07/10/2022 10:44

Some issues to note when terminating the authorization contract in Vietnam

Some issues to note when terminating the authorization contract in Vietnam

In life, we do not always have enough time or means to do some of our work. At such times, we will usually authorize another person to handle the work to the extent agreed upon.

Therefore, when authorizing, it is necessary to pay attention to the following issues to ensure the rights of the authorizer and the authorized person:

Firstly, carefully select the authorized person: depending on the nature of the work to be authorized, we will consider the capacity, dignity, sense of responsibility, and the view of people around that person to assess whether that person can well perform the authorized work, ensuring his/her interests or not;

Secondly, the parties should draw up an authorization contract even if in that case it is not required by law, especially when the work is of an important nature, involving assets of great value. Enter into an authorization contract with clear content on the authorized work, how the authorized remuneration is, how to pay, how long the authorization period is in order to ensure that the authorized work is performed in the best way, the authorized person also receives remuneration commensurate with his or her efforts if there is an agreement (based on Article 562, Article 563 of the Civil Code 2015 of Vietnam);

Thirdly, according to Articles 565 to 568 of the Civil Code 2015, the law has provided for the rights and obligations of the parties in the authorization contract, but in order for these rights and obligations to be properly performed, the parties must should clearly and specifically stipulate in the contract: the obligation to notify the progress of the authorized work, to preserve and preserve the assigned documents to perform the authorization, to pay reasonable expenses without the authorized party has spent to perform the authorized work…

Fourthly, prior notice before unilaterally terminating the performance of the authorization contract:

- If the authorization is without remuneration, the parties may terminate the performance of the contract at any time, but must give the other party a reasonable time in advance;

- If the authorization has remuneration:

The mandator has the right to unilaterally terminate the performance of the contract at any time, but must pay the authorized party remuneration in proportion to the work performed by the authorized party and compensate for damage;

The authorized party has the right to unilaterally terminate the performance of the contract at any time and must compensate the principal for damage, if any.

Therefore, when authorizing and receiving authorization, it is necessary to think carefully, choose the right person to authorize, and receive the authorized work in accordance with the ability, the authorization contract is in accordance with the provisions of law to ensure their rights and interests, especially when a dispute occurs.

Typically, in the judgment 79/2017/DSPT dated July 21, 2017 by the People's Court of Ba Ria Vung Tau province for the appellate hearing of the case:

"On July 20, 2015, Ms. N and Ms. G, Ms. H signed the authorization contract No. 343 at the Notary Office, with the content: Ms. N authorizes Ms. G, Ms. H on behalf of management, use, build a religious establishment on the land of the ND Vihara. The authorization period is 50 years, the authorization is free of remuneration, the purpose of the authorization is to serve Buddhist activities, without any rights What is the construction, how much does it cost, Mrs. G and Ms. H must notify Ms. N so that Ms. N is obliged to pay. After signing the contract, Ms. N has handed over the seal and certificate of the land use right of the ND Vihara to Mrs. G. Ms. H keeps it when needed, then returns it to Ms. N. During the construction process, Ms. N requires Ms. G's side to notify the information about the application for a construction permit, design, construction cost items...but Ms. G's side did not implement. Mrs. N filed a lawsuit to the Court to request: To canceled the authorization contract on July 20, 2015 and forced Ms. G and Ms. H to return the seal and certificate of land use right to the N.D. Vihara. Ms. N agrees to pay the difference between the value of new constructions and old ones."

In the appellate civil judgment, the Court also decided:

Cancelling the authorization contract made on July 20, 2015 signed between the ND Vihara (the representative of Ms. Bach Thi N) and Ms. Ma Thi G, Ms. Nguyen Huynh H;

Forcing defendants Ms. Ma Thi G and Ms. Nguyen Huynh H to return to the ND Vihara (the representative of Ms. Bach Thi N) a seal bearing the name People's Vihara in TH Commune; a certificate of land use rights;

The ND Vihara (the representative of Ms. Bach Thi N) is obliged to pay Ms. Ma Thi G and Ms. Nguyen Huynh H the money to build works on the ND Vihara a total amount of 1,170,283,500 VND;

ND Vihara (the representative of Mrs. Bach Thi N) has the right to own property on the land of ND Vihara

From the author's point of view, in this case, not to apply the cancellation of the authorization contract, but to unilaterally terminate the authorization contract:

Firstly, according to the content of the appellate judgment, the Court applied Article 422 of the Civil Code 2015 in cases of contract termination and Article 569 of the Civil Code 2015 providing for unilateral termination of the authorization contract but declaring to cancel the authorization contract as inappropriate;

Secondly, in this case, the cancellation of the authorization contract cannot be applied: based on Article 423 of the Civil Code 2015 on cases of contract cancellation, in the case, although Ms. G and Ms. H did not perform the obligation to notify the progress of the authorization work, to refuse to hand over the seal and certificate of land use right to Mrs. N upon request as prescribed by law and as agreed in the contract is a breach of the obligations of service contract. But this breach does not fall under the case of a serious breach of contractual obligations, not to the extent that the principal cannot achieve the purpose of entering into a contract to serve political activities. Because Mrs. G and Ms. N still carry out the construction work as originally agreed.

Therefore, when performing an authorization, it is necessary to choose an authorized person carefully, to make an authorization contract and agreement in a clear and specific way to ensure the rights and interests of the parties, to ensure that The authorization work is completed well, avoiding some insignificant disputes leading to the authorization work not being completed.

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

Ngoc Nhi
26


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