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NATIONAL ASSEMBLY
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SOCIAL REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 42/2019/QH14
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Hanoi, June 14, 2019
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LAW
AMENDMENTS TO SOME
ARTICLES OF LAW ON INSURANCE BUSINESS AND LAW ON INTELLECTUAL PROPERTY
Pursuant to Constitution of the Socialist
Republic of Vietnam;
The National Assembly promulgated Law on amendments to some
articles of Law on Insurance Business No. 24/2000 / QH10 amended to some
articles in accordance with Law No. 61/2010 / QH12 and Law on Intellectual
Property No. 50/2005 / QH11 amended to some articles in accordance with Law No.
36/2009 / QH12.
Article 1. Amendments to Law on Insurance
Business
1. Addition of Clauses 21, 22, 23, 24, 25 and 26
after Clause 20 of Article 3:
"21. Insurance auxiliary service is
an integral part of insurance business activities, implemented by insurers,
insurance brokers, other organizations and individuals for profit purpose,
including insurance consulting, insurance risk assessment, actuarial analysis,
insurance loss assessment, insurance claim assistance.
22. Insurance consulting is an
activity that provides consulting services on insurance programs, insurance
products, insurance risk management, prevention and reduction of losses.
23. Insurance risk assessment is
an activity that identifies, classifies and assesses the nature and extent of
risks, assesses the risk management on people and property and civil liability
as a basis for insurance participation.
24. Actuarial analysis includes
collection and analysis of statistical data; calculation of insurance premiums,
professional reserves, capital, solvency margin; evaluation of business
performance results and determination enterprise value in order to ensure
financial safety of insurers.
25. Insurance loss assessment is
an activity that determines actual state, cause, loss level; calculates and
allocates liability for compensation as a basis for insurance claim assistance.
26. Insurance claim assistance is
an activity that assists policyholders, the insured, beneficiaries or insurers
in carrying out procedures on insurance claim assistance.
2. Amendments to Article 11:
Article 11. Right to participate in professional
- social organizations on insurance business
Insurers, insurance agents, insurance brokers,
individuals and organizations providing insurance auxiliary services are able
to participate in professional - social organizations on insurance business for
the purpose of developing insurance market, protecting legitimate rights and
interests of members in accordance with laws.
3. The title of Chapter IV is changed as
follows:
Chapter IV
INSURANCE AGENCIES,
INSURANCE BROKERS, INSURANCE AUXILIARY SERVICES
4. Addition of Section 3 after Section 2 of Chapter IV:
Section 3
INSURANCE AUXILIARY
SERVICES
Article 93a. Provision of insurance auxiliary services
1. Principles of providing insurance auxiliary
services:
a) Honesty, objectiveness, transparency;
guarantee of legitimate rights and interests of related parties;
b) Compliance with standards and technical
regulations in insurance auxiliary services;
c) Compliance with ethical rules, professional
conduct issued by social – professional organizations.
2. Individuals and organizations that meet the
conditions specified in Article 93b of this Law shall be entitled to provide
insurance auxiliary services in according with the following provisions:
a) Individuals are entitled to provide insurance
consulting services;
b) Insurers, insurance brokers and other juridical
persons shall be entitled to provide insurance auxiliary services (collectively
referred to as “insurance auxiliary service providers”).
3. Responsibilities of individuals and
organizations providing insurance auxiliary services:
a) Customers’ information shall be kept secret
and used for right purpose, not be revealed to a third party without consent of
customers, unless it is provided in accordance with laws;
b) Individuals providing insurance consulting
services shall purchase professional liability insurance that covers insurance
consulting services; insurance auxiliary service providers shall purchase
professional liability insurance in accordance with each type of insurance
auxiliary service;
c) Insurance auxiliary service providers shall
not provide insurance loss assessment services and insurance claim assistance
for insurance contract that the providers are both the insurance buyer and the
insured or beneficiary;
d) Insurance brokers shall not provide insurance
loss assessment services for the insurance agreements they brokered.
4. Contracts providing insurance auxiliary
services shall be made in writing.
Article 93b. Conditions on providing insurance
auxiliary services
1. Every individual providing insurance
consulting services shall:
a) Be at least 18 years of age and have full
legal capacity; and;
b) Have a bachelor’s degree or higher majoring
in insurance. In case of no bachelor’s degree or higher majoring in insurance,
there must be a bachelor’s degree or higher in another major and a certificate
of training in insurance consulting granted by a training institution legally
operating in Vietnam or overseas.
2. Every organization providing insurance
auxiliary services shall:
a) Be a juridical person, legally established
and operated;
b) Ensure that individuals directly performing
insurance auxiliary activities in the organization meet the conditions
specified in point a, clause 1 of this Article; have qualifications that are
appropriate for the insurance auxiliary services they provide and granted by a
training institution legally operating in Vietnam or overseas.
Individuals directly performing insurance loss
assessment shall also meet the criteria applied to assessors in accordance with
commercial law.
The actuaries shall also meet the criteria on
law compliance, morality,
qualification and experience in actuarial analysis, and are members of
International Actuarial Association.
Government shall provide detailed guidance on
this point.
3. The Minister of Finance shall provide
guidance on the content of training program, examination and certificate
granting on insurance auxiliary services of domestic training institutions and
the recognition of certificates of insurance auxiliary services granted by
overseas training institutions.
5. The title of Chapter VI is changed as
follows:
Chapter VI
INSURERS AND
FOREIGN-INVESTED INSURANCE BROKERS CROSS-BORDER SERVICE PROVISION
6. Amendments to Clause 2 of Article 105:
”2. Insurers, foreign insurance brokers
providing insurance services across the border, foreign organizations providing
insurance auxiliary services across the border, foreign individuals providing
insurance consulting services in accordance with regulations of Government.”
7. Amendments to Article 120:
Amendments to Clause 1:
"1. Promulgate and provide guidance on
implementation of legislative documents on insurance business and insurance
auxiliary services; build strategies, plans and policies on development of
Vietnamese insurance market;"
b) Amendments to Clause 4:
"4. Supervise insurance business activities
through professional operations, financial standing, enterprise administration,
risk management and law compliance of insurance enterprises and insurance
brokers; take necessary measures to make sure insurance enterprises to fulfill
financial requirements and fulfill commitments to insurance buyers.
Supervise insurance auxiliary service activities
through compliance with regulations on standards and technical regulations
relevant to insurance auxiliary services, liabilities of individuals and
organizations providing insurance auxiliary services, conditions for providing
insurance auxiliary services and provision of insurance auxiliary services
across the border;"
8. Addition of Clause 9a after Clause 9 of
Article 124:
“9a. Violations of technical regulations
relevant to insurance auxiliary services; liabilities of individuals and
organizations providing insurance auxiliary services; conditions for providing
insurance auxiliary services; providing types of insurance auxiliary services
and provision of insurance auxiliary services across the border;”
Article 2. Amendments to Law on Intellectual
Property
1. Amendments to Point a, Clause 3 of Article 6:
a) Industrial property rights to inventions,
industrial designs, layout designs and trademarks shall be granted on the basis
of decisions on granting protection issued by competent authorities in
accordance with registration procedures specified in this Law or on the basis
of recognized international registration granted accordance with international
agreement to which the Socialist Republic of Vietnam is a signatory.
Industrial property rights to well-known
trademarks shall be granted on the basis of their use instead of registration.
Industrial property rights to geographical
indications shall be granted on the basis of decisions on granting protection
issued by competent authorities in accordance with registration procedures
specified in this Law or international agreement to which the Socialist
Republic of Vietnam is a signatory.
2. Amendments to Clause 3 and addition of Clause
4 after Clause 3 of Article 60:
"3. It is considered that an invention does
not lose its novelty if it is directly or indirectly disclosed by the person
entitled to registration specified in Article 86 of this Law or by the person
who has information about the invention under the condition that the patent
application is submitted in Vietnam within 12 months from the date of disclosure.
4. The provisions of Clause 3 of this Article
shall also be applied to any invention disclosed in the industrial property
application or industrial property protection announced by industrial property
authority in case the announcement is inconsistent with provisions of laws or
the application is submitted by a person ineligible for registration.
3. Amendments to Article 61:
"Article 61. Level of invention
1. Inventions are considered to be inventive
based on technical solutions that have been publicly disclosed in the form of
use or written description or in any other form at home and abroad prior to the
submitting date or the privilege date of the patent application if those
applications entitled to privileges; or the invention is an innovation and cannot
be easily created by a person with average knowledge about the corresponding
technical field.
2. Technical solution which is an invention
disclosed in accordance with Clause 3 and 4, Article 60 of this Law which must
not be used as a basis for evaluation of the level of invention."
4. Amendments to Article 80:
a) Amendments to Clause 1:
"1. Names and indications that have become
common name of goods widely accepted by consumers in Vietnam;"
b) Amendments to Clause 3:
"3. Any geographical indication that is
identical or similar to a trademark under protection or being submitted under a
trademark application with early or privileged submitting date, the use of
which may cause confusion over commercial origin of goods;"
5. Addition of Clause 3 after Clause 2 of
Article 89:
"3. Applications for granting industrial
property rights may be submitted physically or electronically."
6. Amendments to Section 4 of Chapter VIII:
“Section 4
INTERNATIONAL
APPLICATIONS, INTERNATIONAL PROPOSALS AND PROCESSING OF INTERNATIONAL
APPLICATIONS, INTERNATIONAL PROPOSALS"
7. Addition of Article 120a after Article 120 in
Section 4 of Chapter VIII:
“Article 120a. International proposals and
processing of international proposals on geographical indications
1. Proposals for recognition and protection of
geographical indications in accordance with international agreement to which
the Socialist Republic of Vietnam is negotiating, are called international
proposals.
2. The announcement of international proposals
and handling of third-party opinions, assessment of conditions for protection
of geographical indications in international proposals shall comply with the
equivalent provisions specified in this Law for geographical indications in
geographical indication applications submitted to industrial property rights
authority.
8. Amendments to Clause 2 of Article 136:
"2. Trademark holders shall use trademark
continuously.
Trademark use under a trademark use agreement by
a transferee is also considered an act of using the holder’s trademark.
In case the trademark is not used continuously
for five years or more, the Trademark Certificate of Registration shall be
invalidated in accordance with Article 95 of this Law."
9. Amendments to Article 148:
"Article 148. Effect of industrial property
rights transfer agreement
1. As for industrial property rights granted on
the basis of registration specified in Point a, Clause 3, Article 6 of this
Law, an industrial property rights transfer agreement shall only come into
force when it has been registered with industrial property rights authority.
2. As for industrial property rights granted on
the basis of registration specified in Point a, Clause 3, Article 6 of this
Law, industrial property rights agreements shall come into force according to
the agreement between the parties.
3. Industrial property rights agreements
specified in Clause 2 of this Article, except for trademark use agreements,
shall be registered with an industrial property rights authority to be valid
for third parties.
4. An industrial property rights agreement shall
be invalidated if transferor’s industrial property rights are invalidated.
10. Addition of Clauses 4 and 5 after Clause 3
of Article 89:
"4. The defendant in a lawsuit over the
infringement of intellectual property rights and receive acquittal from the
Court is entitled to request the Court to order the plaintiff to reimburse for
their reasonable expenses such as the cost of hiring a lawyer or other expenses
in accordance with laws.
5. In case an organization or individual abuses
the procedures for intellectual property protection and thus causes damage to
another organization or individual, the organization and individual suffering
damage is entitled to request the Court to force the abuser to pay damages,
including reasonable costs of hiring a lawyer. Acts of abusing intellectual
property rights protection procedures include acts of intentionally exceeding
the scope or objective of this procedure.”
11. Amendments to Clause 1 of Article 205:
"1. In case the plaintiff can prove that
the infringement of intellectual property rights has caused material losses to
him/her, he/she is entitled to request the Court to decide the compensation
amount according to one of the following grounds:
a) The total financial losses and the profits
that the defendant has gained from the infringement of intellectual property
rights, if the plaintiff's reduction in profits has not been included in
material losses;
b) The transfer price of intellectual property
rights if the intellectual property rights were transferred to the defendant by
the plaintiff under an intellectual property rights agreement within the scope
of the infringement;
c) Other material losses calculated by the
intellectual property right holder in accordance with provisions of lawsoft;
d) In case it is impossible to determine the
damages for material losses according to the provisions specified in Points a,
b and c of this Clause, the damages shall be determined by the Court based on
the level of loss, in which case the damages shall not exceed VND5 million.”
12. Amendments to Clause 1 of Article 218:
"1. When the requester for suspension of
customs procedures has fulfilled the obligations specified in Article 217 of
this Law, the customs authority shall issue the decision of suspension.
The customs authority shall provide the
intellectual property rights holder with information on name and address of
shipper; exporter, consignee or importer; description of goods; quantity of
goods; origin of goods (as the case may be), within 30 days from the date of
issuance of the decision to apply administrative measures to handle trademark
counterfeiting and smuggled goods specified in Clause 4, Article 216 of this
Law.”
Article 3. Effect
1. This Law will take effect from November 1,
2019, except for the case specified in Clause 4 of this Article.
2. Addition of section 32a after section 32,
Appendix 4, List of Sectors and Trades Subject to Conditional Business
Investment of the Law on Investment No. 67/2014 / QH13, which was amended in
accordance with Law No. 90/2015 / QH13, Law No. 03/2016 / QH14, Law No. 04/2017
/ QH14 and Law No. 28/2018 / QH14 as follows:
“32a. Insurance auxiliary services include
insurance consulting, insurance risk assessment, actuarial analysis, insurance
loss assessment and insurance claim assistance.
3. Insurance auxiliary services arising from
insurance business activities shall be regulated by the Government and approved
by the Standing Committee of the National Assembly before issuance.
4. Regulations on intellectual property rights
in this Law will take effect from January 14, 2019, applying to the following
cases:
a) Applications for industrial property rights
submitted from January 14, 2019;
b) Requests for invalidation of the Patent for
invention, Patent for useful solutions, Certificates of geographical
indications registration issued on the basis of applications for industrial property
rights submitted from January 14, 2019;
c) Requests for invalidation of trademark
registration certificates submitted from January 14, 2019;
d) Lawsuits over infringement of intellectual
property rights accepted by competent authorities from January 14, 2019; other
requests relevant to intellectual property protection carried out from January
14, 2019.
Article 4. Transitional provisions
1. Within 01 year from the effective date of
this Law, individuals and organizations that have been providing insurance
auxiliary services before the effective date of this Law shall meet conditions
on providing insurance auxiliary services according to regulations of this Law.
Otherwise, they shall not continue to provide insurance auxiliary services
until the conditions are fully met.
2. Applications for inventions and geographical
indications submitted before January 14, 2019 shall be processed in accordance
with Law on Intellectual Property No. 50/2005 / QH11 amended in accordance with
Law No. 36/2009 / QH12.
3. Trademark use agreements signed between the
parties but not registered with industrial property rights authority before
January 14, 2019 are only valid for third party from January 14, 2019.
4. Unsolved lawsuits over infringement of
intellectual property rights accepted by competent authorities before January
14, 2019 shall be handled in accordance with provisions of Law on Intellectual
Property No. 50/2005 / QH11 amended in accordance with Law No. 36/2009 / QH12.
This Law was passed by the 14th National
Assembly of the Socialist Republic of Vietnam at its 7th session on June 14,
2019.
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CHAIRMAN OF NATIONAL ASSEMBLY
Nguyen Thi Kim Ngan
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