Can persons serving prison sentences in Vietnam authorize another person to make a civil transaction? How to determine the term of authorization?
- Can persons serving prison sentences in Vietnam authorize another person to make a transaction?
- What are the regulations on civil transactions authorized by persons serving prison sentences?
- How to determine the term of authorization between the authorizing person serving a prison sentence and the authorized person?
Can persons serving prison sentences in Vietnam authorize another person to make a transaction?
Pursuant to Clauses 1 and 2, Article 3 of the 2019 Law on Execution of Criminal Judgments of Vietnam, “sentenced person” means a person who has been convicted of a crime and subject to a penalty under a court judgment or decision which becomes legally effective and has had an execution decision.
In addition, “inmate” means a person who is currently serving a termed prison sentence or a life sentence.
Thus, persons serving prison sentences will be guaranteed to perform their rights and obligations in Article 27 of the 2019 Law on Execution of Criminal Judgments of Vietnam as follows:
Rights and obligations of inmates
1. Inmates have the rights to:
a) Have their lives, health, assets, dignity protected and respected; having been informed of their rights and obligations and regulations of places of detention;
b) Receive board and lodging, clothes, personal care, health care as prescribed; receive letters, gifts, money; read books, newspaper, listen to the radio, watch television in conformity with conditions of the place where they serve the sentence;
c) Participate in physical training and sports, cultural and performance activities;
d) Participate in work, study, apprenticeship activities;
dd) Meet and contact with relatives, representatives of agencies, organizations, and individuals; or have consular visit and contact in case of foreign inmates;
e) Conduct civil transactions as per the law by themselves or via their representatives;
g) Lodge complaints and denunciation; request amnesty or claim damages as per the law;
h) Participate in voluntary social insurance, enjoy policies on social insurance as per the law;
i) Use prayer books, express religious belief and faiths as per the law;
k) Receive commendation upon their high performance during their serving time.
2. Inmates have the following obligations to:
a) Serve the legally effective court judgment or decision, abide by decisions of criminal judgment execution management agencies, criminal judgment execution agencies during their serving time and other decisions of competent authorities;
b) Abide by regulations of the place of detention, serving emulation standards;
c) Abide by requests, orders and instructions of officials of places of detention;
d) Work, study and learn skilled trade as prescribed;
dd) Pay damages if they break, lose or destroy assets of other people.
3. Inmates have other rights and obligations as prescribed in this Law.
Thus, persons serving prison sentences can still conduct civil transactions as per the law by themselves or via their representatives.
Can persons serving prison sentences in Vietnam authorize another person to make a civil transaction? How to determine the term of authorization? (Image from the Internet)
What are the regulations on civil transactions authorized by persons serving prison sentences?
Pursuant to the provisions of Article 138 of the 2015 Civil Code of Vietnam on authorized representatives as follows:
Authorized representatives
1. Each natural or juridical person may authorize another natural or juridical person to enter into and perform a civil transaction.
2. Members of a household, co-operative group or a non-juridical person may agree to authorize another natural or juridical person to enter into and perform a civil transaction related to their common property.
3. A person aged from fifteen years to below eighteen years may be an authorized representative, except where the law provides for that the civil transaction must be entered into and performed by a person who has reached eighteen years of age.
The above regulation shows that the law does not mention that the person serving the prison sentence is not allowed to authorize another person to establish and perform civil transactions, which means that the person serving the prison sentence can still establish civil transactions.
However, the power of attorney must be notarized according to the provisions of Article 55 of the 2014 Law on Notarization of Vietnam, as follows:
Notarization of authorization contracts
1. When notarizing authorization contracts, notaries shall carefully examine the dossiers and clearly explain to related parties their rights and obligations as well as legal consequences of such authorization.
2. In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.
In addition, the notarization of power of attorney for a person serving a prison sentence as prescribed in Clause 2, Article 44 of the 2014 Law on Notarization of Vietnam is as follows:
Notarization places
1. Except the cases specified in Clause 2 of this Article, notarization shall be conducted at head offices of notarial practice organizations.
2. Notarization may be conducted outside the head office of a notarial practice organization if the notarization requester is old and weak and cannot move, is held in custody or in prison, is serving an imprisonment sentence or has another plausible reason for being unable to come to the head office of the notarial practice organization.
Thus, in case the authorized person is serving a prison sentence, the notarization cannot be done at the notary office. Therefore, the notarization can be done at the prison where the authorized person is serving the sentence.
How to determine the term of authorization between the authorizing person serving a prison sentence and the authorized person?
Pursuant to the provisions of Article 140 of the 2015 Civil Code of Vietnam on the term of representation as follows:
Term of representation
1. The term of representation shall be determined according to a power of attorney, a decision of a competent authority, and a charter of a juridical person or as prescribed by law.
2. If it fails to determine the term of representation prescribed in Clause 1 of this Article, the term of representation shall be determined as follows:
a) If the representation right is determined according to a specific civil transaction, the time limit for representation shall be determined until the time of termination of such civil transaction;
b) If the representation right is not determined according to a specific civil transaction, the term of representation is 1 year, from the time of arising representation right.
3. The authorized representation shall terminate in any of the following cases:
a) Upon an agreement;
b) Upon expiry of the term of authorization;
c) Upon completion of the authorized tasks;
d) The principal or the representative unilaterally revokes the authorization;
dd) The principal or the representative being natural person dies; the principal or the representative being juridical person ceases to exist;
e) The representative does not meet the conditions prescribed in Clause 3 Article 134 of this Code;
g) Upon another basis that causes the failure of the representation.
4. The legal representation shall terminate in any of the following cases:
a) The principal being natural person becomes an adult or has his/her legal capacity restored;
b) The principal being person dies;
c) The principal being juridical person ceases to exist;
d) Upon another basis as prescribed in this Code and relevant laws.
Thus, the term of representation shall be determined according to the above provisions, unless otherwise agreed.
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