Tải bản đầy đủ (.doc) (93 trang)

competition law of vietnam 2018 and issues involved in enforcement

Bạn đang xem bản rút gọn của tài liệu. Xem và tải ngay bản đầy đủ của tài liệu tại đây (362.21 KB, 93 trang )

MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY
________________

MASTER THESIS

COMPETITION LAW OF VIETNAM 2018 AND

ISSUES INVOLVED IN ENFORCEMENT

Specialization: International Trade Policy and Law

NGUYEN PHUONG TAM

Hanoi – 2020


MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY
________________

MASTER THESIS

COMPETITION LAW OF VIETNAM 2018 AND

ISSUES INVOLVED IN ENFORCEMENT

Specialization: International Trade Policy and Law

Full name: NGUYEN PHUONG TAM
Supervisor: Prof. Dr. Tang Van Nghia



Hanoi – 2020


i
DECLARATION
I hereby declare that I am the sole author of this master thesis. It is made on
basis of data collection, figure analysis, theoretical studies and under the direction,
support and supervision of Prof. Dr. Tang Van Nghia. The research contents and
findings of this research are truly honest. The data and figures collected and
analyzed in the thesis are completely listed in the List of References.
I am fully responsible for the content of this Master thesis as well as this
Declaration.

rd

Hanoi, March 23 , 2020
Nguyen Phuong Tam


ii
ACKNOWLEDGEMENTS
During the progress of conducting this Master thesis, I have received the
guidance and valuable support from professors, lecturers, family and friends.
First of all, I would like to express my gratefulness and the sincere thanks to
Prof. Dr. Tang Van Nghia, Dean of Faculty of Graduate Studies of the Foreign Trade
University (FTU) who provided me much guidance, support and help so that I can
complete this Master thesis.
Second, I would like to extend a special thanks to all the respectful professors
and lecturers from WTI in the Master of International Trade Policy and Law courses

and Foreign Trade University who devoted their time, experiences and knowledge
to give me the good foundation of international trade policy and law.
Last but not least, I convey my sincere thanks to my family and friends who
provide me consecutive supports during the time of conducting thesis.
rd

Hanoi, March 23 , 2020


iii
TABLE OF CONTENT

DECLARATION...................................................................................................... i
ACKNOWLEDGEMENTS.................................................................................... ii
TABLE OF CONTENT.........................................................................................iii
LIST OF ABBREVIATIONS.................................................................................. v
SUMMARY OF THESIS RESEARCH RESULTS.............................................. vi
INTRODUCTION................................................................................................... 1
CHAPTER 1: OVERVIEW OF COMPETITION LAW OF VIETNAM...........6
1.1 Fundamentals of competition and competition law.................................... 6
1.1.1 Fundamentals of Competition................................................................... 6
1.1.2 Fundamentals of Competition Law......................................................... 10
1.2 Evolution of competition law in Vietnam.................................................. 16
1.2.1 Before the promulgation of the Competition Law 2004..........................16
1.2.2 The promulgation of the Competition Law 2004.................................... 21
1.2.3 The promulgation of the Competition Law 2018.................................... 28
CHAPTER 2: ISSUES INVOLVED IN ENFORCEMENT OF
COMPETITION LAW OF VIETNAM 2018...................................................... 38
2.1 Contributions of the Competition Law 2018............................................. 38
2.1.1 Regulations on anti-competitive agreements.......................................... 38

2.1.2 Regulations on abuse of dominant position and monopoly position.......39
2.1.3 Regulations on economic concentration................................................. 40
2.1.4 Regulations on unfair competition.......................................................... 46
2.1.5 Regulations on Model of Competition Agency........................................ 47
2.2 Issues involved in enforcement of Competition Law of Vietnam 2018....49
2.2.1 Content issues................................................................................................49


iv
2.2.2 Issues on competition enforcement agency .............................................. 5
5
2.2.3 Concern related to enforcement to state-owned enterprises ................... 6
0
2.2.4 Issues on Resources and Staffing ............................................................. 6
3
CHAPTER 3: RECOMMENDATIONS FOR VIETNAM TO EFFECTIVELY
ENFORCE COMPETITION LAW 2018 ............................................................. 67
3.1 Recommendations on content of provisions ............................................... 67
3.2 Recommendations on Competition Authority ............................................ 70
3.3 Recommendations on enforcing competition laws to SOEs ...................... 73
3.4 Recommendations on resources and staff ................................................... 76
3.5 Other recommendations ............................................................................... 77
CONCLUSION ........................................................................................................ 80
REFERENCES ........................................................................................................ 82


v
LIST OF ABBREVIATIONS

ASEAN


Association of Southeast Asian Nations

MoIT

Ministry of Industry and Trade

NCC

National Competition Commission

OECD

Organization for Economic Cooperation and Development

POE

Private Owned Enterprise

SOE

State Owned Enterprise

UNCTAD

United Nations Conference on Trade and Development

VCA

Vietnam Competition Authority


VCCA

Vietnam Competition and Customer Authority

VCC

Vietnam Competition Council


vi
SUMMARY OF THESIS RESEARCH RESULTS
The leading objective of this research is to evaluate issues involved in
enforcement of the Competition Law 2018 then to provide recommendations on
how to solve these issues and to effectively implement the new law. To achieve it,
the research analyzes the situation of Vietnam Competition Law 2004
implementation, analyzes big changes of the Law 2018 then find out issues involved
in the enforcement of this new Law. Based on data analysis and information
collected, the Competition Law 2018 implementation face the following issues:
Firstly, the new Law still exists some points that are not clear or not feasible.
Some articles having good contents at the perfect concept but are inapplicable or
hard to apply in reality. The new Decree detailing the Competition Law 2018 has
th

been promulgated on March 24 , 2020 and will enter into force at middle of May,
so during this time, standards for evaluating market power, market share, etc. still
follow the old degree. Besides, some provisions of the new law such as leniency
provision will not be effective if related provisions in other laws (e.g. the Criminal
Code) are not reformed. In addition, the Competition Law 2018 separates the
economic concentration from the anti-competitive agreements. This change is

suitable with the current context that not every economic concentration transaction
is of anti-competitive nature. The competition agency will determine the risk of
leading anti-competitive of the economic concentration transaction then decide to
approve the transaction or not. It demands the very detailed and effective standard
and tool to make the correct decision. So one of recommendations suggested for the
government is double check and keep amending unsuitable points.

Secondly, the National Competition Commission (NCC) is not officially
organized yet, during this time, the Vietnam Competition Authority (VCA, and
currently VCCA – Vietnam Competition and Consumer Authority) and Vietnam
Competition Council are still in charge of competition cases. In the new Law, NCC
also belongs to the Ministry of Industry and Trade (MoIT) and members of NCC are
officials of the MoIT, relevant ministries, they handle NCC missions


vii
concurrently. This situation has limited the power, functions, neutrality and
efficiency of the agency.
Thirdly, same as before, NCC has to face a lot of difficulties in handling
competition cases related to state-owned enterprises or administrative decisions
issued by state agencies as well as performing consultancy functions. So the
government will take more time to discuss and carry out how to help NCC
effectively function.
Last but not least, Vietnam competition agency has a lack of budget and
human resources for handling competition cases. In fact, the number of competition
agency‟ members is too small compared with competition cases that they need to
handle. They also need to do other jobs assigned, so they cannot concentrate on
handling competition cases only. They also need to be trained regularly to improve
their skills and experiences. To fully fill these demands, a huge budget is needed. So
it requests the government to distribute more part of the State Budget to competition

agencies.


1
INTRODUCTION
1. Rationale of the research topic
Competition Law No. 27/2004/QH11 was approved in the sixth session on
rd

December 3 , 2004 and took effect from July 1st, 2005. This law regulates
competition restricting acts, unfair competition acts, order and procedures for
settling competition cases, measures to handle violations of competition legislation.
During over ten years of the implementation, the Competition Law 2004 has
revealed several shortcomings and drawbacks that need to be overcome. Some
provisions are no longer adequate with reality and direction of economic
development. New anti-competitive behaviors appeared which are not governed by
the Law. Some of them occurred outside Vietnam territory but their effects have
been on Vietnam. No legislation on competition handled this group of behaviors.
These shortcomings directly have impacts on the effectiveness and efficiency of
competition law implementation, the strictness of law and violation prevention.
Under this context, the Competition Law No. 23/2018/QH14 was enacted on
th

st

June 12 , 2018 and took effect on July 1 , 2019, replacing the Law on Competition
2004 with changes that address the new market situation. There have been new
subjects regulated under Vietnam Law on Competition 2018, evaluation of market
power factors in competition instead of market share factors, and changes in
organization of authority handling investigation and enforcing competition matters.

After several months implemented, the new regulation reveals some issues in
enforcement. Therefore, the research on “Competition Law of Vietnam 2018 and
issues involved in enforcement” expects to provide detailed analysis on issues
involved in enforcement and then to provide some recommendations on effectively
implementing the Competition Law 2018. Hopefully, the research will be useful
with readers who may be concerned.
2. Literature review
Researches on competition are various at different angles and perspectives.
st

However, the Competition Law 2018 has recently taken effect on July 1 2019 –


2
several months ago, so there has been no research on issues involved in its
enforcement that is published yet.
There exist some literatures on theoretical and practical background for
competition law and some researches on Vietnam Competition Law 2004 and
related legislation, namely as follows:
In national research, the textbook “Competition Law in Vietnam” by Le Danh
Vinh, Hoang Xuan Bac, Nguyen Ngoc Son (2006) provides theoretical and practical
background for training on competition law. The principal contents of this book
include concept on competition, roles and objectives of competition policies,
approaches on competition restriction behaviors governed in the Competition Law
2004 and competition agency implementing competition law in Vietnam;
The textbook “Competition Law” by Nghia Tang Van (2013) mentioned and
analyzed relevant markets (chapter 4); anti-competitive practices (chapter 5); unfair
competitive practices (chapter 6) and power and legal proceedings of Vietnam
Competition Authority (chapter 7).
Vietnam Competition Authority, the state management on competition also

conducted a report on “Review on Vietnam competition legislation” in 2013. The
report is divided into three chapters. The first chapter is overview of Vietnam
competition legislation – that provides basic information about the context of
issuing competition law, overview of competition legislation and law enforcement
status in recent years. Chapter two analyses issues involved in enforcement of
competition law such as general regulations, regulations on controlling anticompetitive agreement, abuse of market dominant and monopoly position,
economic concentration, unfair competitive behaviors and model of competition
agency. The last chapter gives some recommendations on resolving these issues in
enforcement of the Competition Law 2004. The review focuses on analyzing issues
involved in enforcement of the Competition Law 2004 then provides ideas to amend
some out-of-date and infeasible regulations.
The research “Vietnam regulations on anti-competitive agreements: Some
inadequacies and recommendations for amendments” by Nguyen Khanh Phuong
(2014) examined Vietnam's legal provisions on anti-competitive agreements,


3
focusing on proving that these regulations have not been really effective in
protecting a fair competition environment and consumers‟ legitimate interests. The
paper then pointed out some inadequacies and shortcomings of these provisions, and
proposed some solutions to amend and implement these regulations.
The research “Application of law and jurisdiction of competition enforcement
agencies” by Lu Lam Uyen (2014) analyzed the inconsistence and irrationality of
determining the applicable law and jurisdiction of enforcement agencies in Vietnam
by examining distinct nature and legal field between unfair competition conducts
and antitrust violation.
In international research, the most popular textbook on competition is the
“Competition Policy, theory and practice” of Massimo Motta, Cambridge
University in 2004. The research comprises of three sections (i) Overview on
antitrust (competition policy), namely definition on competition policy, approach on

development of competition policy in United States and some European countries;
(ii) Definition on market power, impacts of enterprises with dominant position on
competition market; (iii) Economic tools to define market power. Analysis on
competition agency is integrated in the competition policy and approach on
development of competition legislation of countries.
The international organizations like OECD, UNCTAD, etc. conducted research
papers and roundtable meetings among members on competition law. Among these
papers, OECD peer reviews of Competition Law and Policy of Vietnam that was
published in 2018 has been a great assistance to Vietnam in amending the
Competition Law. The review focuses on problems related to state owned entities,
on analyzing law framework of restrictive competition and unfair competition, on
analyzing proposed new competition law and competition authority reform, then
provides recommendations on improving competition institutions.
3. Research objectives and research questions
The research objectives are raising issues involved in enforcement of
Competition Law 2018 and then providing recommendations to solve these issues
and to effectively apply the new regulation.


4
Therefore, the research questions are raised as follows:
(1) What are changes of the Competition Law 2018 in comparison to the
Competition Law 2004?
(2)

What are issues involved in enforcement of the new Law?

(3)

How to solve the emerging issues and to effectively enforce the new Law?


4. Scope of research
Scope of space: The research will focus on competition law and its
enforcement in Vietnam. Besides, experiences of other ASEAN and OECD
countries are referred to support conclusions and give recommendations for
effectively implementing the Competition Law.
Scope of time:
- Assessment on status and shortcomings of the Competition Law 2004
implementation in Vietnam in the period of 2005-2018;
- Analysis on status of implementation and issues involved in enforcement of
th

the Competition Law 2018 from its enactment on June 12 , 2018 till now.
5. Research methodology
To achieve objectives mentioned as above, to resolve questions that are raised
in the research, following methods are simultaneously used:
Desk research and empirical method
The desk research method is helpful in assessing the status of implementing
the Competition Law 2004 and the empirical method is essential for evaluating
issues involved in the new Law - Competition Law 2018.
Analysis and statistics method
The statistics method provides data supporting for statements and conclusions
in the research. The analysis method helps to assess the status of current
enforcement of the new Law. The combination of these methods will make research
more practical and persuasive to readers.


5
Comparison method
The comparison method is a great help in assessing amendments of the

Competition Law 2018. The recommendations and conclusions of the research are
also learned from comparison with international experiences, the shortcomings and
backwards of the Competition Law 2004. The comparison method will enhance the
reliability of statements in the research.
6. Structure of the thesis
This Master thesis is divided into three main parts as follows:
Chapter 1: Overview of Competition Law of Vietnam
Chapter 2: Issues involved in enforcement of Competition Law of Vietnam 2018

Chapter 3: Recommendations for Vietnam to effectively enforce Competition
Law 2018


6
CHAPTER 1: OVERVIEW OF COMPETITION LAW OF VIETNAM
1.1 Fundamentals of competition and competition law
1.1.1 Fundamentals of Competition
1.1.1.1 Concept of competition
Competition is considered as an economic phenomenon, appearing and
existing as an outstanding feature of market economy. It reflects the development
capacity of the market. In the Glossary of Industrial organization economics and
competition law published by the OECD, competition is defined as “A situation in a
market in which firms or sellers independently strive for the patronage of buyers in
order to achieve a particular business objective, e.g., profits, sales and/or market
share. Competition in this context is often equated with rivalry. This rivalry may
take place in terms of price, quality, service or combinations of these and other
factors which customers may value. Competition is viewed as an important process
by which firms are forced to become efficient and offer greater choice of products
and services at lower prices. It gives rise to increased consumer welfare and locative
efficiency. It includes the concept of “dynamic efficiency” by which firms engage in

innovation and foster technological change and progress”. (OECD, 1993, p.23)
In the perspective of an entity of behavior, competition is a method of solution
for conflict on potential benefits among enterprises, in which the consumers are
determinant factors. In the scope of society, competition is an ultimate method of
allocation on social sources and motivation of economy development. Competition
is classified into different types:
Based on structure of enterprises, the level of enterprises concentration in the
industry, economic sector, it is divided into perfect competition, monopoly and
imperfect competition.
Perfect competition is the situation of market in which the price and volume of
goods are defined by the supply and demand of goods. The players in the market
must accept and follow the market price. In the perfect competition market, there
are various buyers and sellers on one product. Any buyer or seller is too small in


7
comparison with scope of market and cannot impact on the market price. While
monopoly is the situation of a market in which just one enterprise sells the product
and no alternative or similar one (so called monopoly). This situation is totally
contrary with perfect competition.
Imperfect competition is the situation of the market in the combination of two
above mentioned situations of market. It includes monopolistic competition and
oligopoly. The monopolistic competition is the situation of a market in which many
sellers produce goods which are interchangeable. Each seller just controls the price
of goods produced by them. Oligopoly is the situation of a market containing some
sellers. Each seller is aware that the price of goods depends on both volume of
goods and behaviors of competitors in that sector.
Based on objectives and nature of competition manner, they are divided into
fair competition and unfair competition. Fair competition is a type of positive
competition in which the enterprises competes each other by their capacities. The

business behaviors comply with trade customs and ethnics. In contrary, the unfair
competition is specific activities of an entity for competition purposes but
unfairness. They are not always illegal but cause negative impacts to a particular
enterprise or competitors in the market.
As the above analysis, competition is the rivalry among enterprises on prices,
volume, services or combination of elements to enhance the position of enterprises
in the market. Vigorous competition between firms is the lifeblood of strong and
effective markets. It encourages firms to innovate by reducing slack, putting
forward pressure on costs and providing incentives organization of production. As
such, competition is a central driver for productivity growth in the economy, and
international competition.
1.1.1.2 Function of competition
In general, functions of competition are expressed in many aspects and depend on
the social field in which competition exists. In economics, competition serves to
regulate the market, makes the market operate in inevitable rules of competition, and at
the same time increases economic values in society. The functions of competition are
revealed primarily through the following ways (Nghia Tang Van, 2013):


8
- Competition adjusts and leads the business of goods and services of entities
to be in accordance with the demands based on customers' financial capabilities.
- Competition automatically adjusts business plans and decisions of market
participants based on economic benefits.
- Competition makes production resources such as capital, technology, labor,
etc. to be used in the most efficient and effective manner, and avoids wastage.
- Competition regulates the supply and demand of society, makes the supplydemand relationship in the market always balanced.
- Competition enables to help consumers to choose suppliers and goods and
services that suit their demands.
- Competition regulates distribution of resources and income corresponding

to the activities and effectiveness of market participants.
- Competition operates a process of selecting and eliminating inefficient
business entities, and provides opportunities for more efficient and dynamic new
entities to enter the market.
- Finally, neutralizing concentration of economic power.
1.1.1.3 Advantages and Disadvantages of Competition
Advantages of Competition
Competition is always the motivation to develop production and business, and
also the economic development force of each country. Fair and legal competition
takes a positive effect to make the quality of goods and services better, to lower
prices of goods, and to benefit consumers. It gives them the confidence in the good
operation of a strong market and in the competitive process. Trade transactions
therefore will increase, thereby promote economic growth. Competition supports
the process of accumulating, concentrating resources, capital and other factors of
production, so makes the society eligible to carry out large-scale projects.
Competition forces enterprises to reform and operate effectively in order to survive.
The rule of elimination in the competition process creates opportunities for strong
and highly competitive business entities to enhance their competitive advantages to
develop.


9
Fair competition will establish a self-adjusting mechanism leading to a relative
equilibrium of market power as well as of supply and demand in the market.
Therefore, new inventions, new achievements of science and technology will
stimulate enterprises to compete more aggressively to find opportunities to increase
profits, while bringing better value of goods and services to consumers. Therefore,
basically, there exist only enterprises that are strong or at least can maintain their
own existence.
Disadvantages of Competition

Competition is always the motivation of economic growth, but the
consequences can always occur, for example resources are overexploited (leading to
rapid depletion), environmental pollution, increasing rich - poor gap among the
social classes, etc. Intense competition will cause excessive accumulation of market
resources, which can lead to the emergence of entities that can dominate the market,
even can gain monopoly position in the market of determined goods and services.
The impact of competition is also revealed in many other ways: excessive
competition may lead enterprises to destroy others, to waste resources, and market
is manipulated by entities that have market power. Not only consumers‟ loose
caused by monopoly but also the bankruptcy of a series of weak and small
businesses lead to huge socio-economic consequences.
Competition also brings certain negative aspects in the segmentation of
enterprises. The dominant and potential enterprises will win in any competition,
while the weak and incompetent enterprises are difficult to survive. Competition can
also extend the rich–poor, strong-weak gap. Workers may be unemployed due to
continued technological innovation (which does not require much labor), or due to
bankruptcy of enterprises. This creates a dilemma in the development and
implementation of socio-economic policies of each country. In particular, the
competition relies on deceptive tactics to create competitive advantages can cause
damage to market participants, causing many negative consequences to consumers
and society.


10
1.1.2 Fundamentals of Competition Law
1.1.2.1 Concept of competition law
The primary purpose of competition law is to remedy some of the situation in
which the free market system breaks down (Sandra Marco Colino, 2011). Competition
law has grown enormously, especially since the 1990s. With an increasing number of
countries that have undertaken economic reforms and embraced the market economy,

many of them have also introduced competition law to promote competition and
process in their markets. Thus, there has been increasing reliance on competition policy
and law to address market failures and distortions in the form of anti-competitive
practices, abuse of dominance. There is an increasing tendency of competition laws
introduced by the countries in the world.

In common understanding, competition law includes all regulations issued by
the state and has direct impacts on business activities and market structure. It
composes of two main groups of legal documents:
- The first one includes all documents to promote competition in the market,
namely regulations on market entry, diversification of economic components in the
market, freedom of trade. This group of regulations is very important, including
Law on Enterprises, Law on Investment, etc. and other industrial regulations,
namely Law on Telecommunication, Law on Insurance business, Law on Credit
institutions, Law on Electricity, etc.
- The second one includes legal institutions enacted to control and prevent anticompetitive behaviors, unfair competition and overdue state interference into the law of
market. Many countries adopted a separate legal document to control this group of
activities (it is so called Competition Law, Antitrust Law, Fair Trade Law, etc.).

1.1.2.2. Characteristics of competition law
Competition law is a part of economic law, so it has a close relationship with
economic activities, business entities and its development is in accordance with the
level of economic development. Competition law is also based on the competition
regime in an economy. On the other hand, competition law always aims to ensure


11
the openness of the market, the freedom of competition, and encourages
competition among entities in the market. Therefore, competition law has the
following characteristics:

- The flexibility: Competition laws are designed to be flexible in order to
adapt to the adjustment of competitive acts of business entities that are very diverse
and complicated. Flexibility makes many behaviors (especially in anti-competition
restriction laws) under a form “prohibitable”. It means business entities can be
exempted from prohibited conduct if they provide a justifiable reason. Therefore,
when applying the law, the authorities are often very flexible, takes into account the
interests of all parties in each specific case in order to encourage competition and to
prevent illegal competition behaviors as well.
- Competition laws are closely related to the economy and must conform to
economic standards. Therefore, when applying the competition legislation to
specific cases, people basically often use the economic approach.
- Competition law has the characteristics of both public law and private law,
which implies economic-related issues of many important legal fields such as civil,
commercial, administrative, etc.
- Therefore, competition law does not have its own sanctions. When applying
this law, people have to use sanctions of some other legal fields such as civil
sanctions (applied to unfair competition acts, mainly compensation for damages,
forced termination of violations, etc.) or administrative sanctions that are mostly
monetary fines (applied to competition restriction acts, abuse of market dominant
position, economic concentration).
- Different from other legal fields, in addition to the provisions on
competition activities, the competition law also has the provisions on jurisdiction
and proceedings of litigation. Competition litigation power is prescribed to clearly
define power of individuals and organizations conducting competition legal
proceedings. Competition litigation proceedings do not only include activities
related to the handling of breaches, but also activities related to procedures of
registration, notification, or request for exemption of competition entities.


12

Thus, in summary, competition law is a field of economic law including the
synthesis of legislation governing competition behaviors between competition
entities in the market and of litigation proceedings.
1.1.2.3 Content of competition law
Provisions on unfair competition acts
Unfair competition prohibition legislation is established to ensure the trade is
fair and is not negatively affected by bad competition acts and by behaviors that
violate business ethical standards. The unfairness of competition behaviors depends
on many factors of market relations and is basically adjusted according to the
general principles of civil law (private law). Law against unfair competition only
intervenes activities/violations in that there is a complaint from person with related
rights and interests. The sanctions are mostly forcing to stop the behavior and
paying compensation for damages caused.
Provisions on competition restriction acts
With the development of the economy and the growth of economic entities,
large amounts of enterprises with significant market power and even monopoly have
emerged. This leads to an objective need that the state needs to promulgate
regulations to restrict and control the manipulation of monopoly. These are the
premises for the birth of anti-competition restriction laws.
Normally, except regulations about competition litigation, anti-competition
restriction laws include three contents as following:
- Prohibitions against the “restraint of competition” comprising prohibitions
against anti-competitive agreements (Cartel)
- Prohibitions against abuse of dominance, abuse of monopoly (Unilateral
conducts)
- Control of economic concentration
Anti-competition restriction laws of all countries have the purpose of
protecting freedom of competition as well as protecting market structure and
correlation. Therefore, it bears many characteristics of administrative law. Because



13
in general, level and range of competition restriction acts are more serious than
unfair competition acts, anti-competition restriction laws often have more strict
solutions, timelier and more specific measures - economic administrative sanctions.
Sanctions applied to breaches can be suspension of the acts, declaration of invalid
agreements, restructuring of firms, fines, etc. However, anti-competition restriction
laws are flexible, they will not be applied to all cases that have competition
restriction signals but are only applied to such acts that are qualitative or
quantitative about the level of violations or that have unreasonable behaviors. In
addition, there are many exceptions for competition restriction that can be exempted
for good economic reasons. Since this law protects free competition as well as
structure and correlation of market, it is necessary to consider and pay attention to
the benefits of stakeholders in the competition relationship.
Provisions on competition jurisdiction and litigation
Different from other legal fields, competition law regulates competition
litigation proceedings of organizations as well as individuals conducting and
participating in competition litigation proceedings. This content is mentioned
directly in the competition law. This is a specific kind of administrative - economic
procedure, so its content can only be consistent with provisions built in the entire
competition law.
Competition litigation includes not only the order of competition handling
procedures but also the procedures conducted for exemption as well as for
registration. According to specific regulations, measures to handle and impose
administrative sanctions on violations of competition law are concretized and more
appropriate for the competition field.
1.1.2.4 Relationship between competition law and other laws
Competition law contains the characteristics of both private law and public
law. Competition law carries principles and regulations of many legal documents
such as Civil Code, Commercial Law, Administrative Law, Criminal Code, etc.

Competition law uses the sanctions of other branches of law against entities that
violate competition regulations (Nghia Tang Van, 2013).


14
Relationship between competition law and civil law
The position of competition law is most evident in relation with civil law - a
law that represents the basic foundation of private law.
Most of the provisions in the competition law are influenced in different levels
by the principles of the Civil Code. These provisions can be the principles of
contract freedom, contractual

arrangements

and non-contractual damages

compensation, etc. Specifically:
- Provisions on anti-competitive agreements, abuse of dominant market
position, abuse of monopoly position and economic concentration are based
primarily on the principle of contractual freedom, and are also directly affected by
the invalid contractual provisions and the accompanying sanctions.
- Provisions on unfair competition are actually the development of the
principles of respecting good ethical traditions in civil transactions and
compensation regimes (contractual or non-contractual) of damages when unfair
competition acts occur and damage the interests of other participants, or consumers.
Many provisions of the competition law are concretizing and developing the
provisions of civil law due to the specific characteristics of competition law. For
example, entities are free to engage in contracts, but some agreements are prohibited
under competition law if they meet the signals set out in competition law.
Relationship between competition law and commercial law

Competition law has a close relationship with commercial law, because
commercial law governs commercial conducts of traders, while competition law
governs the competitive aspect of these commercial conducts. The relationship
between competition law and commercial law as well as the relationship between
competition law with civil code show that competition law has a close relationship
with private law, plays roles of supporting, protecting principles and provisions of
those legal documents in competition terms.


15
Relationship between competition law and administrative law
The relationship between competition law and administrative law is mainly
reflected in the provisions on the measures of impacting or regulating competition
activities of the competition authorities. Whereby, many of above provisions,
especially the provisions on handling violations of the competition law are based on
the principles, or directly on regulations of administrative law. The approach to
impact on competitive behaviors hereby, is the approach of administrative law. This
means the competent authorities, when enforcing competition law in many cases,
rely only on the principle of spiritual inequality, on the principle of state authority
with managed objects.
Under the Vietnam Competition Law, the Competition Administrative
Department can proceed investigation and treatment if there are indications of
violations in some cases without legal actions of related parties. Moreover,
sanctions applied for violations of competition laws are, essentially, administrative
sanctions. It shows that competition law has a very close relationship with
administrative law, and includes characteristics of public law as well.
In addition, the competition law itself contains administrative measures for
state agencies. It means state agencies are also affected by the competition law in
some specific cases. Under the Vietnam Competition Law 2018, the state agencies
must not conduct the following acts to hinder competition in the market (Article 8).

- Forcing, requesting, recommending enterprises, organizations or individuals
to or not to buy, sell specific products, provide services or from/to specific
enterprises, except for products and services in state-monopolized domains or in
emergency cases prescribed by law;
- Discriminating among enterprises;
- Forcing,

requesting,

recommending

industry

associations,

social-

occupational organizations or enterprises to associate with one another with a view
to restrain competition on the market;


16
- Taking advantage of their positions and powers to illegally intervene the
competition.
Therefore, state agencies will also be subject to sanctions for discriminatory
conducts.
Relationship between competition law and criminal law
In competition law, mainly unfair competition prohibition regulations of some
countries stipulate criminal sanctions for violations of competition law when its
dangers for society have reached the level of crimes, such as counterfeiting (causing

serious consequences), deceiving customers, providing untrue information about
goods and services (causing great damage to customers), etc.
In Vietnam, only acts regulated by the Criminal Code are considered and
punished as crimes, other laws cannot stipulate crimes or penalties. Therefore, there
is no criminal provision as well as criminal sanctions for breaches in competition
law. However, in order to control these types of acts, the Criminal Code also has
provisions on some crimes related to violations of competition law such as:
deceiving customers, speculating, counterfeiting, etc.
1.2 Evolution of competition law in Vietnam
1.2.1 Before the promulgation of the Competition Law 2004
Before the renovation of the economic management mechanism (1987), the
Vietnam economy operated under a central planning model, in this context, all
activities of the economy were conducted according to the plan and the central
order. The legal form of business relations is not contractual but a state-mandated
plan. Therefore, there is no environment for business activities and there is no
competition between economic entities.
After 1987, implementing the renovation policy of economic management, the
state has gradually built institutions and developed a market economy in order to
release production capacity and competitiveness of entities in the economy. Besides,
the legal system is also constantly being improved to create an appropriate legal
basis for economic activities. The strong development of the economy under


Xem Thêm

×