Decree No. 44/2001/ND-CP Amending and supplementing certain articles of Decree No. 57/1998/ND-CP dated July 31, 1998 of the Government detailing the implementation of the Commercial Law on export, import, processing, and agency sales of goods with foreign countries.

DECREE OF THE GOVERNMENT

Regarding the amendment and supplementation of certain articles of Decree No. 57/1998/NĐ-CP dated July 31, 1998 of the Government

detailing the implementation of the Commercial Law on export, import, processing, and agency purchase and sale of goods with foreign countries

and agency purchase and sale of goods with foreign countries

 ____________________

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;

Pursuant to the Law on Commerce dated May 10, 1997;

Pursuant to Resolution No. 05/2001/NQ-CP dated May 24, 2001 of the Government;

At the proposal of the Minister of Trade,

DECREE:

Article 1. Amending and supplementing certain articles of Decree No. 57/1998/NĐ-CP dated July 31, 1998 of the Government detailing the implementation of the Commercial Law on export, import, processing, and agency purchase and sale of goods with foreign countries, specifically as follows:

1. Article 1 shall be amended as follows:

"Article 1. Scope of Regulation

This Decree details the implementation of the Commercial Law on export and import of goods; processing and agency purchase and sale of goods by traders established and operating under Vietnamese law with foreign traders".

2. Article 3 shall be amended as follows:

"Article 3. Exported and imported goods

All types of goods, except those listed in the Catalogue of Prohibited Exported and Imported Goods, may be exported and imported". Prohibited exported and imported goods, and goods subject to conditions for export and import, shall be implemented in accordance with Articles 4 and 5 of this Decree.

3. Article 4 shall be amended as follows:

"Article 4. Prohibited Exported and Imported Goods

1. The Catalogue of Prohibited Exported and Imported Goods shall be issued by the Prime Minister for each period based on the proposal of the Minister of Trade and relevant ministries and sectors.

2. Goods listed in the Catalogue of Prohibited Exported and Imported Goods may only be exported and imported in special cases upon permission from the Prime Minister".

4. Article 5 shall be amended as follows:

"Article 5. Goods Subject to Conditions for Export and Import

1. Goods subject to conditions for export and import include:

a) Goods exported and imported within quotas;

b) Goods exported and imported with permits from the Ministry of Trade;

c) Goods exported and imported under specialized management;

d) Goods exported and imported according to specific regulations of the Prime Minister.

2. The Catalogue of Goods Subject to Conditions for Export and Import and the regulations on export and import of goods listed in this Catalogue shall be issued by the Prime Minister for each period based on the proposal of the Minister of Trade and the Minister of the relevant specialized management sector".

5. Article 7 shall be amended as follows:

"Article 7. Suspension of Export and Import of Goods

In necessary cases, the Prime Minister may decide to suspend export and import to a specific market or certain products to implement self-defense rights under the law and international practice.

The Ministry of Trade will notify relevant international economic organizations and related countries according to agreed procedures (if any) when the Prime Minister makes a specific decision on suspending export and import of goods".

6. Article 8 shall be amended as follows:

"Article 8. Export and Import Business

1. For Vietnamese traders:

Traders as prescribed by law have the right to export all types of goods without dependence on the business activities and commodity categories recorded in the Business Registration Certificate, except goods listed in the Catalogue of Prohibited Exported Goods; they can import goods according to the business activities and commodity categories recorded in the Business Registration Certificate.

For goods listed in the Catalogue of Restricted Business Commodities and Services and the Catalogue of Commodities and Services Subject to Conditions for Business, traders must comply fully with current laws on business operations before conducting export and import activities.

Branches of traders can export and import goods under the authorization of the trader.

For foreign-invested enterprises and joint venture parties, in addition to exporting their own products, they can also export other types of goods except those listed in the Catalogue of Prohibited Exported Goods and certain types of goods specified by the Ministry of Trade for each period. For goods listed in the Catalogue of Goods Subject to Conditions for Export, foreign-invested enterprises and joint venture parties must conduct exports in accordance with the Investment License granted, the Law on Foreign Investment in Vietnam, and other relevant regulatory documents.

The importation of goods by foreign-invested enterprises and joint venture parties shall be carried out in accordance with the Investment License granted, the Law on Foreign Investment in Vietnam, and other relevant regulatory documents.

2. For branches of foreign traders in Vietnam:

Branches of foreign traders in Vietnam shall carry out export and import activities in accordance with Decree No. 45/2000/NĐ-CP dated September 6, 2000 of the Government on Representative Offices and Branches of Foreign Traders and Foreign Tourism Enterprises in Vietnam and other relevant regulatory documents.

3. Prior to engaging in export and import business activities, the business entities stipulated in Clause 1 and 2 of this Article must register their export and import business code at the Customs Department of the province or city.

The General Department of Customs shall establish the aforementioned system of business codes and guide the registration process for export and import business codes".

7. Article 9 shall be amended as follows:

"Article 9. Agency Export and Import

1. Traders and branches of traders stipulated in Article 8 of this Decree may act as agents and accept agency for the export and import of goods within the scope prescribed by this Decree.

Foreign-invested enterprises, joint venture parties, and branches of foreign traders in Vietnam may act as agents for the export and import of goods within the scope prescribed by this Decree.

2. The rights and obligations of the principal and the agent in agency export and import transactions shall be specifically agreed upon in the agency contract".

8. Point b Clause 1 Article 15 shall be amended as follows:

"b) To reclaim the entire processed product; leased or lent machinery and equipment; raw materials, auxiliary materials, supplies, and waste materials after settling the processing contract (except in cases where permission for immediate export, destruction, gift, or donation is granted in accordance with this Decree)".

9. Clause 1 Article 15 shall supplement point e as follows:

"e) Exporting at source processed products; leased or borrowed machinery and equipment; surplus raw materials, auxiliary materials, supplies; waste products and scrap in accordance with the agreed documents of the relevant parties, in compliance with current regulations on the management of import and export goods at each period, and must fulfill tax obligations and other financial obligations as prescribed by law."

10. Clause 2, Article 15 supplements Point e as follows:

"e) To handle the export procedures at source for processed products; leased or borrowed machinery and equipment; surplus raw materials, auxiliary materials, supplies; waste products and scrap upon authorization from the commissioning party."

11. Article 15 supplements Clause 3 as follows:

"3. Conditions for exporting and importing at source processed products; leased or borrowed machinery and equipment; surplus raw materials, auxiliary materials, supplies; waste products and scrap:

a) Must comply with regulations on imported goods, taxes, and other financial obligations as prescribed by law;

b) Must have a sales contract signed between foreign traders and importers."

12. Clause 3, Article 18 is amended as follows:

"3. After the completion of the processing contract, leased or borrowed machinery and equipment under the contract; surplus raw materials, auxiliary materials, supplies; waste products and scrap shall be handled according to the agreement in the processing contract in compliance with the provisions of the law. Procedures for re-export, sale, gift, destruction, or transfer to another processing contract shall be carried out at the Customs Office."

13. Supplement Chapter IV.1 "Hiring Foreign Traders as Agents for Selling Goods Abroad" as follows:

"Chapter IV.1 Hiring Foreign Traders as Agents for Selling Goods Abroad

Article 26a. Conditions for Hiring Foreign Traders as Agents for Selling Goods Abroad

1. The trader specified in Article 8 of this Decree may hire foreign traders as agents for selling goods abroad.

2. The trader may hire foreign agents to sell all types of goods abroad except those listed in the Prohibited Export Goods List. For goods listed in the Conditional Export Goods List, the trader may only enter into agency sales contracts abroad in accordance with the provisions of Article 5 of this Decree.

3. The trader hiring foreign agents to sell goods abroad must sign an agency contract with the foreign trader; must have a bank account to receive agency sales proceeds in accordance with the guidance of the State Bank of Vietnam.

4. In cases where agency sales proceeds are received in kind, the Vietnamese trader must comply with the current regulations of the law on imported goods.

Article 26b. Tax Obligations

1. Goods under agency contracts for selling goods abroad must bear taxes and other financial obligations as prescribed by Vietnamese law.

2. The Vietnamese trader has the responsibility to register, declare, pay various taxes and fulfill other financial obligations related to the activity of hiring foreign traders as agents for selling goods abroad.

Article 26c. Return of Goods

1. Goods exported under agency contracts for selling goods abroad may be re-imported into Vietnam in cases where they are not consumed abroad.

2. Goods imported back to Vietnam as mentioned in Clause 1 of this Article are exempt from import duties and can claim refund of export duties (if applicable).

The Ministry of Finance shall guide the tax provisions stipulated in this clause.

Article 26d. Export and Import Procedures

Export and import procedures for goods under agency sales contracts abroad, including cases where goods are imported back to Vietnam due to unsold inventory abroad, shall be carried out in accordance with the guidance of the General Department of Customs."

Article 2. This Decree takes effect thirty days after the date of signing. Other provisions of Decree No. 57/1998/NĐ-CP dated July 31, 1998 remain in force.

Article 3. The Ministry of Trade shall take the lead and coordinate with relevant agencies to guide the implementation of this Decree.

Article 4. Ministers, Heads of ministerial-level agencies, Heads of government agencies, Chairmen Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).Provincial People's Committees under the Central Government are responsible for implementing this Decree./.