Khách hàng 09…11: Tôi vừa ra quyết định của tòa án về tranh chấp đất đai, tôi có thể biết khi nào quyết định đó có hiệu lực thi hành không?
Trả lời:
Điều 2 Điều 282 Bộ luật tố tụng dân sự quy định:
Điều 282. Kết quả kháng cáo
2. Bản án, quyết định hoặc một phần bản án, quyết định của Tòa án cấp sơ thẩm không bị kháng cáo, kháng cáo thì có hiệu lực pháp luật kể từ ngày hết thời hạn kháng cáo.
Theo đó, bản án sơ thẩm hoặc bản án không bị kháng cáo sẽ có hiệu lực thi hành khi hết thời hạn kháng cáo.
Theo Điều 1 Điều 273, thời hạn kháng cáo là 15 ngày làm việc, kể từ ngày công bố bản án. Trường hợp một đương sự, người đại diện của cơ quan, tổ chức, cá nhân không có mặt tại phiên tòa hoặc không có mặt khi tuyên án mà không có lý do chính đáng thì thời hiệu kháng cáo sẽ tính từ ngày họ nhận được bản án hoặc kể từ khi bản án được công bố. .
Điều 273. Thời hạn kháng cáo
1. Thời hạn kháng cáo bản án sơ thẩm là 15 ngày, kể từ ngày tuyên án; đối với đương sự hoặc người đại diện cơ quan, tổ chức, cá nhân khởi kiện vắng mặt tại phiên tòa hoặc vắng mặt khi Tòa án tuyên án có lý do chính đáng thì thời hiệu kháng cáo tính từ ngày ra phán quyết. cho họ hoặc đăng công khai.
Thời gian kháng cáo tiếp theo sẽ được quy định theo Điều 280 là 1 tháng (khi Viện kiểm sát nhận được bản án).
Điều 280. Thời hạn kháng cáo
1. Thời hạn kháng cáo bản án sơ thẩm là 15 ngày đối với Viện kiểm sát cùng cấp và 01 tháng đối với Viện kiểm sát cấp trên trực tiếp, kể từ ngày tuyên án. Trong trường hợp Kiểm sát viên không tham gia phiên tòa thì thời hạn kháng cáo được tính từ ngày Viện kiểm sát cùng cấp nhận được bản án.
2. Thời hạn kháng cáo quyết định tạm đình chỉ, đình chỉ giải quyết vụ án của Tòa án cấp sơ thẩm là 07 ngày đối với Viện kiểm sát cùng cấp và 10 ngày đối với Viện kiểm sát cấp trên trực tiếp, kể từ ngày Viện kiểm sát ra quyết định. cùng cấp nhận được quyết định đó.
Khi có kháng cáo, tòa án sẽ tổ chức hội đồng xét xử phúc thẩm theo khoản 6 khoản 313 và sau đó bản án phúc thẩm có hiệu lực thi hành kể từ ngày tuyên án.
Điều 313. Bản án của Tòa phúc thẩm
6. Bản án phúc thẩm có hiệu lực thi hành kể từ ngày tuyên án.
Client T.T.H: I am participating in a conflict at the court, but the defendant just passed away. Therefore, is the defendant’s inheritance eligible to be present at the court?
Respond:
Article 74 of the Civil Code Procedure 2015 stipulates the following:
Article 74. Inheritance of procedural rights and obligations.
1. Where the involved parties, being individuals, die while participating in the procedures and their property rights and obligations are inherited, their heirs shall participate in the procedures.
Following this article, it can be interpreted as Where the involved parties, being individuals, die while participating in the procedures, and their property rights and obligations are inherited, their heirs shall participate in the procedures.
To determine the inheritance, according to the Civil Code 2015, there will be 2 cases:
Inherit via will: If the deceased individual has will then the inheritance will be determined as the will (which includes the duty of participating the court)
Inherit via law: If the deceased individual does not have will, or the will has been invalid, or the inheritance listed in the will refuses to inherit. According to Article 651 Civil Code 2015, the inheritance level will be determined as follow:
Article 651. Heirs at law
1. Heirs at law are categorized in the following order of priority:
a) The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring, and adopted children of the deceased;
b) The second level of heirs comprises grandparents and siblings of the deceased; and biological grandchildren of the deceased;
c) The third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
2. Heirs at the same level shall be entitled to equal estate shares.
3. Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.
Accordingly, we need to determine the first level of inheritance and equally distribute the asset for the listed inheritance. If no individual is listed in the first level then we need to determine the second level of inheritance. If there is no individual listed in the third level of inheritance to distribute the asset (also relevant duty)
LABOR CONSULTING
Ms. Quyen: Is that eligible if my company does not wish to participate in the compulsory Social Insurance for employees?
Respond:
Term 1 Article 168 Labour Code 2019 stipulated social insurance, health insurance, and unemployment insurance of employees and employer:
Article 168. Participation in social insurance, health insurance, and unemployment insurance
1. Employers and employees shall participate in compulsory social insurance, compulsory health insurance, and unemployment insurance and enjoy the benefits by provisions of the law on social insurance, health insurance, and unemployment insurance.
Employers and employees are encouraged to obtain other kinds of insurance for employees.
Accordingly, by law, insurance participation is compulsory; employees and employers do not have the “option” to participate or not participate.
If the enterprise does not participate in compulsory insurance, then the company (and employee - if it is proven that there has been a negotiation not to participate in social insurance) then the enterprise will be liable to an administrative penalty stipulate on Decress 12/2022/NĐ-CP dated 17 January 2022 (depend on the scale of violation):
Article 39. Violations against regulations on payment of compulsory social insurance and unemployment insurance premiums
1. A fine ranging from VND 500.000 to VND 1.000.000 shall be imposed upon an employee for reaching an agreement with his/her employer on not participating in compulsory social insurance and unemployment insurance premiums, or participating in an incorrect insurance plan, or not paying insurance premiums at the prescribed rate.
5. A fine equal to 12% to under 15% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Making late payment of compulsory social insurance and unemployment insurance premiums;
b) Paying social insurance and unemployment insurance premiums under the prescribed rates but not to the extent that they are accused of evasion of payment of insurance premiums;
c) Failing to pay social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance but not to the extent that they are accused of evasion of payment of insurance premiums;
d) Appropriating social insurance and unemployment insurance premiums paid by employees.
6. A fine equal to 18% to 20% of the total amount of compulsory social insurance and unemployment insurance premiums payable at the date of issuance of violation record, but not exceeding VND 75.000.000 shall be imposed upon an employer for failing to pay compulsory social insurance and unemployment insurance premiums for the total number of employees eligible for participation in compulsory social insurance and unemployment insurance, if not liable to criminal prosecution.
7. A fine ranging from VND 50.000.000 to VND 75.000.000 shall be imposed upon an employer for the commission of one of the following violations:
a) Evading paying compulsory social insurance and unemployment insurance premiums if not liable to criminal prosecution;
b) Altering or falsifying any documents included in the application for the lower-than-normal rate of contributions to the occupational accident and occupational disease insurance fund, if not liable to criminal prosecution.
The above penalty applies to individuals; the penalty for the organization is twice that for the individual.
Besides the administrative penalty, enterprises and employees must participate in other social insurance by law.
Client Ms. Lam Vi: If enterprises do not pay salary, end of year bonus then where should employees file a complaint?
Respond:
According to Article 94 of the Labour Code 2019, the company must pay salaries on time for employees:
Article 94. Salary payment rules
1. Employers shall directly, fully, and punctually pay salaries to their employees. When an employee cannot directly receive his/her salary, the employer may pay it through a person legally authorized by the employee.
2. Employers must not restrict or interfere with their employees’ spending of their salaries; must not force their employees to spend their salaries on goods or services of the employers or any particular providers decided by the employers.
In some situations, enterprise (if the enterprise has tried all possible remedies but still cannot pay salary on time) then, the enterprise can delay the salary payment but can not exceed 30 days, and the enterprise must pay interest if the delay is more than 15 working days:
Article 97. Salary payment time
4. In case of a force majeure event in which the employer cannot pay the employee on schedule after all remedial measures have been implemented, the salary shall be paid within 30 days. If a salary is paid at least 15 days behind schedule, the employer shall pay the employee compensation worth at least the interest on the amount paid behind schedule at the latest 1-month interest rate quoted by the bank at which the employee’s salary account is opened.
It has already been the timeline, but the company still has not paid the salary, and the Employee has already filed a complaint to company leaders, but it remains unsolved, then according to Article 15 Decree 24/2018/NĐ-CP, the employee can submit the complaint to Labour Investigation of Department of Labor, War Invalids and Social Affairs for settlement.
Article 15. Authority to handle complaints related to labor, occupational safety, and hygiene
1. Employers shall have the power to handle complaints for the first time about complaints against their decisions on or acts of labor or occupational safety and hygiene.
2. The Chief Inspector of the Department of Labour, War Invalids and Social Affairs of the province where the employer’s head office is located shall have the power to handle complaints related to labor or occupational safety and hygiene for the second time in case the complainant disagrees with the first-time complaint handling decision as regulated in Article 23 or over the time limit prescribed in Article 20, the complaint remains unhandled.
3. The authority to handle complaints about occupational accident investigation shall follow provisions outlined in Article 17 of the Government’s Decree No. 39/2016/ND-CP dated May 15, 2016.
Besides, the employee can file a complaint to the court about the payment delay (but the case must go through medication with the labor mediator first)
Ms. An Tran: Is it legal for an employee to sign a probation contract twice for two different job positions with the same company?
Respond:
Articles 24 and 25 in the Labour Code 2019 stipulate as follows:
Article 24. Probation
1. An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.
2. The probation contract must include the probation period and the contents specified in Points a, b, c, dd, g, and h Clause 1 Article 21 of this Code.
3. Probation is not allowed if the employee works under an employment contract for less than 01 month.
Article 25. Probationary period
The probationary period shall be negotiated by the parties based on the nature and complexity of the job. Only one probationary period is allowed for a job, and the probation shall not exceed the following:
1. 180 days for the position of enterprise executive prescribed by the Law on Enterprises, the Law on Management and use of State Investment in Enterprises;
2. 60 days for positions that require a junior college degree or above;
3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians and skilled employees;
4. 06 working days for other jobs.
Accordingly, the company and the employee can only sign probation contracts once for one job position.
However, the law does not forbid one person to try many job positions with one company. After the first probation time, if both parties do not sign a labor contract for that position (for an unsuitable reason) and the employee wants to try another job position, then both parties shall sign another probation contract a second time to try out another job position.
According to Article 26 of the Labour Code, salary during labor time must equal 85% of the official salary.
Mr. Hoang Vu: My company deliberately transferred employees to another job position different from the original negotiation. Will my company be liable for a penalty?
Respond:
About the Labor contract content, Article 21 of the Labor Code 2019, the employee’s scope of duty is the compulsory content in the labor contract:
Article 21. Contents of employment contracts
1. An employment contract shall have the following principal contents:
a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;
b) Full name, date of birth, gender, residence, identity card number, or passport number of the person who concludes the contract on the employee’s side;
c) The job and workplace;
d) Duration of the employment contract;
dd) Job- or position-based salary, a form of salary payment, the due date for payment of wages, allowances, and other additional payments;
e) Regimes for promotion and pay rise;
g) Working hours, rest periods;
h) Personal protective equipment for the employee;
i) Social insurance, health insurance, and unemployment insurance;
k) Basic training and advanced training, occupational skill development.
By law, Employees only need to do their scope of duty (with the exact location) written in the Labor contract (also in the Annex - should any)
However, a Labor Contract also allow the company to transfer an employee to another position which is different from a Labor contract in specific situations (and this has to be regulated in the company internal regulation):
Article 29. Reassignment of an employee against the employment contract
1. In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity, and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.
The employer shall specify in the internal labor regulations the cases in which the employer may temporarily reassign employees against the employment contracts.
2. In case of temporary reassignment of an employee specified in Clause 1 of this Article, the employer shall inform the employee at least 03 working days in advance, determine the reassignment period, and only assign works that are suitable for the employee’s health and gender.
3. The reassigned employee will receive the salary of the new work. If the new wage is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the last salary and not smaller than the minimum wage.
4. If the employee refuses to be reassigned for more than 60 working days in 01 year and has to suspend the employment, he/she shall receive the suspension pay from the employer per Article 99 of this Labor Code.
By law, within some specific situations (for natural disasters or other situations regulated in company internal regulations), the Company shall have the right to transfer employees to a position different from the original Contract.
Obviously, companies have to comply with the notification procedure and inform the employee at least three working days. Employees can count the total time of transferring within one year; if it is beyond 60 days, then the employee shall have the right to refuse the transfer.
If the company still forces employee to work, then company shall be liable to a penalty stipulated at c, term 2, article 11 Decree 12/2022/NĐ-CP:
Article 11. Violations against regulations on the performance of employment contracts
2. A fine ranging from VND 3.000.000 to VND 7.000.000 shall be imposed upon an employer for the commission of one of the following violations:
...
c) Reassigning employees to perform works that are not specified in their employment contracts for improper reasons or incorrect periods or without written consent from employees as prescribed by law.
Remarks: This is the penalty level for individuals. For organizations, the penalty will be twice the individual level.
Anonymous client: Some employees in my company tend not to complete jobs. For this reason, is it legal for my company to unilaterally terminate a labor contract without advance notification?
Respond:
About unilaterally terminating labor contract, according to Article 36 of Labor Contract 2019:
Article 36. The right of an employer to unilaterally terminate the employment contract
1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:
a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for evaluation of employees’ fulfillment of responsibilities shall be verified by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
2. When unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd, and g Clause 1 of this Article, the employer shall inform the employee in advance:
a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in Point b Clause 1 of this Article;
d) The government shall specify the notice period in specific fields and jobs.
Therefore, if a company has enough evidence to prove that an employee has a high frequency of not completing the job, then the company has the right to terminate the Labor contract unilaterally. However, by law, the company must notify in advance (30 days or 45 days).
However, to prove that employees usually do not complete job tasks, companies must build criteria for job completion tasks as per the Labor Code.
This completion criterion is issued by the company, but the company must consult the Union first before officially giving. At the same time, the company must hold communication meetings with employees to collect information about the criteria before issuing (c term 2 Article 63 Labor Code 2019)
If there are no criteria ( or the criteria were not issued in a legal procedure), then there will be the base to determine employees who usually do not complete job positions so that the company shall have the right to terminate the labor contract unilaterally.
ENTERPRISE CONSULTING
Anonymous Client: For a Limited liability company with 4 members to change partners, what application needs to be submitted? What are the notification document samples?
Respond:
For changing partners in Limited Liability Company with more than 2 members usually falls into 2 categories:
1. Adding new partners: The application shall follow Clause 1 Article 52 Decision 01/2021/ND-CP
1. In case of admission of new members, which leads to an increase in the company’s charter capital, the company shall send an application for changes to enterprise registration information to the Business Registration Office of the province where it is headquartered. The application includes the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) The resolution or decision and copy of minutes of meeting of the Board of Members on admission of new members;
d) Certifications of new members’ capital contribution;
dd) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives, and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
e) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment.
2. Changing partner: The application shall follow Clause 2 Article 52 Decision 01/2021/ND-CP
Article 52. Registration of change of members of a multi-member limited liability company
2. In case of a change of members due to the transfer of stakes, the application for changes to enterprise registration information must include the following documents:
a) A notification of changes to enterprise registration information which is signed by the enterprise’s legal representative;
b) The list of members of the multi-member limited liability company. The list must bear signatures of new members and members whose stakes are changed; signatures of members whose stakes are unchanged are optional;
c) A transfer contract or documents proving completion of the transfer;
d) Copies of legal documents of new members that are individuals, or copies of legal documents of new members that are organizations and copies of legal documents of their authorized representatives and letters of appointment of authorized representatives.
If a member is a foreign organization, copies of legal documents of that organization must be legalized;
dd) A written approval given by the investment registration authority for capital contribution or purchase of shares/stakes by foreign investors/foreign-invested business entities in case procedures for registration of capital contribution or purchase of shares/stakes must be followed by the Law on Investment,
Notification to change partner will follow Annex II-1 issued attached with Circular 01/2021/TT-BKHĐT
Ms. T.T.B: My company is a Limited Liability company with 2 members, we want to transfer to a joint stock company without raising capital, is it legible?
Response:
About transferring enterprise legal entity, according to Clause 2 Article 202 about Law on Enterprise 2020:
2. A limited liability company can be converted into a joint stock company:
a) without raising additional capital from other organizations and individuals or selling stakes;
b) by raising additional capital from other organizations and individuals;
c) by selling all or part of the stakes to one or some organizations and individuals; or
d) combining the methods specified in Points a, b and c of this Clause and other methods.
Accordingly, it is eligible for owners to change legal entities from Limited Liability Company to joint stock company without raising capital from other organizations, individuals, or selling the capital contribution to other organizations, individuals.
However, clients need to consider that according to Law on Enterprise 2014 the minimum shareholders in a joint stock company is 03 and no maximum limitation. Therefore, if the company do not meet the requirements (only with 2 shareholders), then it is not eligible to transfer enterprise legal entity
Besides, Enterprise must register with Enterprise Registration offices about legal entity transferring within the timeline of 10 working days, counting from the date of conducting the transferring.
After transferring, the transferred enterprise will inherit all legal rights and benefits and be liable for all debt, including tax debt, labor contract, and other original duties.
Transferring application follows Clause 4 Article 26 Decision 01/2021/NĐ-CP.
Notification about the transfer follows the Annex attached with Circular 01/2021/TT-BKHĐT.
Client V…3@gmail.com Enterprises want to increase charter capital then how about licensing tax?
Respond:
About licensing tax follows the current regulation at Term 1 Clause 10 Decision 126/2020/NĐ-CP :
Article 10. Deadlines for submission of declarations of land-related amounts, licensing fees, registration fees, fees for grant of rights, and other amount payables prescribed by regulations of law on management and use of public property
1. Licensing fees
a) New businesses (except household and individual businesses), including medium and small enterprises converted from household businesses) and existing businesses that establish new dependent units or business locations shall submit the licensing fee declaration by January 30 of the year preceding the establishment or inauguration year.
About licensing tax timeline then at Term 9 Article 18 Decision 126/2020/NĐ-CP
Article 18. Deadlines for payment of tax-related amounts, fees for grant of right to the extraction of water resources and minerals, fees for grant of sea area usage, registration fees, and licensing fees
9. licensing fee:
a) Licensing fee shall be paid annually by the 30th of January.
About the level of licensing fees, please follow Term 1, 4 Decree 139/2016/NĐ-CP as follow:
Article 4. Rate of licensing fees
1. The rate of licensing fees for the organizations having the production and business of goods and services is as follows:
a) The organizations with charter capital and investment capital over 10 billion dong: 3,000,000 dong/year;
b) The organizations with charter capital and investment capital of less than 10 billion dong: 2,000,000 dong/year;
c) The branches, representative offices, business locations, public service providers and other business organizations: 1,000,000 dong/year;
The rate of licensing fees for the organizations specified under Points a and b of this Paragraph is based on the charter capital written in the certificate of business registration or on the investment capital written in the certificate of investment registration in case of no charter capital.
4. If the organizations specified under Points a and b, Paragraph 1 of this Article change their charter capital or investment capital, the ground for determining the rate of licensing fees is their charter capital or investment capital of the year preceding the year of calculation of licensing fees.
Accordingly, if an enterprise's wish to change capital (increase capital) led to the changes in licensing tax, then is it compulsory to submit the licensing tax declaration (as well as the new level licensing tax), the last day would be 30/01 preceding year.