Hậu M&A: Nợ cũ ai trả?

 Hoạt động M&A mang lại nhiều lợi ích cho doanh nghiệp. Song, nó cũng làm phát sinh nhiều vấn đề pháp lý. Một trong những câu hỏi pháp lý nổi bật mà Apolo Lawyers thường xuyên nhận được đó chính là: Hậu M&A, nợ cũ ai trả? Việc thay đổi tên gọi và thay đổi cổ đông của doanh nghiệp có giải phóng doanh nghiệp khỏi các khoảng nợ cũ hay không? Bài viết dưới đây của Apolo Lawyers (Hotline : 0903 419 479) sẽ giúp Quý độc giả giải đáp những thắc mắc đó.

Hiện nay, một số doanh nghiệp vinh vào M&A để từ chối trả những khoảng nợ cũ. Không ít người lao động khốn đốn vì bị nợ lương vì sau M&A không ai chịu trách nhiệm về các khoản nợ cũ.

M&A không có nghĩa là thay đổi doanh nghiệp

Đầu tiên, cần phải làm rõ ràng, hoạt động M&A không là thay đổi doanh nghiệp mà sẽ chỉ làm thay đổi cổ đông hoặc có thể thay đổi tên doanh nghiệp. Và việc thay đổi cổ đông không làm thay đổi cách doanh nghiệp sử dụng người lao động. Bởi, doanh nghiệp trước là người sử dụng lao động, đồng thời, mối quan hệ giữa doanh nghiệp và người lao động là độc lập với cổ đông. Vì vậy, sau M&A, doanh nghiệp trước đó vẫn có trách nhiệm thanh toán khoản nợ lương cho người lao động.

Nghị định 01/2021/NĐ-CP quy định về hướng dẫn đăng ký doanh nghiệp như sau: "Việc thay đổi tên doanh nghiệp không đồng nghĩa với việc thay đổi quyền và nghĩa vục của doanh nghiệp".

Từ đó, có thể thấy rằng, việc thay đổi cổ đông, thay đổi tên công ty sau hoạt động động M&A không làm thay đổi nghĩa vụ của doanh nghiệp trước đó.

Cần rõ ràng ngay từ đầu đối với hoạt động xử lý nợ trong M&A

Các khoản nợ của công ty là một trong những vấn đề dễ gây ra tranh chấp trong giao dịch M&A. Thông thường, tranh chấp pháp sinh khi bên bán che giấu các khoản nợ, và bên mua chỉ phát hiện ra sau khi tiếp quản công ty.

Về nguyên tắc, lợi ích của các cổ đông trong doanh nghiệp cũ (bên bán) không bị ảnh hưởng bởi các khoản nợ của doanh nghiệp, bởi bên bán chỉ đang thực hiện quyền bán cổ phần của mình và nhận tiền chuyển nhượng cổ phần đó chứ không bán tài sản của doanh nghiệp.

Tuy nhiên, trên thực tế, một trong những nguyên nhân khiến cho giá bán cổ phần bị giảm là nợ của doanh nghiệp. Tùy vào số nợ của doanh nghiệp, bên mua thường sẽ yêu cầu bên bán giảm giá tương ứng với số nợ đó. Và thông thường, các bên trước khi hoàn tất giao dịch M&A sẽ yêu cầu bên bán hoàn tất các khoản nợ, thanh toán khoản nợ lương trước đó.

Những thông tin ở trên dựa theo những quy định, bên cạnh đó, cần phải rõ ràng trước M&A để tránh những rủi ro về tài chính cũng như pháp lý cho cả hai bên khi tham gia hoạt động. Đồng thời, hai bên cũng có thể thỏa thuận với nhau, khi xảy ra những vấn đề « hậu » M&A, những thỏa thuận trước đó sẽ được áp dụng để giải quyết.

>>> Xem thêm: Mẫu đơn khởi kiện tranh chấp đất đai

>>> Xem thêm: Bắt người lao động không được làm việc cho Công ty đối thủ liệu có đúng luật

Nếu có khó khăn, thắc mắc về mua bán và sáp nhập doanh nghiệp cũng như các vấn đề pháp lý khác Quý khách hàng vui lòng liên hệ với công ty chúng tôi Công ty Luật Apolo Lawyers qua email contact@apolo.com.vn hoặc Hotline - 0903 419 479 để được tư vấn, hỗ trợ tốt nhất.

Chúng tôi là công ty luật hoạt động dựa trên nền tảng lấy sự uy tín, tinh thần trách nhiệm làm đầu. Luật sư của chúng tôi là những người có trình độ chuyên môn cao, có kinh nghiệm hành nghề lâu năm, luôn làm việc tận tâm, nhiệt tình và hiệu quả. Chúng tôi luôn cung cấp dịch vụ pháp lý chuyên nghiệp với chất lượng vượt trội. Thông tin của khách hàng được chúng tôi bảo mật tuyệt đối. Và điều quan trọng mang đến sự thành công cho chúng tôi là chúng tôi luôn mang đến cho khách hàng sự an tâm và lợi ích tối đa trong từng vụ việc.

APOLO LAWYERS

Legal service for the APEC business travel card

 An international transaction is strongly developing day by day, the demand to travel for business is enhanced rapidly. One of the ways to make business travel easier and more convenient is the APEC business travel card - ABTC. However, not all businessmen can make their own APEC business travel cards. Therefore, Apolo Lawyers (Tel: (028) 66.701.709) offers our clients the legal service for the APEC business travel card (ABTC).

If you are looking for information about the APEC business travel card (ABTC) or the legal service for the APEC business travel card (ABTC), this article is a good option for you.

1. What is the APEC business travel card?

First of all, APEC, Asia–Pacific Economic Cooperation, is the leading cooperation mechanism in the Asia-Pacific to promote trade and investment liberalization, economic growth, and shared prosperity in the region. Nowadays, there are 21 countries that are members of the APEC. These countries are the USA, Canada, Australia, New Zealand, Papua New Guinea, China, Hong Kong, Taiwan, Japan, Korea, Singapore, Indonesia, Malaysia, Philippines, Thailand, Brunei, Vietnam, Russia, Mexico, Chile, and Peru.  

APEC business travel card (ABTC) is a special type of card that the authorities of countries and territories grant to businessmen for convenient travel, stay for purpose of commercial business, and performing services.

2. The advantages of ABTC

A businessman who has ABTC, when entering and exiting the countries and territories listed on the card, you do not need a 5-year visa (Visa exemption), do not have to go through the procedures for registration of residence, and can enter and exit many times, each time is 60 - 90 days for those countries and territories. Besides that, businessmen with ABTC are given priority for administrative procedures in public places such as airport procedures, customs,…

3. The conditions for being granted ABTC

Not every businessman will be granted an APEC business travel card, but that businessman must meet some specific conditions as follows:

3.1. The conditions for businesses

• Businesses with minimum production and business turnover of 10 billion Vietnam dong or total import-export turnover of at least 10 billion Vietnam dong in the lastest year;
• The business does not dept tax;
• Enterprises that have business, trade, investment, and service cooperation activities with partners in member economies participating in ABTC cards, expressed through transaction contracts.

3.2. The conditions for positions of businessmen

Businessmen who are granted ABTC include people holding positions such as: Owner of a private enterprise, Chairman of the Board of Members, member of the Board of Members, Chairman of the Board of Directors, member of the Board of Directors, General Director or Director of the company, Chief Accountant, Head of Department.

>>> Read more: Legal service on the Visa application to go abroad

>>> Read more: Application for construction permit for foreign contractor

3.3. The conditions for businessmen of businesses

• Hold an ordinary passport with a validity of at least 3 years from the date of submission of the application for approval to use the ABTC card.
• Currently working at enterprises specified in Article 2 of this Regulation that has business, trade, investment, and service cooperation activities with partners in member economies participating in ABTC cards.
• Working at enterprises is represented by labor contracts, decisions on the appointment of positions, and participation in social insurance contributions as prescribed by law.
• Being a person who is full 18 years old and has not been restricted or lost his civil act capacity.
• Being an owner, a capital contributor, or working under a labor contract (with a signed labor contract of the indefinite term) having worked at the enterprise before applying for an ABTC card for at least 12 months.
• There is a regular demand for short-term trips to ABTC member economies to sign and implement business commitments in the APEC region.

​

4. Legal service for the APEC business travel card

We are Apolo Lawyers, a law firm of Ho Chi Minh City Bar Association. With the principle of operation “to help, to protect”, we are committed to providing our clients the most optimal legal consultation service on the wide fields, especially in the APEC business travel card. When our clients use legal consultation service at Apolo Lawyers, you will take quality and professional service from Solicitors who are high – professional and experienced. Choosing legal consultation service on the procedure for registration of foreign loans, Apolo Lawyers will help you with no limited but specified following tasks:

• The new issue of ABTC card;
• Renewal of ABTC card is about to expire;
• Issue and exchange ABTC due to lost, broken, or damaged;
• Renewal of ABTC due to change of passport;
• Issuing and changing ABTC due to insufficient countries.​

For further information, please contact us: Apolo Lawyers

APOLO LAWYERS

Legal Due Diligence consulting service

One of the common reasons that lead to the failure of M&A transactions is the insufficiency of the basic information about parties. To avoid risks, and enhance the success rate of M&A transactions, many companies pay huge attention to Due Diligence, especially Legal Due Diligence. Realizing the demand of companies on the Legal Due Diligence process, Apolo Lawyers (Hotline: (+84) 903.419.479) provides the Legal Due Diligence consulting service, which helps our clients get the success in Legal Due Diligence in particular and in M&A transactions

In general, there are many criteria when evaluating a business, including: Financial Due Diligence, Legal Due Diligence, Tax Due Diligence, and Intellectual Property Due Diligence,… But Legal Due Diligence plays an important role in Due Diligence.

1. Why do we need to implement Legal Due Diligence?

Legal Due Diligence aims to find out, review legal information and assess the legal risk of the business. As spoken above, Legal Due Diligence plays an important role in Due Diligence in particular and M&A transaction in general. Before the company signs any contract, it is necessary to understand the “health” of the partner to be able to make a decision whether to buy, cooperate or invest with that company or not? Is the business value offered by the seller reasonable? If not, what is the basis for negotiation and negotiation in the M&A deal?

No investors can risk pouring money into a business that lacks transparency. The discovery of legal loopholes in the business can greatly affect the investment process because it can prolong the time of agreement between the parties.

2. The necessary documents for Legal Due Diligence

The longer the business has been in operation, or the larger the company, the greater the number of documents that need to be verified.

The documents that companies need to focus on when performing Legal Due Diligence of partner businesses or customers:

2.1. Establishment and operation dossier

• Certificate of business registration
• Investment certificate/Certificate of investment registration/Approval to allow registration of the purchase of contributed capital/shares for foreign investors/Business license.
• Outward investment certificate (applicable to all countries and territories where the enterprise has investment activities – directly or indirectly)
• Certificate of operation registration of branch/representative office/business location.
• Enterprise charter
• List of shareholders/founding members of the enterprise
• Dossier for adjustment or change related to business registration information and contents:
  • Minutes of the Board of Directors / Board of Members / General Meeting of Shareholders;
  • Decision/ Resolution passed by the general meeting of shareholders/board of management/members council;
  • Relevant contracts and agreements;
  • Other relevant documents.
• Tax code registration certificate;
• Any other relevant documents (if any).

2.2. Capital and owner

• Minutes, agreements, capital contribution contracts between the founders/members / founding shareholders / existing shareholders;
• Agreements, contracts for purchase and sale - transfer of shares/contributing capital/bonds, convertible loan contracts and other relevant agreements related to the transfer/contribution/issuance of shares;
• List of members/ Register of shareholders/ Certificate of capital contribution/ Certificate of share ownership and equivalent documents (if any);
• Minutes of valuation of assets contributed as capital/Deed on valuation of assets contributed as capital;
• Documents proving the transfer transaction for the issue of capital contribution, share purchase/Written receipt or other equivalent certification in this regard;
• Any other relevant documents.

2.3. Property

• List of assets owned/rented or leased/otherwise used by the business.
• Registration documents/Certificates/Protection documents/Registration documents/Agreements related to intellectual property objects of the enterprise/business owner (including trademarks) , industrial designs, inventions, utility solutions, etc.).
• Contract/Invoice/Certificate of ownership/use and all documents related to the ownership of fixed assets of the enterprise.
• Loan/mortgage/guarantee/purchase/other arrangements affecting the ownership of enterprise of current and future assets (if any).

2.4. Management personnel and organizational structure

• List and personal information of:
  • Board of members / Board of Directors;
  • General Meeting of Shareholders;
  • Key personnel of the enterprise (manager level/head of department and above).
• Minutes, decisions, notices related to hiring/appointment/other forms of recruitment/removal/dismissal/disciplinary handling of personnel managing and operating the enterprise:
  • Chairman of the Board of Directors/ Chairman of the Council of Members;
  • Member of the Board of Directors/the Council of Member;
  • General Director/Director/Deputy Director;
  • Head of branch/representative office/business location;
  • Managing Director / Sales Director;
  • Chief Accountant/Finance Director;
  • Checker;
  • Directors, heads of other departments (from management level/head of department upwards).
• All meeting minutes, resolutions/decisions of the Board of Directors/Board of Members and the General Meeting of Shareholders on business matters.
• All meeting minutes of the Board of Directors, decisions of the General Director/Director (if any).
• Corporate internal policy documents, including (applicable to managers/heads of departments and above):
  • Work assignment mechanism;
  • Authorization and representation mechanism;
  • Principles of revenue and expenditure and reporting;
  • Management and operating mechanism of the enterprise;
  • Job description;
  • Commitment to responsibility, commitment to confidentiality (if any).
• Any other relevant documents (if any).

2.5. Labor

• Types of labor contracts of indefinite duration;
• Labor contract with definite term;
• Probationary contract;
• Agreement on labor transfer/labor hire;
• Vocational training contract/ Apprenticeship contract/ Agreement/ Other labor agreement in any form;
• Labor regulations;
• Collective labor agreement;
• Employee handbook/Work manual/Office rules and relevant internal personnel documents (if any);
• List when declaring/reporting employers;
• List of employees entitled to social insurance premiums and personal income tax deduction, together with certification from competent authorities;
• Registered salary scale and table;
• Invoices, vouchers or other documents proving the payment of salaries, allowances, other support regimes, social insurance and other insurances;
• Internal labor regulations:
  • Regulations on handling of labor discipline;
  • Confidentiality Regulations;
  • Regulations on bonus - allowance - support;
  • Regulations on rest and working regimes; Other regulations (if any).
• Operational regulations, establishment decision, list of Executive Committee, trade union members (Attached with personal information of each member);
• Documents certifying the fulfillment of the obligation to pay trade union dues, financial documents on trade union activities at the enterprise, other documents on trade unions (if any);
• Labor management book;
• Other decisions, policies and announcements related to the labor of enterprise;
• All documents and records on handling labor discipline, labor disputes, termination/suspension/adjustment of labor relations (if any).

2.6. Contract

• Contract of lease/cooperation in the use of premises/leasing/transfer of premises/other contracts related to land use rights and land-attached assets in the operation of the enterprise.
• Business cooperation contract;
• Contract in the form of service provision;
• Contracts in the form of goods sale and purchase;
• Other economic contracts/transactions (if any), including the following fields:
  • Agency;
  • Processing;
  • Import and export;
  • Promotion;
  • Carriage;
  • Rental activities.
• Written authorization/approval/appointment of personnel to sign/participate in the performance of respective contracts/transactions.

​

2.7. Tax, and Accounting

• Set of annual financial statements.
• Value added tax declaration.
• Enterprise accounting book (general diary);
• Bank records;
• Output vouchers and beginning of years;
• Receipts, certifications, notices on the fulfillment of the annual tax payment obligation;
• Details of corporate debt;
• Documents, invitations, notices, decisions on the sanction, arrears, requests for explanation and other requests of functional agencies (if any);
• Documents and information on tax disputes and complaints (if any);
• Enterprise audit report from financial years (if any);
• Dossiers of official dispatches directing/incentives - exemptions and reductions directly applicable to enterprises and relevant decisions and announcements (if any).

2.8. Bank and credit

• List and details of bank accounts including personal accounts designated to receive payments (if any);
• Information of the registrant/name of another account of the Enterprise/Authorized person to manage;
• Official confirmation from the bank about the status of the business account and the statement of transactions of the business account in the last 3 financial years;
• All other credit contracts and agreements with the Bank/Organization designated by the bank/Other relevant organizations (if any).

2.9. Business conditions – License

• All licenses/certifications/approvals/certifications of notification obligations, other registrations for any type of business activity (licenses) or documents proving Business eligibility legal equivalent;
• List of registered business lines of the enterprise;
• Details of dossiers and documents of adjustment/supplementation/revocation related to the contents of the licenses;
• Other types of licenses depend on the type of business and business lines.

2.10. Sanctions, Disputes and Litigation

• List and documents related to the disputes of the Enterprise/Founding Shareholder/Founding Member. Court or arbitration proceedings, prosecutions or claims relating to the business, whether completed, incomplete or threatened;
• Minutes of decisions on sanctioning administrative violations/ inspections/ inspections applied by competent state agencies to enterprises and other relevant documents (if any);

In addition, during the appraisal, the enterprise may also need to present internal issues, such as internal disputes within the enterprise.

>>> Read more: General process of an M&A - Due Diligence (DD) Deal

>>> Read more: Legal advice on the transfer of investment project in Vietnam

3. How can Apolo Lawyers assist?

Apolo Lawyers is a law firm operating on the foundation of taking prestige and responsibility first. Our lawyers are high-professional and experienced, always working with dedication, enthusiasm, and efficiency. We always provide professional legal services with outstanding quality. We also keep the information of our clients completely confidential. We always bring our customers peace of mind and maximum benefits in each case.

• About Legal Due Diligence consulting service, we support our Clients to do no limit but including the following tasks:
• Conduct legal review and appraisal of important legal documents, documents and documents signed and issued during the establishment and operation of the target company
• Check financial status, organizational structure, business registration content, employment status, transaction contracts, disputes and proceedings of the company, etc.
• Prepare a legal due diligence report with details of the content mentioned by the investor.
• Consulting, building an information confidentiality agreement for the parties before proceeding to the next stages of the M&A transaction.
• Consulting, offering solutions for cases where there are factors affecting the legal feasibility of the transaction.

If you have any difficulties or questions about the procedure for the merger in Vietnam as well as other issues, please contact Apolo Lawyers via email at contact@apolo.com.vn or Hotline – (+84) 903.419.479 for the best legal advice and support.

For further information, please contact us: Apolo Lawyers

APOLO LAWYERS

Registration of foreign loans in Vietnam

 Day by day, more and more businesses have a higher demand for capital to grow and expand, due to the demand for foreign loans is a matter. In order to meet the needs of our clients and remove the difficulties with the registration of foreign loans, Apolo Lawyers (Tel: (+8428) 66.701.709) is willing to provide our clients an overview of the registration of foreign loans in Vietnam, concurrently the legal consultation service to register foreign loans.

Registration of foreign loans is the administrative procedure at the State bank of enterprises with the long–term and mid-term foreign loans or renewed short–term loans that total term of these loans in over one year.

1. The foreign loans shall be registered

The following foreign loans are subject registered at the State Bank:

• Long–term and mid-term foreign loans;
• Renewed short–term loans that the total term of these loans is over 1 year;
• Short–term loans with no renewal contract, and remain outstanding for one year since their initial disbursement.

2. The condition to register foreign loans

To register foreign loans not guaranteed by the government, enterprises shall be in compliance with the terms to register foreign loans, forex management for foreign borrowing, and debt repayment activities that are regulated in the Circular No. 12/2014/TT-NHNN on requirements for taking foreign loans applied to enterprises not guaranteed by the government.

3. The procedure for registration of foreign loans

The procedure for registration of foreign loans includes these steps:

Step 1: The borrowers send the application to the competent authorities to confirm the registration of foreign loans within 30 days from:

• The date of signing the mid – and long – term foreign loans agreement;
• The date of signing the guaranteed documents in the case of guaranteed loans;
• The date of signing the written capital withdrawal agreement in case the parties agree on capital withdrawal on the basis of the framework agreement signed and prior to capital withdrawal;
• The date of signing the agreement to renew the short-term foreign loan into a mid - or long-term term for the renewed short-term self-borrowing loan that total term is over 01 year;
• 01 (one) day of the year from the date of first capital withdrawal, for short-term loans without extension contracts but with outstanding principal balance at the time of full 01 (one) year from the date of first capital withdrawal, except where the Borrower completes loan repayment within 10 (ten) days from the date of full 01 (one) year from the date of first capital withdrawal.

The borrowers who send online can choose to submit the additional documents according to the introduction on the Website.

Step 2: The competent authority has written confirmation or refusal to confirm the registration of foreign loans within the time limits.

• 12 working – days from the date of receipt of the complete and valid dossier of the Borrower (in case the Borrower chooses the online form), or;
• 15 working – days from the date of receipt of the complete and valid dossier of the Borrower (in case the Borrower chooses the traditional method);
• 45 working – days for the date of receipt of the complete and valid dossier of the Borrower, in case the loan is denominated in VND, which must be considered and approved by the Governor of the State Bank about the current regulations on foreign loan conditions of enterprises not guaranteed by the Government;

In case of refusal to confirm registration for loan change, the competent authority shall issue a written explanation clearly stating the reason therefor.

>>> Read more: The dispute settlement of the international contract for the sale of goods in Vietnam

>>> Read more: What does an application for registration of the company include?

4. Method to register foreign loans

There are two ways to register foreign loans:

• Online registration
• Direct registration

​

5. Legal consultation service on the procedure for registration of foreign loans in Vietnam at Apolo Lawyers

We are Apolo Lawyers, a law firm of Ho Chi Minh City Bar Association. With the principle of operation “to help, to protect”, we are committed to providing our clients the most optimal legal consultation service in the wide fields, especially in the procedure for registration of foreign loans. When our clients use legal consultation service at Apolo Lawyers, you will take quality and professional service from Solicitors who are high – professional and experienced. Choosing legal consultation service on the procedure for registration of foreign loans, Apolo Lawyers will help you with no limited but specified following tasks:

• Legal consulting on conditions for foreign loans for enterprises;
• Legal consulting on foreign loan contracts;
• Draft and review the application for registration of foreign loans;
• Legal consulting and assisting our clients with carrying out procedures for registration of foreign loans with the State Bank;
• Consulting procedures for statistical reporting on foreign loans;
• Comprehensive advice on arising issues related to foreign loans of enterprises.​

For further information, please contact us: Apolo Lawyers

APOLO LAWYERS

The termination of labor contract in Vietnam

 The termination of labor contracts is an important legal event because of its legal consequences. Terminating the labor contract means ending the labor relations and, in some cases, it directly affects an employee’s life and work and may cause damage to employers. So that, both employee and employer shall consider carefully before deciding to terminate the labor contract and need to understand the provisions about the termination of labor contracts. Therefore, let Apolo Lawyers (Tel: (+84) 903.419.479)) provide you with an overview of the termination of labor contracts in Vietnam.

The provisions of the law on the termination of labor contract include the following contents:

1. What is the termination of labor contracts?

According to clause 1, Article 13 of the Labor law 2019, “A labor contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.”  The nature of the labor contract does not depend on the name of the contract but on the content of the agreement between the two parties in the contract, which shows paid job, salary, management, and supervision of a party with the other in the contract.

So, the termination of labor contracts is a legal event that one or both parties in the contract do not continue to implement the contract, terminate the rights and obligations of the two parties as agreed in the labor contract.

In general, current Vietnamese Law stipulates three main groups of causes leading to the termination of labor contracts, such as: (i) naturally termination of labor contracts; (ii) Unilateral termination of labor contracts.

2. Naturally termination of labor contracts

Naturally termination of labor contracts is understood as a case that a labor contract terminates when there are certain legal events that the parties usually do not need to perform any additional legal obligations to terminate the labor contract. In the light of the Labor Law 2019, some cases are automatically graded termination of the labor contract in accordance with the following legal events:

• The labor contract expires, except for the case specified in Clause 4 Article 177 of this Code.
• The tasks stated in the labor contract have been completed.
• Both parties agree to terminate the labor contract.
• The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in Clause 5 Article 328 of the Criminal Procedure Code, capital punishment, or is prohibited from performing the work stated in the labor contract by an effective verdict or judgment of the court.
• The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.
• The employee dies; is declared by the court as a legally incapacitated person, missing or dead.
• The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.
• The employee is dismissed for disciplinary reasons.
• The employer allows the employee to resign in accordance with Article 42 and Article 43 of this Code.
• The work permit or a foreign employee expires according to Article 156 of this Labor Code.
• The employee fails to perform his/her tasks during the probationary period under the labor contract or gives up the probation.

3. Unilateral termination of labor contracts

Unilateral termination of labor contracts is when one party voluntarily terminates the rights and obligations agreed upon in the labor contract without depending on the willingness of the other party.

3.1. The employee unilaterally terminates the labor contract

Unilateral termination of labor contracts is an important right of the employee. The employee can unilaterally terminate the labor contract in two ways:

First, unilateral termination of labor contracts without giving reasons but must provide the employer notices in advance.

An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employee in advance:

• at least 45 days in case of an indefinite-term employment contract;
• at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
• at least 03 working days in case of an employment contract with a fixed term of under 12 months;
• The notice period in certain fields and jobs shall be specified by the government.

Second, unilateral termination of labor contracts without prior notice of the employee.

An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:

• is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;
• is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
• is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity, or honor; is forced to work against his/her will;
• is sexually harassed in the workplace;
• is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.
• reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or
• finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.

3.2. The employer unilaterally terminates the labor contract

Compared with the right of the employee to unilaterally terminate a labor contract, the right of the employer to unilaterally terminate a labor contract is much more limited. In order to terminate the labor contract, the employer must comply with the cases specified in Article 36, Labor Code 2019, specifically:

• The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
• The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of fewer than 12 months. Upon recovery, the employer may consider concluding another employment contract with the employee;
• In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
• The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;
• The employee reaches the retirement age specified in Article 169 of this Labor Code unless otherwise agreed by the parties;
• The employee quits his/her fails to go to work without acceptable excuses for at least 05 consecutive working days;
• The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.

Besides that, when unilaterally terminating the employment contract in any of the cases specified in points a, b, c, dd, and g clause 1 of Article 36, the employer shall inform the employer in advance:

• at least 45 days in case of an indefinite-term employment contract;
• at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
• at least 03 working days in the case of an employment contract with a fixed term of fewer than 12 months and in the cases stipulated in Point b Clause 1 of this Article;
• The notice period in certain fields and jobs shall be specified by the government.

>>> Read more: Implement disciplinary action of dismissing lawfully

>>> Read more: Labor contract in Vietnam

4. What can Apolo Lawyers do for our clients?

There is an overview of terminating the labor contract in Vietnam. But if you have any problems with the termination of labor contracts or anything else about labor and employment, feel free to contact Apolo Lawyers (Tel: (+8428) 66.701.709). With a high – professional and experienced team of lawyers, Apolo Lawyers commits to providing you with optimal service fastly and effectively. Using our labor and employment service, Apolo Lawyers will help you no limited but include the following:

• Consulting on the legal provisions on labor contracts such as: type of labor contracts, making and managing labor contracts, labor contracts dispute,…;
• Consulting on building internal regulations, registration of labor regulations, internal regulations,…;
• Consulting on issues related to a probationary period, probationary salary, disputes over probationary workers…;
• Giving legal provisions on termination of labor contracts and unilateral termination of labor contracts;
• Giving the provisions of the law on handling labor discipline dismissing workers;
• Consulting on social insurance regimes for employees, social insurance procedures for businesses,…
• Giving legal provision on collective labor agreements; consulting on registration, use, implementation, and settlement of disputes related to collective labor agreements;
• Giving the provisions of the law on labor protection, labor safety;
• Consulting to resolve disputes that have arisen and are arising.

For further information, please contact us: Apolo Lawyers

APOLO LAWYERS