Officially posted at:
✨ 🇻🇳 People’s Police Television ANTV (Vietnam) – The Ministry of Public Security television channel: https://www.facebook.com/TruyenHinhCongAn/posts/1048380782180460
✨ 🇻🇳 Knowledge e-newspaper – Vietnam Union of Science and Technology Associations: https://kienthuc.net.vn/doanh-nghiep/xu-ly-the-nao-voi-bai-toan-cong-no-cho-doanh-nghiep-1307304.html
✨ 🇻🇳 Báo Mới (“new newspaper”): https://baomoi.com/xu-ly-the-nao-voi-bai-toan-cong-no-cho-doanh-nghiep/c/33052762.epi
Liabilities is always a long contradictory story that all businesses have to face. Some companies are often afraid to confront clients about the debts to be collected, which leads to a collateral consequence that the enterprise itself is of deferred liabilities to corresponding suppliers and business partners, so accounts ”receivables” and accounts ”payables” directly affect to the cash flow, corporate financial health and damaged to long-term business relationships with related partners. Some other companies hire the “mafia” for debt recovery, in which creditors become criminals and then being investigated and prosecuted for penal liability. Thus the question is how companies deal with to deal with business liabilities legally?
Stating the points of view on the story of ”diversified situations of the recovery of liabilities of enterprises”, Lawyer Dang Kim Ngan Ha said:
Delayed and slow payment, deliberately avoid to pay, being irresponsible or bad debt in commercial transactions causes the cash flow of the enterprise to be congested and results in collateral consequences at a certain degree.
Of a criminal perspective, some enterprises have not chosen legitimate debt collection methods, but rather hire a gangster to put pressure on the mental and life of the debtor in order to collect debts.
These conducts may, depending on the seriousness and nature of their offense, be liable criminally for one of the following crimes: Threat of murder; Deliberate infliction of bodily harm upon another person; Robbery or Extortion under the Penal Code 2015, for example: Robbery is a crime that is considered to be completed from the time the offender makes one of the acts of using violence, threat of immediate force or other acts that brings the attacked victims into a non-resistible state, notwithstanding the offender has obtained the property or not. The robbery is committed by direct intentional fault. The offender is well aware that his or her conduct is dangerous to society, foresees the consequences in which the property is of other people, obtains and wishing to obtain that property. Not only the gangsters, who directly perform the acts of collecting debts, but the person who hire the gangsters can also commit the offence as an accomplice. Therefore, the creditor may be involved in a crime of robbery and be prosecuted for criminal liability.
Of a commercial perspective, there are tough circumstances for an enterprise in an intermediary position where commercial contracts with domestic customers under agreements are understood and subject to the laws of the The Socialist Republic of Vietnam in all areas related to the validity, interpretation and contract performance. When a customer violates payment obligations, the penalty rate pursuant to the provisions of the Commercial Law 2005 and Construction Law 2014, is based on the value of the violated contractual obligations, and not exceeding 8% or 12%. However, for commercial contracts with foreign suppliers and partners, pursuant to the applicable laws and court decisions for dispute settlement of the host countries, it does usually not limit the penalties when one of the parties breach the basic contractual obligations.
Through the process of providing legal advice on transactions involving foreign elements in practice, in my opinion, the partners have studied carefully about the Vietnamese laws and understand the limitation on the ceiling commercial penalties Therefore, at the negotiation stage , they base on the provisions of the 2015 Vietnamese Civil Code which allow the parties in the contractual relationship to choose the law applicable to the contract and request that the signing of international commercial contracts shall be governed and controlled by the Law of a third country such as the UK and Singapore or the host country. If the signing parties are members of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as the 1980 Vienna Convention), terms of their contract upon agreement can stipulate that the Vienna Convention does not apply for this contract for the International Sale of Goods. Therefore, the penalty rate is entitled to the agreement among parties and does not limit the ceiling rate under the laws of their countries, specifically, for instance, in practice when parties negotiate for a service contract with partners abroad, they specify that in the case of the Vietnamese enterprise violates payment obligations it shall bear penalties from 50% to 200% of the contract value or even higher, as well as anticipate in advanced a specific compensation by cash or by caculating in a certain formula under the terms of determining the specific amount for compensation and recovery of material damage.
Failure to fulfill the obligations to pay on time and suspend business liabilities from domestic customers prevents the enterprise from achieving the main purpose of entering into a contract to gain profits and the continuing consequence is that the enterprise still has to pay offsetting contracts with third parties related to transactions, accompanying applicable sanctions are often suspension of contract performance, suspend of contract performance and cancel a contract.
In cases where commercial sanctions have been applied but the customer still fails to fulfill the payment obligation and parties are unable to negotiate or mediate, an enterprise is entitled to bring the dispute to a settlement authority (Court or Commercial Arbitration) to recover for liabilities under contracts, interest on deferred payment, penalties for breach of contract and compensation for damage (if any). The statute of limitations for lodging a claim regarding commercial disputes is two years from the date the legitimate rights and/or interests are infringed upon.
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