LEGAL NEWSLETTER APRIL 2023

LEGAL NEWSLETTER

April 2023

Dear Valued Clients and Partners,

ADK Vietnam Lawyers would like to introduce to you the April 2023 Legal Newsletter with the following main contents:

1. Legal Spotlight

1.1 The Government issues a Decree on protection of personal data

On April 17, 2023, the Government issued Decree No. 13/2023/ND-CP on protection of personal data (hereinafter referred to as "Decree No. 13/2023/ND-CP"). Accordingly, Decree 13/2023/ND-CP consists of 44 articles and 4 chapters, which specify measures and conditions to ensure the protection of personal data.

Decree 13/2023/NĐ-CP has highlighted the following issues:

(i) Definition of personal data: Decree No. 13/2023/ND-CP defines personal data as electronic information in the form of symbols, letters, numbers, images, sounds, or equivalences associated with an individual or used to identify an individual and It is divided into two main types, namely general personal data and sensitive personal data;

(ii) Principles of personal data protection: Decree No. 13/2023/ND-CP sets out some fundamental principles for personal data protection, including: The personal data shall be processed as prescribed by law; The data subject shall be entitled to receive information related to the processing of his/her personal data; the personal data shall be processed for the purposes that have been registered; the collected personal data shall be appropriate for the scope and purposes of processing, the purchase or sale of personal data shall be prohibited in any form; The personal data shall be updated, added and shall be protected and secured throughout the processing purposes; The personal data shall be stored within a period of time that is appropriate for the processing purposes. Data controllers are responsible for complying with these principles and must demonstrate their compliance with these principles.

(iii) Personal data protection measures: Measures for protecting personal data shall be adopted from the beginning of and throughout the processing of personal data, accordingly, measures for protecting personal data include (1) Management measure adopted by an organization or individual related to processing of personal data; (2) Technical measure adopted by an organization or individual related to processing of personal data; (3) Measure adopted by a competent authority according to regulations in this Decree and relevant law; (4) Investigation and procedure measures adopted by a competent authority; (5) Other measures as prescribed by law.

(iv) The competent authority for personal data protection: the personal data protection authority is the Department of Cybersecurity and Hi-tech Crime Prevention under Ministry of Public Security that assists the Ministry of Public Security in performing state management of personal data protection

(v) Data subject’s rights: Decree No. 13/2023/ND-CP specifies 11 rights of data subjects, including: Right to (1) be informed, (2) give consent, (3) access personal data, (4) withdraw consent, (5) delete personal data, (6) obtain restriction on processing, (7) obtain personal data, (8) object to processing, (9) file complaints, denunciations and lawsuits, (10) claim damage and (11) self-protection.

Decree 13/2023/ND-CP takes effect from July 01, 2023.

1.2 The Ministry of Planning and Investment issues new regulations on business registration

On April 18, 2023, The Ministry of Planning and Investment issued Circular No. 02/2023/TT-BKHDT on amendment to circular no. 01/2021/TT-BKHDT dated march 16, 2021 of the minister of planning and investment guiding enterprise registration (hereinafter referred to as "Circular No.02/2023/TT-BKHDT").

Accordingly, Circular No. 02/2023/TT-BKHDT stipulates the procedures and documents for business household registration as follows:

(i) Online registration procedure: Household business registration via website means the case where persons applying for establishment of household business or household businesses register for household business in accordance with Decree No. 01/2021/ND-CP on household business registration system affiliated to the National Enterprise Registration System on the National Business Registration Portal;

(ii) Legal validity: Circular No. 02/2023/TT-BKHDT stipulates that Documents on household business registration via website include documents specified under Decree No. 01/2021/ND-CP and are presented in electronic document format. Documents on household business registration via website shall have the same legitimacy as the physical documents on household business registration. Moreover, Electronic documents mean documents in form of data messages created or digitalized from physical documents and accurately, adequately conveying contents of the physical documents. Electronic documents can have “.doc”, “.docx”, or “.pdf” format

(iii) Payment method: Persons filing household business registration shall pay registration fee at the time of filing the registration. Household business registration fee can be paid directly at department that receives household business registration document in districts or transferred to accounts of business registration authority of district or via online payment service on National public service portal. Household business registration fee shall not be refunded if household business registration is rejected.

Circular No. 02/2023/TT-BKHDT takes effect from July 01, 2023.

1.3 New regulations on adjustment of unit prices and construction contract prices

On March 03, 2023, the Ministry of Construction issues Circular No. 02/2023/TT-BXD on guiding certain contents of construction contracts (hereinafter referred to as "Circular No. 02/2023/TT-BXD”)

Accordingly, Circular No. 02/2023/TT-BXD has the following notable point:

(i) Adjustments to unit prices of construction contracts: Adjustments to unit prices of construction contracts shall comply with the regulations in Article 38 of Decree No. 37/2015/ND-CP (which are amended by Clause 14 Article 1 of Decree No. 50/2021/ND-CP). In a construction contract, the Parties must agree on specific cases in which the unit price and construction contract price can be adjusted; the order, scope, method and grounds for adjusting the contract price; the method of adjusting the contract price must be suitable to the type of contract price and the nature of the work in the construction contract.

(ii) Adjustments to workloads prescribed in construction contracts: Adjustments to workloads specified in construction contracts shall comply with the regulations in Article 37 of Decree No. 37/2015/ND-CP (which are amended by Clause 13 Article 1 of Decree No. 50/2021/ND-CP).In addition, If adjustments to workloads between members of a consortium of contractors of a contract do not affect prices of the contract, the investor shall make a decision on the basis of the agreement and unification of members of the consortium and qualifications of each member in a manner that ensures safety, quality, efficiency and progress of the contract.

Circular No. 02/2023/TT-BXD takes effect from April 20, 2023.

1.4 Amendment of the application dossier for VAT refund for investment projects

On February 28, 2023, The Ministry of Finance has issued Circular No. 13/2023/TT-BTC guiding the implementation of Decree No. 49/2022/ND-CP (hereinafter referred to as “Circular 13/2023/TT-BTC”).

Accordingly, amending the application dossier for VAT refund for investment projects of business establishments with conditional business lines as follows:

Regarding investment projects of business establishments having conditional business lines in the investment stage that have been granted licenses for conditional business lines by competent state agencies according to regulations of laws on investment and specialized laws under regulations in Article 1.3 of Government’s Decree No. 49/2022/ND-CP dated July 29, 2022: Copy of one of the licenses, certificates, or written confirmation or approval for these conditional business lines.

Currently, The dossier shall include:

- A copy of the business license for conditional business lines;

- Certificate of satisfaction of business conditions in conditional business lines;

- A document of a competent state agency permitting business investment in conditional business lines as prescribed at Article 10.2.c of Decree No. 209/2013/ND-CP (amended by Article 1.6 of Decree 100/2016/ND-CP).

Circular No. 13/2023/TT-BTC takes effect from April 14, 2023.

1.5 Allowing electronic bank guarantee

On September 30, 2022, The State Bank Of Vietnam issues Circular No. 11/2022/TT-NHNN prescribing bank guarantee (hereinafter referred to as “Circular No. 11/2022/TT-NHNN”).

Circular No. 11/2022/TT-NHNN has supplemented regulations on electronic guarantee activities, thereby allowing credit institutions and selected customers to conduct banking guarantee activities by electronic method.

The implementation of electronic guarantee activities must ensure security, safety, protection of data messages and confidentiality of information in accordance with the provisions of law. Accordingly, the identification and verification of customer identification information via electronic means will limit the value of each guarantee commitment:

(i) Individual customers: The value of each guarantee commitment is not more than VND 4 billion.

(ii) Organization customer: The value of each guarantee commitment is not more than VND 45 billion.

This limitation does not apply to the following cases: Customer identification information is verified by a competent state agency; customers submit a guarantee request through the SWIFT system; customers use digital signature when applying for guarantee; customers are credit institutions, foreign bank branches, etc.

Circular No. 11/2022/TT-NHNN takes effect from April 01, 2023.

2. Some prominent legal instruments take effect from April 2023

No.

Name of legal instrument

Date of Issue

Date of Effective

DECREE

Decree No. 03/2023/ND-CP of the Government defining the functions, tasks, powers and organizational structure of viet nam competition commission

10/02/2023

01/04/2023

DECISION

Decision No. 391/QD-BTC of the Ministry of Finance on the change of tax authorities directly managing large enterprise

17/03/2023

01/04/2023

CIRCULAR

Circular No. 03/2023/TT-BCT of the Ministry of Industry and Trade on amending and supplementing a number of articles of Circular 22/2016/TT-BCT dated October 3, 2016 of the Minister of Industry and Trade on implementation of export rules origin of goods in the ASEAN Trade in Goods Agreement

14/02/2023

01/04/2023

Circular No. 25/2022/TT-BLDTBXH of the Ministry of Labour, Invalids and Social Affairs on provision of personal protective equipment in work

30/11/2023

01/04/2023

Circular No. 11/2022/TT-NHNN prescribing bank guarantee

30/09/2022

01/04/2023

Circular No. 13/2023/TT-BTC guiding the implementation of Decree No. 49/2022/ND-CP

28/02/2023

14/04/2023

Circular No. 02/2023/TT-BXD on guiding certain contents of construction contracts