Menu
9/10 356 bình chọn

Civil code 33/2005/QH11 14/06/2005

THE NATIONAL ASSEMBLY
No: 33/2005/QH11
 
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Ha Noi, day 14 month 06 year 2005                          
 

CIVIL CODE

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001, of the 10th National Assembly, the 10th session;

This Code provides for civil affairs.

PART ONE

GENERAL PROVISIONS

 

Chapter I

TASKS AND EFFECT OF THE CIVIL CODE

Article 1.- Tasks and governing scope of the Civil Code

The Civil Code provides the legal status, legal standards for the conduct of individuals, legal persons, other subjects; the rights and obligations of subjects regarding personal identities and property in civil, marriage and family, business, trade, labor relations (hereinafter referred collectively to as civil relations).

The Civil Code has the tasks of protecting legitimate rights and interests of individuals and organizations, State interests and public interests; ensuring legal equality and safety in civil relations, contributing to the creation of conditions for meeting the material and spiritual demands of people, and to the promotion of socio-economic development.

Article 2.- Effect of the Civil Code

1. The Civil Code shall apply to civil relations established from the effective date of this Code, unless otherwise provided for by this Code or the National Assembly's resolution.

2. The Civil Code shall apply in the territory of the Socialist Republic of Vietnam.

3. The Civil Code shall apply to civil relations involving foreign elements, unless otherwise provided for by treaties to which the Socialist Republic of Vietnam is a contracting party.

Article 3.- Application of practices, analogy of law

In cases where it is neither provided for by law nor agreed upon by the parties, practices can be applied; if practices are unavailable, analogy of law may be applied. Practices and analogy of law must not contravene the principles provided in this Code.

Chapter II

BASIC PRINCIPLES

Article 4.- Principles of free and voluntary undertaking and agreement

The right to freely undertake or agree on the establishment of civil rights and obligations shall be guaranteed by law, if such undertaking or agreement is not banned by law and/or not contrary to social ethics.

In civil relations, the parties shall act entirely voluntarily and neither party may impose, prohibit, coerce, threaten or hinder the other party.

Lawful undertakings or agreements shall be binding on the parties and must be respected by individuals, legal persons and other subjects.

Article 5.- The principle of equality

In civil relations, the parties shall be equal and shall not invoke differences in ethnicity, gender, social status, economic situation, belief, religion, educational level and occupation as reasons to treat each other unequally.

Article 6.- The principle of goodwill and honesty

In civil relations, the parties must act in goodwill and honesty in establishment and performance of civil rights and obligations; neither party shall deceive the other party.

Article 7.- The principle of bearing civil liability

The parties shall strictly perform their own civil obligations and shall themselves be liable for the non-performance or the incorrect performance of obligations; if a party does not voluntarily perform, it shall be forced to perform its obligations in accordance with the provisions of law.

Article 8.- The principle of respect for good morals and traditions

The establishment and performance of civil rights and obligations must ensure the preservation of national identities, respect and promote good customs, practices and traditions, solidarity, mutual affection and cooperation, the principle of every individual for the community and the community for every individual and the noble ethical values of ethnicities living together on Vietnamese soil.

Ethnic minority people shall be given favorable conditions in civil relations so as to step by step improve their material and spiritual life.

The task of assisting elderly persons, young children and persons with disabilities in the performance of civil rights and obligations shall be encouraged.

Article 9.- The principle of respect for, protection of, civil rights

1. All the civil rights of individuals, legal persons or other subjects shall be respected and protected by law.

2. When the civil rights of a subject are infringed upon, he/she/it shall have the right to protect such rights by him/her/itself in accordance with the provisions of this Code or request competent agencies or organizations to:

a/ Recognize his/her/its civil rights;

b/ Order the termination of the act of violation;

c/ Order a public apology and/or rectification;

d/ Order the performance of civil obligations;

e/ Order compensation for damage.

Article 10.- The principle of respect for State interests, public interests and legitimate rights and interests of other persons

The establishment and performance of civil rights and obligations must not infringe upon State interests, public interests and legitimate rights and interests of other persons.

Article 11.- The principle of compliance with law

The establishment and performance of civil rights and obligations must comply with the provisions of this Code and other provisions of law.

Article 12.- The principle of conciliation

In civil relations, conciliation between the parties in accordance with the provisions of law shall be encouraged.

No one may use force or threaten to use force when participating in civil relations and/or resolving civil disputes.

Article 13.- Bases for establishment of civil rights and obligations

Civil rights and obligations shall be established on the following bases:

1. Lawful civil transactions;

2. Decisions of courts or other competent state agencies;

3. A legal event which is specified by law;

4. Creation of spiritual values which are intellectual property objects;

5. Legitimate possession of property;

6. Damage caused by an illegal act;

7. Performance of a task without authorization;

8. Illegal possession and use of assets or illegal gain therefrom;

9. Other bases specified by law.

Chapter III

INDIVIDUALS

Section 1. CIVIL LEGAL CAPACITY, CIVIL ACT CAPACITY OF INDIVIDUALS

Article 14.- Civil legal capacity of individuals

1. The civil legal capacity of an individual is his/her capability to have civil rights and civil obligations.

2. All individuals shall have the same civil legal capacity.

3. The civil legal capacity of an individual shall exist from the time he/she is born and terminate when he/she dies.

Article 15.- Contents of the civil legal capacity of an individual

An individual shall have the following civil rights and obligations:

1. Personal rights not associated to property, and personal rights associated to property;

2. Ownership rights, inheritance rights and other rights with respect to property;

3. Rights to participate in civil relations and to assume obligations arising out of such relations.

Article 16.- No restrictions on the civil legal capacity of an individual

The civil legal capacity of an individual shall not be restricted, unless otherwise provided for by law.

Article 17.- The civil act capacity of an individual

The civil act capacity of an individual is his/her capability to establish and perform civil rights and obligations through his/her acts.

Article 18.- Adults and minors

Persons who are full eighteen years old or older are adults. Persons who are not yet full eighteen years old are minors.

Article 19.- The civil act capacity of an adult

An adult shall have full civil act capacity, except the cases specified in Article 22 and Article 23 of this Code.

Article 20.- The civil act capacity of minors who are between full six years old and under full eighteen years old

1. Persons who are between full six years old and under full eighteen years old must have the consents of their representatives at law when establishing and performing civil transactions, except those transactions to meet their daily-life needs suitable to their age group or otherwise provided for by law.

2. In cases where a person who is between full fifteen years old and under full eighteen years old has his/her own property to ensure the performance of obligations, such person may establish and perform civil transactions by him/herself without the consent of his/her representative at law, unless otherwise provided for by law.

Article 21.- Persons without civil act capacity

Persons who are under full six years old shall not have civil act capacity. All civil transactions of persons under full six years of age must be established and performed by their representatives at law.

Article 22.- Loss of civil act capacity

1. When a person is incapable of cognizing or controlling his/her acts due to mental disease or other ailments, the Court may, at the request of the person(s) with related rights or interests, issue a decision to declare such a person as having lost his/her civil act capacity, based on the conclusion of a competent medical examination body.

When there is no longer a basis for declaring a person as having lost his/her civil act capacity, the Court shall, at the request of such person him/herself or of a person with related rights or interests, issue a decision to revoke the decision declaring the loss of civil act capacity.

2. Civil transactions of persons who have lost their civil act capacity shall be established and performed by their representatives at law.

Article 23.- Restrictions on civil act capacity

1. Persons whose addiction to narcotics/drugs or to other stimulants leads to the squandering of their families' property may be declared by decision of the Court to be persons with a restricted civil act capacity, at the request of persons with related rights or interests or of relevant agencies or organizations.

2. The at-law representatives of persons with a restricted civil act capacity and the scope of such representation shall be decided by the Court. Civil transactions related to the property of persons with a restricted civil act capacity must have the consents of their representatives at law, except for transactions to meet their daily-life needs.

3. When there is no longer a basis for declaring that a person has a restricted civil act capacity, the Court shall, at the request of such person him/herself or a person with related rights or interests, make a decision to revoke the decision having declared the restriction on his/her civil act capacity.

Section 2. PERSONAL RIGHTS

Article 24.- Personal rights

Personal rights specified in this Code are civil rights inherent to each individual, which cannot be transferred to other persons, unless otherwise provided for by law.

Article 25.- Protection of personal rights

When a personal right of an individual is infringed upon, such person shall have the right to:

1. Make rectification him/herself;

2. Request the infringer or request competent agencies, organizations to order the infringer to terminate the infringement and make a public apology and/or rectification;

3. Request the infringer or request competent agencies or organizations to order the infringer to pay compensation for damage.

Article 26.- The right with respect to family and given names

1. Each individual has the right to have a family name and a given name. The family and given names of a person shall be the family and given names in the birth certificate of such person.

2. An individual shall establish and exercise civil rights and perform civil obligations in his/her family and given names which have been recognized by a competent state agency.

3. The use of pseudonyms and pen names must not cause damage to the rights and interests of other persons.

Article 27.- The right to change family and given names

1. Individuals shall have the right to request competent state agencies to recognize the change of their family and/or given names in the following cases:

a/ Where it is so requested by the person who has a family or given name the use of which causes confusion or affects the feelings of his/her family, the honor, legitimate rights and interests of such person;

b/ Where an adoptive father or mother requests to change the family and/or given name of an adopted child or when an adopted child ceases to be an adopted child and he/she or his/her biological father or mother requests to reclaim the family and/or given name which was given to him/her by the biological father or mother;

c/ Where it is so requested by the biological father or mother or the child when identifying the father and/or mother of the child;

d/ Where there is a change of the family name of a child from that of the father to that of the mother or vice versa;

e/ Where there is a change of the family name and/or given name of a person who was lost from his/her childhood and has discovered the origin of his/her bloodline;

f/ Where there is a change of the family name and/or given name of a person whose gender has been re-determined;

g/ Other cases specified by law on civil status.

2. The change of the family name and/or given name of a person who is full nine years or older must be consented by that person.

3. The change of the family name and/or given name of an individual shall neither change nor terminate the civil rights and obligations which have been established under the former family name and/or given name.

Article 28.- The right to determine ethnicity

1. An individual upon his/her birth may have his/her ethnicity determined in accordance with the ethnicity of his/her biological mother and father. In cases where the biological father and mother belong to two different ethnicities, the ethnicity of the child shall be determined as the ethnicity of the father or the ethnicity of the mother in accordance with practices or in accordance with the agreement of the biological father and mother.

2. A person who has attained adulthood, the biological father and mother or guardian of a minor may request competent state agencies to re-determine his/her ethnicity in the following cases:

a/ To re-determine his/her ethnicity in accordance with the ethnicity of the biological father or mother, if the father and mother belong to two different ethnicities;

b/ To re-determine his/her ethnicity in accordance with the ethnicity of his/her biological father and/or mother in circumstances where he/she is the adopted child of a person belonging to a different ethnicity and has had his/her ethnicity determined in accordance with the ethnicity of his/her adoptive father and/or mother due to the unidentification of his/her biological father and/or mother.

3. Where the biological father or mother or the guardian of a minor requests the re-determination of the ethnicity of a minor who is full fifteen years or older under the provisions of Clause 2 of this Article, the consent of such minor is required.

Article 29.- The right to registration of birth

Individuals, when born, shall have the right to have their births registered.

Article 30.- The right to registration of death

1. When a person dies, his/her next of kin, the house owner or the agency or organization to which the dead person belonged must register the death of such person.

2. If a newborn infant dies after birth, the infant's birth and death must be registered; if the infant dies before or immediately upon birth, the infant's birth and death must not be registered.

Article 31.- The right of an individual with respect to his/her picture

1. An individual shall have the right with respect to his/her picture.

2. The use of a picture of an individual must have his/her consent; where such person has died, lost his/her civil act capacity or is under full fifteen years old, the consent of his/her father, mother, husband, wife, adult children or representative is required, unless it is for State interests, public interests or otherwise provided for by law.

3. It is strictly forbidden to use pictures of other persons to infringe upon their honor, dignity and/or prestige.

Article 32.- The right to safety of life, health and body

1. Individuals shall shave have the right to safety of life, health and body.

2. When a person discovers another person who has got an accident or is sick whereby his/her life is threatened, the person who discovers him/her shall have the responsibility to deliver such person to a medical establishment; the medical establishment must not refuse to provide treatment to the person and shall have to utilize all available means and capabilities to cure him/her.

3. The application of new curative methods on the body of a person and the anesthetization, surgery, amputation, implantation and grafting of body organs must have his/her consent; if the person is a minor, has lost the civil act capacity or is an unconscious patient, the consent of his/her father, mother, guardian or next of kin is required; in cases where there is a threat to the life of a patient which cannot wait for the opinions of the above-said persons, a decision of the head of the medical establishment is required.

4. A post-mortem operation shall be performed in the following cases:

a/ Where it is so consented by the decedent before his/her death;

b/ Where it is so consented by the decedent's father, mother, wife, husband, adult children or guardian when there is no opinion of the decedent before he/she dies;

c/ Where it is so decided by a competent medical organization or a competent state agency in case of necessity.

Article 33.- The right to donation of body organs

Individuals shall have the right to donate their body organs for the purpose of medical treatment of other persons or scientific research.

The donation and use of body organs shall comply with the provisions of law.

Article 34.- The right to donation of corpses, body organs after death

Individuals shall have the right to donate their corpses, body organs after they die for the purpose of medical treatment of other persons or scientific research.

The donation and use of corpses, body organs of dead persons shall comply with the provisions of law.

Article 35.- The right to receive body organs

Individuals shall have the right to receive body organs of other persons for their medical treatment.

It is strictly forbidden to receive and use body organs of other persons for commercial purposes.

Article 36.- The right to re-determination of gender

Individuals shall have the right to the re-determination of their gender.

The re-determination of gender of a person shall be performed in cases where his/her gender is affected with inborn defects or has not been properly shaped, which needs the medical intervention to clearly determine the gender.

The re-determination of gender shall comply with the provisions of law.

Article 37.- The right to protection of honor, dignity and prestige

Individuals' honor, dignity and prestige shall be respected and protected by law.

Article 38.- The right to personal secrets

1. An individual's rights to personal secrets shall be respected and protected by law.

2. The collection and publication of information and materials on the private life of an individual must be consented by that person; in cases where that person has died, lost his civil act capacity or is under full fifteen years, the consent of his/her father, mother, wife, husband, adult children or representative is required, except for cases where the collection and publication of information and materials are made by decision of a competent agency or organization.

3. Letters, telephones, telegrams, other forms of electronic information of individuals shall be safely and confidentially guaranteed.

The inspection of an individual's letters, telephones, telegrams and/or other forms of electronic information may be performed only in cases where it is so provided for by law and decided by competent state agencies.

Article 39.- The right to marriage

Males and females who have fully met the conditions for marriage in accordance with the law on marriage and family shall have the right to marriage at their free will.

The freedom of marriage between persons belonging to different ethnicities and/or religions, between religious and non-religious persons and between Vietnamese citizens and foreigners shall be respected and protected by law.

Article 40.- The right to equality between husband and wife

Husband and wife are equal to each other, shall have the same rights and obligations in all respects in family and in civil relations and shall together build a plentiful, equitable, progressive, happy and lasting family.

Article 41.- The right to enjoy mutual care among family members

The members of a family shall have the right to enjoy mutual care and assistance in accordance with the fine moral traditions of the Vietnamese family.

Children and grandchildren who are minors shall benefit from the care and upbringing of the mother, father and grandparents; children and grand-children shall have the duty to respect, care for and support their parents and grandparents.

Article 42.- The right to divorce

A wife or husband or both the wife and the husband shall have the right to request the Court to solve their divorce.

Article 43.- The right to recognize or not to recognize a father, mother or child

1. A person who is not recognized as a father, mother or child of another person shall have the right to request a competent state agency to determine him/her as father, mother or child of that person.

2. A person who is recognized as a father, mother or child of another person shall have the right to request a competent state agency to determine him/her as not being father, mother or child of that person.

Article 44.- The right to adopt a child and the right to be accepted as an adoptive child

An individual's right to adopt a child and right to be accepted as an adoptive child shall be recognized and protected by law.

The adoption of a child and the process of being accepted as an adoptive child shall comply with the provisions of law.

Article 45.- The right to citizenship

An individual shall have the right to have a citizenship.

The recognition of, change to, the naturalization or relinquishment of the Vietnamese citizenship shall comply with the provisions of law on citizenship.

Article 46.- The inviolable right to place of residence

Individuals shall have the inviolable right to their places of residence.

The entry into the place of residence of a person must be consented by that person.

The search of a place of residence of a person shall be performed only in cases where it is so provided for by law and where there is a warrant from a competent state agency; the search must comply with the order and procedures specified by law.

Article 47.- The right to freedom of belief and religion

1. Individuals shall have the right to freedom of belief and religion, and to adhere to or not to adhere to a religion.

2. No one may infringe upon the freedom of belief and religion, or abuse beliefs or religions to infringe upon State interests, public interests or legitimate rights and interests of other persons.

Article 48.- The right to freedom of movement, freedom of residence

1. Individuals shall have the right to freedom of travel and freedom of residence.

2. An individual's freedom of travel and/or freedom of residence may be restricted only by decision of a competent state agency and in accordance with the order and procedures specified by law.

Article 49.- The right to work

Individuals shall have the right to work.

Every person shall have the right to work, the freedom to choose a job or occupation without being discriminated against on the ground of his/her ethnicity, sex, social status, belief or religion.

Article 50.- The right to freedom of business

Individuals' right to freedom of business shall be respected and protected by law.

Individuals shall have the right to choose the forms, areas and lines of business, to establish enterprises, to freely enter into contracts and hire labor, and other rights in accordance with the provisions of law.

Article 51.- The right to freedom of research, creation

1. Individuals shall have the right to freedom of scientific and technical research, inventions, innovations to improve techniques and rationalize production; the right to literary and art creation and critique, and to participation in other activities of research and/or creation.

2. The right to freedom of research and/or creation shall be respected and protected by law. No one shall have the right to hinder or restrict an individual's right to freedom of research and creation.

Section 3. PLACE OF RESIDENCE

Article 52.- Place of residence

1. The place of residence of an individual is the place where such person permanently lives.

2. In cases where it is impossible to identify an individual's place of residence as provided for in Clause 1 of this Article, his/her place of residence shall be the place where such person currently lives.

Article 53.- Place of residence of minors

1. The place of residence of a minor is the place of residence of his/her parents; if the parents have separate places of residence, the place of residence of the minor shall be the place of residence of the father or mother with whom the minor permanently lives.

2. A minor may have a place of residence separate from the place of residence of his/her father and mother, if it is so agreed by his/her parents or so provided for by law.

Article 54.- Place of residence of wards

1. The place of residence of a ward is the place of residence of his/her guardian.

2. A ward may have a place of residence separate from the place of residence of his/her guardian, if it is so agreed by the guardian or so provided for by law.

Article 55.- Place of residence of husband and wife

1. The place of residence of a husband and a wife is the place where the husband and the wife permanently live together.

2. A husband and a wife may have separate places of residence, if they so agree upon.

Article 56.- Place of residence of military personnel

1. The place of residence of military personnel currently performing his/her military obligations is the place where the military personnel's unit is stationed.

2. The place of residence of an army officer, professional military personnel, defense worker or official is the place where his/her unit is stationed, except in cases where he/she has a place of residence as specified in Clause 1, Article 52 of this Code.

Article 57.- Place of residence of persons performing itinerant occupations

The place of residence of a person performing an itinerant occupation on a ship, boat or other means for itinerant work is the place of registration of such ship, boat or means, except for cases where he/she has a place of residence specified in Clause 1, Article 52 of this Code.

Section 4. GUARDIANSHIP

Article 58.- Guardianship

1. Guardianship is a task whereby an individual or organization (hereinafter referred collectively to as guardian) is required by law or appointed to take care of and protect legitimate rights and interests of a minor or a person who has lost his/her civil act capacity (hereinafter referred collectively to as ward).

2. Wards include:

a/ Minors who have lost their mothers and fathers, whose parents are unidentifiable, or whose parents have both lost their civil act capacity or have had their capacity for civil acts restricted, whose parents have had their parental rights restricted by the Court, or whose parents are still alive but have no conditions to take care of and to educate such minors, and if their parents so request;

b/ Persons who have lost their civil act capacity.

3. Persons who are under full fifteen years old as provided for at Point a, Clause 2 of this Article and persons defined at Point b, Clause 2 of this Article must have guardians.

4. A person may be a guardian for more than one person, but a person may be a ward of only one guardian, except in cases where the guardian is his/her father, mother or grandfather, grand-mother as specified in Clause 2 of Article 61 or Clause 3 of Article 62 of this Code.

Article 59.- Supervision of guardianship

1. The next of kin of wards shall have the responsibility to appoint their representatives to supervise the guardianship in order to monitor, urge, inspect the guardians in the performance of their guardianship, consider and settle in time the guardians' proposals and/or petitions related to the guardianship.

The wards' next of kin are their spouses, parents, children; if none of these people is available, the wards' next of kin shall be their grandparents, siblings; if none of these persons is available, the wards' next of kin shall be their uncles and ants.

2. In cases where a ward has none of his/her next of kin or his/her next of kin cannot nominate any one to supervise the guardianship as provided for in Clause 1 of this Article, the People's Committee of the commune, ward, or district township where the guardian resides shall appoint a person to supervise the guardianship.

3. The persons who supervise the guardianship must be those who have full civil act capacity.

Article 60.- Requirements for individuals to be guardians

Persons who meet all of the following requirements may act as guardians:

1. Having full civil act capacity;

2. Having good virtues; being not examined for penal liability or having had their criminal records written off after having been sentenced for one of the crimes of intentionally infringing upon the life, health, honor, dignity or property of other persons;

3. Having necessary conditions to ensure the performance of the guardianship.

Article 61.- The natural guardian of a minor

The natural guardian of a minor who has lost both his/her mother and father, whose parents are unidentifiable, or whose parents have both lost their civil act capacity or have had their civil act capacity restricted, whose parents have had their parental rights restricted by the Court, or whose parents do not have conditions to take care of and to educate the minor, and if the parents so request, shall be determined as follows:

1. In cases where it is not otherwise agreed upon by the biological siblings, the eldest brother or sister shall be the guardian for his/her younger siblings who are minors; if the eldest brother or sister does not fully meet the conditions for being a guardian, the next eldest brother or sister shall be the guardian;

2. In cases where there are no biological siblings or where the biological siblings do not fully meet the requirements to be a guardian, the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian; if none of these persons fully meet the conditions to be a guardian, the uncle or ant of that person shall be the guardian.

Article 62.- The natural guardian of a person who has lost his/her civil act capacity

1. In cases where the wife has lost her civil act capacity, her husband shall be her guardian; if the husband has lost his civil act capacity, his wife shall be his guardian.

2. In cases where the father and mother have both lost their civil act capacity or where either of them has lost the civil act capacity while the other does not fully meet the requirements to be a guardian, the eldest child shall be the guardian; if the eldest child does not fully meet the requirements to be a guardian, the next eldest child shall be the guardian.

3. In cases where an adult who has lost his/her civil act capacity has no wife or husband, no children or his wife or her husband or children do not fully meet the requirements to be a guardian, his/her father and/or mother shall be the guardian.

Article 63.- Appointment of a guardian

In cases where a minor or a person who has lost his/her civil act capacity does not have a natural guardian as provided for in Article 61 and Article 62 of this Code, the People's Committee of the commune, ward or district township where the ward resides shall have the responsibility to appoint a guardian or propose an organization to assume the guardianship.

Article 64.- Procedures for appointing a guardian

1. The appointment of a guardian must be made in writing, clearly stating the reason for appointing the guardian, the specific rights and obligations of the guardian and the status of the ward's property.

2. The appointment of a guardian must be consented by the person who is appointed to be a guardian.

Article 65.- Obligations of guardians towards wards aged under full fifteen years

The guardian of a person aged under full fifteen years shall have the following obligations:

1. To take care of and educate the ward;

2. To represent the ward in civil transactions, except where it is provided for by law that wards aged under full fifteen years can establish and perform civil transactions by themselves;

3. To manage the property of the ward;

4. To protect legitimate rights and interests of the ward.

Article 66.- Obligations of guardians towards wards aged between full fifteen years and under full eighteen years

The guardian of a person aged between full fifteen years and under full eighteen years shall have the following obligations:

1. To represent the ward in civil transactions, except where it is provided for by law that wards who are aged between full fifteen years and under full eighteen years can establish and perform civil transactions by themselves;

2. To manage the property of the ward;

3. To protect legitimate rights and interests of the ward.

Article 67.- Obligations of guardians towards wards who have lost their civil act capacity

The guardian of a person who has lost his/her civil act capacity shall have the following obligations:

1. To take care of and ensure the medical treatment for the ward;

2. To represent the ward in civil transactions;

3. To manage the property of the ward;

4. To protect legitimate rights and interests of the ward.

Article 68.- Rights of guardians

A guardian shall have the following rights:

1. To use the property of the ward in order to take care of and pay for the needs of the ward;

2. To be paid for all expenses necessary for the management of the ward's property;

3. To represent the ward in the establishment and performance of civil transactions in order to protect legitimate rights and interests of the ward.

Article 69.- Management of property of wards

1. Guardians must manage the property of their wards as if it were their own property.

2. Guardians may perform transactions related to the property of their wards in the interests of the wards. The sale, exchange, lease, lending, pledge, mortgage, deposit and other transactions involving the property of wards, which has a large value, must be consented by the guardianship supervisors.

Guardians must not donate the property of their wards to other persons.

3. Civil transactions between guardians and their wards in connection with the latter's property shall be invalid, except for cases where such transactions are performed in the interests of the wards and agreed upon by the guardianship supervisors.

Article 70.- Replacement of guardians

1. A guardian may be replaced in the following cases:

a/ The guardian no longer meets all of the requirements specified in Article 60 of this Code;

b/ The guardian being an individual dies or has been declared missing by the Court or being an organization which has terminated its operation;

c/ The guardian seriously violates a guardian's obligations;

d/ The guardian proposes his/her replacement and another person agrees to assume the guardianship.

2. In case of changing a natural guardian, the persons defined in Article 61 and Article 62 of this Code shall assume the role of a natural guardian; if there is no natural guardian, the appointment of a guardian shall comply with the provisions of Article 63 of this Code.

3. The procedures for changing an appointed guardian shall comply with the provisions of Article 64 and Article 71 of this Code.

Article 71.- Transfer of the guardianship by the appointed guardian

1. Upon the change of an appointed guardian, the person who has performed the guardianship shall have to transfer the guardianship to his/her replacement within fifteen days as from the date a new guardian is found.

2. The transfer of guardianship must be made in writing, clearly stating the reason for the transfer and the status of the ward's property at the time of transfer. The person who appointed the guardian and the person who supervises the guardianship shall witness the transfer of guardianship.

3. In case of change of a guardian for the reason that the guardian being an individual has died, or been declared by the court as having his/her civil act capacity restricted, losing his/her civil act capacity or as missing; or that the guardian being an organization has terminated its operation, the person who appointed the guardian shall make a record thereon, clearly stating the status of the ward's property and the rights and obligations which have arisen in the course of performing the guardianship for transfer to the new guardian to the witness of the guardianship supervisor.

4. The transfer of guardianship must be recognized by the People's Committee of the commune, ward or district township where the new guardian resides.

Article 72.- Termination of guardianship

A guardianship shall be terminated in the following cases:

1. The ward has obtained full civil act capacity;

2. The ward has died;

3. The ward's father and/or mother have/has fully met the conditions to perform their rights and obligations;

4. The ward has been adopted.

Article 73.- Consequences of the termination of guardianship

1. When a guardianship is terminated, the guardian must settle up the property with the ward or with the mother and/or father of the ward within three months from the time the guardianship terminates.

In cases where the ward dies, the guardian must settle up the property with the ward's heirs within three months as from the time the guardianship terminates; if the ward's heirs are unidentifiable upon the expiry of such time limit, the guardian shall continue to manage the property of the ward until the property has been settled in accordance with the provisions of law on inheritance and shall notify such to the People's Committee of the commune, ward or district township where the ward resides.

The settlement of property shall be carried out under the supervision of the guardianship supervisors.

2. The rights and obligations arising from civil transactions in the interest of a ward shall be performed by the guardian as follows:

a/ To transfer them to the ward when the ward has obtained full civil act capacity;

b/ To transfer them to the ward's father and/or mother in cases specified in Clause 3 and Clause 4, Article 72 of this Code;

c/ To transfer them to the ward's heir(s) when the ward dies.

Section 5. NOTICE OF SEARCH FOR PERSONS WHO ARE ABSENT FROM THEIR PLACES OF RESIDENCE, DECLARATION OF MISSING PERSONS AND DECLARATION OF DEATH

Article 74.- Request for notice of search for persons who are absent from their places of residence and the management of their property

When a person has disappeared for six consecutive months or more, the person with related rights or interests shall have the right to request the Court to issue a notice of search for the person absent from his/her place of residence under the provisions of civil procedure law and may request the Court to apply measures for management of the property of the absent person in accordance with the provisions of Article 75 of this Code.

Article 75.- Management of the property of a person who is absent from his/her place of residence

1. At the request of the person with related rights or interests, the Court shall hand over the property of a person absent from his/her place of residence to one of the following persons for management:

a/ The person who has been authorized by the absent person to manage the latter's property shall continue to manage such property;

b/ For a common property, the remaining co-owner(s) shall manage such property;

c/ The property being currently managed by the wife or the husband shall continue to be managed by the wife or the husband; if the wife or the husband dies or loses her/his civil act capacity or has her/his civil act capacity restricted, a child who has attained adulthood or the father and/or mother of the absent person shall manage the latter's property.

2. In cases where there are none of the persons defined in Clause 1 of this Article, the Court shall appoint a person among the next of kin of the absent person to manage his/her property; if the absent person does not have any next of kin, the Court shall appoint another person to manage the property.

Article 76.- Duties of the persons managing the property of persons absent from their places of residence

The persons managing the property of persons absent from their places of residence shall have the following duties:

1. To keep and preserve the property of the absent persons as if it were their own property;

2. To immediately sell the property being subsidiary food crops or other products being in danger of decay;

3. To perform the absent persons' obligations to support their dependents and/or to pay due debts with such persons' property under the Court's decisions;

4. To hand back the property to the absent persons upon their return and to notify the Court thereof; if they are at fault in the management of property thereby causing damage, they must pay compensations therefor.

Article 77.- Rights of the persons managing the property of persons absent from their places of residence

The persons managing the property of persons absent from their places of residence shall have the following rights:

1. To manage the property of the absent persons;

2. To deduct a portion from the property of the absent persons in order to perform the latter's obligations to support their dependents and/or obligations to pay due debts;

3. To be paid for all expenses necessary for the management of the property.

Article 78.- Dclaration of a person to be missing

1. When a person has disappeared for two consecutive years or more and there is no reliable information on whether such person is still alive or dead even though notification and search measures have been fully applied in accordance with the civil procedure law, the Court may, at the request of a person with related rights or interests, declare such person missing. The two-year time limit shall be counted from the date the last information on such person is obtained; if the date of the last information cannot be determined, this time limit shall be counted from the first day of the month following the month when the last information is received; if the date and month of the last information cannot be determined, this time limit shall be counted from the first day of the year following the year when the last information is received.

2. In cases where the wife or the husband of a person who has been declared missing files for a divorce, the Court shall grant the divorce.

Article 79.- Management of the property of persons who have been declared missing

The persons currently managing the property of the persons who are absent from their places of residence as provided for in Clause 1, Article 75 of this Code shall continue to manage the property of such persons when they are declared missing by the Court and have the rights and duties specified in Article 76 and Article 77 of this Code.

In cases where a Court has resolved to permit the wife or the husband of the person who has been declared missing to divorce, the property of the missing person shall be handed over to the child(ren) who has/have attained adulthood or to the mother and/or father of the missing person for management; if there is no such person, the property shall be handed over to the next of kin of the missing person for management; if there is no next of kin, the Court shall appoint another person to manage the property.

Article 80.- Annulment of the decision declaring a person missing

1. When a person who has been declared missing returns or when there is reliable information that such person is still alive, the Court shall, at the request of such person or a person with related rights or interests, issue a decision to annul the decision declaring a person missing.

2. A person who has been declared missing shall, upon his/her return, be permitted to take back his/her property handed to him/her by the property manager after paying the management expenses.

3. In cases where the wife or the husband of a person who has been declared missing has been granted a divorce, the decision permitting the divorce shall still be legally effective, despite the return of the person who has been declared missing or the reliable information that such person is still alive.

Article 81.- Declaration of a person to be dead

1. A person with related rights or interests may request the Court to issue a decision declaring that a person is dead in the following cases:

a/ After three years as from the date the Court's decision declaring a person missing takes legal effect there is still no reliable information that such person is alive;

b/ The person has disappeared during a war and five years from the end of the war, there is still no reliable information that such person is alive;

c/ The person was hit by an accident, catastrophe or a natural disaster and one year from the end of such accident, catastrophe or natural disaster, there is still no reliable information that such person is alive, unless otherwise provided for by law;

d/ The person has disappeared for five consecutive years or more and there is no reliable information that such person is still alive; this time limit shall be counted in accordance with the provisions of Clause 1, Article 78 of this Code.

2. The Court shall, on a case-by-case basis, determine the date of death of a person who has been declared dead, based on the cases specified in Clause 1 of this Article.

Article 82.- Personal relations and property relations of persons who have been declared dead by the Court

1. When a decision of the Court declaring that a person is dead becomes legally effective, all marriage and family relations and other personal relations of such person shall be resolved as if a person had died.

2. The property relations of a person whom the Court has declared dead shall be resolved as if such person had died; the property of such person shall be settled in accordance with the law on inheritance.

Article 83.- Annulment of the decision declaring that a person is dead

1. When a person who has been declared dead returns or when there is reliable information that such person is still alive, the Court shall, at the request of such person or of a person with related rights or interests, issue a decision to annul the decision which declared that such person was dead.

2. The personal relations of the person who has been declared dead shall be restored when the Court issues a decision to annul the decision which declared that such person was dead, except for the following cases:

a/ Where the wife or the husband of the person who has been declared dead was permitted by the Court for her or his divorce in accordance with the provisions of Clause 2, Article 78 of this Code, the decision permitting the divorce shall remain legally effective;

b/ Where the wife or the husband of the person who has been declared dead has married another person, such marriage shall remain legally effective.

3. A person who has been declared dead but is still alive shall have the right to demand that the persons who received his/her inheritance to return the property that still remains.

In cases where the heir of a person whom the Court has declared dead is aware that such person is still alive, but deliberately conceals such for the purpose of enjoying the inheritance, he/she must return the entire property which he/she has received, including yields and profits; if causing damage, he/she must pay compensation therefor.

Read more...

LHD Law Firm

WHATSAPP, VIBER,WECHAT, KAKAOTALK

+84907996249 

     

LHD LAW FIRM IN HO CHI MINH
Addr:  HP Tower, 60 (Floor 7) Nguyen Van Thu Street, Dakao Ward, District 1, HCM City, Viet Nam
Tel:
+842822416866 or +842822446739
Email: all@lhdfirm.com 

LHD LAW FIRM IN HA NOI
Addr: Anh Minh Tower, (Floor 4) 36 Hoang Cau Street, O Cho Dua Ward, Dong Da District, Ha Noi City, Viet Nam
Tel:  +842462604011 or +84911633168 

 

Tag:

Civil code 33/2005/QH11 14/06/2005

Comment
Send comment
captcha