposed to change or develop the society. In this respect, it can be observed that this law brings its experts or professionals with itself and law becomes a tool in the hand of these experts. Therefore a new class or professional group of people emerged in the society to deal with law. This is precisely applicable to Turkish example. It is not rare that judges many times declared that they are the guardian of the Republic of Turkey.32 However, it is not claimed here that there is a homogenous group of people, but yet there are people who can direct the main orientation.

III. Western Oriented Legal System in Turkey- What about Legal

Culture?

As mentioned above, the legal system of a country is considered to be within its legal culture. For that reason, I shall touch on the legal system of Turkey in its very basic sense. However, the legal system and its norms, inter alia, cannot be regarded as if they constitute the whole legal culture of a society. Of course the characteristic of norms and system take an important place in the legal culture,33 however, it does not show how that system functions or the linkage between norms and society.

As is well known, the Republic of Turkey in its establishment period turned to face the West. Hence, a western-oriented legal system was designed for the new republic from Western Europe. Many laws were adopted from European countries. For example, the Civil Code of Turkey was enacted in

1926, based on Swiss Civil Code. The Penal Code was passed by Parliament in

1926, based on the Italian Penal Code. Many other laws were also based on the

Western countries‟ laws. With these legal transplants, the legal system was

aimed to unify the country because in the Ottoman period, ethnic groups that were not Muslim had their own legal system, including dispute settlement mechanisms. So, under a uni-national system, many legal systems could not be

valid anymore, thus a unique western legal system was adopted.

CONCLUSION

In this article, I tried to engage in the concept of legal culture generally. I attempted draw attention to the Turkish case, while the law and legal system has been in a transition, since Turkey is in the process of preparing for EU membership and trying to harmonize its law with that of EU.

As Katharina Pistor34 claims, adopting the rules in international law is not so important if there is not a sufficient institutional base to implement them in the receiving state. So the important aspect of the transplanting of any kind of legal issue relies on the implementation. Therefore, opinions, values, attitudes, behaviours, etc, of legal professionals as well as the executors and also of the whole society shall be ready to adopt that transplanted law. Otherwise, it is inevitable to have (culture) mismatches. And in this respect, socio-legal studies play an important role in grasping the whole legal culture of a society.

It is well known that the EU requires impact assessment analysis when a candidate country tries to harmonize its law with the acquis communautaire. However, this analysis focuses only on the economic impact of legislation in question. Therefore, reducing the task of sociology of law or socio-legal studies just to impact assessment analysis, as was done by the EU and acknowledged by Council of Ministers of Turkey35 will not be enough; it may even be harmful. Although it is stated in the Regulation that social, economical, environmental, commercial aspects of any piece of legislation shall be taken into account by the public administration, it is not realistic since those public administrations have to do this job in 30 days (Article 7 of the Regulation). Besides, it not known who will do this task and how? This Regulation seems to be another product of top-to-bottom process and thus, it lacks the implementation capacity.

It can be suggested here that although the characteristic of the legal system is western-origin theoretically in Turkey, however, whether its practices or its culture is the same can be disputed based on the fact of whether it contains the same traits or not. Under the process of EU membership, many laws have been amended in order to harmonize with those of EU. Since the process functions again in a top-to-bottom way, it is unavoidable to undergo new tissue mismatches in the legal system.

For those reasons mentioned above, it is very important to deal with socio- legal studies; legal culture in this sense has a central role and importance in a society.

—————————

1 Reza Banakar and Mark Treves, “Studying Legal Cultures” in Reza Banakar and Max Treves

(Eds.), Theory and Methods in Socio-Legal Research, Hart Publishing, 2005, 239.

2 Roger Cotterrell, “The Concept of Legal Culture”, in David Nelken, (Ed.) Comparing Legal Cultures, Darmouth Publishing, 1997, at 14.

3 Some claim that it is possible. See Erhard Blankenburg, in Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany, DIA, 1997 (discussing the indicators, such as litigation rates, legal aid, training of legal professionals etc).

4 David Nelken, “Using the Concept of Legal Culture,” Center for the Study of Law and Society Jurisprudence and Social Program University of California, Berkeley, 2004, available at http://repositories.cdlib.org/csls/lss/20 (last visited Oct 31, 2007).

5 For detailed information about the contested opinions of Savigny and Thibaut, see Ali Acar, “Friedrich Karl von Savigny‟nin Hukuk Anlayışı” (The Legal Analysis of Friedrich von Savigny), Erciyes Üniversitesi Hukuk Fakültesi Dergisi (Erciyes University Law Review), 2006, Vol. 1, 65- 88.

6 See Can, Cahit, Hukuk Sosyolojisi ve Tarih Açısından Resepsiyon (unpublished thesis), Ankara University, Ankara, 1982.

7 William Ewald, “Comparative Jurisprudence (II): The Logic of Legal Transplant”, 43 American Journal of Comparative Law 503 (1995).

8 Emile Durkheim, “Types of Law in Relation Types of Social Solidarity” in Vilhelm Aubert (Ed.), Sociology of Law, Selected Readings, Penguin Modern Sociology Readings, 1969, 17 et seq.

9 Friedrich Karl von Savigny, System des heutigen Römisches Rechts (System of Present Day Roman Law), Erster Band, 1840(b) Berlin, 2 and 331.

10 Ewald, 1995, supra note 7.

11 Manfred Nowak, “Human Rights „Conditionality,‟ in Relation to Entry to and Full Participation in the EU,” in Philip Alston (Ed.), The EU And Human Rights, Oxford University Press, 1999.

12 Immanuel Wallerstein, “Culture as the Ideological Background of the Modern World System”, Theory, Culture & Society, SAGE, London, Vol. 7, 1990, 31.

13 Edgar F. Borgatta and Rhonda J.V. Montgomery (eds.) “Culture”, Encyclopedia of Sociology, 2 ed., 2000, 562-572.

14 For the different definitions in anthropology, see David Levinson, Melvin Ember (eds.), “Culture,” Encyclopedia of Cultural Anthropology, Vol. 1, 1996, pp. 291-298; Alan Barnard and Jonathan Spencer, “Culture,” Encyclopedia of Social and Cultural Anthropology, Routledge,

1996, 136-142; Julius Gould and William L. Kolb (eds.), “Culture,” A Dictionary of the Social Sciences, The Free Press, 1964, 164-168.

15 Volkmar Gessner, “Global Legal Interaction and Legal Cultures,” Ratio Juris, Vol. 7 No. 2, July 1994, 132.

16 Wallerstein, supra note 11.

17 J. L. Gibson and G. A. Caldeira, “The Legal Cultures of Europe”, 30 Law & Society Review 55-56 (1996).

18 Cotterell, supra note 2, at 14; Marina Kurkchiyan, “Researching Legal Culture in Russian: From Asking the Question to Gathering the Evidence” in Reza Banakar and Max Treves (eds.) Theory and Methods in Socio-Legal Research, Hart Publishing, Oxford, 2005, 261.

19 David Nelken, “Comparing Legal Cultures: An Introduction,” in David Nelken (ed.) Comparing Legal Cultures, Darmouth Publishing, Sudbury, Mass., 1997, 13-15.

20 Lawrence M. Friedman, “Is there a Modern Legal Culture,” Ratio Juris, Vol. 7, No. 2 July 1994, 118.

21 Lawrence M. Friedman, “The Concept of Legal Culture: A Reply” in David Nelken (Ed).) Comparing Legal Cultures, Darmouth Publishing, 1997, 34.

22 Friedman, 1994, 122.

23 Lawrence M. Friedman, The Legal System: A Social Science Perspective, Russell Sage Foundation, New York, 1975, 194 and 223.

24 Friedrich Karl von Savigny, Vom Beruf Zeit für Geseztgebung und Rechtswissensachft (From the Profession, Time for Legislation and Jurisprudence), 3d ed., Heidelberg, 1840 (a), 12.

25 Cotterrell, supra note 2, at 17.

26 Id.

27 Id., at 21.

28 Id., at 22.

29 Hayrettin Ökçesiz “Hukuk Kültürünün Yapısını “Nomos-Physis” (Toplum-Kültür-Doğa) Çerçevesinde Yedi Üçüzlü Bir Kurguyla Açıklama Şemasında Egemenliğin İrdelenmesi” (Examination of Sovereignity in the Framework of the Structure of Law Culture “Nomos-Physis” (public-culture-nature) with a Seven–triplet Organization (available at www.anayasa.gov.tr/ eskisite/anyarg20/h_okcesiz.pdf) (last visited Oct. 31, 2007).

30 Volkmar Gessner, “On the Methodology of Comparing Legal Phenomena” in Volkmar Gessner, Armin Hoeland, Csaba Varga (eds.) European Legal Cultures, Dartmouth, 1996, 245; Gessner, Volkmar. “Teaching Legal Culture”, Unpublished Course Notes, Onati International Institute.

31 Savigny, supra note 9, at 12. For the emergence and power of American legal professionals, see Michael Ariens, “Modern Legal Times: Making a Professional Legal Culture”, Journal of American Culture, Vol. 15, Issue 1 March 1992, 25–35.

32 See, e.g. Osman Arslan, President of the Turkish High Appeals Court (Yargitay), Adli Yıl Açılış Konuşması (2007-2008) (Opening Speech for the 2007-2008 Judicial Year) (Sep. 6, 2007), transcript available at www.yargitay.gov.tr /content/view/187/1 (last visited Oct. 31, 2007).

33 Zeki Hafızoğulları, “Bir Kültür Ürünü olarak Hukuk Düzeni” (Law Regime as a Culture Harvest), Ankara Üniversitesi Hukuk Fakültesi Dergisi (Ankara University Law School Journal),

1996, Vol. 45, No. 1–4, 3–21.

34 Pistor, Katharina, “Standardization of Law and its Effect on Developing Economies”, 50 American Journal of Comparative Law 97 (2002).

35The Regulation on Principles and Procedures of Drafting any Kind of Legislation, published in the Official Gazette Nr. 26083 and dated 17.02.2006.

SOURCE: ANKARA LAW REVIEW, VOL. 3 NO. 2 (WINTER 2006), PP. 143 – 153

WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT) (1996) WITH THE AGREED STATEMENTS OF THE DIPLOMATIC CONFERENCE THAT ADOPTED THE TREATY AND THE PROVISIONS OF THE BERNE CONVENTION ( 1971) AND OF THE ROME CONVENTION (1961)

Referred to in the treaty

WIPO Performances and Phonograms Treaty

(WPPT) (1996)

CONTENTS

Preamble

Chapter I: General Provisions

Article 1: Relation to Other Conventions

Article 2: Definitions

Article 3: Beneficiaries of Protection under this Treaty

Article 4: National Treatment

Chapter II: Rights of Performers

Article 5: Moral Rights of Performers

Article 6: Economic Rights of Performers in their Unfixed Performances

Article 7: Right of Reproduction

Article 8: Right of Distribution

Article 9: Right of Rental

Article 10: Right of Making Available of Fixed Performances

Chapter III: Rights of Producers of Phonograms

Article 11: Right of Reproduction

Article 12: Right of Distribution

Article 13: Right of Rental

Article 14: Right of Making Available of Phonograms

Chapter IV: Common Provisions

Article 15: Right to Remuneration for Broadcasting and Communication to the Public

Article 16: Limitations and Exceptions

Article 17: Term of Protection

Article 18: Obligations concerning Technological Measures

Article 19: Obligations concerning Rights Management Information

Article 20: Formalities

Article 21: Reservations

Article 22: Application in Time

Article 23: Provisions on Enforcement of Rights

Chapter V: Administrative and Final Clauses

Article 24: Assembly

Article 25: International Bureau

Article 26: Eligibility for Becoming Party to the Treaty

Article 27: Rights and Obligations under the Treaty

Article 28: Signature of the Treaty

Article 29: Entry into Force of the Treaty

Article 30: Effective Date of Becoming Party to the Treaty

Article 31: Denunciation of the Treaty

Article 32: Languages of the Treaty

Article 33: Depositary

PREAMBLE

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of performers and producers of phonograms in a manner as effective and uniform as possible,

Recognizing the need to introduce new international rules in order to provide adequate solutions to the questions raised by economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the production and use of performances and phonograms,

Recognizing the need to maintain a balance between the rights of performers and producers of phonograms and the larger public interest, particularly education, research and access to information,

Have agreed as follows:

CHAPTER I

GENERAL PROVISIONS

Article 1

Relation to Other Conventions

(1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (hereinafter the "Rome Convention").

(2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection.

(3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.

Article 2

Definitions

For the purposes of this Treaty:

(a) "performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

(b) "phonogram" means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

(c) "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;

(d) "producer of a phonogram" means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds;

(e) "publication" of a fixed performance or a phonogram means the offering of copies of the fixed performance or the phonogram to the public, with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity;

(f) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;

(g) "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

Article 3

Beneficiaries of Protection under this Treaty

(1) Contracting Parties shall accord the protection provided under this Treaty to the performers and producers of phonograms who are nationals of other Contracting Parties.

(2) The nationals of other Contracting Parties shall be understood to be those performers or producers of phonograms who would meet the criteria for eligibility for protection provided under the Rome Convention, were all the Contracting Parties to this Treaty Contracting States of that Convention. In respect of these criteria of eligibility, Contracting Parties shall apply the relevant definitions in Article 2 of this Treaty.

(3) Any Contracting Party availing itself of the possibilities provided in Article 5(3) of the Rome Convention or, for the purposes of Article 5 of the same Convention, Article 17 thereof shall make a notification as foreseen in those provisions to the Director General of the World Intellectual Property Organization (WIPO).

Article 4

National Treatment

(1) Each Contracting Party shall accord to nationals of other Contracting Parties, as defined in Article 3(2), the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty, and to the right to equitable remuneration provided for in Article 15 of this Treaty.

(2) The obligation provided for in paragraph (1) does not apply to the extent that another Contracting Party makes use of the reservations permitted by Article 15(3) of this Treaty.

CHAPTER II

RIGHTS OF PERFORMERS

Article 5

Moral Rights of Performers

(1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.

(2) The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Contracting Party where protection is claimed.

Article 6

Economic Rights of Performers in their Unfixed Performances

Performers shall enjoy the exclusive right of authorizing, as regards their performances:

(i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

(ii) the fixation of their unfixed performances.

Article 7

Right of Reproduction

Performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in phonograms, in any manner or form.

Article 8

Right of Distribution

(1) Performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixed performance with the authorization of the performer.

Article 9

Right of Rental

(1) Performers shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their performances fixed in phonograms as determined in the national law of Contracting Parties, even after distribution of them by, or pursuant to, authorization by the performer.

(2) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of performers for the rental of copies of their performances fixed in phonograms, may maintain that system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive right of reproduction of performers.

Article 10

Right of Making Available of Fixed Performances

Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

CHAPTER III

RIGHTS OF PRODUCERS OF PHONOGRAMS

Article 11

Right of Reproduction

Producers of phonograms shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their phonograms, in any manner or form.

Article 12

Right of Distribution

(1) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the phonogram with the authorization of the producer of the phonogram.

Article 13

Right of Rental

(1) Producers of phonograms shall enjoy the exclusive right of authorizing the commercial rental to the public of the original and copies of their phonograms, even after distribution of them by or pursuant to authorization by the producer.

(2) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of producers of phonograms for the rental of copies of their phonograms, may maintain that system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive right of reproduction of producers of phonograms.

Article 14

Right of Making Available of Phonograms

Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

CHAPTER IV

COMMON PROVISIONS

Article 15

Right to Remuneration for Broadcasting and Communication to the Public

(1) Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.

(2) Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration.

(3) Any Contracting Party may in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.

(4) For the purposes of this Article, phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.

Article 16

Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.

Article 17

Term of Protection

(1) The term of protection to be granted to performers under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram.

(2) The term of protection to be granted to producers of phonograms under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made.

Article 18

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.

Article 19

Obligations concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast, communicate or make available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.

Article 20

Formalities

The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.

Article 21

Reservations

Subject to the provisions of Article 15(3), no reservations to this Treaty shall be permitted.

Article 22

Application in Time

(1) Contracting Parties shall apply the provisions of Article 18 of the Berne Convention, mutatis mutandis, to the rights of performers and producers of phonograms provided for in this Treaty.

(2) Notwithstanding paragraph (1), a Contracting Party may limit the application of Article 5 of this Treaty to performances which occurred after the entry into force of this Treaty for that Party.

Article 23

Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

CHAPTER V

ADMINISTRATIVE AND FINAL CLAUSES

Article 24

Assembly

(1)

(a) The Contracting Parties shall have an Assembly.

(b) Each Contracting Party shall be represented by one delegate who may be assisted by alternate delegates, advisors and experts.

(c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the delegation. The Assembly may ask WIPO to grant financial assistance to facilitate the participation of delegations of Contracting Parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy.

(2)

(a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty.

(b) The Assembly shall perform the function allocated to it under Article 26(2) in respect of the admission of certain intergovernmental organizations to become party to this Treaty.

(c) The Assembly shall decide the convocation of any diplomatic conference for the revision of this Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such diplomatic conference.

(3)

(a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name.

(b) Any Contracting Party that is an intergovernmental organization may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its Member States exercises its right to vote and vice versa.

(4) The Assembly shall meet in ordinary session once every two years upon convocation by the Director General of WIPO.

(5) The Assembly shall establish its own rules of procedure, including the convocation of extraordinary sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority for various kinds of decisions.

Article 25

International Bureau

The International Bureau of WIPO shall perform the administrative tasks concerning the Treaty.

Article 26

Eligibility for Becoming Party to the Treaty

(1) Any Member State of WIPO may become party to this Treaty.

(2) The Assembly may decide to admit any intergovernmental organization to become party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty.

(3) The European Community, having made the declaration referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become party to this Treaty.

Article 27

Rights and Obligations under the Treaty

Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all of the rights and assume all of the obligations under this Treaty.

Article 28

Signature of the Treaty

This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and by the European Community.

Article 29

Entry into Force of the Treaty

This Treaty shall enter into force three months after 30 instruments of ratification or accession by States have been deposited with the Director General of WIPO.

Article 30

Effective Date of Becoming Party to the Treaty

This Treaty shall bind

(i) the 30 States referred to in Article 29, from the date on which this Treaty has entered into force;

(ii) each other State from the expiration of three months from the date on which the State has deposited its instrument with the Director General of WIPO;

(iii) the European Community, from the expiration of three months after the deposit of its instrument of ratification or accession if such instrument has been deposited after the entry into force of this Treaty according to Article 29, or, three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty;

(iv) any other intergovernmental organization that is admitted to become party to this Treaty, from the expiration of three months after the deposit of its instrument of accession.

Article 31

Denunciation of the Treaty

This Treaty may be denounced by any Contracting Party by notification addressed to the Director General of WIPO. Any denunciation shall take effect one year from the date on which the Director General of WIPO received the notification.

Article 32

Languages of the Treaty

(1) This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic.

(2) An official text in any language other than those referred to in paragraph (1) shall be established by the Director General of WIPO on the request of an interested party, after consultation with all the interested parties. For the purposes of this paragraph, "interested party" means any Member State of WIPO whose official language, or one of whose official languages, is involved and the European Community, and any other intergovernmental organization that may become party to this Treaty, if one of its official languages is involved.

Article 33

Depositary

The Director General of WIPO is the depositary of this Treaty.

PROVISIONS OF THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS ( 1971) REFERRED TO IN THE WPPT

Article 18

[Works Existing on Convention's Entry Into Force: 1. Protectable where protection not yet expired in country of origin; 2. Non-protectable where protection already expired in country where it is claimed; 3. Application of these principles; 4. Special cases]

(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.

(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.

(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.

(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.

PROVISIONS OF THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS (THE ROME CONVENTION) (1961) REFERRED TO IN THE WPPT

Article 4

[Performances Protected. Points of Attachment for Performers]

Each Contracting State shall grant national treatment to performers if any of the following conditions is met:

(a) the performance takes place in another Contracting State;

(b) the performance is incorporated in a phonogram which is protected under Article 5 of this Convention;

(c) the performance, not being fixed on a phonogram, is carried by a broadcast which is protected by Article 6 of this Convention.

Article 5

[Protected Phonograms: 1. Points of Attachment for Producers of Phonograms; 2. Simultaneous Publication; 3. Power to exclude certain Criteria]

1. Each Contracting State shall grant national treatment to producers of phonograms if any of the following conditions is met:

(a) the producer of the phonogram is a national of another Contracting State (criterion of nationality);

(b) the first fixation of the sound was made in another Contracting State (criterion of fixation);

(c) the phonogram was first published in another Contracting State (criterion of publication).

2. If a phonogram was first published in a non–contracting State but if it was also published, within thirty days of its first publication, in a Contracting State (simultaneous publication), it shall be considered as first published in the Contracting State.

3. By means of a notification deposited with the Secretary–General of the United Nations, any Contracting State may declare that it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.

Article 16

[Reservations]

1. Any State, upon becoming party to this Convention, shall be bound by all the obligations and shall enjoy all the benefits thereof. However, a State may at any time, in a notification deposited with the Secretary–General of the United Nations, declare that:

(a) as regards Article 12:

(i) it will not apply the provisions of that Article;

(ii) it will not apply the provisions of that Article in respect of certain uses;

(iii) as regards phonograms the producer of which is not a national of another Contracting State, it will not apply that Article;

(iv) as regards phonograms the producer of which is a national of another Contracting State, it will limit the protection provided for by that Article to the extent to which, and to the term for which, the latter State grants protection to phonograms first fixed by a national of the State making the declaration; however, the fact that the Contracting State of which the producer is a national does not grant the protection to the same beneficiary or beneficiaries as the State making the declaration shall not be considered as a difference in the extent of the protection;

(b) as regards Article 13, it will not apply item (d) of that Article; if a Contracting State makes such a declaration, the other Contracting States shall not be obliged to grant the right referred to in Article 13, item (d), to broadcasting organisations whose headquarters are in that State.

2. If the notification referred to in paragraph 1 of this Article is made after the date of the deposit of the instrument of ratification, acceptance or accession, the declaration will become effective six months after it has been deposited.

Article 17

[Certain countries applying only the "fixation" criterion]

Any State which, on October 26, 1961, grants protection to producers of phonograms solely on the basis of the criterion of fixation may, by a notification deposited with the Secretary–General of the United Nations at the time of ratification, acceptance or accession, declare that it will apply, for the purposes of Article 5, the criterion of fixation alone and, for the purposes of paragraph 1(a)(iii) and (iv) of Article 16, the criterion of fixation instead of the criterion of nationality.

Article 18

[Withdrawal of reservations]

Any State which has deposited a notification under paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 or Article 17, may, by a further notification deposited with the Secretary–General of the United Nations, reduce its scope or withdraw it.

INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS

DONE AT ROME ON OCTOBER 26, 1961

TABLE OF CONTENTS

Article 1: Safeguard of Copyright Proper

Article 2: Protection given by the Convention. Definition of National Treatment

Article 3: Definitions: (a) Performers; (b) Phonogram; (c) Producers of Phonograms; (d) Publication; (e) Reproduction; (f) Broadcasting; (g) Rebroadcasting

Article 4: Performances Protected. Points of Attachment for Performers

Article 5: Protected Phonograms: 1. Points of Attachment for Producers of Phonograms; 2. Simultaneous Publication; 3. Power to exclude certain Criteria

Article 6: Protected Broadcasts: 1. Points of Attachment for Broadcasting Organizations; 2. Power to Reserve

Article 7: Minimum Protection for Performers: 1. Particular Rights; 2. Relations between Performers and Broadcasting Organizations

Article 8: Performers acting jointly

Article 9: Variety and Circus Artists

Article 10: Right of Reproduction for Phonogram Producers

Article 11: Formalities for Phonograms

Article 12: Secondary Uses of Phonograms

Article 13: Minimum Rights for Broadcasting Organizations

Article 14: Minimum Duration of Protection

Article 15: Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright

Article 16: Reservations

Article 17: Certain countries applying only the "fixation" criterion

Article 18: Withdrawal of reservations

Article 19: Performers’ Rights in Films

Article 20: Non–retroactivity

Article 21: Protection by other means

Article 22: Special agreements

Article 23: Signature and deposit

Article 24: Becoming Party to the Convention

Article 25: Entry into force

Article 26: Implementation of the Convention by the Provision of Domestic Law

Article 27: Applicability of the Convention to Certain Territories

Article 28: Denunciation of the Convention

Article 29: Revision of the Convention

Article 30: Settlement of disputes

Article 31: Limits on Reservations

Article 32: Intergovernmental Committee

Article 33: Languages

Article 34: Notifications

The Contracting States, moved by the desire to protect the rights of performers, producers of phonograms, and broadcasting organisations,

Have agreed as follows:

Article 1

[Safeguard of Copyright Proper]

Protection granted under this Convention shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Convention may be interpreted as prejudicing such protection.

Article 2

[Protection given by the Convention. Definition of National Treatment]

1. For the purposes of this Convention, national treatment shall mean the treatment accorded by the domestic law of the Contracting State in which protection is claimed:

(a) to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory;

(b) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory;

(c) to broadcasting organisations which have their headquarters on its territory, as regards broadcasts transmitted from transmitters situated on its territory.

2. National treatment shall be subject to the protection specifically guaranteed, and the limitations specifically provided for, in this Convention.

Article 3

[Definitions: (a) Performers; (b) Phonogram; (c) Producers of Phonograms; (d) Publication; (e) Reproduction; (f) Broadcasting; (g) Rebroadcasting]

For the purposes of this Convention:

(a) "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;

(b) "phonogram" means any exclusively aural fixation of sounds of a performance or of other sounds;

(c) "producer of phonograms" means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds;

(d) "publication" means the offering of copies of a phonogram to the public in reasonable quantity;

(e) "reproduction" means the making of a copy or copies of a fixation;

(f) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;

(g) "rebroadcasting" means the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation.

Article 4

[Performances Protected. Points of Attachment for Performers]

Each Contracting State shall grant national treatment to performers if any of the following conditions is met:

(a) the performance takes place in another Contracting State;

(b) the performance is incorporated in a phonogram which is protected under Article 5 of this Convention;

(c) the performance, not being fixed on a phonogram, is carried by a broadcast which is protected by Article 6 of this Convention.

Article 5

[Protected Phonograms: 1. Points of Attachment for Producers of Phonograms; 2. Simultaneous Publication; 3. Power to exclude certain Criteria]

1. Each Contracting State shall grant national treatment to producers of phonograms if any of the following conditions is met:

(a) the producer of the phonogram is a national of another Contracting State (criterion of nationality);

(b) the first fixation of the sound was made in another Contracting State (criterion of fixation);

(c) the phonogram was first published in another Contracting State (criterion of publication).

2. If a phonogram was first published in a non–contracting State but if it was also published, within thirty days of its first publication, in a Contracting State (simultaneous publication), it shall be considered as first published in the Contracting State.

3. By means of a notification deposited with the Secretary–General of the United Nations, any Contracting State may declare that it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.

Article 6

[Protected Broadcasts: 1. Points of Attachment for Broadcasting Organizations; 2. Power to Reserve]

1. Each Contracting State shall grant national treatment to broadcasting organisations if either of the following conditions is met:

(a) the headquarters of the broadcasting organisation is situated in another Contracting State;

(b) the broadcast was transmitted from a transmitter situated in another Contracting State.

2. By means of a notification deposited with the Secretary–General of the United Nations, any Contracting State may declare that it will protect broadcasts only if the headquarters of the broadcasting organisation is situated in another Contracting State and the broadcast was transmitted from a transmitter situated in the same Contracting State. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.

Article 7

[Minimum Protection for Performers: 1. Particular Rights; 2. Relations between Performers and Broadcasting Organizations]

1. The protection provided for performers by this Convention shall include the possibility of preventing:

(a) the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation;

(b) the fixation, without their consent, of their unfixed performance;

(c) the reproduction, without their consent, of a fixation of their performance:

(i) if the original fixation itself was made without their consent;

(ii) if the reproduction is made for purposes different from those for which the performers gave their consent;

(iii) if the original fixation was made in accordance with the provisions of Article 15, and the reproduction is made for purposes different from those referred to in those provisions.

2.

(1) If broadcasting was consented to by the performers, it shall be a matter for the domestic law of the Contracting State where protection is claimed to regulate the protection against rebroadcasting, fixation for broadcasting purposes and the reproduction of such fixation for broadcasting purposes.

(2) The terms and conditions governing the use by broadcasting organisations of fixations made for broadcasting purposes shall be determined in accordance with the domestic law of the Contracting State where protection is claimed.

(3) However, the domestic law referred to in sub–paragraphs (1) and (2) of this paragraph shall not operate to deprive performers of the ability to control, by contract, their relations with broadcasting organisations.

Article 8

[Performers acting jointly]

Any Contracting State may, by its domestic laws and regulations, specify the manner in which performers will be represented in connection with the exercise of their rights if several of them participate in the same performance.

Article 9

[Variety and Circus Artists]

Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary or artistic works.

Article 10

[Right of Reproduction for Phonogram Producers]

Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

Article 11

[Formalities for Phonograms]

If, as a condition of protecting the rights of producers of phonograms, or of performers, or both, in relation to phonograms, a Contracting State, under its domestic law, requires compliance with formalities, these shall be considered as fulfilled if all the copies in commerce of the published phonogram or their containers bear a notice consisting of the symbol (P), accompanied by the year date of the first publication, placed in such a manner as to give reasonable notice of claim of protection; and if the copies or their containers do not identify the producer or the licensee of the producer (by carrying his name, trade mark or other appropriate designation), the notice shall also include the name of the owner of the rights of the producer; and, furthermore, if the copies or their containers do not identify the principal performers, the notice shall also include the name of the person who, in the country in which the fixation was effected, owns the rights of such performers.

Article 12

[Secondary Uses of Phonograms]

If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.

Article 13

[Minimum Rights for Broadcasting Organizations]

Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions;

(d) the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee; it shall be a matter for the domestic law of the State where protection of this right is claimed to determine the conditions under which it may be exercised.

Article 14

[Minimum Duration of Protection]

The term of protection to be granted under this Convention shall last at least until the end of a period of twenty years computed from the end of the year in which:

(a) the fixation was made–for phonograms and for performances incorporated therein;

(b) the performance took place–for performances not incorporated in phonograms;

(c) the broadcast took place–for broadcasts.

Article 15

[Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright]

1. Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards:

(a) private use;

(b) use of short excerpts in connection with the reporting of current events;

(c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts;

(d) use solely for the purposes of teaching or scientific research.

2. Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with this Convention.

Article 16

[Reservations]

1. Any State, upon becoming party to this Convention, shall be bound by all the obligations and shall enjoy all the benefits thereof. However, a State may at any time, in a notification deposited with the Secretary–General of the United Nations, declare that:

(a) as regards Article 12:

(i) it will not apply the provisions of that Article;

(ii) it will not apply the provisions of that Article in respect of certain uses;

(iii) as regards phonograms the producer of which is not a national of another Contracting State, it will not apply that Article;

(iv) as regards phonograms the producer of which is a national of another Contracting State, it will limit the protection provided for by that Article to the extent to which, and to the term for which, the latter State grants protection to phonograms first fixed by a national of the State making the declaration; however, the fact that the Contracting State of which the producer is a national does not grant the protection to the same beneficiary or beneficiaries as the State making the declaration shall not be considered as a difference in the extent of the protection;

(b) as regards Article 13, it will not apply item (d) of that Article; if a Contracting State makes such a declaration, the other Contracting States shall not be obliged to grant the right referred to in Article 13, item (d), to broadcasting organisations whose headquarters are in that State.

2. If the notification referred to in paragraph 1 of this Article is made after the date of the deposit of the instrument of ratification, acceptance or accession, the declaration will become effective six months after it has been deposited.

Article 17

[Certain countries applying only the "fixation" criterion]

Any State which, on October 26, 1961, grants protection to producers of phonograms solely on the basis of the criterion of fixation may, by a notification deposited with the Secretary–General of the United Nations at the time of ratification, acceptance or accession, declare that it will apply, for the purposes of Article 5, the criterion of fixation alone and, for the purposes of paragraph 1(a)(iii) and (iv) of Article 16, the criterion of fixation instead of the criterion of nationality.

Article 18

[Withdrawal of reservations]

Any State which has deposited a notification under paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 or Article 17, may, by a further notification deposited with the Secretary–General of the United Nations, reduce its scope or withdraw it.

Article 19

[Performers' Rights in Films]

Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audio–visual fixation, Article 7 shall have no further application.

Article 20

[Non- retroactivity]

1. This Convention shall not prejudice rights acquired in any Contracting State before the date of coming into force of this Convention for that State.

2. No Contracting State shall be bound to apply the provisions of this Convention to performances or broadcasts which took place, or to phonograms which were fixed, before the date of coming into force of this Convention for that State.

Article 21

[Protection by other means]

The protection provided for in this Convention shall not prejudice any protection otherwise secured to performers, producers of phonograms and broadcasting organisations.

Article 22

[Special agreements]

Contracting States reserve the right to enter into special agreements among themselves in so far as such agreements grant to performers, producers of phonograms or broadcasting organisations more extensive rights than those granted by this Convention or contain other provisions not contrary to this Convention.

Article 23

[Signature and deposit]

This Convention shall be deposited with the Secretary–General of the United Nations. It shall be open until June 30, 1962, for signature by any State invited to the Diplomatic Conference on the International Protection of Performers, Producers of Phonograms and Broadcasting Organisations which is a party to the Universal Copyright Convention or a member of the International Union for the Protection of Literary and Artistic Works.

Article 24

[Becoming Party to the Convention]

1. This Convention shall be subject to ratification or acceptance by the signatory States.

2. This Convention shall be open for accession by any State invited to the Conference referred to in Article 23, and by any State Member of the United Nations, provided that in either case such State is a party to the Universal Copyright Convention or a member of the International Union for the Protection of Literary and Artistic Works.

3. Ratification, acceptance or accession shall be effected by the deposit of an instrument to that effect with the Secretary–General of the United Nations.

Article 25

[Entry into force]

1. This Convention shall come into force three months after the date of deposit of the sixth instrument of ratification, acceptance or accession.

2. Subsequently, this Convention shall come into force in respect of each State three months after the date of deposit of its instrument of ratification, acceptance or accession.

Article 26

[Implementation of the Convention by the Provision of Domestic Law]

1. Each Contracting State undertakes to adopt, in accordance with its Constitution, the measures necessary to ensure the application of this Convention.

2. At the time of deposit of its instrument of ratification, acceptance or accession, each State must be in a position under its domestic law to give effect to the terms of this Convention.

Article 27

[Applicability of the Convention to Certain Territories]

1. Any State may, at the time of ratification, acceptance or accession, or at any time thereafter, declare by notification addressed to the Secretary–General of the United Nations that this Convention shall extend to all or any of the territories for whose international relations it is responsible, provided that the Universal Copyright Convention or the International Convention for the Protection of Literary and Artistic Works applies to the territory or territories concerned. This notification shall take effect three months after the date of its receipt.

2. The notifications referred to in paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 and Articles 17 and 18, may be extended to cover all or any of the territories referred to in paragraph 1 of this Article.

Article 28

[Denunciation of the Convention]

1. Any Contracting State may denounce this Convention, on its own behalf or on behalf of all or any of the territories referred to in Article 27.

2. The denunciation shall be effected by a notification addressed to the Secretary–General of the United Nations and shall take effect twelve months after the date of receipt of the notification.

3. The right of denunciation shall not be exercised by a Contracting State before the expiry of a period of five years from the date on which the Convention came into force with respect to that State.

4. A Contracting State shall cease to be a party to this Convention from that time when it is neither a party to the Universal Copyright Convention nor a member of the International Union for the Protection of Literary and Artistic Works.

5. This Convention shall cease to apply to any territory referred to in Article 27 from that time when neither the Universal Copyright Convention nor the International Convention for the Protection of Literary and Artistic Works applies to that territory.

Article 29

[Revision of the Convention]

1. After this Convention has been in force for five years, any Contracting State may, by notification addressed to the Secretary–General of the United Nations, request that a conference be convened for the purpose of revising the Convention. The Secretary–General shall notify all Contracting States of this request. If, within a period of six months following the date of notification by the Secretary–General of the United Nations, not less than one half of the Contracting States notify him of their concurrence with the request, the Secretary–General shall inform the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works, who shall convene a revision conference in co–operation with the Intergovernmental Committee provided for in Article 32.

2. The adoption of any revision of this Convention shall require an affirmative vote by two–thirds of the States attending the revision conference, provided that this majority includes two–thirds of the States which, at the time of the revision conference, are parties to the Convention.

3. In the event of adoption of a Convention revising this Convention in whole or in part, and unless the revising Convention provides otherwise:

(a) this Convention shall cease to be open to ratification, acceptance or accession as from the date of entry into force of the revising Convention;

(b) this Convention shall remain in force as regards relations between or with Contracting States which have not become parties to the revising Convention.

Article 30

[Settlement of disputes]

Any dispute which may arise between two or more Contracting States concerning the interpretation or application of this Convention and which is not settled by negotiation shall, at the request of any one of the parties to the dispute, be referred to the International Court of Justice for decision, unless they agree to another mode of settlement.

Article 31

[Limits on Reservations]

Without prejudice to the provisions of paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 and Article 17, no reservation may be made to this Convention.

Article 32

[Intergovernmental Committee]

1. An Intergovernmental Committee is hereby established with the following duties:

(a) to study questions concerning the application and operation of this Convention; and

(b) to collect proposals and to prepare documentation for possible revision of this Convention.

2. The Committee shall consist of representatives of the Contracting States, chosen with due regard to equitable geographical distribution. The number of members shall be six if there are twelve Contracting States or less, nine if there are thirteen to eighteen Contracting States and twelve if there are more than eighteen Contracting States.

3. The Committee shall be constituted twelve months after the Convention comes into force by an election organized among the Contracting States, each of which shall have one vote, by the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works, in accordance with rules previously approved by a majority of all Contracting States.

4. The Committee shall elect its Chairman and officers. It shall establish its own rules of procedure. These rules shall in particular provide for the future operation of the Committee and for a method of selecting its members for the future in such a way as to ensure rotation among the various Contracting States.

5. Officials of the International Labor Office, the United Nations Educational, Scientific and Cultural Organization and the Bureau of the International Union for the Protection of Literary and Artistic Works, designated by the Directors–General and the Director thereof, shall constitute the Secretariat of the Committee.

6. Meetings of the Committee, which shall be convened whenever a majority of its members deems it necessary, shall be held successively at the headquarters of the International Labor Office, the United Nations Educational, Scientific and Cultural Organization and the Bureau of the International Union for the Protection of Literary and Artistic Works.

7. Expenses of members of the Committee shall be borne by their respective Governments.

Article 33

[Languages]

1. The present Convention is drawn up in English, French and Spanish, the three texts being equally authentic.

2. In addition, official texts of the present Convention shall be drawn up in German, Italian and Portuguese.

Article 34

[Notifications]

1. The Secretary–General of the United Nations shall notify the States invited to the Conference referred to in Article 23 and every State Member of the United Nations, as well as the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works:

(a) of the deposit of each instrument of ratification, acceptance or accession;

(b) of the date of entry into force of the Convention;

(c) of all notifications, declarations or communications provided for in this Convention;

(d) if any of the situations referred to in paragraphs 4 and 5 of Article 28 arise.

2. The Secretary–General of the United Nations shall also notify the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works of the requests communicated to him in accordance with Article 29, as well as of any communication received from the Contracting States concerning the revision of the Convention.

IN FAITH WHEREOF, the undersigned, being duly authorised thereto, have signed this Convention.

DONE at Rome, this twenty–sixth day of October 1961, in a single copy in the English, French and Spanish languages. Certified true copies shall be delivered by the Secretary–General of the United Nations to all the States invited to the Conference referred to in Article 23 and to every State Member of the United Nations, as well as to the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works.

TABLE OF CONTENTS

The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works,

Recognizing the importance of the work of the Revision

Conference held at Stockholm in 1967,

Have resolved to revise the Act adopted by the Stockholm Conference, while maintaining without change Articles 1 to 20 and 22 to 26 of that Act.

Consequently, the undersigned Plenipotentiaries, having presented their full powers, recognized as in good and due form, have agreed as follows:

Article 1

[Establishment of a Union]

The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

Article 2

[Protected Works: 1. "Literary and artistic works"; 2. Possible requirement of fixation; 3. Derivative works; 4. Official texts; 5. Collections; 6. Obligation to protect; beneficiaries of protection; 7. Works of applied art and industrial designs; 8. News]

(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

(3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.

(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

(6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.

(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.

(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.

Article 2^bis

[Possible Limitation of Protection of Certain Works: 1. Certain speeches; 2. Certain uses of lectures and addresses; 3. Right to make collections of such works]

(1) It shall be a matter for legislation in the countries of the Union to exclude, wholly or in part, from the protection provided by the preceding Article political speeches and speeches delivered in the course of legal proceedings.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which lectures, addresses and other works of the same nature which are delivered in public may be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication as envisaged in Article 11bis(1) of this Convention, when such use is justified by the informatory purpose.

(3) Nevertheless, the author shall enjoy the exclusive right of making a collection of his works mentioned in the preceding paragraphs.

Article 3

[Criteria of Eligibility for Protection: 1. Nationality of author; place of publication of work; 2. Residence of author; 3. "Published" works; 4. "Simultaneously published" works]

(1) The protection of this Convention shall apply to:

(a) authors who are nationals of one of the countries of the Union, for their works, whether published or not;

(b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union.

(2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country.

(3) The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

(4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.

Article 4

[Criteria of Eligibility for Protection of Cinematographic Works, Works of Architecture and Certain Artistic Works]

The protection of this Convention shall apply, even if the conditions of Article 3 are not fulfilled, to:

(a) authors of cinematographic works the maker of which has his headquarters or habitual residence in one of the countries of the Union;

(b) authors of works of architecture erected in a country of the Union or of other artistic works incorporated in a building or other structure located in a country of the Union.

Article 5

[Rights Guaranteed: 1. and 2. Outside the country of origin; 3. In the country of origin; 4. "Country of origin"]

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.

(4) The country of origin shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.

Article 6

[Possible Restriction of Protection in Respect of Certain Works of Nationals of Certain Countries Outside the Union: 1. In the country of the first publication and in other countries; 2. No retroactivity; 3. Notice]

(1) Where any country outside the Union fails to protect in an adequate manner the works of authors who are nationals of one of the countries of the Union, the latter country may restrict the protection given to the works of authors who are, at the date of the first publication thereof, nationals of the other country and are not habitually resident in one of the countries of the Union. If the country of first publication avails itself of this right, the other countries of the Union shall not be required to grant to works thus subjected to special treatment a wider protection than that granted to them in the country of first publication.

(2) No restrictions introduced by virtue of the preceding paragraph shall affect the rights which an author may have acquired in respect of a work published in a country of the Union before such restrictions were put into force.

(3) The countries of the Union which restrict the grant of copyright in accordance with this Article shall give notice thereof to the Director General of the World Intellectual Property Organization (hereinafter designated as "the Director General") by a written declaration specifying the countries in regard to which protection is restricted, and the restrictions to which rights of authors who are nationals of those countries are subjected. The Director General shall immediately communicate this declaration to all the countries of the Union.

Article 6^bis

[Moral Rights: 1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author's death; 3. Means of redress]

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Article 7

[Term of Protection: 1. Generally; 2. For cinematographic works; 3. For anonymous and pseudonymous works; 4. For photographic works and works of applied art; 5. Starting date of computation; 6. Longer terms; 7. Shorter terms; 8. Applicable law; "comparison" of terms]

(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.

(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.

(3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.

(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.

(5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4) shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the first of January of the year following the death or such event.

(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.

(7) Those countries of the Union bound by the Rome Act of this Convention which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs shall have the right to maintain such terms when ratifying or acceding to the present Act.

(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.

Article 7^bis

[Term of Protection for Works of Joint Authorship]

The provisions of the preceding Article shall also apply in the case of a work of joint authorship, provided that the terms measured from the death of the author shall be calculated from the death of the last surviving author.

Article 8

[Right of Translation]

Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.

Article 9

[Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings]

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10

[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author]

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

Article 10^bis

[Further Possible Free Uses of Works: 1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events]

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

Article 11

[Certain Rights in Dramatic and Musical Works: 1. Right of public performance and of communication to the public of a performance; 2. In respect of translations]

(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing:

(i) the public performance of their works, including such public performance by any means or process;

(ii) any communication to the public of the performance of their works.

(2) Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

Article 11^bis

[Broadcasting and Related Rights: 1. Broadcasting and other wireless communications, public communication of broadcast by wire or rebroadcast, public communication of broadcast by loudspeaker or analogous instruments; 2. Compulsory licenses; 3. Recording; ephemeral recordings]

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.

Article 11^ter

[Certain Rights in Literary Works: 1. Right of public recitation and of communication to the public of a recitation; 2. In respect of translations]

(1) Authors of literary works shall enjoy the exclusive right of authorizing:

(i) the public recitation of their works, including such public recitation by any means or process;

(ii) any communication to the public of the recitation of their works.

(2) Authors of literary works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

Article 12

[Right of Adaptation, Arrangement and Other Alteration]

Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.

Article 13

[Possible Limitation of the Right of Recording of Musical Works and Any Words Pertaining Thereto: 1. Compulsory licenses; 2. Transitory measures; 3. Seizure on importation of copies made without the author's permission]

(1) Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(2) Recordings of musical works made in a country of the Union in accordance with Article 13(3) of the Conventions signed at Rome on June 2, 1928, and at Brussels on June 26, 1948, may be reproduced in that country without the permission of the author of the musical work until a date two years after that country becomes bound by this Act.

(3) Recordings made in accordance with paragraphs (1) and (2) of this Article and imported without permission from the parties concerned into a country where they are treated as infringing recordings shall be liable to seizure.

Article 14

[Cinematographic and Related Rights: 1. Cinematographic adaptation and reproduction; distribution; public performance and public communication by wire of works thus adapted or reproduced; 2. Adaptation of cinematographic productions; 3. No compulsory licenses]

(1) Authors of literary or artistic works shall have the exclusive right of authorizing:

(i) the cinematographic adaptation and reproduction of these works, and the distribution of the works thus adapted or reproduced;

(ii) the public performance and communication to the public by wire of the works thus adapted or reproduced.

(2) The adaptation into any other artistic form of a cinematographic production derived from literary or artistic works shall, without prejudice to the authorization of the author of the cinematographic production, remain subject to the authorization of the authors of the original works.

(3) The provisions of Article 13(1) shall not apply.

Article 14^bis

[Special Provisions Concerning Cinematographic Works: 1. Assimilation to "original" works; 2. Ownership; limitation of certain rights of certain contributors; 3. Certain other contributors]

(1) Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work shall be protected as an original work. The owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work, including the rights referred to in the preceding Article.

(2)

(a) Ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed.

(b) However, in the countries of the Union which, by legislation, include among the owners of copyright in a cinematographic work authors who have brought contributions to the making of the work, such authors, if they have undertaken to bring such contributions, may not, in the absence of any contrary or special stipulation, object to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of texts, of the work.

(c) The question whether or not the form of the undertaking referred to above should, for the application of the preceding subparagraph (b), be in a written agreement or a written act of the same effect shall be a matter for the legislation of the country where the maker of the cinematographic work has his headquarters or habitual residence. However, it shall be a matter for the legislation of the country of the Union where protection is claimed to provide that the said undertaking shall be in a written agreement or a written act of the same effect. The countries whose legislation so provides shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.

(d) By "contrary or special stipulation" is meant any restrictive condition which is relevant to the aforesaid undertaking.

(3) Unless the national legislation provides to the contrary, the provisions of paragraph (2)(b) above shall not be applicable to authors of scenarios, dialogues and musical works created for the making of the cinematographic work, or to the principal director thereof. However, those countries of the Union whose legislation does not contain rules providing for the application of the said paragraph (2)(b) to such director shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.

Article 14^ter

["Droit de suite" in Works of Art and Manuscripts:
1. Right to an interest in resales; 2. Applicable law; 3. Procedure]

(1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

(2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.

(3) The procedure for collection and the amounts shall be matters for determination by national legislation.

Article 15

[Right to Enforce Protected Rights: 1. Where author's name is indicated or where pseudonym leaves no doubt as to author's identity; 2. In the case of cinematographic works; 3. In the case of anonymous and pseudonymous works; 4. In the case of certain unpublished works of unknown authorship]

(1) In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.

(2) The person or body corporate whose name appears on a cinematographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of the said work.

(3) In the case of anonymous and pseudonymous works, other than those referred to in paragraph (1) above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author’s rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work.

(4)

(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.

Article 16

[Infringing Copies: 1. Seizure; 2. Seizure on importation; 3. Applicable law]

(1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection.

(2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected.

(3) The seizure shall take place in accordance with the legislation of each country.

Article 17

[Possibility of Control of Circulation, Presentation and Exhibition of Works]

The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.

Article 18

[Works Existing on Convention's Entry Into Force: 1. Protectable where protection not yet expired in country of origin; 2. Non-protectable where protection already expired in country where it is claimed; 3. Application of these principles; 4. Special cases]

(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.

(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.

(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.

(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.

Article 19

[Protection Greater than Resulting from Convention]

The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.

Article 20

[Special Agreements Among Countries of the Union]

The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.

Article 21

[Special Provisions Regarding Developing Countries: 1. Reference to Appendix; 2. Appendix part of Act]

(1) Special provisions regarding developing countries are included in the Appendix.

(2) Subject to the provisions of Article 28(1)(b), the Appendix forms an integral part of this Act.

Article 22

[Assembly: 1. Constitution and composition; 2. Tasks; 3. Quorum, voting, observers; 4. Convocation; 5. Rules of procedure]

(1)

(a) The Union shall have an Assembly consisting of those countries of the Union which are bound by Articles 22 to 26.

(b) The Government of each country shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(2)

(a) The Assembly shall:

(i) deal with all matters concerning the maintenance and development of the Union and the implementation of this Convention;

(ii) give directions concerning the preparation for conferences of revision to the International Bureau of Intellectual Property (hereinafter designated as "the International Bureau") referred to in the Convention Establishing the World Intellectual Property Organization (hereinafter designated as "the Organization"), due account being taken of any comments made by those countries of the Union which are not bound by Articles 22 to 26;

iii) review and approve the reports and activities of the Director General of the Organization concerning the Union, and give him all necessary instructions concerning matters within the competence of the Union;

(iv) elect the members of the Executive Committee of the Assembly;

(v) review and approve the reports and activities of its Executive Committee, and give instructions to such Committee;

(vi) determine the program and adopt the biennial budget of the Union, and approve its final accounts;

(vii) adopt the financial regulations of the Union;

(viii) establish such committees of experts and working groups as may be necessary for the work of the Union;

(ix) determine which countries not members of the Union and which intergovernmental and international non-governmental organizations shall be admitted to its meetings as observers;

(x) adopt amendments to Articles 22 to 26;

(xi) take any other appropriate action designed to further the objectives of the Union;

(xii) exercise such other functions as are appropriate under this Convention;

(xiii) subject to its acceptance, exercise such rights as are given to it in the Convention establishing the Organization.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Assembly shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(3)

(a) Each country member of the Assembly shall have one vote.

(b) One-half of the countries members of the Assembly shall constitute a quorum.

(c) Notwithstanding the provisions of subparagraph (b), if, in any session, the number of countries represented is less than one-half but equal to or more than one-third of the countries members of the Assembly, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the following conditions are fulfilled. The International Bureau shall communicate the said decisions to the countries members of the Assembly which were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiration of this period, the number of countries having thus expressed their vote or abstention attains the number of countries which was lacking for attaining the quorum in the session itself, such decisions shall take effect provided that at the same time the required majority still obtains.

(d) Subject to the provisions of Article 26(2), the decisions of the Assembly shall require two-thirds of the votes cast.

(e) Abstentions shall not be considered as votes.

(f) A delegate may represent, and vote in the name of, one country only.

(g) Countries of the Union not members of the Assembly shall be admitted to its meetings as observers.

(4)

(a) The Assembly shall meet once in every second calendar year in ordinary session upon convocation by the Director General and, in the absence of exceptional circumstances, during the same period and at the same place as the General Assembly of the Organization.

(b) The Assembly shall meet in extraordinary session upon convocation by the Director General, at the request of the Executive Committee or at the request of one-fourth of the countries members of the Assembly.

(5) The Assembly shall adopt its own rules of procedure.

Article 23

[Executive Committee: 1. Constitution; 2. Composition; 3. Number of members; 4. Geographical distribution; special agreements; 5. Term, limits of re-eligibility, rules of election; 6. Tasks; 7. Convocation; 8. Quorum, voting; 9. Observers; 10. Rules of procedure]

(1) The Assembly shall have an Executive Committee.

(2)

(a) The Executive Committee shall consist of countries elected by the Assembly from among countries members of the Assembly. Furthermore, the country on whose territory the Organization has its headquarters shall, subject to the provisions of Article 25(7)(b), have an ex officio seat on the Committee.

(b) The Government of each country member of the Executive Committee shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(3) The number of countries members of the Executive Committee shall correspond to one-fourth of the number of countries members of the Assembly. In establishing the number of seats to be filled, remainders after division by four shall be disregarded.

(4) In electing the members of the Executive Committee, the Assembly shall have due regard to an equitable geographical distribution and to the need for countries party to the Special Agreements which might be established in relation with the Union to be among the countries constituting the Executive Committee.

(5)

(a) Each member of the Executive Committee shall serve from the close of the session of the Assembly which elected it to the close of the next ordinary session of the Assembly.

(b) Members of the Executive Committee may be re-elected, but not more than two-thirds of them.

(c) The Assembly shall establish the details of the rules governing the election and possible re-election of the members of the Executive Committee.

(6)

(a) The Executive Committee shall:

(i) repare the draft agenda of the Assembly;

(ii) submit proposals to the Assembly respecting the draft program and biennial budget of the Union prepared by the Director General;

(iii) [deleted]

(iv) submit, with appropriate comments, to the Assembly the periodical reports of the Director General and the yearly audit reports on the accounts;

(v) in accordance with the decisions of the Assembly and having regard to circumstances arising between two ordinary sessions of the Assembly, take all necessary measures to ensure the execution of the program of the Union by the Director General;

(vi) perform such other functions as are allocated to it under this Convention.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Executive Committee shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(7)

(a) The Executive Committee shall meet once a year in ordinary session upon convocation by the Director General, preferably during the same period and at the same place as the Coordination Committee of the Organization.

(b) The Executive Committee shall meet in extraordinary session upon convocation by the Director General, either on his own initiative, or at the request of its Chairman or one-fourth of its members.

(8)

(a) Each country member of the Executive Committee shall have one vote.

(b) One-half of the members of the Executive Committee shall constitute a quorum.

(c) Decisions shall be made by a simple majority of the votes cast.

(d) Abstentions shall not be considered as votes.

(e) A delegate may represent, and vote in the name of, one country only.

(9) Countries of the Union not members of the Executive Committee shall be admitted to its meetings as observers.

(10) The Executive Committee shall adopt its own rules of procedure.

Article 24

[International Bureau: 1. Tasks in general, Director General; 2. General information; 3. Periodical; 4. Information to countries; 5. Studies and services; 6. Participation in meetings; 7. Conferences of revision; 8. Other tasks]

(1)

(a) The administrative tasks with respect to the Union shall be performed by the International Bureau, which is a continuation of the Bureau of the Union united with the Bureau of the Union established by the International Convention for the Protection of Industrial Property.

(b) In particular, the International Bureau shall provide the secretariat of the various organs of the Union.

(c) The Director General of the Organization shall be the chief executive of the Union and shall represent the Union.

(2) The International Bureau shall assemble and publish information concerning the protection of copyright. Each country of the Union shall promptly communicate to the International Bureau all new laws and official texts concerning the protection of copyright.

(3) The International Bureau shall publish a monthly periodical.

(4) The International Bureau shall, on request, furnish information to any country of the Union on matters concerning the protection of copyright.

(5) The International Bureau shall conduct studies, and shall provide services, designed to facilitate the protection of copyright.

(6) The Director General and any staff member designated by him shall participate, without the right to vote, in all meetings of the Assembly, the Executive Committee and any other committee of experts or working group. The Director General, or a staff member designated by him, shall be ex officio secretary of these bodies.

(7)

(a) The International Bureau shall, in accordance with the directions of the Assembly and in cooperation with the Executive Committee, make the preparations for the conferences of revision of the provisions of the Convention other than Articles 22 to 26.

(b) The International Bureau may consult with intergovernmental and international non-governmental organizations concerning preparations for conferences of revision.

(c) The Director General and persons designated by him shall take part, without the right to vote, in the discussions at these conferences.

(8) The International Bureau shall carry out any other tasks assigned to it.

Article 25

[Finances: 1. Budget; 2. Coordination with other Unions; 3. Resources; 4. Contributions; possible extension of previous budget; 5. Fees and charges; 6. Working capital fund; 7. Advances by host Government; 8. Auditing of accounts]

(1)

(a) The Union shall have a budget.

(b) The budget of the Union shall include the income and expenses proper to the Union, its contribution to the budget of expenses common to the Unions, and, where applicable, the sum made available to the budget of the Conference of the Organization.

(c) Expenses not attributable exclusively to the Union but also to one or more other Unions administered by the Organization shall be considered as expenses common to the Unions. The share of the Union in such common expenses shall be in proportion to the interest the Union has in them.

(2) The budget of the Union shall be established with due regard to the requirements of coordination with the budgets of the other Unions administered by the Organization.

(3) The budget of the Union shall be financed from the following sources:

(i) contributions of the countries of the Union;

(ii) fees and charges due for services performed by the International Bureau in relation to the Union;

(iii) sale of, or royalties on, the publications of the International Bureau concerning the Union;

(iv) gifts, bequests, and subventions;

(v) rents, interests, and other miscellaneous income.

(4)

(a) For the purpose of establishing its contribution towards the budget, each country of the Union shall belong to a class, and shall pay its annual contributions on the basis of a number of units fixed as follows:

Class I 25

Class II 20

Class III 15

Class IV 10

Class V 5

Class VI 3

Class VII 1

(b) Unless it has already done so, each country shall indicate, concurrently with depositing its instrument of ratification or accession, the class to which it wishes to belong. Any country may change class. If it chooses a lower class, the country must announce it to the Assembly at one of its ordinary sessions. Any such change shall take effect at the beginning of the calendar year following the session.

(c) The annual contribution of each country shall be an amount in the same proportion to the total sum to be contributed to the annual budget of the Union by all countries as the number of its units is to the total of the units of all contributing countries.

(d) Contributions shall become due on the first of January of each year.

(e) A country which is in arrears in the payment of its contributions shall have no vote in any of the organs of the Union of which it is a member if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. However, any organ of the Union may allow such a country to continue to exercise its vote in that organ if, and as long as, it is satisfied that the delay in payment is due to exceptional and unavoidable circumstances.

(f) If the budget is not adopted before the beginning of a new financial period, it shall be at the same level as the budget of the previous year, in accordance with the financial regulations.

(5) The amount of the fees and charges due for services rendered by the International Bureau in relation to the Union shall be established, and shall be reported to the Assembly and the Executive Committee, by the Director General.

(6)

(a) The Union shall have a working capital fund which shall be constituted by a single payment made by each country of the Union. If the fund becomes insufficient, an increase shall be decided by the Assembly.

(b) The amount of the initial payment of each country to the said fund or of its participation in the increase thereof shall be a proportion of the contribution of that country for the year in which the fund is established or the increase decided.

(c) The proportion and the terms of payment shall be fixed by the Assembly on the proposal of the Director General and after it has heard the advice of the Coordination Committee of the Organization.

(7)

(a) In the headquarters agreement concluded with the country on the territory of which the Organization has its headquarters, it shall be provided that, whenever the working capital fund is insufficient, such country shall grant advances. The amount of these advances and the conditions on which they are granted shall be the subject of separate agreements, in each case, between such country and the Organization. As long as it remains under the obligation to grant advances, such country shall have an ex officio seat on the Executive Committee.

(b) The country referred to in subparagraph (a) and the Organization shall each have the right to denounce the obligation to grant advances, by written notification. Denunciation shall take effect three years after the end of the year in which it has been notified.

(8) The auditing of the accounts shall be effected by one or more of the countries of the Union or by external auditors, as provided in the financial regulations. They shall be designated, with their agreement, by the Assembly.

Article 26

[Amendments: 1. Provisions susceptible of amendment by the Assembly; proposals; 2. Adoption; 3. Entry into force]

(1) Proposals for the amendment of Articles 22, 23, 24, 25, and the present Article, may be initiated by any country member of the Assembly, by the Executive Committee, or by the Director General. Such proposals shall be communicated by the Director General to the member countries of the Assembly at least six months in advance of their consideration by the Assembly.

(2) Amendments to the Articles referred to in paragraph (1) shall be adopted by the Assembly. Adoption shall require three-fourths of the votes cast, provided that any amendment of Article 22, and of the present paragraph, shall require four-fifths of the votes cast.

(3) Any amendment to the Articles referred to in paragraph (1) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of the countries members of the Assembly at the time it adopted the amendment. Any amendment to the said Articles thus accepted shall bind all the countries which are members of the Assembly at the time the amendment enters into force, or which become members thereof at a subsequent date, provided that any amendment increasing the financial obligations of countries of the Union shall bind only those countries which have notified their acceptance of such amendment.

Article 27

[Revision: 1. Objective; 2. Conferences; 3. Adoption]

(1) This Convention shall be submitted to revision with a view to the introduction of amendments designed to improve the system of the Union.

(2) For this purpose, conferences shall be held successively in one of the countries of the Union among the delegates of the said countries.

(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Act, including the Appendix, shall require the unanimity of the votes cast.

Article 28

[Acceptance and Entry Into Force of Act for Countries of the Union: 1. Ratification, accession; possibility of excluding certain provisions; withdrawal of exclusion; 2. Entry into force of Articles 1 to 21 and Appendix; 3. Entry into force of Articles 22 to 38]

(1)

(a) Any country of the Union which has signed this Act may ratify it, and, if it has not signed it, may accede to it. Instruments of ratification or accession shall be deposited with the Director General.

(b) Any country of the Union may declare in its instrument of ratification or accession that its ratification or accession shall not apply to Articles 1 to 21 and the Appendix, provided that, if such country has previously made a declaration under Article VI(1) of the Appendix, then it may declare in the said instrument only that its ratification or accession shall not apply to Articles 1 to 20.

(c) Any country of the Union which, in accordance with subparagraph (b), has excluded provisions therein referred to from the effects of its ratification or accession may at any later time declare that it extends the effects of its ratification or accession to those provisions. Such declaration shall be deposited with the Director General.

(2)

(a)Articles 1 to 21 and the Appendix shall enter into force three months after both of the following two conditions are fulfilled:

(i) at least five countries of the Union have ratified or acceded to this Act without making a declaration under paragraph (1)(b),

(ii) France, Spain, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, have become bound by the Universal Copyright Convention as revised at Paris on July 24, 1971.

(b) The entry into force referred to in subparagraph (a) shall apply to those countries of the Union which, at least three months before the said entry into force, have deposited instruments of ratification or accession not containing a declaration under paragraph (1)(b).

(c) With respect to any country of the Union not covered by subparagraph (b) and which ratifies or accedes to this Act without making a declaration under paragraph (1)(b), Articles 1 to 21 and the Appendix shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 1 to 21 and the Appendix shall enter into force with respect to that country on the date thus indicated.

(d) The provisions of subparagraphs (a) to (c) do not affect the application of Article VI of the Appendix.

(3) With respect to any country of the Union which ratifies or accedes to this Act with or without a declaration made under paragraph (1)(b), Articles 22 to 38 shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 22 to 38 shall enter into force with respect to that country on the date thus indicated.

Article 29

[Acceptance and Entry Into Force for Countries Outside the Union: 1. Accession; 2. Entry into force]

(1) Any country outside the Union may accede to this Act and thereby become party to this Convention and a member of the Union. Instruments of accession shall be deposited with the Director General.

(2)

(a) Subject to subparagraph (b), this Convention shall enter into force with respect to any country outside the Union three months after the date on which the Director General has notified the deposit of its instrument of accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, this Convention shall enter into force with respect to that country on the date thus indicated.

(b) If the entry into force according to subparagraph (a) precedes the entry into force of Articles 1 to 21 and the Appendix according to Article 28(2)(a), the said country shall, in the meantime, be bound, instead of by Articles 1 to 21 and the Appendix, by Articles 1 to 20 of the Brussels Act of this Convention.

Article 29^bis

[Effect of Acceptance of Act for the Purposes of Article 14(2) of the WIPO Convention]

Ratification of or accession to this Act by any country not bound by Articles 22 to 38 of the Stockholm Act of this Convention shall, for the sole purposes of Article 14(2) of the Convention establishing the Organization, amount to ratification of or accession to the said Stockholm Act with the limitation set forth in Article 28(1)(b)(i) thereof.

Article 30

[Reservations: 1. Limits of possibility of making reservations; 2. Earlier reservations; reservation as to the right of translation; withdrawal of reservation]

(1) Subject to the exceptions permitted by paragraph (2) of this Article, by Article 28(1)(b), by Article 33(2), and by the Appendix, ratification or accession shall automatically entail acceptance of all the provisions and admission to all the advantages of this Convention.

(2)

(a) Any country of the Union ratifying or acceding to this Act may, subject to Article V(2) of the Appendix, retain the benefit of the reservations it has previously formulated on condition that it makes a declaration to that effect at the time of the deposit of its instrument of ratification or accession.

(b) Any country outside the Union may declare, in acceding to this Convention and subject to Article V(2) of the Appendix, that it intends to substitute, temporarily at least, for Article 8 of this Act concerning the right of translation, the provisions of Article 5 of the Union Convention of 1886, as completed at Paris in 1896, on the clear understanding that the said provisions are applicable only to translations into a language in general use in the said country. Subject to Article I(6)(b) of the Appendix, any country has the right to apply, in relation to the right of translation of works whose country of origin is a country availing itself of such a reservation, a protection which is equivalent to the protection granted by the latter country.

(c) Any country may withdraw such reservations at any time by notification addressed to the Director General.

Article 31

[Applicability to Certain Territories: 1. Declaration; 2. Withdrawal of declaration; 3. Effective date;
4. Acceptance of factual situations not implied]

(1) Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification at any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible.

(2) Any country which has made such a declaration or given such a notification may, at any time, notify the Director General that this Convention shall cease to be applicable to all or part of such territories.

(3)

(a) Any declaration made under paragraph (1) shall take effect on the same date as the ratification or accession in which it was included, and any notification given under that paragraph shall take effect three months after its notification by the Director General.

(b) Any notification given under paragraph (2) shall take effect twelve months after its receipt by the Director General.

(4) This Article shall in no way be understood as implying the recognition or tacit acceptance by a country of the Union of the factual situation concerning a territory to which this Convention is made applicable by another country of the Union by virtue of a declaration under paragraph (1).

Article 32

[Applicability of this Act and of Earlier Acts: 1. As between countries already members of the Union; 2. As between a country becoming a member of the Union and other countries members of the Union; 3. Applicability of the Appendix in Certain Relations]

(1) This Act shall, as regards relations between the countries of the Union, and to the extent that it applies, replace the Berne Convention of September 9, 1886, and the subsequent Acts of revision. The Acts previously in force shall continue to be applicable, in their entirety or to the extent that this Act does not replace them by virtue of the preceding sentence, in relations with countries of the Union which do not ratify or accede to this Act.

(2) Countries outside the Union which become party to this Act shall, subject to paragraph (3), apply it with respect to any country of the Union not bound by this Act or which, although bound by this Act, has made a declaration pursuant to Article 28(1)(b). Such countries recognize that the said country of the Union, in its relations with them:

(i) may apply the provisions of the most recent Act by which it is bound, and

(ii) subject to Article I(6) of the Appendix, has the right to adapt the protection to the level provided for by this Act.

(3) Any country which has availed itself of any of the faculties provided for in the Appendix may apply the provisions of the Appendix relating to the faculty or faculties of which it has availed itself in its relations with any other country of the Union which is not bound by this Act, provided that the latter country has accepted the application of the said provisions.

Article 33

[Disputes: 1. Jurisdiction of the International Court of Justice; 2. Reservation as to such jurisdiction; 3. Withdrawal of reservation]

(1) Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement. The country bringing the dispute before the Court shall inform the International Bureau; the International Bureau shall bring the matter to the attention of the other countries of the Union.

(2) Each country may, at the time it signs this Act or deposits its instrument of ratification or accession, declare that it does not consider itself bound by the provisions of paragraph (1). With regard to any dispute between such country and any other country of the Union, the provisions of paragraph (1) shall not apply.

(3) Any country having made a declaration in accordance with the provisions of paragraph (2) may, at any time, withdraw its declaration by notification addressed to the Director General.

Article 34

[Closing of Certain Earlier Provisions: 1. Of earlier Acts; 2. Of the Protocol to the Stockholm Act]

(1) Subject to Article 29bis, no country may ratify or accede to earlier Acts of this Convention once Articles 1 to 21 and the Appendix have entered into force.

(2) Once Articles 1 to 21 and the Appendix have entered into force, no country may make a declaration under Article 5 of the Protocol Regarding Developing Countries attached to the Stockholm Act.

Article 35

[Duration of the Convention; Denunciation: 1. Unlimited duration; 2. Possibility of denunciation; 3. Effective date of denunciation; 4. Moratorium on denunciation]

(1) This Convention shall remain in force without limitation as to time.

(2) Any country may denounce this Act by notification addressed to the Director General. Such denunciation shall constitute also denunciation of all earlier Acts and shall affect only the country making it, the Convention remaining in full force and effect as regards the other countries of the Union.

(3) Denunciation shall take effect one year after the day on which the Director General has received the notification.

(4) The right of denunciation provided by this Article shall not be exercised by any country before the expiration of five years from the date upon which it becomes a member of the Union.

Article 36

[Application of the Convention: 1. Obligation to adopt the necessary measures; 2. Time from which obligation exists]

(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention.

(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.

Article 37

[Final Clauses: 1. Languages of the Act; 2. Signature; 3. Certified copies; 4. Registration; 5. Notifications]

(1)

(a) This Act shall be signed in a single copy in the French and English languages and, subject to paragraph (2), shall be deposited with the Director General.

(b) Official texts shall be established by the Director General, after consultation with the interested Governments, in the Arabic, German, Italian, Portuguese and Spanish languages, and such other languages as the Assembly may designate.

(c) In case of differences of opinion on the interpretation of the various texts, the French text shall prevail.

(2) This Act shall remain open for signature until January 31, 1972. Until that date, the copy referred to in paragraph (1)(a) shall be deposited with the Government of the French Republic.

(3) The Director General shall certify and transmit two copies of the signed text of this Act to the Governments of all countries of the Union and, on request, to the Government of any other country.

(4) The Director General shall register this Act with the Secretariat of the United Nations.

(5) The Director General shall notify the Governments of all countries of the Union of signatures, deposits of instruments of ratification or accession and any declarations included in such instruments or made pursuant to Articles 28(1)(c), 30(2)(a) and (b), and 33(2), entry into force of any provisions of this Act, notifications of denunciation, and notifications pursuant to Articles 30(2)(c), 31(1) and (2), 33(3), and 38(1), as well as the Appendix.

Article 38

[Transitory Provisions: 1. Exercise of the "five-year privilege"; 2. Bureau of the Union, Director of the Bureau; 3. Succession of Bureau of the Union]

(1) Countries of the Union which have not ratified or acceded to this Act and which are not bound by Articles 22 to 26 of the Stockholm Act of this Convention may, until April 26, 1975, exercise, if they so desire, the rights provided under the said Articles as if they were bound by them. Any country desiring to exercise such rights shall give written notification to this effect to the Director General; this notification shall be effective on the date of its receipt. Such countries shall be deemed to be members of the Assembly until the said date.

(2) As long as all the countries of the Union have not become Members of the Organization, the International Bureau of the Organization shall also function as the Bureau of the Union, and the Director General as the Director of the said Bureau.

(3) Once all the countries of the Union have become Members of the Organization, the rights, obligations, and property, of the Bureau of the Union shall devolve on the International Bureau of the Organization.

APPENDIX

[SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES]

Article I

[Faculties Open to Developing Countries: 1. Availability of certain faculties; declaration: 2. Duration of effect of declaration, 3. Cessation of developing country status; 4. Existing stocks of copies; 5. Declarations concerning certain territories; 6. Limits of reciprocity]

(1) Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which this Appendix forms an integral part, and which, having regard to its economic situation and its social or cultural needs, does not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act, may, by a notification deposited with the Director General at the time of depositing its instrument of ratification or accession or, subject to Article V(1)(c), at any time thereafter, declare that it will avail itself of the faculty provided for in Article II, or of the faculty provided for in Article III, or of both of those faculties. It may, instead of availing itself of the faculty provided for in Article II, make a declaration according to Article V(1)(a).

(2)

(a) Any declaration under paragraph (1) notified before the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the said period. Any such declaration may be renewed in whole or in part for periods of ten years each by a notification deposited with the Director General not more than fifteen months and not less than three months before the expiration of the ten-year period then running.

(b) Any declaration under paragraph (1) notified after the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the ten-year period then running. Any such declaration may be renewed as provided for in the second sentence of subparagraph (a).

(3) Any country of the Union which has ceased to be regarded as a developing country as referred to in paragraph (1) shall no longer be entitled to renew its declaration as provided in paragraph (2), and, whether or not it formally withdraws its declaration, such country shall be precluded from availing itself of the faculties referred to in paragraph (1) from the expiration of the ten-year period then running or from the expiration of a period of three years after it has ceased to be regarded as a developing country, whichever period expires later.

(4) Where, at the time when the declaration made under paragraph (1) or (2) ceases to be effective, there are copies in stock which were made under a license granted by virtue of this Appendix, such copies may continue to be distributed until their stock is exhausted.

(5) Any country which is bound by the provisions of this Act and which has deposited a declaration or a notification in accordance with Article 31(1) with respect to the application of this Act to a particular territory, the situation of which can be regarded as analogous to that of the countries referred to in paragraph (1), may, in respect of such territory, make the declaration referred to in paragraph (1) and the notification of renewal referred to in paragraph (2). As long as such declaration or notification remains in effect, the provisions of this Appendix shall be applicable to the territory in respect of which it was made.

(6)

(a) The fact that a country avails itself of any of the faculties referred to in paragraph (1) does not permit another country to give less protection to works of which the country of origin is the former country than it is obliged to grant under Articles 1 to 20.

(b) The right to apply reciprocal treatment provided for in Article 30(2)(b), second sentence, shall not, until the date on which the period applicable under Article I(3) expires, be exercised in respect of works the country of origin of which is a country which has made a declaration according to Article V(1)(a).

Article II

[Limitations on the Right of Translation: 1. Licenses grantable by competent authority; 2. to 4. Conditions allowing the grant of such licenses; 5. Purposes for which licenses may be granted; 6. Termination of licenses; 7. Works composed mainly of illustrations;
8. Works withdrawn from circulation; 9. Licenses for broadcasting organizations]

(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled, so far as works published in printed or analogous forms of reproduction are concerned, to substitute for the exclusive right of translation provided for in Article 8 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.

(2)

(a) Subject to paragraph (3), if, after the expiration of a period of three years, or of any longer period determined by the national legislation of the said country, commencing on the date of the first publication of the work, a translation of such work has not been published in a language in general use in that country by the owner of the right of translation, or with his authorization, any national of such country may obtain a license to make a translation of the work in the said language and publish the translation in printed or analogous forms of reproduction.

(b) A license under the conditions provided for in this Article may also be granted if all the editions of the translation published in the language concerned are out of print.

(3)

(a) In the case of translations into a language which is not in general use in one or more developed countries which are members of the Union, a period of one year shall be substituted for the period of three years referred to in paragraph (2)(a).

(b) Any country referred to in paragraph (1) may, with the unanimous agreement of the developed countries which are members of the Union and in which the same language is in general use, substitute, in the case of translations into that language, for the period of three years referred to in paragraph (2)(a) a shorter period as determined by such agreement but not less than one year. However, the provisions of the foregoing sentence shall not apply where the language in question is English, French or Spanish. The Director General shall be notified of any such agreement by the Governments which have concluded it.

(4)

(a) No license obtainable after three years shall be granted under this Article until a further period of six months has elapsed, and no license obtainable after one year shall be granted under this Article until a further period of nine months has elapsed

(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or

(ii) where the identity or the address of the owner of the right of translation is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.

(b) If, during the said period of six or nine months, a translation in the language in respect of which the application was made is published by the owner of the right of translation or with his authorization, no license under this Article shall be granted.

(5) Any license under this Article shall be granted only for the purpose of teaching, scholarship or research.

(6) If a translation of a work is published by the owner of the right of translation or with his authorization at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such translation is in the same language and with substantially the same content as the translation published under the license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.

(7) For works which are composed mainly of illustrations, a license to make and publish a translation of the text and to reproduce and publish the illustrations may be granted only if the conditions of Article III are also fulfilled.

(8) No license shall be granted under this Article when the author has withdrawn from circulation all copies of his work.

(9)

(a) A license to make a translation of a work which has been published in printed or analogous forms of reproduction may also be granted to any broadcasting organization having its headquarters in a country referred to in paragraph (1), upon an application made to the competent authority of that country by the said organization, provided that all of the following conditions are met:

(i) the translation is made from a copy made and

acquired in accordance with the laws of the said country;

(ii) the translation is only for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession;

(iii) the translation is used exclusively for the purposes referred to in condition (ii) through broadcasts made lawfully and intended for recipients on the territory of the said country, including broadcasts made through the medium of sound or visual recordings lawfully and exclusively made for the purpose of such broadcasts;

(iv) all uses made of the translation are without any commercial purpose.

(b) Sound or visual recordings of a translation which was made by a broadcasting organization under a license granted by virtue of this paragraph may, for the purposes and subject to the conditions referred to in subparagraph (a) and with the agreement of that organization, also be used by any other broadcasting organization having its headquarters in the country whose competent authority granted the license in question.

(c) Provided that all of the criteria and conditions set out in subparagraph (a) are met, a license may also be granted to a broadcasting organization to translate any text incorporated in an audio-visual fixation where such fixation was itself prepared and published for the sole purpose of being used in connection with systematic instructional activities.

(d) Subject to subparagraphs (a) to (c), the provisions of the preceding paragraphs shall apply to the grant and exercise of any license granted under this paragraph.

Article III

[Limitation on the Right of Reproduction: 1. Licenses grantable by competent authority; 2. to 5. Conditions allowing the grant of such licenses; 6. Termination of licenses; 7. Works to which this Article applies]

(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Article 9 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.

(2)

(a) If, in relation to a work to which this Article applies by virtue of paragraph (7), after the expiration of

(i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or

(ii) any longer period determined by national legislation of the country referred to in paragraph (1), commencing on the same date,

copies of such edition have not been distributed in that country to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any national of such country may obtain a license to reproduce and publish such edition at that or a lower price for use in connection with systematic instructional activities.

(b) A license to reproduce and publish an edition which has been distributed as described in subparagraph (a) may also be granted under the conditions provided for in this Article if, after the expiration of the applicable period, no authorized copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in the country for comparable works.

(3) The period referred to in paragraph (2)(a)(i) shall be five years, except that

(i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;

(ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.

(4)

(a) No license obtainable after three years shall be granted under this Article until a period of six months has elapsed

(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or

(ii) where the identity or the address of the owner of the right of reproduction is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.

(b) Where licenses are obtainable after other periods and Article IV(2) is applicable, no license shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application.

(c) If, during the period of six or three months referred to in subparagraphs (a) and (b), a distribution as described in paragraph (2)(a) has taken place, no license shall be granted under this Article.

(d) No license shall be granted if the author has withdrawn from circulation all copies of the edition for the reproduction and publication of which the license has been applied for.

(5) A license to reproduce and publish a translation of a work shall not be granted under this Article in the following cases:

(i) where the translation was not published by the owner of the right of translation or with his authorization, or

(ii) where the translation is not in a language in general use in the country in which the license is applied for.

(6) If copies of an edition of a work are distributed in the country referred to in paragraph (1) to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such edition is in the same language and with substantially the same content as the edition which was published under the said license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.

(7)

(a) Subject to subparagraph (b), the works to which this Article applies shall be limited to works published in printed or analogous forms of reproduction.

(b) This Article shall also apply to the reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of any incorporated text into a language in general use in the country in which the license is applied for, always provided that the audio-visual fixations in question were prepared and published for the sole purpose of being used in connection with systematic instructional activities.

Article IV

[Provisions Common to Licenses Under Articles II and III: 1 and 2. Procedure; 3. Indication of author and title of work; 4. Exportation of copies; 5. Notice; 6. Compensation]

(1) A license under Article II or Article III may be granted only if the applicant, in accordance with the procedure of the country concerned, establishes either that he has requested, and has been denied, authorization by the owner of the right to make and publish the translation or to reproduce and publish the edition, as the case may be, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as making the request, the applicant shall inform any national or international information center referred to in paragraph (2).

(2) If the owner of the right cannot be found, the applicant for a license shall send, by registered airmail, copies of his application, submitted to the authority competent to grant the license, to the publisher whose name appears on the work and to any national or international information center which may have been designated, in a notification to that effect deposited with the Director General, by the Government of the country in which the publisher is believed to have his principal place of business.

(3) The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted under Article II or Article III. The title of the work shall appear on all such copies. In the case of a translation, the original title of the work shall appear in any case on all the said copies.

(4)

(a) No license granted under Article II or Article III shall extend to the export of copies, and any such license shall be valid only for publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for.

(b) For the purposes of subparagraph (a), the notion of export shall include the sending of copies from any territory to the country which, in respect of that territory, has made a declaration under Article I(5).

(c) Where a governmental or other public entity of a country which has granted a license to make a translation under Article II into a language other than English, French or Spanish sends copies of a translation published under such license to another country, such sending of copies shall not, for the purposes of subparagraph (a), be considered to constitute export if all of the following conditions are met:

(i) the recipients are individuals who are nationals of the country whose competent authority has granted the license, or organizations grouping such individuals;

(ii) the copies are to be used only for the purpose of teaching, scholarship or research;

(iii) the sending of the copies and their subsequent distribution to recipients is without any commercial purpose; and

(iv) the country to which the copies have been sent has agreed with the country whose competent authority has granted the license to allow the receipt, or distribution, or both, and the Director General has been notified of the agreement by the Government of the country in which the license has been granted.

(5) All copies published under a license granted by virtue of Article II or Article III shall bear a notice in the appropriate language stating that the copies are available for distribution only in the country or territory to which the said license applies.

(6)

(a) Due provision shall be made at the national level to ensure

(i) that the license provides, in favour of the owner of the right of translation or of reproduction, as the case may be, for just compensation that is consistent with standards of royalties normally operating on licenses freely negotiated between persons in the two countries concerned, and

(ii) payment and transmittal of the compensation: should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.

(b) Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be.

Article V

[Alternative Possibility for Limitation of the Right of Translation: 1. Regime provided for under the 1886 and 1896 Acts; 2. No possibility of change to regime under Article II; 3. Time limit for choosing the alternative possibility]

(1)

(a) Any country entitled to make a declaration that it will avail itself of the faculty provided for in Article II may, instead, at the time of ratifying or acceding to this Act:

(i) if it is a country to which Article 30(2)(a) applies, make a declaration under that provision as far as the right of translation is concerned;

(ii) if it is a country to which Article 30(2)(a) does not apply, and even if it is not a country outside the Union, make a declaration as provided for in Article 30(2)(b), first sentence.

(b) In the case of a country which ceases to be regarded as a developing country as referred to in Article I(1), a declaration made according to this paragraph shall be effective until the date on which the period applicable under Article I(3) expires.

(c) Any country which has made a declaration according to this paragraph may not subsequently avail itself of the faculty provided for in Article II even if it withdraws the said declaration.

(2) Subject to paragraph (3), any country which has availed itself of the faculty provided for in Article II may not subsequently make a declaration according to paragraph (1).

(3) Any country which has ceased to be regarded as a developing country as referred to in Article I(1) may, not later than two years prior to the expiration of the period applicable under Article I(3), make a declaration to the effect provided for in Article 30(2)(b), first sentence, notwithstanding the fact that it is not a country outside the Union. Such declaration shall take effect at the date on which the period applicable under Article I(3) expires.

Article VI

[Possibilities of applying, or admitting the application of, certain provisions of the Appendix before becoming bound by it: 1. Declaration; 2. Depository and effective date of declaration]

(1) Any country of the Union may declare, as from the date of this Act, and at any time before becoming bound by Articles 1 to 21 and this Appendix:

(i) if it is a country which, were it bound by Articles 1 to 21 and this Appendix, would be entitled to avail itself of the faculties referred to in Article I(1), that it will apply the provisions of Article II or of Article III or of both to works whose country of origin is a country which, pursuant to (ii) below, admits the application of those Articles to such works, or which is bound by Articles 1 to 21 and this Appendix; such declaration may, instead of referring to Article II, refer to Article V;

(ii) that it admits the application of this Appendix to works of which it is the country of origin by countries which have made a declaration under (i) above or a notification under Article I.

(2) Any declaration made under paragraph (1) shall be in writing and shall be deposited with the Director General. The declaration shall become effective from the date of its deposit.

The Contracting States.

Moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works,

Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts,

Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international understanding,

Have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called "the 1952 Convention"), and consequently,

Have agreed as follows:

ARTICLE I

Each Contracting State undertakes to provide for the adequate and effective protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture.

ARTICLE II

1. Published works of nationals of any Contracting State and works first published in that State shall enjoy in each other Contracting State the same protection as that other State accords to works of its nationals first published in its own territory, as well as the protection specially granted by this Convention.

2. Unpublished works of nationals of each Contracting State shall enjoy in each other Contracting State the same protection as that other State accords to unpublished works of its own nationals, as well as the protection specially granted by this Convention.

3. For the purpose of this Convention any Contracting State may, by domestic legislation, assimilate to its own nationals any person domiciled in that State.

ARTICLE III

1. Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright.

2. The provisions of paragraph 1 shall not preclude any Contracting State from requiring formalities or other conditions for the acquisition and enjoyment of copyright in respect of works first published in its territory or works of its nationals wherever published.

3. The provisions of paragraph 1 shall not preclude any Contracting State from providing that a person seeking judicial relief must, in bringing the action, comply with procedural requirements, such as that the complainant must appear through domestic counsel or that the complainant must deposit with the court or an administrative office, or both, a copy of the work involved in the litigation; provided that failure to comply with such requirements shall not affect the validity of the copyright, nor shall any -such requirement be imposed upon a national of another Contracting State if such requirement is not imposed on nationals of the State in which protection is claimed.

4. In each Contracting State there shall be legal means of protecting without formalities the unpublished works of nationals of other Contracting States.

5. If a Contracting State grants protection for more than one term of copyright and the first term is for a period longer than one of the minimum periods prescribed in Article IV, such State shall not be required to comply with the provisions of paragraph 1 of this Article in respect of the second or any subsequent term of copyright.

ARTICLE IV

1. The duration of protection of a work shall he governed, in accordance with the provisions of Article II and this Article, by the law of the Contracting State in which protection is claimed.

2.

(a) The term of protection for works protected under this Convention shall not he less than the life of the author and twenty-five years after his death. However, any Contracting State which, on the effective date of this Convention in that State, has limited this term for certain classes of works to a period computed from the first publication of the work, shall be entitled to maintain these exceptions and to extend them to other classes of works. For all these classes the term of protection shall not be less than twenty-five years from the date of first publication.

(b) Any Contracting State which, upon the effective date of this Convention in that State, does not compute the term of protection upon the basis of the life of the author, shall be entitled to compute the term of protection from the date of the first publication of the work or from its registration prior to publication, as the case may be, provided the term of protection shall not be less than twenty-five years from the date of first publication or from its registration prior to publication, as the case may be.

(c) If the legislation of a Contracting State grants two or more successive terms of protection, the duration of the minimum periods specified in sub-paragraphs (a) and (b).

3. The provisions of paragraph 2 shall not apply to photographic works or to works of applied art; provided, however, that the term of protection in those Contracting States which protect photographic works, or works of applied art in so far as they are protected as artistic works, shall not be less than ten years for each of said classes of works.

4.

(a) No Contracting State shall be obliged to grant protection to a work for a period longer than that fixed for the class of works to which the work in question belongs, in the case of unpublished works by the law of the Contracting State of which the author is a national, and in the case of published works by the law of the Contracting State in which the work has been first published.

(b) For the purposes of the application of sub-paragraph (a), if the law of any Contracting State grants two or more successive terms of protection, the period of protection of that State shall be considered to be the aggregate of those terms. However, if a specified work is not protected by such State during the second or any subsequent term for any reason, the other Contracting States shall not be obliged to protect it during the second or any subsequent term.

5. For the purposes of the application of paragraph 4, the work of a national of a Contracting State, first published in a non-Contracting State, shall be treated as though first published in the Contracting State of which the author is a national.

6. For the purposes of the application of paragraph 4, in case of simultaneous publication in two or more Contracting States, the work shall be treated as though first published in the State which affords the shortest term; any work published in two or more Contracting States within thirty days of its first publication shall be considered as having been published simultaneously in said Contracting States.

ARTICLE IVbis

1. The rights referred to in Article I shall include the basic rights ensuring the author’s -economic interests, including the exclusive right to authorize reproduction by any means, public performance and broadcasting. The provisions of this Article shall extend to works protected under this Convention either In their original form or in any form recognizably derived from the original.

2. However, any Contracting State may, by its domestic legislation, make exceptions that do not conflict with the spirit and provisions of this Convention, to the rights mentioned in paragraph 1 of this Article. Any State whose legislation so provides, shall nevertheless accord a reasonable degree of effective protection to each of the rights to which exception has been made.

ARTICLE V

1. The rights referred to in Article I shall include the exclusive right of the author to make, publish and authorize the making and publication of translations of works protected under this Convention.

2. However, any Contracting State may, by its domestic legislation, re. strict the right of translation of writings, but only subject to the following provisions:

(a) If, after the expiration of a period of seven years from the date of the first publication of a writing, a translation of such writing has not been published in a language in general use in the Contracting State, by the owner of the right of translation or with his authorization, any national of such Contracting State may obtain a non-exclusive licence from the competent authority thereof to translate the work into that language and publish the work so translated.

(b) Such national shall in accordance with the procedure of the State concerned, establish either that he has requested, and been denied, authorization by the proprietor of the right to make and publish the translation, or that, after due diligence on his part, he was unable to find the owner of the right. A licence may also be granted on the same conditions if all previous editions of a translation in a language in general use in the Contracting State are out of print.

(c) If the owner of the right of translation cannot be found, then the applicant for a licence shall send copies of his application to the publisher whose name appears on the work and, if the nationality of the owner of the right of translation is known, to the diplomatic or consular representative of the State of which such owner is a national, or to the organization which may have been designated by the government of that State. The licence shall not be granted before the expiration of a period of two months from the date of the dispatch of the copies of the application.

(d) Due provision shall be made by domestic legislation to ensure to the owner of the right of translation a compensation which is just and conforms to international standards, to ensure payment and transmittal of such compensation, and to ensure a correct translation of the work.

(e) The original title and the name of the author of the work shall be printed on all copies of the published translation. The licence shall be valid only for publication of the translation in the territory of the Contracting State where it has been applied for. Copies so published may be imported and sold in another Contracting State if a language in general use in such other State is the same language as that into which the work has been so translated, and if the domestic law in such other State makes provision for such licences and does not prohibit such importation and sale. Where the foregoing conditions do not exist, the importation and sale of such copies in a Contracting State shall be governed by its domestic law and its agreements. The licence shall not be transferred by the licensee.

(f) The licence shall not be granted when the author has withdrawn from circulation all copies of the work].

ARTICLE Vbis

1. Any Contracting State regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations may, by a notification deposited with the Director-General of the United Nations Educational, Scientific and Cultural Organization (hereinafter called "the Director-General") at the time of its ratification, acceptance or accession or thereafter, avail itself of any or all of the exceptions provided for in Articles Vter and Vquater.

2. Any such notification shall be effective for ten years from the date of coming into force of this Convention, or for such part of that ten-year period as remains at the date of deposit of the notification, and may be renewed in whole or in part for further periods of ten years each if, not more than fifteen or less than three months before the expiration of the relevant ten-year period, the Contracting State deposits a further notification with the Director-General. Initial notifications may also be made during these further periods of ten years in accordance with the provisions of this Article.

3. Notwithstanding the provisions of paragraph 2, a Contracting State that has ceased to be regarded as a developing country as referred to in paragraph 1 shall no longer be entitled to renew its notification made under the provisions of paragraph 1 or 2, and whether or not it formally withdraws the notification such State shall be precluded from availing itself of the exceptions provided for in Articles Vter and Vquater at the end of the current ten-year period, or at the end of three years after it has ceased to be regarded as a developing country, whichever period expires later.

4. Any copies of a work already made under the exceptions provided for in Articles Vter and Vquater may continue to be distributed after the expiration of the period for which notifications under this Article were effective until their stock is exhausted.

5. Any Contracting State that has deposited a notification in accordance with Article XIII with respect to the application of this Convention to a particular country or territory, the situation of which can be regarded as analogous to that of the States referred to in paragraph 1 of this Article, may also deposit notifications and renew them in accordance with the provisions of this Article with respect to any such country or territory. During the effective period of such notifications, the provisions of Articles Vter and Vquater may be applied with respect to such country or territory. The sending of copies from the country or territory to the Contracting State shall be considered as export within the meaning of Articles Vter and Vquater.

ARTICLE Vter

1.

(a) Any Contracting State to which Article Vbis(1) applies may substitute for the period of seven years provided for in Article V(2) a period of three years or any longer period prescribed by its legislation. However, in the case of a translation into a language not in general use in one or more developed countries that are party to this Convention or only the 1952 Convention, the period shall be one year instead of three.

(b) A Contracting State to which Article Vbis(1) applies may, with the unanimous agreement of the developed countries party to this Convention or only the 1952 Convention and in which the same language is in general use, substitute, in the case of translation into that language, for the period of three years provided for in sub-paragraph (a) another period as determined by such agreement but not shorter than one year. However, this sub-paragraph shall not apply where the language in question is English, French or Spanish. Notification of any such agreement shall be made to the Director-General.

(c) The licence may only be granted if the applicant, in accordance with the procedure of the State concerned, establishes either that he has requested, and been denied, authorization by the owner of the right of translation, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as he makes his request he shall inform either the International Copyright Information Centre established by the United Nations Educational, Scientific and Cultural Organization or any national or regional information centre which may have been designated in a notification to that effect deposited with the Director-General by the government of the State in which the publisher is believed to have his principal place of business.

(d) If the owner of the right of translation cannot be found, the applicant for a licence shall send, by registered airmail, copies of his application to the publisher whose name appears on the work and to any national or regional information centre as mentioned in sub-paragraph (c). If no such centre is notified he shall also send a copy to the international copyright information centre established by the United Nations Educational, Scientific and Cultural Organization.

2.

(a) Licences obtainable after three years shall not be granted under this Article until a further period of six months has elapsed and licences obtainable after one year until a further period of nine months has elapsed. The further period shall begin either from the date of the request for permission to translate mentioned in paragraph 1(c) or, if the identity or address of the owner of the right of translation is not known, from the date of dispatch of the copies of the application for a licence mentioned in paragraph 1(d).

(b) Licences shall not be granted if a translation has been published by the owner of the right of translation or with his authorization during the said period of six or nine months.

3. Any licence under this Article shall be granted only for the purpose of teaching, scholarship or research.

4.

(a) Any licence granted under this Article shall not extend to the export of copies and shall be valid only for publication in the territory of the Contracting State where it has been applied for.

(b) Any copy published in accordance with a licence granted under this Article shall bear a notice in the appropriate language stating that the copy is available for distribution only in the Contracting State granting the licence. If the writing bears the notice specified in Article III(1) the copies shall bear the same notice.

(c) The prohibition of export provided for in sub-paragraph (a) shall not apply where a governmental or other public entity of a State which has granted a licence under this Article to translate a work into a language other than English, French or Spanish sends copies of a translation prepared under such licence to another country, if.

(i) the recipients are individuals who are nationals of the Contracting State granting the licence, or organizations grouping such individuals;

(ii) the copies are to be used only for the purpose of teaching, scholarship or research;

(iii) the sending of the copies and their subsequent distribution to recipients is without the object of commercial purpose; and

(iv) the country to which the copies have been sent has agreed with the Contracting State to allow the receipt, distribution or both and the Director-General has been notified of such agreement by any one of the governments which have concluded it.

5. Due provision shall be made at the national level to ensure:

(a) that the licence provides for just compensation that is consistent with standards of royalties normally operating in the case of licences freely negotiated between persons in the two countries concerned; and

(b) payment and transmittal of the compensation; however, should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.

6. Any licence granted by a Contracting State under this Article shall terminate if a translation of the work in the same language with substantially the same content as the edition in respect of which the licence was granted is published in the said State by the owner of the right of translation or with his authorization, at a price reasonably related to that normally charged in the same State for comparable works. Any copies already made before the licence is terminated may continue to be distributed until their stock is exhausted.

7. For works which are composed mainly of illustrations a licence to translate the text and to reproduce the illustrations may be granted only if the conditions of Article Vquater are also fulfilled.

8.

(a) A licence to translate a work protected under this Convention, published in printed or analogous forms of reproduction, may also be granted to a broadcasting organization having its headquarters in a Contracting State to which Article Vbis(1) applies, upon an application made in that State by the said organization under the following conditions:

(i) the translation is made from a copy made and acquired in accordance with the laws of the Contracting State;

(ii) the translation is for use only in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession,

(iii) the translation is used exclusively for the purposes set out in condition (ii), through broadcasts lawfully made which are intended for recipients on the territory of the Contracting State, including broadcasts made through the medium of sound or visual recordings lawfully and exclusively made for the purpose of such broadcasts;

(iv) sound or visual recordings of the translation may be exchanged only between broadcasting organizations having their headquarters in the Contracting State granting the licence; and

(v) all uses made of the translation are without any commercial purpose.

(b) Provided all of the criteria and conditions set out in sub-paragraph (a) are met, a licence may also be granted to a broadcasting organization to translate any text incorporated in an audio-visual fixation which was itself prepared and published for the sole purpose of being used in connexion with systematic instructional activities.

(c) Subject to sub-paragraphs (a) and (b), the other provisions of this Article shall apply to the grant and exercise of the licence.

9. Subject to the provisions of this Article, any licence granted under this Article shall be governed by the provisions of Article V, and shall continue to be governed by the provisions of Article V and of this Article, even after the seven-year period provided for in Article V(2) has expired. However, after the said period has expired, the licensee shall be free to request that the said licence be replaced by a new licence governed exclusively by the provisions of Article V.

ARTICLE Vquater

1. Any Contracting State to which Article Vbis(1) applies may adopt the following provisions:

(a) If, after the expiration of

(i) the relevant period specified in sub-paragraph (c) commencing from the date of first publication of a particular edition of a literary, scientific or artistic work referred to in paragraph 3, or

(ii) any longer period determined by national legislation of the State, copies of such edition have not been distributed in that State to the general public or in connexion with systematic instructional activities at a price reasonably related to that normally charged in the State for comparable works, by the owner of the right of reproduction or with his authorization, any national of such State may obtain a non-exclusive licence from the competent authority to publish such edition at that or a lower price for use in connexion with systematic instructional activities. The licence may only be granted if such national, in accordance with the procedure of the State concerned, establishes either that he has requested, and been denied, authorization by the proprietor of the right to publish such work, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as he makes his request he shall inform either the international copyright information centre established by the United Nations Educational, Scientific and Cultural Organization or any national or regional information centre referred to in sub-paragraph (d).

(b) A licence may also be granted on the same conditions if, for a period of six months, no authorized copies of the edition in question have been on sale in the State concerned to the general public or in connexion with systematic instructional activities at a price reasonably related to that normally charged in the State for comparable works.

(c) The period referred to in (a) shall be five years except that:

(i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;

(ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.

(d) If the owner of the right of reproduction cannot be found, the applicant for a licence shall send, by registered air mail, copies of his application to the publisher whose name appears on the work and to any national or regional information centre identified as such in a notification deposited with the Director-General by the State in which the publisher is believed to have his principal place of business. In the absence of any such notification, he shall also send a copy to the international copyright information centre established by the United Nations Educational, Scientific and Cultural Organization. The licence shall not be granted before the expiration of a period of three months from the date of dispatch of the copies of the application.

(e) Licences obtainable after three years shall not be granted under this Article:

(i) until a period of six months has elapsed from the date of the request for permission referred to in sub-paragraph (a) or, if the identity or address of the owner of the right of reproduction is unknown, from the date of the dispatch of the copies of the application for a licence referred to in sub-paragraph (d);

(ii) if any such distribution of copies of the edition as is mentioned in sub-paragraph (a) has taken place during that period.

(f) The name of the author and the title of the particular edition of the work shall be printed on all copies of the published reproduction. The licence shall not extend to the export of copies and shall be valid only for publication in the territory of the Contracting State where it has been applied for. The licence shall not be transferable by the licensee.

(g) Due provision shall be made by domestic legislation to ensure an accurate reproduction of the particular edition in question.

(h) A licence to reproduce and publish a translation of a work shall not be granted under this Article in the following cases:

(i) where the translation was not published by the owner of the right of translation or with his authorization;

(ii) where the translation is not in a language in general use in the State with power to grant the licence.

2. The exceptions provided for in paragraph 1 are subject to the following additional provisions:

(a) Any copy published in accordance with a licence granted under this Article shall bear a notice in the appropriate language stating that the copy is available for distribution only in the Contracting State to which the said licence applies. If the edition bears the notice specified in Article III(1), the copies shall bear the same notice.

(b) Due provision shall be made at the national level to ensure:

(i) that the licence provides for just compensation that is consistent with standards of royalties normally operating in the case of licences freely negotiated between persons in the two countries concerned; and

(ii) payment and transmittal of the compensation; however, should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.

(c) Whenever copies of an edition of a work are distributed in the Contracting State to the general public or in connexion with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the State for comparable works, any licence granted under this Article shall terminate if such edition is in the same language and is substantially the same in content as the edition published under the licence. Any copies already made before the licence is terminated may continue to be distributed until their stock is exhausted.

(d) No licence shall be granted when the author has withdrawn from circulation all copies of the edition in question.

3.

(a) Subject to sub-paragraph (b), the literary, scientific or artistic works to which this Article applies shall be limited to works published in printed or analogous forms of reproduction.

(b) The provisions of this Article shall also apply to reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of any incorporated text into a language in general use in the State with power to grant the licence; always provided that the audio-visual fixations in question were prepared and published for the sole purpose of being used in connexion with systematic instructional activities.

ARTICLE VI

"Publication", as used in this Convention, means the reproduction in tangible form and the general distribution to the public of copies of a work from which it can be read or otherwise visually perceived.

ARTICLE VII

This Convention shall not apply to works or rights in works which, at the effective date of this Convention in a Contracting State where protection is claimed, are permanently in the public domain in the said Contracting State.

ARTICLE VIII

1. This Convention, which shall bear the date of 24 July 1971, shall be deposited with the Director-General and shall remain open for signature by all States party to the 1952 Convention for a period of 120 days after the date of this Convention. It shall be subject to ratification or acceptance by the signatory States.

2. Any State which has not signed this Convention may accede thereto.

3. Ratification, acceptance or accession shall be effected by the deposit of an instrument to that effect with the Director-General.

ARTICLE IX

1. This Convention shall come into force three months after the deposit of twelve instruments of ratification, acceptance or accession.

2. Subsequently, this Convention shall come into force in respect of each State three months after that State has deposited its instrument of ratification, acceptance or accession.

3. Accession to this Convention by a State not party to the 1952 Convention shall also constitute accession to that Convention; however, if its instrument of accession is deposited before this Convention comes into force, such State may make its accession to the 1952 Convention conditional upon the coming into force of this Convention. After the coming into force of this Convention, no State may accede solely to the 1952 Convention.

4. Relations between States party to this Convention and States that are party only to the 1952 Convention, shall be governed by the 1952 Convention. However, any State party only to the 1952 Convention may, by a notification deposited with the Director-General, declare that it will admit the application of the 1971 Convention to works of its nationals or works first published in its territory by all States party to this Convention.

ARTICLE X

1. Each Contracting State undertakes to adopt, in accordance with its Constitution, such measures as are necessary to ensure the application of this Convention.

2. It is understood that at the date this Convention comes into force in respect of any State, that State must be in a position under its domestic law to give effect to the terms of this Convention.

ARTICLE XI

1. An Intergovernmental Committee is hereby established with the following duties:

(a) to study the problems concerning the application and operation of the Universal Copyright Convention;

(b) to make preparation for periodic revisions of this Convention;

(c) to study any other problems concerning the international protection of copyright, in co-operation with the various interested international organizations, such as the United Nations Educational, Scientific and Cultural Organization, the International Union for the Protection of Literary and Artistic Works and the Organization of American States;

(d) to inform States party to the Universal Copyright Convention as to its activities.

2. The Committee shall consist of the representatives of eighteen States party to this Convention or only to the 1952 Convention.

3. The Committee shall he selected with due consideration to a fair balance of national interests on the basis of geographical location, population, languages and stage of development.

4. The Director-General of the United Nations Educational, Scientific and Cultural Organization, the Director-General of the World Intellectual Property Organization and the Secretary-General of the Organization of American States, or their representatives, may attend meetings of the Committee in an advisory capacity.

ARTICLE XII

The Intergovernmental Committee shall convene a conference for revision whenever it deems necessary, or at the request of at least ten States party to this Convention.

ARTICLE XIII

1. Any Contracting State may, at the time of deposit of its instrument of ratification, acceptance or accession, or at any time thereafter, declare by notification addressed to the Director. General that this Convention shall apply to all or any of the countries or territories for the international relations of which it is responsible and this Convention shall thereupon apply to the countries or territories named in such notification after the expiration of the term of three months provided for in Article IX. In the absence of such notification, this Convention shall not apply to any such country or territory.

2. However, nothing in this Article shall be understood as implying the recognition or tacit acceptance by a Contracting State of the factual situation concerning a country or territory to which this Convention is made applicable by another Contracting State in accordance with the provisions of this Article.

ARTICLE XIV

1. Any Contracting State may denounce this Convention in its own name or on behalf of all or any of the countries or territories with respect to which a notification. has been given under Article XIII. The denunciation shall be made by notification addressed to the Director-General. Such denunciation shall also constitute denunciation of the 1952 Convention.

2. Such denunciation shall operate only in respect of the State or of the country or territory on whose behalf it was made and shall not take effect until twelve months after the date of receipt of the notification.

ARTICLE XV

A dispute between two or more Contracting States concerning the interpretation or application of this Convention, not settled by negotiation, shall, unless the States concerned agree on some other method of settlement, be brought before the International Court of Justice for determination by it.

ARTICLE XVI

1. This Convention shall be established in English, French and Spanish. The three texts shall be signed and shall be equally authoritative.

2. Official texts of this Convention shall be established by the Director-General, after consultation with the governments concerned, in Arabic, German, Italian and Portuguese.

3. Any Contracting State or group of Contracting States shall be entitled to have established by the Director-General other texts in the language of its choice by arrangement with the Director-General.

4. All such texts shall be annexed to the signed texts of this Convention.

ARTICLE XVII

1. This Convention shall not in any way affect the provisions of the Berne Convention for the Protection of Literary and Artistic Works or membership in the Union created by that Convention.

2. In application of the foregoing paragraph, a declaration has been annexed to the present Article. This declaration is an integral part of this Convention for the States bound by the Berne Convention on I January 1951, or which have or may become bound to it at a later date. The signature of this Convention by such States shall also constitute signature of the said declaration, and ratification, acceptance or accession by such States shall include the declaration, as well as this Convention.

ARTICLE XVIII

This Convention shall not abrogate multilateral or bilateral copyright conventions or arrangements that are or may be in effect exclusively between two or more American Republics. In the event of any difference either between the provisions of such existing conventions or arrangements and the provisions of this Convention, or between the provisions of this Convention and those of any new convention or arrangement which may be formulated between two or more American Republics after this Convention comes into force, the convention or arrangement most recently formulated shall prevail between the parties thereto. Rights in works acquired in any Contracting State under existing conventions or arrangements before the date this Convention comes into force in such State shall not be affected.

ARTICLE XIX

This Convention shall not abrogate multilateral or bilateral conventions or arrangements in effect between two or more Contracting States. In the event of any difference between the provisions of such existing conventions or arrangements and the provisions of this Convention, the provisions of this Convention shall prevail. Rights in works acquired in any Contracting State under existing conventions or arrangements before the date on which this Convention comes into force in such State shall not be affected. Nothing in this Article shall affect the provisions of Articles XVII and XVIII.

ARTICLE XX

Reservations to this Convention shall not be permitted.

ARTICLE XXI

1. The Director-General shall send duly certified copies of this Convention to the States interested and to the Secretary-General of the United Nations for registration by him.

2. He shall also inform all interested States of the ratifications, acceptances and accessions which have been deposited, the date on which this Convention comes into force, the notifications under this Convention and denunciations under Article XIV.

I. APPENDIX DECLARATION RELATING TO ARTICLE XVII

The States which are members of the International Union for the Protection of Literary and Artistic Works (hereinafter called "the Berne Union") and which are signatories to this Convention,

Desiring to reinforce their mutual relations on the basis of the said Union and to avoid an), conflict which might result from the coexistence of the Berne Convention and the Universal Copyright Convention,

Recognizing the temporary need of some States to adjust their level of copyright protection in accordance with their stage of cultural, social and economic development,

Have, by common agreement, accepted the terms of the following declaration:

(a) Except as provided by paragraph (b), works which, according to the Berne Convention, have as their country of origin a country which has withdrawn from the Berne Union after 1 January 1951, shall not be protected by the Universal Copyright Convention in the countries of the Berne Union;

(b) Where a Contracting State is regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations, and has deposited with the Director-General of the United Nations Educational, Scientific and Cultural Organization, at the time of its withdrawal from the Berne Union, a notification to the effect that it regards itself as a developing country, the provisions of paragraph (a) shall not be applicable as long as such State may avail itself of the exceptions provided for by this Convention in accordance with Article Vbis;

(c) The Universal Copyright Convention shall not be applicable to the relationships among countries of the Berne Union in so far as it relates to the protection of works having as their country of origin, within the meaning of the Berne Convention, a country of the Berne Union.

II. RESOLUTION CONCERNING ARTICLE XI

The Conference for Revision of the Universal Copyright Convention,

Having considered the problems relating to the intergovernmental Committee provided for in Article XI of this Convention, to which this resolution is annexed,

Resolves that:

1. At its inception, the Committee shall include representatives of the twelve States members of the Intergovernmental Committee established under Article XI of the 1952 Convention and the resolution annexed to it, and, in addition, representatives of the following States: Algeria, Australia, Japan, Mexico, Senegal and Yugoslavia.

2. Any States that are not party to the 1952 Convention and have not acceded to this Convention before the first ordinary session of the Committee following the entry into force of this Convention shall be replaced by other States to be selected by the Committee at its first ordinary session in conformity with the provisions of Article XI(2) and XI(3).

3. As soon as this Convention comes into force the Committee as provided for in paragraph 1 shall be deemed to be constituted in accordance with Article XI of this Convention.

4. A session of the Committee shall take place within one year after the coming into force of this Convention; thereafter the Committee shall meet in ordinary session at intervals of not more than two years.

5. The Committee shall elect its Chairman and two Vice-Chairmen. It shall establish its Rules of Procedure having regard to the following principles:

(a) The normal duration of the term of office of the members represented on the Committee shall be six years with one-third retiring every two years, it being however understood that, of the original terms of office, one-third shall expire at the end of the Committee’s second ordinary session which will follow the entry into force of this Convention, a further third at the end of its third ordinary session, and the remaining third at the end of its fourth ordinary session.

(b) The rules governing the procedure whereby the Committee shall fill vacancies, the order in which terms of membership expire, eligibility for re-election, and election procedures, shall be based upon a balancing of the needs for continuity of membership and rotation of representation, as well as the considerations set out in Article XI(3).

Expresses the wish that the United Nations Educational, Scientific and Cultural Organization provide its Secretariat.

In faith whereof the undersigned, having deposited their respective full powers, have signed this Convention.

CONTENTS

Preamble

Article 1: Relation to the Berne Convention

Article 2: Scope of Copyright Protection

Article 3: Application of Articles 2 to 6 of the Berne Convention

Article 4: Computer Programs

Article 5: Compilations of Data (Databases)

Article 6: Right of Distribution

Article 7: Right of Rental

Article 8: Right of Communication to the Public

Article 9: Duration of the Protection of Photographic Works

Article 10: Limitations and Exceptions

Article 11: Obligations concerning Technological Measures

Article 12: Obligations concerning Rights Management Information

Article 13: Application in Time

Article 14: Provisions on Enforcement of Rights

Article 15: Assembly

Article 16: International Bureau

Article 17: Eligibility for Becoming Party to the Treaty

Article 18: Rights and Obligations under the Treaty

Article 19: Signature of the Treaty

Article 20: Entry into Force of the Treaty

Article 21: Effective Date of Becoming Party to the Treaty

Article 22: No Reservations to the Treaty

Article 23: Denunciation of the Treaty

Article 24: Languages of the Treaty

Article 25: Depositary

PREAMBLE

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention,

Have agreed as follows:

Article 1

Relation to the Berne Convention

(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.

(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.

(3) Hereinafter, "Berne Convention" shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.

(4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.

Article 2

Scope of Copyright Protection

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Article 3

Application of Articles 2 to 6 of the Berne Convention

Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.

Article 4

Computer Programs

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

Article 5

Compilations of Data (Databases)

Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.

Article 6

Right of Distribution

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.

Article 7

Right of Rental

(1) Authors of

(i) computer programs;

(ii) cinematographic works; and

(iii) works embodied in phonograms, as determined in the national law of Contracting Parties,

shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.

(2) Paragraph (1) shall not apply

(i) in the case of computer programs, where the program itself is not the essential object of the rental; and

(ii) in the case of cinematographic works, unless such commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction.

(3) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of authors for the rental of copies of their works embodied in phonograms may maintain that system provided that the commercial rental of works embodied in phonograms is not giving rise to the material impairment of the exclusive right of reproduction of authors.

Article 8

Right of Communication to the Public

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

Article 9

Duration of the Protection of Photographic Works

In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention.

Article 10

Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Article 11

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Article 12

Obligations concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

Article 13

Application in Time

Contracting Parties shall apply the provisions of Article 18 of the Berne Convention to all protection provided for in this Treaty.

Article 14

Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

Article 15

Assembly

(1) (a) The Contracting Parties shall have an Assembly.

(b) Each Contracting Party shall be represented by one delegate who may be assisted by alternate delegates, advisors and experts.

(c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the delegation. The Assembly may ask the World Intellectual Property Organization (hereinafter referred to as "WIPO") to grant financial assistance to facilitate the participation of delegations of Contracting Parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy.

(2)

(a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty.

(b) The Assembly shall perform the function allocated to it under Article 17(2) in respect of the admission of certain intergovernmental organizations to become party to this Treaty.

(c) The Assembly shall decide the convocation of any diplomatic conference for the revision of this Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such diplomatic conference.

(3)

(a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name.

(b) Any Contracting Party that is an intergovernmental organization may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its Member States exercises its right to vote and vice versa.

(4) The Assembly shall meet in ordinary session once every two years upon convocation by the Director General of WIPO.

(5) The Assembly shall establish its own rules of procedure, including the convocation of extraordinary sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority for various kinds of decisions.

Article 16

International Bureau

The International Bureau of WIPO shall perform the administrative tasks concerning the Treaty.

Article 17

Eligibility for Becoming Party to the Treaty

(1) Any Member State of WIPO may become party to this Treaty.

(2) The Assembly may decide to admit any intergovernmental organization to become party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty.

(3) The European Community, having made the declaration referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become party to this Treaty.

Article 18

Rights and Obligations under the Treaty

Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all of the rights and assume all of the obligations under this Treaty.

Article 19

Signature of the Treaty

This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and by the European Community.

Article 20

Entry into Force of the Treaty

This Treaty shall enter into force three months after 30 instruments of ratification or accession by States have been deposited with the Director General of WIPO.

Article 21

Effective Date of Becoming Party to the Treaty

This Treaty shall bind

(i) the 30 States referred to in Article 20, from the date on which this Treaty has entered into force;

(ii) each other State from the expiration of three months from the date on which the State has deposited its instrument with the Director General of WIPO;

(iii) the European Community, from the expiration of three months after the deposit of its instrument of ratification or accession if such instrument has been deposited after the entry into force of this Treaty according to Article 20, or, three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty;

(iv) any other intergovernmental organization that is admitted to become party to this Treaty, from the expiration of three months after the deposit of its instrument of accession.

Article 22

No Reservations to the Treaty

No reservation to this Treaty shall be admitted.

Article 23

Denunciation of the Treaty

This Treaty may be denounced by any Contracting Party by notification addressed to the Director General of WIPO. Any denunciation shall take effect one year from the date on which the Director General of WIPO received the notification.

Article 24

Languages of the Treaty

(1) This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic.

(2) An official text in any language other than those referred to in paragraph (1) shall be established by the Director General of WIPO on the request of an interested party, after consultation with all the interested parties. For the purposes of this paragraph, "interested party" means any Member State of WIPO whose official language, or one of whose official languages, is involved and the European Community, and any other intergovernmental organization that may become party to this Treaty, if one of its official languages is involved.

Article 25

Depositary

The Director General of WIPO is the depositary of this Treaty.

PROVISIONS OF THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS ( 1971) REFERRED TO IN THE WCT

The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works,

Recognizing the importance of the work of the Revision

Conference held at Stockholm in 1967,

Have resolved to revise the Act adopted by the Stockholm Conference, while maintaining without change Articles 1 to 20 and 22 to 26 of that Act.

Consequently, the undersigned Plenipotentiaries, having presented their full powers, recognized as in good and due form, have agreed as follows:

Article 1

[Establishment of a Union]

The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

Article 2

[Protected Works: 1. "Literary and artistic works"; 2. Possible requirement of fixation; 3. Derivative works; 4. Official texts; 5. Collections; 6. Obligation to protect; beneficiaries of protection; 7. Works of applied art and industrial designs; 8. News]

(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

(3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.

(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

(6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.

(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.

(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.

Article 2^bis

[Possible Limitation of Protection of Certain Works: 1. Certain speeches; 2. Certain uses of lectures and addresses; 3. Right to make collections of such works]

(1) It shall be a matter for legislation in the countries of the Union to exclude, wholly or in part, from the protection provided by the preceding Article political speeches and speeches delivered in the course of legal proceedings.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which lectures, addresses and other works of the same nature which are delivered in public may be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication as envisaged in Article 11bis(1) of this Convention, when such use is justified by the informatory purpose.

(3) Nevertheless, the author shall enjoy the exclusive right of making a collection of his works mentioned in the preceding paragraphs.

Article 3

[Criteria of Eligibility for Protection: 1. Nationality of author; place of publication of work; 2. Residence of author; 3. "Published" works; 4. "Simultaneously published" works]

(1) The protection of this Convention shall apply to:

(a) authors who are nationals of one of the countries of the Union, for their works, whether published or not;

(b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union.

(2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country.

(3) The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

(4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.

Article 4

[Criteria of Eligibility for Protection of Cinematographic Works, Works of Architecture and Certain Artistic Works]

The protection of this Convention shall apply, even if the conditions of Article 3 are not fulfilled, to:

(a) authors of cinematographic works the maker of which has his headquarters or habitual residence in one of the countries of the Union;

(b) authors of works of architecture erected in a country of the Union or of other artistic works incorporated in a building or other structure located in a country of the Union.

Article 5

[Rights Guaranteed: 1. and 2. Outside the country of origin; 3. In the country of origin; 4. "Country of origin"]

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.

(4) The country of origin shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.

Article 6

[Possible Restriction of Protection in Respect of Certain Works of Nationals of Certain Countries Outside the Union: 1. In the country of the first publication and in other countries; 2. No retroactivity; 3. Notice]

(1) Where any country outside the Union fails to protect in an adequate manner the works of authors who are nationals of one of the countries of the Union, the latter country may restrict the protection given to the works of authors who are, at the date of the first publication thereof, nationals of the other country and are not habitually resident in one of the countries of the Union. If the country of first publication avails itself of this right, the other countries of the Union shall not be required to grant to works thus subjected to special treatment a wider protection than that granted to them in the country of first publication.

(2) No restrictions introduced by virtue of the preceding paragraph shall affect the rights which an author may have acquired in respect of a work published in a country of the Union before such restrictions were put into force.

(3) The countries of the Union which restrict the grant of copyright in accordance with this Article shall give notice thereof to the Director General of the World Intellectual Property Organization (hereinafter designated as "the Director General") by a written declaration specifying the countries in regard to which protection is restricted, and the restrictions to which rights of authors who are nationals of those countries are subjected. The Director General shall immediately communicate this declaration to all the countries of the Union.

Article 6^bis

[Moral Rights: 1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author's death; 3. Means of redress]

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Article 7

[Term of Protection:1. Generally; 2. For cinematographic works; 3. For anonymous and pseudonymous works; 4. For photographic works and works of applied art; 5. Starting date of computation; 6. Longer terms; 7. Shorter terms; 8. Applicable law; "comparison" of terms]

(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.

(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.

(3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.

(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.

(5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4) shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the first of January of the year following the death or such event.

(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.

(7) Those countries of the Union bound by the Rome Act of this Convention which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs shall have the right to maintain such terms when ratifying or acceding to the present Act.

(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.

Article 7^bis

[Term of Protection for Works of Joint Authorship]

The provisions of the preceding Article shall also apply in the case of a work of joint authorship, provided that the terms measured from the death of the author shall be calculated from the death of the last surviving author.

Article 8

[Right of Translation]

Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.

Article 9

[Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings]

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10

[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author]

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

Article 10^bis

[Further Possible Free Uses of Works: 1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events]

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

Article 11

[Certain Rights in Dramatic and Musical Works: 1. Right of public performance and of communication to the public of a performance; 2. In respect of translations]

(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing:

(i) the public performance of their works, including such public performance by any means or process;

(ii) any communication to the public of the performance of their works.

(2) Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

Article 11^bis

[Broadcasting and Related Rights: 1. Broadcasting and other wireless communications, public communication of broadcast by wire or rebroadcast, public communication of broadcast by loudspeaker or analogous instruments; 2. Compulsory licenses; 3. Recording; ephemeral recordings]

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.

Article 11^ter

[Certain Rights in Literary Works: 1. Right of public recitation and of communication to the public of a recitation; 2. In respect of translations]

(1) Authors of literary works shall enjoy the exclusive right of authorizing:

(i) the public recitation of their works, including such public recitation by any means or process;

(ii) any communication to the public of the recitation of their works.

(2) Authors of literary works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

Article 12

[Right of Adaptation, Arrangement and Other Alteration]

Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.

Article 13

[Possible Limitation of the Right of Recording of Musical Works and Any Words Pertaining Thereto: 1. Compulsory licenses; 2. Transitory measures; 3. Seizure on importation of copies made without the author's permission]

(1) Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(2) Recordings of musical works made in a country of the Union in accordance with Article 13(3) of the Conventions signed at Rome on June 2, 1928, and at Brussels on June 26, 1948, may be reproduced in that country without the permission of the author of the musical work until a date two years after that country becomes bound by this Act.

(3) Recordings made in accordance with paragraphs (1) and (2) of this Article and imported without permission from the parties concerned into a country where they are treated as infringing recordings shall be liable to seizure.

Article 14

[Cinematographic and Related Rights: 1. Cinematographic adaptation and reproduction; distribution; public performance and public communication by wire of works thus adapted or reproduced; 2. Adaptation of cinematographic productions; 3. No compulsory licenses]

(1) Authors of literary or artistic works shall have the exclusive right of authorizing:

(i) the cinematographic adaptation and reproduction of these works, and the distribution of the works thus adapted or reproduced;

(ii) the public performance and communication to the public by wire of the works thus adapted or reproduced.

(2) The adaptation into any other artistic form of a cinematographic production derived from literary or artistic works shall, without prejudice to the authorization of the author of the cinematographic production, remain subject to the authorization of the authors of the original works.

(3) The provisions of Article 13(1) shall not apply.

Article 14^bis

[Special Provisions Concerning Cinematographic Works: 1. Assimilation to "original" works; 2. Ownership; limitation of certain rights of certain contributors; 3. Certain other contributors]

(1) Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work shall be protected as an original work. The owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work, including the rights referred to in the preceding Article.

(2)

(a) Ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed.

(b) However, in the countries of the Union which, by legislation, include among the owners of copyright in a cinematographic work authors who have brought contributions to the making of the work, such authors, if they have undertaken to bring such contributions, may not, in the absence of any contrary or special stipulation, object to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of texts, of the work.

(c) The question whether or not the form of the undertaking referred to above should, for the application of the preceding subparagraph (b), be in a written agreement or a written act of the same effect shall be a matter for the legislation of the country where the maker of the cinematographic work has his headquarters or habitual residence. However, it shall be a matter for the legislation of the country of the Union where protection is claimed to provide that the said undertaking shall be in a written agreement or a written act of the same effect. The countries whose legislation so provides shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.

(d) By "contrary or special stipulation" is meant any restrictive condition which is relevant to the aforesaid undertaking.

(3) Unless the national legislation provides to the contrary, the provisions of paragraph (2)(b) above shall not be applicable to authors of scenarios, dialogues and musical works created for the making of the cinematographic work, or to the principal director thereof. However, those countries of the Union whose legislation does not contain rules providing for the application of the said paragraph (2)(b) to such director shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.

Article 14^ter

["Droit de suite" in Works of Art and Manuscripts:
1. Right to an interest in resales; 2. Applicable law; 3. Procedure]

(1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

(2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.

(3) The procedure for collection and the amounts shall be matters for determination by national legislation.

Article 15

[Right to Enforce Protected Rights: 1. Where author's name is indicated or where pseudonym leaves no doubt as to author's identity; 2. In the case of cinematographic works; 3. In the case of anonymous and pseudonymous works; 4. In the case of certain unpublished works of unknown authorship]

(1) In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.

(2) The person or body corporate whose name appears on a cinematographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of the said work.

(3) In the case of anonymous and pseudonymous works, other than those referred to in paragraph (1) above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author’s rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work.

(4)

(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.

Article 16

[Infringing Copies: 1. Seizure; 2. Seizure on importation; 3. Applicable law]

(1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection.

(2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected.

(3) The seizure shall take place in accordance with the legislation of each country.

Article 17

[Possibility of Control of Circulation, Presentation and Exhibition of Works]

The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.

Article 18

[Works Existing on Convention's Entry Into Force: 1. Protectable where protection not yet expired in country of origin; 2. Non-protectable where protection already expired in country where it is claimed; 3. Application of these principles; 4. Special cases]

(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.

(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.

(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.

(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.

Article 19

[Protection Greater than Resulting from Convention]

The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.

Article 20

[Special Agreements Among Countries of the Union]

The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.

Article 21

[Special Provisions Regarding Developing Countries: 1. Reference to Appendix; 2. Appendix part of Act]

(1) Special provisions regarding developing countries are included in the Appendix.

(2) Subject to the provisions of Article 28(1)(b), the Appendix forms an integral part of this Act.

APPENDIX

[SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES]

Article I

[Faculties Open to Developing Countries: 1. Availability of certain faculties; declaration: 2. Duration of effect of declaration, 3. Cessation of developing country status; 4. Existing stocks of copies; 5. Declarations concerning certain territories; 6. Limits of reciprocity]

(1) Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which this Appendix forms an integral part, and which, having regard to its economic situation and its social or cultural needs, does not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act, may, by a notification deposited with the Director General at the time of depositing its instrument of ratification or accession or, subject to Article V(1)(c), at any time thereafter, declare that it will avail itself of the faculty provided for in Article II, or of the faculty provided for in Article III, or of both of those faculties. It may, instead of availing itself of the faculty provided for in Article II, make a declaration according to Article V(1)(a).

(2)

(a) Any declaration under paragraph (1) notified before the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the said period. Any such declaration may be renewed in whole or in part for periods of ten years each by a notification deposited with the Director General not more than fifteen months and not less than three months before the expiration of the ten-year period then running.

(b) Any declaration under paragraph (1) notified after the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the ten-year period then running. Any such declaration may be renewed as provided for in the second sentence of subparagraph (a).

(3) Any country of the Union which has ceased to be regarded as a developing country as referred to in paragraph (1) shall no longer be entitled to renew its declaration as provided in paragraph (2), and, whether or not it formally withdraws its declaration, such country shall be precluded from availing itself of the faculties referred to in paragraph (1) from the expiration of the ten-year period then running or from the expiration of a period of three years after it has ceased to be regarded as a developing country, whichever period expires later.

(4) Where, at the time when the declaration made under paragraph (1) or (2) ceases to be effective, there are copies in stock which were made under a license granted by virtue of this Appendix, such copies may continue to be distributed until their stock is exhausted.

(5) Any country which is bound by the provisions of this Act and which has deposited a declaration or a notification in accordance with Article 31(1) with respect to the application of this Act to a particular territory, the situation of which can be regarded as analogous to that of the countries referred to in paragraph (1), may, in respect of such territory, make the declaration referred to in paragraph (1) and the notification of renewal referred to in paragraph (2). As long as such declaration or notification remains in effect, the provisions of this Appendix shall be applicable to the territory in respect of which it was made.

(6)

(a) The fact that a country avails itself of any of the faculties referred to in paragraph (1) does not permit another country to give less protection to works of which the country of origin is the former country than it is obliged to grant under Articles 1 to 20.

(b) The right to apply reciprocal treatment provided for in Article 30(2)(b), second sentence, shall not, until the date on which the period applicable under Article I(3) expires, be exercised in respect of works the country of origin of which is a country which has made a declaration according to Article V(1)(a).

Article II

[Limitations on the Right of Translation: 1. Licenses grantable by competent authority; 2. to 4. Conditions allowing the grant of such licenses; 5. Purposes for which licenses may be granted; 6. Termination of licenses; 7. Works composed mainly of illustrations;
8. Works withdrawn from circulation; 9. Licenses for broadcasting organizations]

(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled, so far as works published in printed or analogous forms of reproduction are concerned, to substitute for the exclusive right of translation provided for in Article 8 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.

(2)

(a) Subject to paragraph (3), if, after the expiration of a period of three years, or of any longer period determined by the national legislation of the said country, commencing on the date of the first publication of the work, a translation of such work has not been published in a language in general use in that country by the owner of the right of translation, or with his authorization, any national of such country may obtain a license to make a translation of the work in the said language and publish the translation in printed or analogous forms of reproduction.

(b) A license under the conditions provided for in this Article may also be granted if all the editions of the translation published in the language concerned are out of print.

(3)

(a) In the case of translations into a language which is not in general use in one or more developed countries which are members of the Union, a period of one year shall be substituted for the period of three years referred to in paragraph (2)(a).

(b) Any country referred to in paragraph (1) may, with the unanimous agreement of the developed countries which are members of the Union and in which the same language is in general use, substitute, in the case of translations into that language, for the period of three years referred to in paragraph (2)(a) a shorter period as determined by such agreement but not less than one year. However, the provisions of the foregoing sentence shall not apply where the language in question is English, French or Spanish. The Director General shall be notified of any such agreement by the Governments which have concluded it.

(4)

(a) No license obtainable after three years shall be granted under this Article until a further period of six months has elapsed, and no license obtainable after one year shall be granted under this Article until a further period of nine months has elapsed

(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or

(ii) where the identity or the address of the owner of the right of translation is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.

(b) If, during the said period of six or nine months, a translation in the language in respect of which the application was made is published by the owner of the right of translation or with his authorization, no license under this Article shall be granted.

(5) Any license under this Article shall be granted only for the purpose of teaching, scholarship or research.

(6) If a translation of a work is published by the owner of the right of translation or with his authorization at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such translation is in the same language and with substantially the same content as the translation published under the license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.

(7) For works which are composed mainly of illustrations, a license to make and publish a translation of the text and to reproduce and publish the illustrations may be granted only if the conditions of Article III are also fulfilled.

(8) No license shall be granted under this Article when the author has withdrawn from circulation all copies of his work.

(9)

(a) A license to make a translation of a work which has been published in printed or analogous forms of reproduction may also be granted to any broadcasting organization having its headquarters in a country referred to in paragraph (1), upon an application made to the competent authority of that country by the said organization, provided that all of the following conditions are met:

(i) the translation is made from a copy made and

acquired in accordance with the laws of the said country;

(ii) the translation is only for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession;

(iii) the translation is used exclusively for the purposes referred to in condition (ii) through broadcasts made lawfully and intended for recipients on the territory of the said country, including broadcasts made through the medium of sound or visual recordings lawfully and exclusively made for the purpose of such broadcasts;

(iv) all uses made of the translation are without any commercial purpose.

(b) Sound or visual recordings of a translation which was made by a broadcasting organization under a license granted by virtue of this paragraph may, for the purposes and subject to the conditions referred to in subparagraph (a) and with the agreement of that organization, also be used by any other broadcasting organization having its headquarters in the country whose competent authority granted the license in question.

(c) Provided that all of the criteria and conditions set out in subparagraph (a) are met, a license may also be granted to a broadcasting organization to translate any text incorporated in an audio-visual fixation where such fixation was itself prepared and published for the sole purpose of being used in connection with systematic instructional activities.

(d) Subject to subparagraphs (a) to (c), the provisions of the preceding paragraphs shall apply to the grant and exercise of any license granted under this paragraph.

Article III

[Limitation on the Right of Reproduction: 1. Licenses grantable by competent authority; 2. to 5. Conditions allowing the grant of such licenses; 6. Termination of licenses; 7. Works to which this Article applies]

(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Article 9 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.

(2)

(a) If, in relation to a work to which this Article applies by virtue of paragraph (7), after the expiration of

(i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or

(ii) any longer period determined by national legislation of the country referred to in paragraph (1), commencing on the same date,

copies of such edition have not been distributed in that country to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any national of such country may obtain a license to reproduce and publish such edition at that or a lower price for use in connection with systematic instructional activities.

(b) A license to reproduce and publish an edition which has been distributed as described in subparagraph (a) may also be granted under the conditions provided for in this Article if, after the expiration of the applicable period, no authorized copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in the country for comparable works.

(3) The period referred to in paragraph (2)(a)(i) shall be five years, except that

(i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;

(ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.

(4)

(a) No license obtainable after three years shall be granted under this Article until a period of six months has elapsed

(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or

(ii) where the identity or the address of the owner of the right of reproduction is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.

(b) Where licenses are obtainable after other periods and Article IV(2) is applicable, no license shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application.

(c) If, during the period of six or three months referred to in subparagraphs (a) and (b), a distribution as described in paragraph (2)(a) has taken place, no license shall be granted under this Article.

(d) No license shall be granted if the author has withdrawn from circulation all copies of the edition for the reproduction and publication of which the license has been applied for.

(5) A license to reproduce and publish a translation of a work shall not be granted under this Article in the following cases:

(i) where the translation was not published by the owner of the right of translation or with his authorization, or

(ii) where the translation is not in a language in general use in the country in which the license is applied for.

(6) If copies of an edition of a work are distributed in the country referred to in paragraph (1) to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such edition is in the same language and with substantially the same content as the edition which was published under the said license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.

(7)

(a) Subject to subparagraph (b), the works to which this Article applies shall be limited to works published in printed or analogous forms of reproduction.

(b) This Article shall also apply to the reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of any incorporated text into a language in general use in the country in which the license is applied for, always provided that the audio-visual fixations in question were prepared and published for the sole purpose of being used in connection with systematic instructional activities.

Article IV

[Provisions Common to Licenses Under Articles II and III: 1 and 2. Procedure; 3. Indication of author and title of work; 4. Exportation of copies; 5. Notice; 6. Compensation]

(1) A license under Article II or Article III may be granted only if the applicant, in accordance with the procedure of the country concerned, establishes either that he has requested, and has been denied, authorization by the owner of the right to make and publish the translation or to reproduce and publish the edition, as the case may be, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as making the request, the applicant shall inform any national or international information center referred to in paragraph (2).

(2) If the owner of the right cannot be found, the applicant for a license shall send, by registered airmail, copies of his application, submitted to the authority competent to grant the license, to the publisher whose name appears on the work and to any national or international information center which may have been designated, in a notification to that effect deposited with the Director General, by the Government of the country in which the publisher is believed to have his principal place of business.

(3) The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted under Article II or Article III. The title of the work shall appear on all such copies. In the case of a translation, the original title of the work shall appear in any case on all the said copies.

(4)

(a) No license granted under Article II or Article III shall extend to the export of copies, and any such license shall be valid only for publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for.

(b) For the purposes of subparagraph (a), the notion of export shall include the sending of copies from any territory to the country which, in respect of that territory, has made a declaration under Article I(5).

(c) Where a governmental or other public entity of a country which has granted a license to make a translation under Article II into a language other than English, French or Spanish sends copies of a translation published under such license to another country, such sending of copies shall not, for the purposes of subparagraph (a), be considered to constitute export if all of the following conditions are met:

(i) the recipients are individuals who are nationals of the country whose competent authority has granted the license, or organizations grouping such individuals;

(ii) the copies are to be used only for the purpose of teaching, scholarship or research;

(iii) the sending of the copies and their subsequent distribution to recipients is without any commercial purpose; and

(iv) the country to which the copies have been sent has agreed with the country whose competent authority has granted the license to allow the receipt, or distribution, or both, and the Director General has been notified of the agreement by the Government of the country in which the license has been granted.

(5) All copies published under a license granted by virtue of Article II or Article III shall bear a notice in the appropriate language stating that the copies are available for distribution only in the country or territory to which the said license applies.

(6)

(a) Due provision shall be made at the national level to ensure

(i) that the license provides, in favour of the owner of the right of translation or of reproduction, as the case may be, for just compensation that is consistent with standards of royalties normally operating on licenses freely negotiated between persons in the two countries concerned, and

(ii) payment and transmittal of the compensation: should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.

(b) Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be.

Article V

[Alternative Possibility for Limitation of the Right of Translation: 1. Regime provided for under the 1886 and 1896 Acts; 2. No possibility of change to regime under Article II; 3. Time limit for choosing the alternative possibility]

(1)

(a) Any country entitled to make a declaration that it will avail itself of the faculty provided for in Article II may, instead, at the time of ratifying or acceding to this Act:

(i) if it is a country to which Article 30(2)(a) applies, make a declaration under that provision as far as the right of translation is concerned;

(ii) if it is a country to which Article 30(2)(a) does not apply, and even if it is not a country outside the Union, make a declaration as provided for in Article 30(2)(b), first sentence.

(b) In the case of a country which ceases to be regarded as a developing country as referred to in Article I(1), a declaration made according to this paragraph shall be effective until the date on which the period applicable under Article I(3) expires.

(c) Any country which has made a declaration according to this paragraph may not subsequently avail itself of the faculty provided for in Article II even if it withdraws the said declaration.

(2) Subject to paragraph (3), any country which has availed itself of the faculty provided for in Article II may not subsequently make a declaration according to paragraph (1).

(3) Any country which has ceased to be regarded as a developing country as referred to in Article I(1) may, not later than two years prior to the expiration of the period applicable under Article I(3), make a declaration to the effect provided for in Article 30(2)(b), first sentence, notwithstanding the fact that it is not a country outside the Union. Such declaration shall take effect at the date on which the period applicable under Article I(3) expires.

Article VI

[Possibilities of applying, or admitting the application of, certain provisions of the Appendix before becoming bound by it: 1. Declaration; 2. Depository and effective date of declaration]

(1) Any country of the Union may declare, as from the date of this Act, and at any time before becoming bound by Articles 1 to 21 and this Appendix:

(i) if it is a country which, were it bound by Articles 1 to 21 and this Appendix, would be entitled to avail itself of the faculties referred to in Article I(1), that it will apply the provisions of Article II or of Article III or of both to works whose country of origin is a country which, pursuant to (ii) below, admits the application of those Articles to such works, or which is bound by Articles 1 to 21 and this Appendix; such declaration may, instead of referring to Article II, refer to Article V;

(ii) that it admits the application of this Appendix to works of which it is the country of origin by countries which have made a declaration under (i) above or a notification under Article I.

(2) Any declaration made under paragraph (1) shall be in writing and shall be deposited with the Director General. The declaration shall become effective from the date of its deposit.

DECREE ADDITIONALLY PROVIDING FOR LAND USE PLANNING, LAND PRICES, LAND RECOVERY, COMPENSATION, SUPPORT AND RESETTLEMENT

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Land Law;
At the proposal of the Minister of Natural Resources and Environment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree additionally provides for land use planning and plans; land recovery, compensation, support and resettlement in case of land recovery by the State; land prices; land allocation and lease; issuance of certificates of land use rights and ownership of houses and other assets attached to land, and land use duration extension.

Article 2. Subjects of application

1. Agencies performing the state management of land, and agencies, organizations and individuals involved in land management.

2. Land users and organizations and individuals related to land use.

Chapter II

SPECIFIC PROVISIONS

Section 1. LAND USE PLANNING

Article 3. Contents of national-level land use planning

1. A national-level land use planning covers:

a/ Determining the area of land for agricultural purposes, clearly identifying areas for wet rice cultivation, protection forests, special-use forests and nature reserves:

b/ Determining the area of land for non-agricultural purposes, clearly identifying areas for defense, security, urban development, disposal and landfill of hazardous wastes, industrial parks, development of infrastructure works of national importance, and relics, spots of beauty and scenic places;

c/ Making national-level land use planning maps;

d/ Solutions for implementing the land use planning.

2. The Government shall submit to the National Assembly for decision targets of the national-level land use planning.

Article 4. Contents of provincial-level land use planning

1. A provincial-level land use planning covers:

a/ Specifically indicating areas of land of different categories in the province which have been allocated under the national-level land use planning;

b/ Determining areas of land of different categories to meet the province’s socio-economic development needs, including land for perennials, land for production forests and land for intensive aquaculture; land for building the province’s working offices and non-business works; land for provincial-level infrastructure development: land for disposal and landfill of hazardous wastes; land for mining activities: land of religious and belief establishments; provincially managed land for cemeteries; land for relics, spots of beauty and scenic places, and land for tourist zones;

c/ Areas of land of different categories subject to permission of competent state agencies upon change of use purposes to meet the province’s needs:

d/ Determining unused land areas to be put into use;

e/ Making provincial-level land use planning maps;

f/ Solutions for implementing the land use planning.

2. Provincial-level People’s Committees shall submit to the Government for approval targets of their provincial-level land use plannings.

Article 5. Contents of district-level land use planning

1. A district-level land use planning covers:

a/ Specifically indicating areas of land of different categories in the district which have been allocated under the provincial-level land use planning;

b/ Determining areas of land of different categories to meet the district’s socio-economic development needs, including land for non-intensive aquaculture; land for salt-making; land for rural residential areas; land for building the district’s working offices and non-business works; land for disposal and burial of hazardous wastes: land for production and business establishments; land for manufacturing building materials, porcelain and china: land for development of the district’s infrastructure; land with special-use water surface; and district-managed land for cemeteries;

c/ Areas of land of different categories subject to permission of competent state agencies upon change of use purposes to meet the district’s needs;

d/ Determining unused land areas to be put into use;

e/ Making district-level the land use planning maps;

f/ Solutions for implementing the land use planning.

2. District-level People’s Committees shall submit to provincial-level People’s Committees for approval targets of their district-level land use plannings.

Article 6. Contents of commune-level land use planning

1. A commune-level land use planning covers:

a/ Determining areas of land of different categories in the commune which have been allocated under the district-level land use planning;

b/ Determining areas of land of different categories to meet the commune’s socio­economic development needs, including land for upland rice cultivation, land for planting other annual trees and other agricultural land: land for building the commune’s working offices and non-business works; commune-managed land for cemeteries; lake and stream land; land for the commune’s infrastructure development and other non-agricultural land;

c/ Areas of land of different categories subject to permission of competent state agencies upon change of use purposes to meet the commune’s needs;

d/ Making commune-level land use planning map;

e/ Solutions for implementing the land use planning.

2. Commune-level People’s Committees shall submit to district-level People’s Committees for approval targets of their communes’ land use planning outside areas planned for urban development.

District-level People’s Committees shall submit to provincial-level People’s Committees for approval targets of land use plannings of wards, townships and communes within areas planned for urban development.

Article 7. Detailed land use plannings and. plans of hi-tech parks and economic zones

1. Detailed land use plannings and plans of hi-tech parks and economic zones shall be expressed in their detailed construction plannings.

2. The Ministry of Construction shall coordinate with the Ministry of Natural Resources and Environment in guiding contents of detailed construction plannings of hi-tech parks and economic zones specified in Clause 1 of this Article.

Article 8. Formulation of land use plannings and plans

1. Formulation of national-level land use plannings and plans

a/ The Ministry of Agriculture and Rural Development shall propose demands for use of wet rice land, special-use forest land, protection forest land and nature reserve land, and allocate these land areas to each province or city on the basis of the sector’s planning;

b/ The Ministry of National Defense and the Ministry of Public Security shall coordinate with provincial-level People’s Committees in identifying demands for use of land for defense and security purposes in provinces and cities;

c/ Other ministries and branches shall propose demands for use of land for national important works and allocate these land areas to each province on the basis of their development strategies and planning;

d/ Provincial-level People’s Committees shall coordinate with ministries and branches in identifying land use demands of each ministry or branch in their localities;

e/ The Ministry of Natural Resources and Environment shall make national-level land use plannings and plans on the basis of balancing land use demands specified at Points a, b. c and d of this Clause and determining these demands in each province.

2. The Ministry of Natural Resources and Environment shall guide the formulation of provincial-, district- and commune-level land use plannings and plans.

3. For localities where no People’s Council is organized, their People’s Committees shall make land use plannings and plans and submit them to competent state agencies for approval.

Article 9. Evaluation of land use plannings and plans

1. The Ministry of Natural Resources and Environment shall formulate national-level land use plannings and plans and submit them to the Government for further submission to the National Assembly to decide on targets of national-level land use plannings.

2. The Ministry of Natural Resources and Environment shall take charge of evaluating plannings and plans on the use of land for defense and security purposes and provincial-level land use plannings and plans.

3. Provincial-level Natural Resources and Environment Departments shall take charge of evaluating district-level land use plannings and plans; and land use plannings and plans of wards, townships and communes within areas planned for urban development.

4. District-level Natural Resources and Environment Sections shall take charge of evaluating land use plannings and plans of communes outside areas planned for urban development.

5. Agencies in charge of evaluating land use planning and plans defined in Clauses 1, 2 and 3 of this Article shall set up evaluation councils or consult organizations, experts and scientists.

When necessary, agencies in charge of evaluating land use plannings and plans shall organize field trips to inspect and survey areas whose use purposes are expected to be changed, especially the change of the use purpose of land for wet rice cultivation, land for protection forests and land for special-use forests.

6. Contents of evaluation of a land use planning

a/ Legal and scientific grounds for making the land use planning;

b/ Conformity of land use planning alternatives with the national strategy and master plan on socio-economic development, defense and security; and development plannings of branches and localities:

c/ Socio-economic and environmental impacts ;

d/ Feasibility of land use planning alternatives.

7. Contents of evaluation of a land use plan

a/ Conformity of the land use plan with the land use planning;

b/ Conformity of the land use plan with the State’s five-year and annual socio-economic development plan;

c/ Feasibility of land use plans.

8. In special cases in which the use purpose of land for wet rice cultivation, land for special-use forests or land for protection forests needs to be changed, such change must be reported to the Minister of Natural Resources and Environment for consideration and submission to the Prime Minister for decision.

9. Funds for evaluating land use plannings and plans constitute a separate item in the funds for formulating land use plannings and plans.

Article 10. Implementation of land use plannings and plans

1. Provincial-level People’s Committees shall direct and inspect district- and commune-level People’s Committees in specifically determining areas and boundaries of land for wet rice cultivation, land for special-use forests and land for protection forests on the field.

Chairpersons of provincial-level People’s Committees shall take responsibility before the Prime Minister for the protection of land areas for wet rice cultivation, special-use forests and protection forests already determined in land use plannings or plans.

2. The Ministry of Natural Resources and Environment shall take responsibility before the Government for inspecting the achievement of targets of national- and provincial-level land use plannings and plans.

Section 2. LAND PRICES

Article 11. Re-determination of land prices in some specific cases

1. When the State allocates land with collection of land use levy not through auctioning land use rights or bidding for land-using projects, leases land or approves plans on compensation, support and resettlement in case of land recovery by the State, and when equitized state enterprises select the form of land allocation but land prices set by provincial-level People’s Committees at the time of land allocation or lease, land recovery decision, or inclusion of land prices in the value of the equitized enterprises are not close to actual market prices of land-use right transfer under normal conditions, provincial-level People’s Committees shall, based on actual market prices of land-use right transfer, re-determine specific land prices as appropriate.

2. Specific land prices re-determined under Clause 1 of this Article are not restricted notwithstanding the provisions of Clause 5, Article 1 of the Government’s Decree No. 123/2007/ND-CP of July 27, 2007, amending and supplementing a number of articles of Decree No. 188/2004/ND-CP of November 16, 2004, on methods of determining land prices and price brackets of land of different categories (below referred to as Decree No. 123/2007/ND-CP).

Article 12. Land rent rates

1. The annual land rent rate is equal to 0.5%-2% of the land price, depending on use purposes of leased land as decided by the provincial-level People’s Committees.

2. For land in deep-lying, remote, highland or island areas or areas with socio-economic difficulties or extreme difficulties, provincial-level People’s Committees may decide to promulgate land rent rates lower than prescribed ones, which must at least equal 0.25% of land prices, depending on use purposes of leased land as decided by provincial-level People’s Committees.

3. Land rent rates in case of auction of leased-land use rights or bidding for leased land-using projects are auction-winning unit prices.

Article 13. Land rents in case of lump-sum payment for the whole lease term

For those who are leased land by the State and pay land rents in a lump sum for the whole lease term, the land rent to be paid in a lump sum for using land in this case will equal the land use levy to be paid in case of allocation of land with collection of land use levy for the same use purpose and use duration.

Section 3. COMPENSATION, SUPPORT AND RESETTLEMENT

Article 14. Compensation and support principles

1. Compensation will be paid to current users of land recovered by the State who fully satisfy the conditions specified in Clauses 1, 2, 3, 4, 5, 7, 9, 10 and 11, Article 8 of the Government’s Decree No. 197/2004/ND-CP of December 3. 2004. on compensation, support and resettlement in case of land recovery by the State (below referred to as Decree No. 197/2004/ND-CP), and Articles 44, 45 and 46 of the Government’s Decree No. 84/2007/ND-CP of May 25, 2007, additionally providing for the issuance of land use right certificates, land recovery, exercise of land use rights, order of and procedures for compensation, support and resettlement in case of land recovery by the State, and settlement of land-related complaints (below referred to as Decree No. 84/2007/ND-CP). For land users who are ineligible for compensation, provincial-level People’s Committees shall consider these cases in order to provide support.

2. Land used for a certain purpose which is recovered by the State shall be compensated with new land with the same use purpose. If no land is available for compensation, compensation equal to the value of land use rights calculated based on land prices at the time of land recovery decision will be paid. In case land is compensated with new land or residential land or a house for resettlement, any difference in value shall be paid in cash as follows:

a/ In case the compensation and support amount is larger than the residential land use levy or the price of a house in the resettlement area, the re-settler is entitled to receive the difference:

b/ In case the compensation and support amount is smaller than the residential land use levy or the price of a resettlement house, the re-settler shall pay the difference, except the case specified in Clause 1, Article 19 of this Decree.

3. For land users who are entitled to compensation upon land recovery by the State but have not yet fulfilled land-related financial obligations towards the State under law, the amount used to fulfill such financial obligations shall be deducted from the compensation and support amount for payment into the state budget.

4. The State shall earmark part of benefits from the recovery of land and change of land use purposes to provide supports for persons having land recovered under Article 17 of this Decree.

Article 15. Payment of compensation, support and resettlement money

1. Domestic organizations and individuals, overseas Vietnamese and foreign organizations and individuals that are allocated land and pay land use levy or leased land by the State under the land law and advance compensation, support and resettlement money and funds for compensation and ground clearance work under approved plans will have such advance refunded by the state budget through subtracting it from the payable land use levy or land rent. The subtracted amount must not exceed the payable land use levy or land rent.

2. For domestic organizations and individuals, overseas Vietnamese and foreign organizations and individuals that are allocated land without or with payment of land use levy or leased land by the State under the land law and are exempted from land use levy or land rent, their compensation, support and resettlement money and funds for compensation, support and resettlement work under approved plans will be included in their projects’ investment capital.

Article 16. Compensation for agricultural land

1. Households and individuals having their agricultural land recovered by the State are entitled to compensation in land with the same use purpose. If no land is available for compensation, they are entitled to compensation in cash calculated based on the price of land with the same use purpose.

2. For households and individuals having their agricultural land in excess of the prescribed limit recovered, compensation shall be paid as follows:

a/ In case the excessive land area is bequeathed or donated by or transferred from other persons or reclaimed by households or individuals themselves under planning approved by a competent state agency, they are entitled to compensation;

b/ For the excessive land area in cases not defined at Point a of this Clause, they are not entitled to compensation for such land but are only entitled to compensation for remaining investment expenses.

3. In case recovered agricultural land belongs to public-utility land funds of communes, wards or townships, renters of such land are not entitled to compensation for the land but are only entitled to compensation for remaining investment expenses.

4. Households and individuals using land allocated under contracts for agricultural, forestry or aquaculture purpose (excluding land for special-use forests and protection forests) with state-run agricultural or forestry farms are entitled to compensation for remaining investment expenses when having such land recovered by the State.

5. When agricultural land under common use of state-run agricultural or forestry farms, compensation shall be paid for remaining investment expenses if those expenses are of non-state budget origin.

Article 17. Supports

Supports upon land recovery by the State include:

1. Support for relocation and resettlement in case of recovery of residential land;

2. Support for life and production stabilization, and support for job-change training and job creation in case of recovery of agricultural land;

3. Support upon recovery of agricultural land in residential areas, or garden or pond land not recognized as residential land;

4. Other supports.

Article 18. Removal support

1. In case of land recovery by the State, removing households and individuals are entitled to financial supports for removal.

2. Organizations which are allocated or leased land by the State or are lawfully using land which have to relocate their production and business establishments in case of land recovery by the State are entitled to financial supports for dismantlement, relocation and installation.

3. Persons who have residential land recovered and have no other places of residence will be provided with makeshift lodgings or house rent support money, pending the creation of new places of residence (moving in resettlement areas).

4. Provincial-level People’s Committee shall specify support levels mentioned in Clauses 1, 2 and 3 of this Article.

Article 19. Resettlement supports

1. Houses and residential land for resettlement are of various grades and areas to suit compensation levels as well as payment capacity of re-settlers.

Households and individuals that have residential land recovered by the State and have no other places of residence will be provided with residential land or houses for resettlement.

In case their compensation and support amount is smaller than the value of a minimum quota, households and individuals receiving residential land or houses for resettlement are entitled to the difference as resettlement support. If refusing to receive residential land or houses in resettlement areas, they are entitled to a cash amount equivalent to such difference.

2. Upon land recovery by the State, removing households and individuals that can arrange places of residence for themselves are entitled to an amount of money equal to the infrastructure investment quota calculated per household in the concentrated resettlement area, unless they have received the resettlement support money specified in Clause 1 of this Article.

3. Provincial-level People’s Committees shall, based on the practical conditions of their localities, prescribe the minimum resettlement quota and support levels specified in Clauses 1 and 2 of this Article.

Article 20. Support for life and production stabilization

1. When the State recovers agricultural land (including garden, pond and agricultural land specified in Clauses 1 and 2, Article 21 of this Decree), agricultural production households and individuals are entitled to support for life stabilization as follows:

a/ Those having 30-70% of the agricultural land area under use recovered are entitled to support for life stabilization for 6 months if they are not required to move out, or 12 months if they are required to move out. If they have to move to areas with socio-economic difficulties or extreme difficulties, the maximum support duration is 24 months;

b/ Those having over 70% of the agricultural land area under use recovered are entitled to support for life stabilization for 12 months in case they are not required to move out. or 24 months in case they are required to move out. If they have to move to areas with socio-economic difficulties or extreme difficulties, the maximum support duration is 36 months;

c/ The level of support for a household member under Points a and b of this Clause will be calculated in cash equivalent to 30 kg of rice for a month at the average price at the time the support is provided in the locality.

2. Economic entities and production and business households having made business registration that have land recovered by the State and have to suspend production and business activities are entitled to the maximum support not exceeding 30% of one year’s post-tax income calculated based on three preceding years’ average income certified by a tax agency.

3. Upon land recovery by the State, households and individuals using land allocated under contracts for agricultural, forestry or aquaculture purpose (excluding land for special-use forests and protection forests) with state-run agricultural or forestry farms who are cadres, workers and employees of those farms and are working, have retired, have ceased working due to working capacity loss or enjoy severance allowances, and are directly engaged in agricultural or forestry production; and contracting households and individuals directly engaged in and living mainly on agricultural production are entitled to supports in cash. The maximum support level equals the compensated land price calculated based on the actually recovered land area which, however, must not exceed the agricultural-land allocation limit in the locality.

4. Households and individuals receiving compensation in agricultural land are entitled to support for production stabilization, including plant varieties and animal breeds for agricultural production, agricultural and forestry extension services, plant protection and veterinary services, cultivation and animal husbandry techniques and professional techniques for industrial and trade production and service provision.

5. Provincial-level People’s Committees shall decide on support levels and durations and periodically pay supports specified in this Article as appropriate to their local practical conditions.

Article 21. Support for agricultural land in residential areas and garden and pond land not recognized as residential land

1. Households and individuals having garden or pond land in the same land lots with houses in residential areas which is not recognized as residential land; garden or pond land in the same land lots with separate houses; garden or pond land in the same land lots with houses along canals, ditches or roads, when having such land recovered, are entitled, in addition to compensation at the price of agricultural land with perennials, to support equal to 30-70% of the price of residential land of those land lots. The land area eligible for support must not exceed 5 times the land allocation limit in the locality.

2. Households and individuals having agricultural land within the administrative boundaries of wards, in residential areas within townships or in rural residential areas; agricultural land lots adjacent to the boundaries of wards or residential areas, when having such land recovered, are entitled, in addition to compensation at the price of agricultural land, to support equal to 20-50% of the average price of residential land in areas where the recovered land is located as specified in local land-price tables. The land area eligible for support must not exceed 5 times the land allocation limit in the locality.

3. Provincial-level People’s Committees shall specify support rates, support-eligible land areas and average land prices used for calculating support as appropriate to their local practical conditions.

Article 22. Support for job change and creation

1. When the State recovers agricultural land not specified in Article 21 of this Decree but no land is available for compensation, households and individuals directly engaged in agricultural production are entitled to, in addition to compensation in cash under Clause 1. Article 16 of this Decree, to support for job change or creation in cash, residential land, house or non-agricultural production and business land as follows:

a/ Cash support equal to 1.5-5 times the agricultural land price for the whole area of recovered agricultural land. The land area eligible for support must not exceed the land allocation limit in the locality:

b/ Single support equal to one residential land ration, one condominium apartment or one ration of non-agricultural production and business land. This form of support applies in localities having residential land funds and house funds and to support beneficiaries wishing to have residential land, condominium apartments or non-agricultural production and business land while the support value under Point a of this Clause is larger than or equal to the value of residential land, condominium apartment or non-agricultural production and business land. Cash support will be provided for the value difference.

2. Provincial-level People’s Committees shall decide on specific support forms and levels specified in Clause 1 of this Article to suit their local practical conditions.

3. Support beneficiaries defined in Clause 1 of this Article that need vocational training are entitled to enroll in job-training establishments. Those of working age are entitled to attend one training course free of charge.

Financial supports for job change are determined in job training and change plans and include in total funds of approved investment projects or compensation, support and resettlement plans.

Provincial-level People’ Committees shall direct the formulation and implementation of job training and creation plans for those having agricultural land recovered.

Job training and creation plans shall be formulated and approved simultaneously with compensation, support and resettlement plans. In the course of formulating job training and creation plans, comments of persons having land recovered who have to change their jobs must be collected.

4. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with concerned ministries and branches in. submitting to the Prime Minister for decision mechanisms and policies for creating and training jobs for persons having agricultural land recovered under this Article.

Article 23. Other supports

1. In addition to the supports specified in Articles 18 thru 22 of this Decree, provincial-level People’s Committee chairpersons shall, based on their local practical conditions, decide on other support measures to arrange housing and stabilize life and production for persons having land recovered. Special cases shall be submitted to the Prime Minister for decision.

2. When the State recovers agricultural land under use. provincial-level People’s Committees may consider and provide supports suitable to their local practical conditions to households and individuals directly engaged in and living mainly on agricultural production that are ineligible for compensation under Article 8 of the Government’s Decree No. 197/2004/ND-CP of December 3,2004, on compensation, support and resettlement upon land recovery by the State, and Articles 44. 45 and 46 of the Government’s Decree No. 84/2007/ND-CP additionally providing for the issuance of land use right certificates, land recovery, exercise of land use rights, order of and procedures for compensation, support and resettlement upon land recovery by the State, and settlement of land-related complaints.

Article 24. Compensation for houses and construction works on land

1. For houses and works serving daily-life activities of households and individuals, compensation equal to the value of newly built houses and works with equivalent technical standards promulgated by the Ministry of Construction shall be paid. The value of a newly built house or work shall be calculated by multiplying the house’s or work’s built area by the unit price of a newly built house and work promulgated by the provincial-level People’s Committee under the Government’s regulations.

2. For houses and construction works other than those specified in Clause 1 of this Article, compensation shall be paid as follows:

a/ The level of compensation for a to be-dismantled house or work equals the total current value of the house or work plus a cash amount calculated in percentage of this value;

The current value of a to be-dismantled house or work is determined to be the value of a newly built house or work with equivalent technical regulations promulgated by a line ministry multiplied by the percentage of the residual quality of the house or work.

Provincial-level People’s Committees shall specify cash amounts calculated in percentage of the current value of houses or works which must not exceed 100% of the value of a newly built house or work of technical standards equivalent with the to be-dismantled house or work.

b/ For partially dismantled houses and constructions works with the remaining part unusable, compensation shall be paid for the whole houses or works; if the remaining part still exists and is usable, compensation shall be paid for the value of the dismantled part of the house or work and expenses for repairing and refurbishing the remaining part up to technical standards of the house or work before it is dismantled.

3. For technical infrastructure or social infrastructure works currently in use, the compensation level will equal the value of a newly built work of equivalent technical standards promulgated by a line ministry. Compensation will not be paid for unused works.

In case a to be-relocated infrastructure work under a project has no classified technical standard or has a technical standard to be upgraded, the provincial-level People’s Committee shall reach agreement with the agency with investment-deciding competence or the project investor in determining the grade of its technical standard for compensation.

4. Compensation will not be paid for assets attached to land which fall into any of the cases specified in Clauses 4, 6, 7 and 10, Article 38 of the Land Law.

5. Assets attached to land which fall into any of the cases specified in Clauses 2, 3, 5, 8, 9, 11 and 12, Article 38 of the Land Law shall be handled under Article 35 of the Government’s Decree No. 181/2004/ND-CP of October 29, 2004, on the enforcement of the Land Law (below referred to as Decree No. 181/2004/ND-CP.

Article 25. Assignment of compensation, support and resettlement tasks

1. Based on local practical conditions, provincial-level People’s Committees shall assign compensation, support and resettlement tasks to compensation organizations, including:

a/ District-level compensation, support and resettlement councils;

b/ Land fund development organizations.

2. A district-level compensation, support and resettlement council has its chairman being a leader of the district-level People’s Committee, and the following members:

a/ A representative of the finance agency;

b/ A representative of the Natural Resources and Environment agency;

c/ A representative of the Planning and Investment agency;

d/ The investor;

e/ A representative of the commune-level People’s Committee of the locality with recovered land;

e/ One or two representatives of households having land recovered;

g/ Other members as decided by the council chairman to suit local practical conditions.

3. Provision of compensation and ground clearance services:

District-level compensation, support and resettlement councils or land fund development organizations may hire enterprises to provide compensation and ground clearance services.

Article 26. Expenses for organizing compensation, support and resettlement

1. Organizations responsible for organizing compensation, support and resettlement work shall make estimates of expenses for this work under each project as follows:

a/ For expenses with norms, criteria and unit prices prescribed by competent state agencies, estimates shall be made undercurrent regulations:

b/ For expenses without norms, criteria and unit prices, estimates shall be made based on actual expenses to suit each project’s characteristics and local practical conditions;

c/ Expenses for printing of documents, stationery, petrol, logistics and for the managerial apparatus shall be calculated based on actual needs of each project.

2. Funds for organizing compensation, support and resettlement must not exceed 2% of the total compensation and support fund of a project. For projects implemented in geographical areas with socio-economic difficulties or extreme difficulties, and projects to build infrastructure works in lines, organizations in charge of compensation, support and resettlement may make estimates of funds for organizing compensation, support and resettlement under the projects based on actual work volumes, which are not restricted at 2%.

The agency competent to approve compensation plans shall decide on funds for organizing compensation, support and resettlement for each project under law.

Section 4. ORDER OF AND PROCEDURES FOR LAND RECOVERY, ALLOCATION AND LEASE

Article 27. Bases for land allocation, land lease and land use purpose change

Bases for deciding to allocate land, lease land or permit the change of land use purposes include:

1. Land use plannings and plans approved by competent state agencies.

In case approved land use plannings or plans are unavailable yet. urban construction plannings or rural residential-area construction plannings approved by competent state agencies shall be based on.

2. Land use demands, indicated in the following documents:

a/ Investment projects approved or investment certificates issued by competent state agencies, for organizations;

For projects which are not required to be submitted to competent state agencies for approval or to have investment certificates, land use demands must be indicated in land allocation or lease applications enclosed with provincial-level Natural Resources and Environment Departments’ written evaluation thereof.

b/ Applications for land allocation, land lease or change of land use purposes, with the certification of land use demands made by commune-level People’s Committees of localities where exists land, for households and individuals.

For households or individuals that wish to use land for implementing investment projects, district-level Natural Resources and Environment Sections’ written evaluation of their land use demands is required;

c/ Land allocation applications, with the certification of land use demands made by commune-level People’s Committees of localities where exists land, for population communities;

d/ Econo-technical reports on the construction of religious works, for religious establishments.

Article 28. Application of land recovery, allocation and lease procedures to investment projects

1. Land recovery, allocation and lease order and procedures applicable to cases in which the State recovers land for defense or security purposes, in national and public interests, or for economic development:

a/ In case neither auction of land use rights nor bidding for land-using projects is organized, the order and procedures comply with Articles 29, 30 and 31 of this Decree;

b/ In case auction of land use rights or bidding for land-using projects is organized, land shall be recovered and allocated to land fund development organizations for clearing the ground and organizing the auction of land use rights or bidding for land-using projects under law.

Based on auction results recognized in writing by competent state agencies and written certification of auction winners’ full payment of land use levy or land rent, natural resources and environment agencies shall carry out procedures to issue certificates of land use rights or ownership of houses and other assets attached to land. Competent state agencies are not required to issue land allocation or lease decisions.

2. For land-using investment projects for which the State does not organize land recovery, land recovery procedures are not required to be carried out. After an investment site is introduced, the investor and land users shall agree to transfer or lease land or contribute land use rights as capital and carry out procedures for changing land use purposes in case of change of land use purposes.

Article 29. Introduction of investment sites and notification of land recovery

1. The investor or agency assigned to prepare an investment project shall submit a dossier at the local agency in charge of receiving investment dossiers. The dossier-receiving agency shall consult agencies related to the investment project in order to introduce an investment site according to its competence or submit the dossier to the provincial-level People’s Committee to consider and introduce an investment site.

2. The provincial-level People’s Committee shall notify land recovery or authorize the district-level People’s Committee to notify land recovery right after introducing an investment site. In case land is recovered under planning, land recovery shall be notified after the land use planning, land use plan, urban construction planning or rural residential-area construction planning is approved and publicized.

A land recovery notice must state the reason for land recovery, the area and location of the to-be-recovered land lot on the basis of existing cadastral dossiers or approved detailed construction planning, and the relocation plan. the local mass media and posted up at head offices of commune-level People’s Committees of localities where the land exists and at public-activity places of residential areas with to be-recovered land.

3. Permission for survey for formulating investment projects

a/ The provincial-level People’s Committee chairperson may permit the investor to conduct survey and measurement to make a map of the project area right after the investment is approved for formulating and submitting detailed construction planning for approval, recovering land and making a master plan on compensation, support and resettlement, and shall direct district-arid commune-level People’s Committees to perform the jobs specified at Points b and c of this Clause;

b/ The district-level People’s Committee chairperson shall set up a compensation, support and resettlement council to make a compensation, support and resettlement plan and a job training and change plan. For localities where land fund development organizations exist, competent People’s Committees may assign these organizations to make compensation, support and resettlement plans and job training and change plans;

c/ The commune-level People’s Committee chairperson shall coordinate with the investor in informing the survey and measurement plan to land users within the project area and request them to create conditions for the investor to conduct survey and measurement for determining the land area in order to formulate an investment project.

4. For national important projects in which the investment has been decided by the National Assembly; group-A projects and projects to build transport, irrigation and dike systems which are in line with approved plannings, the jobs specified in Clause 1 of this Article are not required to be performed.

5. The time limit for issuing a document introducing an investment site or land recovery notice, or setting up a compensation, support and resettlement council under Clauses 2 and 3 of this Article is 30 days from the date of receipt of a valid investment dossier.

6. After being introduced an investment site, the investor shall formulate an investment project under the laws on investment and construction and make a dossier of application for land allocation or lease under the land law. Such an investment project must contain a master plan on compensation, support and resettlement.

Article 30. Making of compensation, support and resettlement plans

After an investment project is approved, the compensation, support and resettlement council or land fund development organization shall make and submit a compensation, support and resettlement plan under the Government’s Decree No. 197/2004/ND-CP and Decree No. 17/2006/ND-CP of January 27, 2006, amending and supplementing a number of articles of the Decree guiding the Land Law. and Decree No. 187/2004/ND-CP on the transformation of state companies into joint-stock companies (below referred to as Decree No. 17/2006/ND-CP), and the following regulations:

1. A compensation, support and resettlement plan contains the following details:

a/ Names and addresses of persons having to-be-recovered land:

b/ Area, type, location and origin of the to-be-recovered land: quantity, volume and percentage of the residual quality of assets to be dismantled;

c/ Bases for calculating compensation and support amounts, such as land prices and house and work prices used for compensation calculation, number of household members, number of people of working age, and number of social allowance beneficiaries;

d/ Compensation and support amounts;

e/ Resettlement arrangement;

f/ Relocation of works of the State, organizations, religious establishments or population communities;

g/ Relocation of graves.

2. Collection of comments on compensation, support and resettlement plans:

a/ Compensation, support and resettlement plans must be publicly posted up at head offices of commune-level People’s Committees and public-activity places of residential areas where exists the to-be-recovered land for persons having to be-recovered land and related persons to give comments;

b/ The posting up of plans must be recorded and certified by representatives of the commune-level People’s Committee and Fatherland Front committee and persons having to-be-recovered land:

c/ The duration for posting up a plan and receiving comments is at least twenty (20) days after a plan is posted up.

3. Completion of compensation, support and resettlement plans:

a/ Upon the expiration of the duration for posting up a plan and receiving comments, the compensation and ground clearance organization shall sum up comments in writing, including comments for. comments against and comments divergent from the compensation, support and resettlement plan; then complete the plan and send it enclosed with a sum-up of comments to the natural resources and environment agency for evaluation;

b/ If there are many comments against the compensation, support and resettlement plan, the compensation and ground clearance organization shall clearly explain the plan or re-consider and adjust the plan before sending it to the natural resources and environment agency for evaluation.

4. Natural resources and environment agencies shall assume the prime responsibility for, and coordinate with concerned agencies in, evaluating compensation, support and resettlement plans and preparing land recovery dossiers under the following regulations:

a/ Provincial-level Natural Resources and Environment Departments shall prepare land recovery dossiers and submit them to provincial-level People’s Committees to issue land recovery decisions with respect to organizations, religious institutions, overseas Vietnamese and foreign organizations and individuals;

b/ District-level Natural Resources and Environment Sections shall prepare land recovery dossiers and submit them to district-level People’s Committees to issue land recovery decisions with respect to households, individuals and population communities.

Article 31. Land recovery decision, approval and implementation of compensation, support and resettlement plans, land allocation and land lease

1. The competence to decide to recover, allocate or lease land complies with Articles 37 and 44 of the Land Law.

In case both the land recovery and land allocation or lease falls within the competence of a certain authority, the land recovery and land allocation or lease shall be conducted under a single decision.

In case the to-be-recovered land lot is used by organizations, households and individuals as well, district-level People’s Committees shall decide to recover land from households, individuals and population communities. Within 5 working days after the district-level People’s Committee decides to recover land, the provincial-level People’s Committee shall decide to recover land from organizations, overseas Vietnamese and foreign organizations and individuals and allocate or lease land under a project to the investor under a single decision.

2. Within 5 working days after issuing a decision to recover and allocate or lease land, the natural resources and environment agency shall submit a compensation, support and resettlement plan to the People’s Committee of the same level for approval and publicization under the following regulations:

a/ Provincial-level Natural Resources and Environment Departments shall submit to provincial-level People’s Committees for approval compensation, support and resettlement plans, in case to be recovered-land areas belong to 2 or more urban districts, rural districts, towns or provincial cities;

b/ District-level Natural Resources and Environment Sections shall submit to district-level People’s Committees for approval compensation, support and resettlement plans, for cases not defined at Point a of this Clause;

c/ Within three (3) days after receiving an approved compensation, support and resettlement plan, the compensation and ground clearance organization shall coordinate with the commune-level People’s Committee in disseminating the decision approving the compensation plan and publicly posting it up at the head office of the commune-level People’s Committee and public-activity place of the residential area where exists the to-be-recovered land; and send compensation, support and resettlement decisions to persons having to-be-recovered land, indicating the compensation and support level, arrangement of a resettlement house or land (if any), time and place for paying the compensation and support money, and time for handing over the recovered land to the compensation and ground clearance organization.

3. Compensation, support and resettlement councils or land fund development organizations shall pay compensation and support money and arrange places for resettlement.

4. Within twenty (20) days after the compensation and ground clearance organization fully pays the compensation and support money to persons having land recovered under the approved plan, the latter shall hand over their land to the former.

In case compensation is paid gradually according to schedule, the investor may be handed over the ground area for which compensation and support have been completed to implement the project.

5. In case the investor and persons having land recovered have reached agreement in writing on the plan to compensate for land and assets attached to land or when the to-be-recovered land lot does not require ground clearance, the competent People’s Committee may issue a land recovery and allocation or lease decision without having to wait until the expiration of the duration for land recovery notice.

Article 32. Land recovery coercion

1. Land recovery coercion under Clause 3. Article 39 of the Land Law may be conducted only when the following conditions are fully satisfied:

a/ The order of and procedures for land recovery, compensation, support and resettlement under Articles 27, 28, 29 and 39 of this Decree have been complied with;

b/ Persons having to be-recovered land fail to hand over land to the compensation and ground clearance organization within thirty (30) days after the time for handing over land under Clause 6. Article 29 of this Decree;

c/ Persons having to be-recovered land fail to hand over the recovered land to the State after being persuaded by representatives of the compensation and ground clearance organization, commune-level People’s Committee and Fatherland Front committee of the locality where exists to-be-recovered land;

d/ A coercion decision of the competent People’s Committee under law has taken effect;

e/ The coerced person has received the coercion decision. If he/she refuses to receive that decision, the compensation and ground clearance organization shall coordinate with the commune-level People’s Committee in publicly posting up the coercion decision at the head office of the commune-level People’s Committee of the locality where exists to-be-recovered land.

2. If the coerced person fails to hand over land, within fifteen (15) days after the coercion decision is directly handed to him/her or publicly posted up under Point e. Clause 1 of this Article, the district-level People’s Committee shall direct and organize the coercive recovery of land in accordance with law.

Article 33. Separation of compensation, support and resettlement issues into a sub-project and responsibility to organize land recovery, compensation, support and resettlement for investment projects of ministries and branches

1. Based on the area of to-be-recovered land for implementation of investment projects, agencies with investment project-approving competence may decide to separate compen­sation, support and resettlement issues into a sub-project for independent implementation.

2. Provincial-level People’s Committees shall direct the organization of land recovery, compensation, support and resettlement for investment projects of ministries, ministerial-level agencies, government-attached agencies, business groups, corporations and central non-business units (referred to as ministries and branches in this Article) for which land is to be recovered by the State.

Ministries and branches having investment projects shall coordinate with provincial-level People’s Committees and compensation and ground clearance organizations in organizing compensation, support and resettlement and ensure funds for this work under regulations.

Section 5. LAND FUND DEVELOPMENT, ISSUANCE OF CERTIFICATES OF LAND USE RIGHTS AND OWNERSHIP OF HOUSES AND OTHER ASSETS ATTACHED TO LAND, USE OF LAND OF UNDERGROUND WORKS, AND LAND USE EXTENSION

Article 34. Land development funds

1. Provincial-level People’s Committees may deduct 30-50% of annually collected revenues from land use levies, land rents and land-use-right auction proceeds to set up land development funds. A land development fund shall be used for the following purposes:

a/ Advancing capital to the land fund development organization for land development;

b/ Advancing capital to create land funds and resettlement house funds under planning;

c/ Advancing capital for land recovery, compensation and ground clearance under planning to create land funds for socio-economic development, education-training, vocational training, health care, culture, physical training and sports and environment, and other local needs;

d/ Supporting the implementation of job training and change schemes;

e/ Supporting the construction of resettlement areas; supporting the construction of infrastructure works in places with recovered land;

f/ Paying the difference for households and individuals to settle in resettlement areas under Clause 1. Article 22 of this Decree.

Provincial-level People’s Committees shall decide on the use of land development funds in order to provide supports for the cases specified at Points d. e and f of this Clause.

2. The Ministry of Finance shall assume the prime responsibility for. and coordinate with the Ministry of Natural Resources and Environment in. submitting to the Prime Minister for assignment levels of deduction from state budget revenues collected from land to provinces and centrally run cities for setting up land development funds, and promulgate a model regulation on the management and use of land development funds on the following principles:

a/ A land development fund is a state financial institution operating on the principles of capital preservation, self-financing in the course of operation and not-for-profit purpose;

b/ A land development fund has the legal entity status, conducts independent cost-accounting, has its own seal and balance sheet, and may open accounts at state treasuries and credit institutions to under law for its operation;

c/A land development fund shall be managed, administered   and   organized   under  its organization and operation charter promulgated by the provincial-level People’s Committee based on the model regulation;

d/ A land development fund is eligible for preferences under current regulations.

3. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Natural Resources and Environment in. guiding the exemption from taxes and other state budget remittances as stipulated at Point d. Clause 2 of this Article.

Article 35. Land fund development organizations

1. A land fund development organization is a non-business unit having revenues and set up at the provincial or district level under decision of the provincial-level People’s Committee.

2. A land fund development organization has the following tasks:

a/ To create land funds for auctioning land use rights;

b/ To create land funds for socio-economic development;

c/ To create land funds for education and training, vocational training, health care, culture, physical training and sports and environmental development and other local needs, and for stabilizing the real estate market;

d/ To receive transferred land use rights under law;

e/ To manage land funds with cleared ground, funds of transferred land for which investment projects have not yet been formulated or land use rights have not yet been auctioned; and land recovered under Clauses 2 thru 12, Article 38 of the Land Law, for land in urban areas and areas under urban development planning;

f/ To auction land use rights under law;

g/ To assume the prime responsibility for, or coordinate with the compensation and ground clearance council in. organizing compensation and ground clearance;

h/ To provide compensation and ground clearance services;

i/ To develop resettlement areas;

j/ To build infrastructure on land funds assigned to it for management in order to organize auction;

k/To provide information on land prices and land funds to organizations and individuals upon request;

l/ To perform other tasks under decisions of the provincial-level People’s Committee.

3. Funding sources of a land fund development organization include:

a/ Capital advanced from the land development fund under Article 34 of this Decree;

b/ Capital advanced from the state budget: c/ Capital raised in other forms under law.

4. The Ministry of Natural Resources and Environment shall assume the prime responsibility for. and coordinate with the Ministry of Home Affairs and the Ministry of Finance in, guiding the functions, tasks, powers and financial mechanisms of land fund development organizations.

Article 36. Issuance of certificates of land use rights and ownership of houses and other assets attached to land, with regard to land being used by enterprises as ground for building production and business establishments

1. Enterprises using land as ground for building production and business establishments that have not yet been issued certificates of land use rights and ownership of houses and other assets attached to land shall themselves review and declare the use of such land and report thereon to provincial-level People’s Committees of localities where exists the land.

2. On the basis of enterprises’ reports, provincial-level People’s Committees of localities where exists the land shall conduct field inspections and decide on handling measures and issue, on a case-by-case basis, certificates of land use rights and ownership of houses and other assets attached to land under the following regulations:

a/ For land areas which have been leased by the State; of which lawful use rights have been transferred from other persons or which have been allocated by the State with collection of land use levy and the amount paid for such transfer or the land use levy paid to the State is of non-state budget origin, and are being used for proper purposes as stated in land allocation or lease decisions or land rent contracts, enterprises may continue using them and will be issued certificates of land use rights and ownership of houses and other assets attached to land for such land areas;

In case land use purposes have been changed to conform with planning, financial obligations must be fulfilled under law before the issuance of certificates of land use rights and ownership of houses and other assets attached to land.

b/ For land areas which have been allocated by the State without collection of land use levy; of which lawful use rights have been transferred from other persons or which have been allocated by the State with collection of land use levy and the amount paid for such transfer or the land use levy paid to the State is of state budget origin and arc being used for proper purposes, enterprises shall shift to lease or have them allocated with payment of land use levy and will be issued certificates of land use rights and ownership of houses and other assets attached to land for such land area;

c/ For land areas left unused, land areas used for improper purposes, land areas illegally encroached, occupied or lost due to irresponsibility; land areas leased or borrowed to other organizations or individuals for illegal use or cooperation, provincial-level People’s Committee shall decide to recover them;

d/ Residential land areas shall be handed over to the district-level People’s Committee for management. In case residential land areas conform with approved land use planning, their users will be issued certificates of land use rights and ownership of houses and other assets attached to land and shall fulfill financial obligations under the Government’s regulations on collection of land use levy;

e/ For land areas which have been acquired from illegal encroachment or occupation or have been illegally encroached or occupied or are under dispute, provincial-level People’s Committee shall resolutely handle these cases in order to identify land users.

Article 37. Use of land for building underground works

The use of land for building underground works (other than underground parts of construction works on the ground) complies with the following regulations:

1. Provincial-level People’s Committees shall decide to permit organizations, individuals, overseas Vietnamese and foreign organizations and individuals to use land for building underground works for production and business purposes in accordance with the investment law. Permitted users of land for building underground works shall sign land rent contracts with provincial-level Natural Resources and Environment Departments;

2. Rent rates of land for building underground works must not exceed 30% of rent rates of land for building works on the ground having the same use purposes. Provincial-level People’s Committees shall decide on specific rent rates to suit local practical conditions;

3. The Ministry of Natural Resources and Environment shall assume the prime responsibility for. and coordinate with concerned ministries and branches in, formulating mechanisms on the management and use of land for building underground works, then submit them to the Prime Minister for decision.

Article 38. Order of and procedures for land use duration extension for economic entities, overseas Vietnamese, foreign organizations and individuals that use land; households and individuals that use non-agricultural land: and households and individuals not directly engaged in agricultural production that are leased agricultural land by the State

1. Six (6) months before the expiration of the land use duration, land users wishing to extend the land use duration shall file requests for land use duration extension with provincial-level Natural Resources and Environment Departments, for economic entities, overseas Vietnamese, foreign organizations and individuals; or with district-level Natural Resources and Environment Sections, for households and individuals.

In case the size of an investment project is adjusted, resulting in a change in the project operation duration, its land use duration shall be adjusted corresponding to the project operation life right after the project has adjusted its registered size.

2. The extension is specified as follows:

a/ Natural resources and environment agencies shall evaluate land use demands.

In case the request for land use duration extension requires registration of the adjustment of the investment project, land use demands shall be evaluated simultaneously with the registration of the adjustment of the investment project.

b/ Land use right registries shall send copies of cadastral dossiers and data to agencies responsible for determining financial obligations;

c/ Land users shall submit certificates of land use rights and ownership of houses and other assets attached to land and papers evidencing the fulfillment of financial obligations, for cases eligible for land use duration extension, to natural resources and environment agencies;

d/ Natural resources and environment agencies shall adjust the land use durations indicated in certificates of land use rights and ownership of houses and other assets attached to land, for cases eligible for land use duration extension;

e/ The time limit for performing the jobs specified at Points a, b, c and d of this Clause is twenty (20) working days (excluding the time for the land user to fulfill his/her/its financial obligations), counting from the date the natural resource and environment agency receives a complete and valid dossier to the date the land user receives the certificate of land use rights and ownership of houses and other assets attached to land.

3. For cases ineligible for land use duration extension, natural resources and environment agencies shall recover land upon the expiration of the land use duration under Clause 3. Article 132 of Decree No. 181/2004/ND-CP.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 39. Handling of problems arising after the promulgation of this Decree

1. The formulation of land use plannings under this Decree applies to the period from 2011 onwards. The adjustment of land use plannings for the 2001-2010 period complies with Decree No. 181/2004/ND-CP.

For existing urban areas of urban districts, towns, cities, wards or townships with approved detailed construction plannings, which already contain land use planning contents, these contents shall be incorporated in the superior level’s land use plannings.

2. The determination of land rents under Clauses 1 and 2. Article 12 of this Decree applies to cases in which land rent contracts are signed on or after January 1. 2010. For signed land rent contracts which already indicate rent rates, such land rent rates shall be kept unchanged for Five (5) years.

3. Projects and work items for which compensation, support and resettlement money had been paid before the effective date of this Decree are not governed by this Decree.

4. For projects and work items for which compensation, support and resettlement plans have been approved or compensation, support and resettlement money is being paid under plans approved before the effective date of this Decree, these approved plans shall still be implemented without being adjusted or governed by this Decree. In case of delayed compensation, land prices used for compensation and support comply with Clause 2, Article 9 of Decree No. 197/2004/ ND-CP.

Article 40. Settlement of complaints about compensated land prices, compensation, support and resettlement decisions or land recovery coercion decisions

1. The settlement of complaints complies with Article 138 of the Land Law. Articles 63 and 64 of Decree No. 84/2007/ND-CP, and the Government’s Decree No. 136/2006/ND-CP of November 14, 2006, detailing and guiding a number of articles of the Law on Complaints and Denunciations, and the Laws Amending and Supplementing a Number of Articles of the Law on Complaints and Denunciations.

2. Pending a complaint settlement decision, the land recovery decision must still be complied with. In case a slate agency with complaint-settling competence concludes that land recovery is unlawful, the land recovery decision must cease to be implemented. The state agency which has issued the land recovery decision shall issue another decision annulling the land recovery decision and pay compensation for damage caused by the land recovery decision (if any). In case the state agency with complaint-settling competence concludes that land recovery is lawful, the person having land recovered shall abide by the land recovery decision.

Article 41. Implementation provisions

1. This Decree takes effect on October 1, 2009.

2. To annul the following regulations:

a/ Articles 10 and 12, contents of detailed land use planning and plans of hi-tech parks and economic zones under Articles 14, 30, 52, 125, 126, 127 and 141 of Decree No. 181/2004/ND-CP;

b/ Articles 3, 6, 10, 19 and 27; Clauses 1 of Articles 28, 32, 36, 39 and 48, of Decree No. 197/2004/ND-CP;

c/ Article 4 of Decree No. 142/2005/ND-CP of November 14, 2005, on the collection of land use levy and water surface rent;

d/ Clause 1, Article 2, and Clauses 4, 5 and 6, Article 4, of the Government’s Decree No. 17/2006/ND-CP of January 27,2006, amending and supplementing a number of articles of the decrees guiding the Land Law, and Decree No. 187/2004/ND-CP on the transformation of state companies into joint-stock companies:

e/ Articles 43 and 48 thru 62 of the Government’s Decree No. 84/2007/ND-CP of May 25, 2007, additionally providing for the issuance of land use right certificates, land recovery, exercise of land use rights, order of and procedures for compensation, support and resettlement upon land recovery by the State, and settlement of land-related complaints;

f/ Point 2, Clause 12, Article 1 of the Government’s Decree No. 123/2007/ND-CP of July 27, 2007, amending and supplementing a number of articles of Decree No. 188/2004/ND-CP of November 16. 2004. on methods of determining land prices and price brackets of land of different categories.

4. The Ministry of Natural Resources and Environment shall guide the implementation of this Decree.

Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung

TRANSLATED BY: LAWSOFT

No. 88/2009/ND-CP

Hanoi, October 19, 2009

DECREE ON GRANT OF CERTIFICATES OF LAND USE RIGHTS AND HOUSE AND LAND-ATTACHED ASSET OWNERSHIP

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Land Law;
Pursuant to the November 26, 2003 Construction Law;
Pursuant to the December 3, 2004 Law on Forest Protection and Development;
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the November 29, 2005 Housing Law;
Pursuant to the June 18, 2009 Law Amending and Supplementing Article 126 of the Housing Law and Article 121 of the Land Law;
Pursuant to the June 19, 2009 Law Amending and Supplementing a Number of Articles of Laws concerning capital construction investment;
At the proposed of the Minister of Natural Resources and Environment,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree prescribes the grant of certificates of land use rights and house and land-attached asset ownership (below referred to as certificates); conditions on authorized grant of certificates; and dossiers, order and procedures for grant of certificates.

Article 2. Subjects of application

1. State management agencies in charge of natural resources and environment; houses and construction works; and agriculture, and other concerned state management agencies.

2. Land users, owners of houses and other land-attached assets and concerned organizations and individuals.

Article 3. Principles for grant of certificates

1. Certificates shall be granted to persons with rights to use land and own houses and other land-attached assets for each land lot. A user of different agricultural land lots under annual crops and for aquaculture and salt making in the same commune, ward or township who applies for certificates shall be granted a single certificate for all these land lots.

2. Different users of a land lot and different owners of a house and other assets attached to this land lot shall be each granted a certificate.

3. Certificates shall be granted to applicants after they have fulfilled their financial obligations related to grant of certificates, except cases of exemption or delayed payment under law. For cases of land lease by the State, certificates shall be granted after land users sign land rent contracts and fulfill their financial obligations under the signed contracts.

Article 4. Houses and other land-attached assets eligible for certification of ownership

1. House and land-attached asset ownership may only be certified for land lots eligible for certification of land use rights under law.

2. Domestic organizations, households and individuals: communities; overseas Vietnamese; and foreign organizations and individuals that lawfully own houses and other land-attached assets (below referred to as land-attached assets), which include houses, construction works, perennials and planted production forests, may have their ownership certified in certificates.

Article 5. Conditions on authorized grant of certificates

Provincial-level People’s Committees may authorize provincial-level Natural Resources and Environment Departments to grant certificates affixed with stamps of provincial-level Natural Resources and Environment Departments to domestic organizations, religious institutions, overseas Vietnamese and foreign organizations and individuals when the following conditions are met:

1. A land use right registry under a provincial-level Natural Resources and Environment Department has been established;

2. This registry has an organizational apparatus, professional staff, material foundations and technical equipment meeting the requirements for grant of certificates.

Article 6. Contents of a certificate

A certificate contains the following major details:

1. National name, national emblem and certificate title "Certificate of land use rights and house and land-attached asset ownership":

2. Name of land user and owner of house and other land-attached assets:

3. Land lot, house and other land-attached assets;

4. The plan of the land lot, house and other land-attached assets:

5. Changes after grant of the certificate.

Chapter II

CASES ELIGIBLE FOR GRANT OF CERTIFICATES

Article 7. Certification of land use rights

Land users falling into one of the cases specified in Clauses 1, 2, 3, 4, 5, 6, 7, 8 and 9, Article 49 of the Land Law may have their land use rights certified.

Article 8. Certification of house ownership

House owners may have their house ownership certified if they are eligible to own houses in Vietnam under the housing law and possess the following papers evidencing the lawful establishment of their houses:

1. Domestic households and individuals must possess one of the following papers:

a/ House construction permits, for cases subject to construction licensing under the construction law;

b/ State-owned house sale and purchase contracts under the Government’s Decree No. 61/CP of July 5, 1994, on house sale, purchase and trading, or papers on liquidation or pricing of state-owned houses before July 5, 1994;

c/ Papers on handover or donation of houses of gratitude, compassion or great unity;

d/ House ownership papers granted by competent authorities during periods in which those houses and land were not under public ownership as determined by the State under the XI^th National Assembly’s Resolution No. 23/2003/QH11 of November 26, 2003, on houses and land already managed by and used under the arrangement of the State during the implementation of house and land management policies and socialist transformation policies before July 1, 1991, and the National Assembly Standing Committee’s Resolution No. 755/2005/NQ-UBTVQH11 of April 2, 2005, on settlement of some specific cases related to houses and land during the implementation of house and land management policies and socialist transformation policies before July 1, 1991;

e/ Paper on sale and purchase or receipt as donation or inheritance or exchange of houses, which are certified by notary public offices or People’s Committees under law.

For houses purchased, donated, exchanged, inherited or otherwise acquired under law from the effective date of the Housing Law, papers on respective transaction under Article 93 of the Housing Law are required.

For houses purchased from construction investors for sale, house sale and purchase contracts between the two parties are required. For cases of purchasing houses from July 1, 2006 (the effective dale of the Housing Law), apart from house sale and purchase contracts, house sellers must possess one of the papers on investment projects to build houses for sale (project approval decisions or investment decisions, or investment licenses or certificates);

f/ Effective judgments or rulings of people’s courts or papers of competent state authorities on entitlement to house ownership:

g/ When an applicant for a house ownership certification possesses one of the papers specified at Points a. b, c. d, e and f of this Clause, which indicates the name of another person, he/she must possess one of the papers on sale and purchase, receipt as donation or inheritance or exchange of houses before July 1. 2006, signed by the involved parties and certified by commune-level People’s Committees. Houses purchased, received as donation or inheritance or exchanged before July 1. 2006. without supporting papers signed by the involved parties must have the time of their purchase, receipt as donation or inheritance, or exchange certified by commune-level People’s Committees;

h/ Domestic individuals that fail to possess one of the papers specified at Points a, b, c, d, e and f of this Clause must possess commune-level People’s Committees’ written certifications of houses built before July 1. 2006. houses free from dispute, or houses built before the adoption of land use planning and construction planning or built in conformity with land use planning, detailed urban construction planning and rural residential area planning under law. For houses built from July 1, 2006, there must be commune-level People’s Committees’ written certifications that those houses are not subject to construction licensing, are dispute-free and meet planning conditions like houses built before July 1, 2006.

2. Overseas Vietnamese must possess the following papers:

a/ Papers on sale and purchase, receipt as donation or inheritance, or other forms of ownership of houses under the housing law;

b/ One of the papers of the ownership transferor specified in Clauses 1 and 3 of this Article.

3. Domestic organizations and overseas Vietnamese implementing investment projects and foreign organizations and individuals must possess the following papers:

a/ For cases of building houses for lease: One of the papers on projects to build houses for lease (project approval decisions or investment decisions, or investment licenses or certificates):

b/ For cases of purchase, receipt as donation or inheritance, or other forms of lawful ownership, of houses: papers on such transaction under the housing law.

4. A house owner who is not concurrently the land user, must possess, apart from the papers proving the house ownership under Clauses 1, 2 and 3 of this Article, a land rent contract or capital contribution contract or business cooperation contract or the land user’s written approval of house construction notarized or certified under law and copies of land use right papers under the land law are required.

Article 9. Certification of construction work ownership

Domestic households and individuals, communities, overseas Vietnamese, foreigners and domestic and foreign organizations may have their construction work ownership certified according to the following regulations:

1. Domestic households and individuals and communities must possess one of the following papers:

a/ Work construction permits, for cases subject to construction licensing under the construction law:

b/ Papers on construction work ownership granted by competent authorities in different periods, unless these works are managed by, or used under the arrangement of. the State;

c/ Papers on sale and purchase, donation or inheritance of construction works under law. which are certified by notary public offices or People’s Committees:

d/ Legally effective papers on entitlement to construction work ownership issued by people’s courts or competent state agencies:

e/ When an applicant for a construction work ownership certification possesses one of the papers specified at Points a. b. c and d of this Clause, which indicates the name of another person, he/she must possess one of the papers on sale and purchase, donation, exchange, or inheritance of construction works before July 1, 2004, (the effective date of the Construction Law) signed by the involved parties and certified by the People’s Committee of commune or higher level. Construction works purchased, received as donation or inheritance or exchanged before July 1, 2004, without supporting papers signed by the involved parties must have the time of their purchase, receipt as donation or inheritance, or exchange certified in applications for certificates by commune-level People’s Committees;

f/ Domestic individuals that fail to possess one of the papers specified at Points a, b, c and d of this Clause must possess commune-level People’s Committees’ written certifications that construction works were built before July 1, 2004, are free from disputes and built before the adoption of land use planning and construction planning or built in conformity with land use planning and construction planning. For construction works built from July 1, 2004. there must be commune-level People’s Committees’ written certifications that those construction works are not subject to construction licensing, are dispute-free and meet conditions on planning like works built before July 1, 2004.

2. Domestic organizations, foreign organizations and individuals, and overseas Vietnamese must possess the following papers:

a/ For cases of building construction works through new construction investment under law. project approval decisions or project investment decisions, investment licenses or certificates, or construction permits granted by competent authorities and papers on land use rights under the land law or land rent contracts with land users to use land for work construction purposes:

b/ For cases of acquiring construction works through purchase, receipt as donation or inheritance, or other lawful forms, papers on such transaction under law.

c/ For cases of unavailability of one of the papers specified at Points a and b of this Clause, there must be provincial-level construction management agencies’ written certifications that construction works existed before the adoption of construction planning but still conform with approved construction planning, are free from disputes over construction work ownership.

3. A construction work owner who is not concurrently the land user must possess, apart from the papers evidencing construction work ownership under Clauses 1 and 2 of this Article, the land user’s written approval of work construc­tion notarized or certified under law and copies of land use right papers under the land law.

Article 10. Certification of rights to own planted production forests

Owners of planted production forests may have their forest ownership certified if funds for forestation. or payment of transferred or allocated forests are not of state budget origin and they can produce one of the following papers:

1. Papers on allocation of planted production forests:

2. Contracts or documents on sale and purchase or donation or inheritance of planted production forests certified by notary public offices or commune- or district-level People’s Committees under law;

3. Effective judgments or rulings of people’s courts or papers of competent state agencies, on entitlement to ownership of planted production forests;

4. Households, individuals or communities without the papers specified in Clauses 1. 2 and 3 of this Article that plant production forests with their own funds must have their forest ownership certified by commune-level People’s Committees as dispute-free;

5. Domestic organizations that implement production forest plantation projects with funds not of state budget origin must possess production forest plantation project approval decisions, or investment decisions, or investment certificates under the investment law;

6. Foreign organizations and individuals and overseas Vietnamese that implement production forest plantation projects must possess production forest plantation project approval decisions, investment decisions, or investment licenses or certificates under the investment law;

7. An owner of planted production forests who is not concurrently the land user must possess, apart from the papers specified in Clauses 1. 2. 3,4, 5 and 6 of this Article, the land user’s written approval of land use for forestation notarized or certified under law and copies of land use right papers under the land law.

Chapter III

DOSSIERS, ORDER AND PROCEDURES FOR GRANT OF CERTIFICATES

Section I. RECEIPT OF DOSSIERS AND HANDOVER OF CERTIFICATES

Article 11. Places of dossier submission and certificate handover

1. Land users and land-attached asset owners that are domestic organizations, religious institutions, foreign organizations and individuals and overseas Vietnamese implementing investment projects shall submit dossiers and receive certificates at land use right registries under provincial-level Natural Resources and Environment Departments (below referred to as provincial-level land use right registries).

2. Land users and land-attached asset owners being households, individuals and overseas Vietnamese eligible to own houses in Vietnam and communities in wards shall submit dossiers and receive certificates at land use right registries under district-level Natural Resources and Environment Divisions (below referred to as district-level land use right registries), except the case specified in Article 18 of this Decree.

Land users and land-attached asset owners being households, individuals and overseas Vietnamese eligible to own houses in Vietnam and communities in communes or townships shall submit dossiers and receive certificates at district-level land use right registries or People’s Committees of communes or townships where land and land-attached assets exist (except the cases specified in Articles 23 and 24 this Decree). Within twenty (20) days after receiving valid and complete dossiers. People’s Committees of communes or townships shall perform the jobs specified in Articles 14, 15, 16 and 17 of this Decree and transfer dossiers to district-level land use right registries.

3. When receiving dossiers, land use right registries and People’s Committees of communes and townships shall give receipt slips to dossier submitting persons. Within three (03) working days, they shall examine those dossiers and notify dossier submitting persons in writing of any necessary supplementation for completion of dossiers.

4. Land users and land-attached asset owners that authorize others to submit dossiers of application for certificates or receive certificates must possess letters of authorization under law.

5. Land use right registries shall make true copies (affixed with seals of land use right registries) of certificates of rights to own houses, construction works or planted production forests to be sent to state management agencies in charge of houses, construction work and agriculture to meet state management requirements of each sector.

Article 12. Time limit for completing procedures for grant of certificates

The time limit for completing procedures for grant of certificates from the date of receiving complete and valid dossiers is:

1. Fifty (50) working days, for grant of new certificates.

2. Thirty (30) working days, for grant of renewed land use right certificates with additional certification of land-attached asset ownership, or re-grant of lost certificates.

3. Twenty (20) working days, for grant of renewed certificates other than those specified in Clause 2 of this Article.

4. The time limits specified in Clauses 1, 2 and 3 of this Article do not include the time for publication of verification results, fulfillment of financial obligations and cadastral survey of land lots.

5. Provincial-level People’s Committees shall specify the time to complete procedures for gram of certificates under Clauses 1, 2, 3 and 4 of this Article.

Article 13. Submission of papers on land use rights and house and land-attached asset ownership

1. When submitting dossiers of application for certificates which include the papers specified in Articles 7, 8, 9 and 10 of this Decree, notarized or certified copies under the laws on notarization and certification are allowed.

2. When receiving certificates, grantees shall hand over the originals of the papers specified in Articles 7, 8, 9 and 10 of this Decree to certificate granting agencies (except investment project approval decisions, investment decisions and investment licenses or certificates). People’s Committees of communes or townships which hand over certificates shall receive the originals of the above papers and send them to district-level land use right registries.

Section 2. DOSSIERS, ORDER AND PROCEDURES FOR GRANT OF CERTIFICATES TO HOUSEHOLDS, INDIVIDUALS, COMMUNITIES AND OVERSEAS VIETNAMESE ELIGIBLE TO OWN HOUSES IN VIETNAM

Article 14. Dossiers, order and procedures for grant of certificates for land lots without land-attached assets or with land-attached assets not requiring ownership certification or with assets owned by others

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate;

b/ One of the papers on land use rights specified in Clauses 1, 2 and 5. Article 50 of the Land Law (if any);

c/ Copies of papers related to the fulfillment of land-related financial obligations under law (if any).

2. When an applicant for a certificate submits the dossier at the People’s Committee of a commune or township, that People’s Committee shall perform the following jobs:

a/ Verifying and certifying in the application for certificate the state of dispute over land use rights; verifying and certifying the land origin and use time, state of dispute over land use and conformity with approved land use planning and construction planning, for cases without papers on land use rights specified in Clauses 1, 2 and 5, Article 50 of the Land Law.

When cadastral maps are unavailable, before performing these jobs, the People’s Committee of the commune or township shall notify a district-level land use right registry for cadastral survey of the land lot;

b/ Posting up verification results at its office for 15 days; considering and handling opinions on publicized contents;

c/ Sending the dossier to the district-level land use right registry of the locality where the land exists to perform the jobs specified at Points b. c and d. Clause 3 of this Article.

3. A district-level land use right registry shall perform the following jobs:

a/ Sending dossiers to the commune-level People’s Committee for certification and publicizing results as prescribed at Points a and b. Clause 2 of this Article for cases of submitting dossiers to district-level land use right registries:

b/ Examining dossiers and conducting field verifications when necessary; certifying eligibility or ineligibility for certification of land use rights in applications for certificates:

c/ Preparing dossiers enclosed with copies of cadastral maps or cadastral survey of land lots (where cadastral maps are unavailable) for district-level Natural Resources and Environment Divisions to submit to People’s Committees of the same level for certificate signing or land lease contract signing, for cases of land lease by the State;

d/ Handing over certificates to grantees or sending certificates to People’s Committees of communes or townships for handover to grantees, for cases of submitting dossiers at communes or townships.

Article 15. Dossiers, order and procedures for grant of certificates for cases in which land-attached asset owners are not concurrently land users

1. An applicant for a certificate shall submit one (01) dossier set. which comprises:

a/ An application for a certificate;

b/ For certification of house ownership, papers on house ownership specified in Clauses 1, 2 and 4. Article 8 of this Decree; for certification of construction work ownership, papers on construction work ownership specified in Clauses 1 and 3, Article 9 of this Decree; for certification of planted production forest ownership, one of the papers on forest ownership specified in Clauses 1. 2, 3 and 4 and the papers specified in Clause 7, Article 10 of this Decree;

c/ Copies of papers related to the fulfillment of land-related financial obligations under law (if any).

d/ The plan of the house or construction work (unless the papers specified al Point b of this Clause already include the plan of the house or construction work).

2. When an applicant for a certificate submits the dossier at the People’s Committee of a commune or township, that People’s Committee shall perform the following jobs:

a/ Verifying and certifying in the application the state of dispute over asset ownership:

b/ Examining and certifying in the plan of the house or construction work (unless the plan of the house or construction work has been certified by an organization having the legal entity status for construction or mapping);

c/ Posting up dossier examination results at the office of the People’s Committee of the commune or township for 15 days: considering and handling opinions on publicized contents;

d/ Sending the dossier to a district-level land use right registry to perform the jobs specified at Points b. c and d, Clause 3 of this Article.

3. A district-level land use right registry shall perform the following jobs:

a/ Sending dossiers to the commune-level People’s Committee for certification and publicizing results as prescribed at Points a. b. and c. Clause 2 of this Article for cases of submitting dossiers to district-level land use right registries;

b/ Examining dossiers and conducting field verification when necessary: certifying eligibility or ineligibility for certification of asset ownership in applications for certificates.

When additional verification of information on conditions for certifying land-attached asset ownership is required, a land use right registry shall send written requests for opinion to district-level management agencies in charge of houses, construction works and agriculture. Within five (05) working days after receiving written requests for opinion, these management agencies shall issue written replies to that land use right registry:

c/ Preparing dossiers enclosed with copies of cadastral maps or cadastral survey of land lots (where cadastral maps are unavailable) for district-level Natural Resources and Environment Divisions to submit to district-level People’s Committees for certificate signing:

d/ Handing over certificates to grantees or sending certificates to People’s Committees of communes or townships for handover to grantees, for cases of submitting dossiers at communes or townships.

Article 16. Dossiers, order and procedures for grant of certificates to land users being concurrently owners of houses and construction works

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate:

b/ One of the papers on land use rights specified in Clauses 1, 2 and 5, Article 50 of the Land Law (if any);

c/ Papers on house ownership specified in Clauses 1 and 2, Article 8 of this Decree, for assets being houses;

d/ Papers on construction work ownership under Clause 1, Article 9 of this Decree, for assets being construction works;

e/ Copies of papers related to the fulfillment of financial obligations under law (if any).

e/ The plan of the house or construction work (unless the papers specified at Points b. c and d of this Clause already include such plan).

2. When an applicant for a certificate submits the dossier to the People’s Committee of a commune or township, that People’s Committee shall perform the jobs specified in Clause 2, Article 14, and Clause 2. Article 15, of this Decree.

3. A district-level land use right registry shall perform the jobs specified in Clause 3, Article 14. and Clause 3, Article 15, of this Decree.

Article 17. Dossiers, order and procedures for grant of certificates to land users concurrently being owners of planted production forests

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate;

b/ One of the papers on land use rights specified in Clauses 1, 2 and 5, Article 50 of the Land Law (if any):

c/ One of the papers on forest ownership specified in Clauses 1, 2, 3 and 4, Article 10 of this Decree;

d/ Copies of papers related to the fulfillment of financial obligations under law (if any).

2. When an applicant for a certificate submits the dossier at the People’s Committee of a commune or township, that Peoples Committee shall perform the jobs specified in Clause 2, Article 14, and Clause 2, Article 15, of this Decree.

3. A district-level land use right registry shall perform the jobs specified in Clause 3, Article 14, and Clause 3, Article 15, of this Decree.

Article 18. Dossiers, order and procedures for grant of certificates to transferees of land use rights, house and construction work ownership transferred from construction investors for sale

1. An investor in building houses or construction works for sale shall submit for a transferee one (01) dossier set to a land use right registry under a provincial-level Natural Resources and Environment Department, which comprises:

a/ An application for a certificate:

b/ The contract on sale and purchase of the house or construction work;

c/ A copy of the project approval decision, or investment decision, investment license or certificate;

d/ A copy of the decision approving the 1/ 500-scale detailed planning of the project (when this copy is unavailable, a copy of the agreement on general plan of the land lot containing houses or construction works is required);

e/ The land use right certificate or the certificate under this Decree;

f/ Copies of vouchers on the investor’s fulfillment of financial obligations (except cases of exemption or delayed payment under law);

g/ Copies of vouchers on the transferee’s fulfillment of financial obligations (if any);

h/ The plan of the house and land lot, which is the drawing of the complete work or the design drawing of the work plan suitable to the current status of the house or construction work without re-survey and re-drawing; drawing of the construction plan of the apartment building, for an apartment building, drawing of the floor where the apartment is located and drawing of the apartment floor if the drawing of the floor does not clearly show the size of the apartment;

i/ In localities having had real estate trading floors, for cases of transfer from the effective date of this Decree, papers proving that the transfer is conducted at a real estate trading floor are required.

When submitting copies of the papers specified at Points c. d. f and g of this Clause, applicants must produce the originals for examination and comparison by dossier receiving agencies, unless these copies are lawfully notarized or certified.

When an investor submits dossiers of application for certificates concurrently for different owners of houses and construction works, it shall submit only one (01) copy of the papers specified at Points c. d. e, f and h of this Clause and a list of houses, apartments, construction works and other parts under separate ownership requested for grant of certificates.

2. A provincial-level land use right registry shall perform the following jobs:

a/ Examining legal papers in dossiers, sending written requests for opinions of house and construction work state management agencies when necessary: within five (05) working days after receiving written requests for opinions, house and construction work state management agencies shall issue written replies to the land use right registry;

b/ Examining the land use state, if the land use state conforms with approved detailed construction plan drawings of projects and approved drawings on complete works (if any), adjusting cadastral maps or conducting cadastral survey of land lots in localities without cadastral maps for grant of certificates.

When the land use state does not conform with approved the detailed construction plan drawing of projects and approved drawings on complete work (if any), sending examination results to house and construction work state management agencies for handling under law;

c/ Sending dossiers enclosed with copies of cadastral maps or cadastral survey of land lots to district-level land use right registries for grant of certificates for cases in which transferees are households, individuals and overseas Vietnamese; compiling and submitting dossiers to provincial-level Natural Resources and Environment Departments for grant of certificates under authorization or submitting to People’s Committees of the same level for certificate signing for cases in which transferees are domestic organizations and foreign organizations and individuals: certifying changes in certificates already granted to transferors.

3. District-level land use right registries shall compile dossiers for district-level Natural Resources and Environment Divisions to submit for grant of certificates to house buyers being households, individuals and overseas Vietnamese; sending certificates to provincial-level land use right registries.

4. Provincial-level land use right registries shall hand over certificates to grantees.

5. When granting certificates to overseas Vietnamese and foreigners transferred house ownership in Vietnam, within five (05) working days after handing over these certificates, land use right registries shall make a list of grantees and send it to the Ministry of Natural Resources and Environment and the Ministry of Construction for placing on the ministries’ website for management.

Section 3. DOSSIERS, ORDER AND PROCEDURES FOR GRANT OF CERTIFICATES TO DOMESTIC ORGANIZATIONS, RELIGIOUS INSTITUTIONS AND OVERSEAS VIETNAMESE IMPLEMENTING INVESTMENT PROJECTS AND FOREIGN ORGANIZATIONS AND INDIVIDUALS

Article 19. Dossiers, order and procedures for grant of certificates for land lots without land-attached assets or with land-attached assets not requiring ownership certification or with assets owned by others

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate:

b/ A review report on the land use state under Articles 49, 51, 53 and 55 of the Government’s Decree No. 181/2004/ND-CP of October 29, 2004, on implementation of the Land Law (below referred to as Decree No. 181/2004/ND-CP); Article 36 of the Government’s Decree No. 69/ 2009/ND-CP of August 13, 2009, additionally prescribing land use planning, land prices, land recovery, compensation, support and resettlement (below referred to as Decree No. 69/2009/ND-CP);

c/ One of the papers on land use rights under the land law (if any);

d/ Copies of papers related to the fulfillment of financial obligations under law (if any).

2. A provincial-level land use right registry shall perform the following jobs:

a/ Examining dossiers, determining and certifying eligibility or ineligibility for certification of land use rights in applications for certificates;

b/ For cases of eligibility for grant of certificates, making copies of cadastral maps or cadastral survey of land lots for localities without cadastral maps;

c/ Preparing dossiers enclosed with copies of cadastral maps or cadastral survey of land lots for provincial-level Natural Resources and Environment Departments to sign certificates under authorization or submit to provincial-level Peoples Committees for certificate signing and land lease contract signing, for cases of land lease by the State:

d/ Handing over certificates to grantees.

Article 20. Dossiers, order and procedures for certificate for cases in which land-attached asset owners are not concurrently land users

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate:

b/ For certification of house ownership, papers on house ownership specified in Clauses 3 and 4. Article 8 of this Decree; for certification of construction work ownership, papers on construction work ownership specified in Clauses 2 and 3. Article 9 of this Decree; for certification of planted production forest ownership, one of the papers on forest ownership specified in Clauses 1,2,3,5 and 6 and the papers specified in Clause 7, Article 10 of this Decree;

c/ Copies of papers related to the fulfillment of financial obligations under law (if any).

d/ The plan of the house or construction work (unless the papers specified at Point b of this Clause already include such plan).

2. A provincial-level land use right registry shall perform the following jobs:

a/ Examining dossiers and determining and certifying in applications for certificates eligibility or ineligibility for certification of land-attached asset ownership.

When additional verification of information on conditions for certifying land-attached asset ownership is required, the land use right registry shall send written requests for opinion to provincial-level house, construction work and agriculture management agencies. Within five (05) working days after receiving written requests, these management agencies shall issue written replies to the land use right registry;

b/ Examining and certifying in plans of houses or construction works (unless these plans have been certified by an organization with the legal entity status for construction or mapping operations);

c/ For cases of eligibility for grant of certificates, making copies of cadastral maps or cadastral survey of land lots for localities without cadastral maps;

d/ Preparing dossiers enclosed with copies of cadastral maps for provincial-level Natural Resources and Environment Departments to sign certificates under authorization or submit to provincial-level People’s Committees for certificate signing;

e/ Handing over certificates to grantees.

Article 21. Dossiers, order and procedures for grant of certificates to land users being concurrently owners of houses and construction works

1. An applicant for a certificate shall submit one (01) dossier set. which comprises:

a/ An application for a certificate;

b/ A review report on current land use status under Articles 49, 51, 53 and 55 of Decree No. 181/2004/ND-CP; and Article 36 of Decree No. 69/2009/ND-CP;

c/ One of the papers on land use rights under the land law (if any);

d/ One of the papers on house ownership specified in Clause 3. Article 8 of this Decree, for assets being houses;

e/ One of the papers on construction work ownership under Clause 2. Article 9 of this Decree, for assets being construction works;

f/ The plan of the house or construction work (unless the papers specified at Points b. c. d and e of this Clause already include such plan).

g/ Copies of papers related to the fulfillment of financial obligations under law (if any).

2. A provincial-level land use right registry shall perform the jobs specified in Clause 2, Article 19, and Clause 2, Article 20, of this Decree.

Article 22. Dossiers, order and procedures for grant of certificates to land users concurrently being owners of planted production forests

1. An applicant for a certificate shall submit one (01) dossier set, which comprises:

a/ An application for a certificate:

b/ A review report on current land use status under Articles 49 and 53 of Decree No. 181/2004/ND-CP;

c/ One of the papers on land use rights under the land law (if any);

d/ One of the papers on forest ownership specified in Clauses 1, 2, 3, 5 and 6, Article 10 of this Decree (if any);

e/ Copies of papers related to the fulfillment of financial obligations under law (if any).

2. A provincial-level land use right registry shall perform the jobs specified in Clause 2, Article 19, and Clause 2, Article 20, of this Decree.

Section 4. DOSSIERS, ORDER AND PROCEDURES FOR RENEWAL, RE-GRANT OF AND INCLUSION OF ADDITIONAL CERTIFICATION IN CERTIFICATES

Article 23. Renewal of and inclusion of additional certification in certificates

1. The renewal of granted certificates in the cases specified at Point 2, Clause 3, Article 4 of the Law Amending and Supplementing a Number of Articles of Laws concerning capital construction investment: and the renewal of smeared, blurred, torn or damaged certificates or due to re-survey shall be conducted as follows:

a/ An applicant for renewal of a certificate shall submit an application for certificate renewal enclosed with the certificate granted by a land use right registry of the level competent to grant certificates;

b/ A land use right registry shall examine dossiers and submit them to competent state agencies for grant of certificates; and hand over certificates to the applicant.

2. An applicant for renewal of a granted certificate prescribed in Clause 1 of this Article who wishes to have land-attached asset ownership additionally certified shall submit an application for certificate renewal enclosed with the granted certificate together with a dossier of certification of asset ownership for handling under Articles 15 and 20 of this Decree.

3. A land user having obtained a certificate under this Decree who requests for inclusion of additional certification of land-attached asset ownership in the granted certificate shall submit an application enclosed with the granted certificate together with a dossier of certification of asset ownership for handling under Articles 15 and 20 of this Decree.

Article 24. Re-grant of lost certificates

1. An applicant for re-grant of a certificate shall submit one (01) dossier set to a land use right registry of the level competent to grant certificates. Such a dossier comprises:

a/ An application for re-grant of a certificate;

b/ Written certification of loss of the certificate by a commune-level police office of the locality where the certificate is lost;

c/ Papers proving the publication of information on loss of the certificate on the local mass media (except cases of loss due to natural disasters or fires), for domestic organizations, foreign organizations and individuals and overseas Vietnamese; written certification of a commune-level People’s Committee that the notice on loss of the certificate has been posted up at the office of that People’s Committee.

2. A land use right registry shall examine dossiers; and submit them to competent state agencies for signing decisions on cancellation of lost certificates and granting new certificates: and hand over new certificates to applicants.

Article 25. Correction and revocation of granted certificates

1. When detecting errors in granted certificates, provincial-level Natural Resources and Environment Departments shall correct them, for certificates granted by provincial-level People’s Committees; and district-level Natural Resources and Environment Divisions shall make corrections, for certificates granted by district-level People’s Committees.

2. Unlawfully granted certificates shall be revoked as follows:

a/ When an investigation or inspection agency issues a written conclusion that a certificate has been granted in contravention of law. the state agency competent to grant such certificate shall consider this conclusion and issue a decision to revoke the granted certificate if finding this conclusion correct:

b/ A state agency competent to grant certificates which itself checks and delects that a certificate has been granted unlawfully shall notify such in writing to the inspection agency of the same level for verification. District-level inspectorates shall verify certificates granted by district-level People’s Committees while provincial-level inspectorates shall verify certificates granted by provincial-level People’s Committees or provincial-level Natural Resources and Environment Departments. When verification concludes that a certificate has been granted unlawfully, the state agency which has granted such certificate shall issue a decision to revoke it;

c/ An organization or citizen that detects an unlawfully granted certificate shall notify such in writing to the state agency which has granted such certificate. The certificate granting agency shall consider and settle it under Point b of this Clause.

3. The revocation of granted certificates for cases other than those specified in Clause 2. Article 42 of Decree No. 181/2004/ND-CP and Clause 2 of this Article may only be conducted when effective judgments or rulings of people’s courts are available.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 26. Implementation responsibilities

1. The Ministry of Natural Resources and Environment shall guide the certification of changes in the execution of rights of. and change of land users and land-attached asset owners, the certification of perennial tree ownership and other contents for the implementation of this Decree.

2. The Ministry of Construction and the Ministry of Agriculture and Rural Development shall direct house and construction work or agriculture management agencies in coordinating with natural resources and environment agencies in granting certificates.

3. The Ministry of Agriculture and Rural Development shall assume the prime responsibility for. and coordinate with the Ministry of Natural Resources and Environment in. specifying perennial trees eligible for certification of ownership.

4. Provincial-level People’s Committees shall:

a/ Specifically prescribe mechanisms on coordination and information provision between natural resources and environment agencies and construction, agriculture and rural development, and other concerned agencies, and district- and commune-level People’s Committees in granting certificates and managing dossiers: carry out administrative reforms to ensure simplicity, convenience, publicity and transparency under the one-stop shop mechanism; and direct the acceleration of grant of certificates.

b/ Take measures to develop notary public offices in their localities to meet demands for notarization of contracts and transactions on land use rights and house and other land-attached asset ownership: and consider and decide to transfer the certification of contracts and transactions from district- and commune-level People’s Committees to capable notary public offices in district-level localities. In localities where provincial-level People’s Committees have not yet decided on such transfer, involved parties to contracts or transactions may opt for notarization or certification by district- or commune-level People’s Committees under law.

5. District-level Natural Resources and Environment Divisions shall perform the jobs of land use right registries under this Decree in localities without district-level land use right registries.

Article 27. Assurance of conditions for grant of certificates

1. Provincial-level People’s Committees shall direct the survey and making of cadastral maps associated with the compilation of cadastral dossiers and grant of certificates; build capacity, increase equipment, consolidate organizational apparatus, establish district-level land use right registries and allocate sufficient funds to meet requirements for grant of certificates and adjustment of changes in cadastral dossiers.

2. The Ministry of Finance shall assume the prime responsibility for. and coordinate with the Ministry of Natural Resources and Environment in. allocating funds for the renewal of certificates of land use rights, and house ownership and residential land use rights, house ownership and construction work ownership granted before the effective date of this Decree.

Article 28. Fees on grant of certificates

1. Provincial-level People’s Committees shall propose provincial-level People’s Councils to prescribe fee rates and regimes on collection, remittance, management and use of fees on grant of certificates under the law on charges and fees.

2. Exemption of fees on grant of certificates applies to cases of applying for renewal of certificates of land use rights, and house ownership and residential land use rights, house ownership and construction work ownership already granted before the effective date of this Decree.

Article 29. Effect

1. This Decree takes effect on December 10, 2009.

2. Certificates of land use rights, and house ownership and residential land use rights, house ownership and construction work ownership granted before the effective date of this Decree remain legally valid and may be renewed into certificates of land use rights and house and other land-attached asset ownership upon request.

3. For cases in which dossiers of application for these certificates have been submitted before the effective date of this Decree, but have not been granted such certificates, dossier receiving and processing agencies shall transfer those dossiers to natural resources and environment agencies for grant of certificates under this Decree.

3. To annul Article 41; Clause 1, Article 42; and Articles 43, 44, 56, 57, 116, 135, 136, 137, 143, 144, 148, 149, 150, 151, 152, 155, 156, 157 and 158 of Decree No. 181/2004/ND-CP. To annul provisions on dossier submission and result notification for procedures for grant, renewal and re-grant of land use right certificates and procedures for execution of land users’ rights of Article 122 of Decree No. 181/2004/ND-CP.

4. To replace the phrase "land use right certificates" with the phrase "certificates of land use rights and house and land-attached asset ownership" in Articles 5, 46, 47, 48, 49, 50, 51, 53, 54, 55, 63, 76, 79, 83, 84, 91, 92, 97, 99, 122, 123, 124, 128, 138, 139 and 140; Point e, Clause 1, Article 147; and Article 159 of Decree No. 181/2004/ND-CP.

5. To add the phrase "certificates of land use rights and house and land-attached asset ownership" to the phrase "land use right certificates" in Articles 6, 38, 64, 65, 111 and 113; Clause 1, Article 117: Articles 118, 129, 131, 133, 134 and 142; Point a, Clause 1, Points a and c, Clause 2, Article 147; and Articles 153, 154, 160, 161 and 162 of Decree No. 181/2004/ND-CP.

6. To annul Article 8, Clauses 1 and 2, Article 10, and Article 21 of the Government’s Decree No. 84/2007/ND-CP of May 25. 2007, additionally prescribing grant of certificates of land use rights, land recovery, execution of land use rights, order and procedures for compensation, support and resettlement upon land recovery by the State and settlement of land-related complaints (below referred to as Decree No. 84/2007/ND-CP).

To replace the word "certificates’" with the phrase "certificates of land use rights and house and land-attached asset ownership" in Clause 1, Article 5; Articles 7 and 9: Clause 3, Article 10; Clause 2, Article 11; Articles 13, 14, 15, 16, 17 and 18: Points d and e. Clause 2, Article 19: and Article 20 of Decree No. 84/2007/ND-CP.

To add the phrase "certificates of land use rights and house and land-attached asset ownership" to the word "certificates" in Article 3; Clause 1.Article 11; Article 12; Point b. Clause 1, Article 19; and Articles 26, 31, 44, 45 and 46 of Decree No. 84/2007/ND-CP.

7. To annul the Government’s Decree No. 95/ 2005/ND-CP of July 15, 2005. on grant of certificates of house and construction work ownership.

8. To annul Articles 42, 43, 44, 45, 46, 47, 48, 49 and 51 and Clause 4, Article 66 of the Govern­ment’s Decree No. 90/2006/ND-CP of September 6. 2006. detailing and guiding the Housing Law (below referred to as Decree No. 90/2006/ND-CP); to annul the form of certificate of house ownership and residential land use rights and the form of house ownership certificate promulgated together with Decree No. 90/2006/ND-CP.

9. To replace the phrase "house ownership certificates" with the phrase "certificates of land use rights and house and other land-attached asset ownership" in Articles 16, 50, 58, 59 and 65 and Clause 2, Article 66 of Decree No. 90/ 2006/ND-CP.

To replace the phrase "certificates of house and construction work ownership" with the phrase "certificates of land use rights and house and other land-attached asset ownership" in Article 17 of Decree No. 90/2006/ND-CP.

To add the phrase "certificates of land use rights and house and land-attached asset ownership" before the phrase "house ownership certificates under the Housing Law" in Clause 2, Article 68 of Decree No. 90/2006/ND-CP.

10. To annul the provisions on grant of certificates of construction work ownership prescribed at Point d. Clause 2, Article 37 of the Government’s Decree No. 29/2008/ND-CP of March 14, 2008, on industrial parks, export-processing zones and economic zones.

11. To annul Articles 8 and 9 of the Government’s Decree No. 51/2009/ND-CP of June 3, 2009, guiding a number of articles of the National Assembly’s Resolution No. 19/2008/QH12 of June 3, 2008, on pilot permission of foreign organizations and individuals to buy and own homes in Vietnam.

12. To replace the phrase "land use right certificates" with the phrase "certificates of land use rights and house and land-attached asset ownership" in Articles 1, 2, 3, 8 and 11; Clause 5, Article 12; and Article 13 of the Government’s Decree No. 198/2004/ND-CP of December 3, 2004, on collection of land use levy (below referred to as Decree No. 198/2004/ND-CP).

To add the phrase "certificates of land use rights and house and land-attached asset ownership" to the phrase "land use right certificates" in Article 4 of Decree No. 198/2004/ND-CP.

13. To replace the phrase "land use right certificates" with the phrase "certificates of land use rights and house and land-attached asset ownership" in Articles II and 46 of the Government’s Decree No. 197/2004/ND-CP of December 3.2004. on compensation, support and resettlement upon land recovery by the State (below referred to as Decree No. 197/2004/ND-CP).

To add the phrase "certificates of land use rights and house and land-attached asset ownership" before the phrase "land use right certificates" in Article 8 of Decree No. 197/2004/ND-CP.

14. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung

TRANSLATED BY: LAWSOFT

STANDING COMMITTEE OF NATIONAL ASSEMBLY

SOCIALIST REPUBLIC OF VIET NAM
Independence Freedom Happiness

No. 28/2008/PL-UBTVQH11

Hanoi, December 13^th, 2005

ORDINANCE ON FOREIGN EXCHANGE CONTROL

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by Resolution No. 51/2001/QH10 of Legislature X of the National Assembly at its 10th session on 25 December 2001;
Pursuant to Resolution No. 42/2005/QH11 of Legislature XI of the National Assembly at its 7th session on 14 June 2005 on the amendment of the program for formulation of laws and ordinances in the year 2005; This Ordinance regulates foreign exchange activities.

Chapter I

GENERAL PROVISIONS

Article 1 Governing scope

This Ordinance governs foreign exchange activities in the Socialist Republic of Vietnam.

Article 2 Applicable entities

1. Organizations and individuals being residents and non-residents conducting foreign exchange activities in Vietnam.

2. Other entities involved in foreign exchange activities.

Article 3 Policy of Vietnam on foreign exchange control