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The Drafting of Vietnam's Consumer Protection The Drafting of Vietnam’s Consumer Protection Law: An Analysis from Legal Transplantation Theories by Cuong Nguyen LL.B., Hanoi Law University, 1998 LL.M., Niigata University, 2004 A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY in the Faculty of Law Cuong Nguyen, 2011 University of Victoria All rights reserved. This dissertation may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee The Drafting of Vietnam’s Consumer Protection Law: An Analysis from Legal Transplantation Theories by Cuong Nguyen LL.B., Hanoi Law University, 1998 LL.M., Niigata University, 2004 Supervisory Committee Dr. Andrew Harding, Faculty of Law Supervisor Professor William A. W. Neilson, Faculty of Law Departmental Member Professor Jeremy Webber, Faculty of Law Departmental Member Dr. Connie Carter, Peter B. Gustavson School of Business Outside Member Professor Mark Sidel, Faculty of Law, University of Iowa External Examiner iii Abstract Supervisory Committee Dr. Andrew Harding, Faculty of Law Supervisor Professor William A. W. Neilson, Faculty of Law Departmental Member Professor Jeremy Webber, Faculty of Law Departmental Member Dr. Connie Carter, Peter B. Gustavson School of Business Outside Member Professor Mark Sidel, Faculty of Law, University of Iowa External Examiner This dissertation uses the latest development in consumer protection law in Vietnam (the adoption of the Consumer Protection Law of 2010 to regulate transactions between consumers and traders) to test key claims in competing legal transplantation theories. This research investigates comparative law debates about the legitimacy, usefulness and possibility of legal transplantation in law reform in developing and transitional countries. Alan Watson and his proponents believe strongly in the possibility of legal transplants, but fail to provide a clear and concrete methodology for producing effective and efficient laws. On the other hand, Robert Seidman and Ann Seidman openly reject the legitimacy of legal transplants, but offer a comprehensive methodology for effectively conducting law reform projects. They believe that, by following a problem- solving institutionalist legislative theory, legal drafters and law-makers in charge of law reform projects can easily produce effective and efficient laws. This dissertation argues that the nature of the reform of laws regulating consumer transactions in Vietnam is much more complex than Watson’s theory imagines. It also iv shows that, although the reception of foreign legal models is part of this law reform project, past legal transplants as well as the local law-making culture may filter or even inhibit the reception of foreign legal solutions. This research also reveals that current consumer law reform in Vietnam tends to follow the problem-solving approach, although it deviates somewhat from the legislative methodology proposed by the Seidmans. This dissertation attempts to clarify these deviations and explain the reasons for them. v Table of Contents Supervisory Committee …………………………………………………………..............ii Abstract…….…..…………………………………………………………………………iii Table of Contents………………………………………………………………….............v List of Figures …..………………………………………………………………………..ix Acknowledgements…………………………………………………………………….....x Dedication………………………………………………………………………………...xi Abbreviations…………………………………………………………………………….xii Vietnamese - English Glossary………………………………………………………….xiv Chapter 1. Introduction ………………………………………………………………... 1 1.1.The Context of the Research .......................................................................1 1.2.Consumer Protection and Legal Transplantation Theories ..........................4 1.3.Research Questions .................................................................................. 14 1.4.Methodology ............................................................................................ 16 1.4.1. Documentary Analysis ......................................................... 17 1.4.2. In-depth Interviews .............................................................. 19 1.5.Scope and Structure of the Dissertation .................................................... 21 Chapter 2. Legal Transplantation Theories .............................................................. 24 2.1.The Concept of “Legal Transplant” .......................................................... 25 2.2. Competing Legal Transplantation Theories ............................................. 27 2.2.1. A Warning from Montesquieu ................................................. 27 2.2.2. Alan Watson’s Theory.…………………………………...........29 2.2.3. Otto Kahn-Freund’s Theory …………………………………...33 2.2.4. Alan Watson’s Theory under Attack ………………………….35 2.2.5. In Defense of Alan Watson’s Theory …………………………40 2.3. The Seidmans’ Legislative Theory ………………………………………..47 2.4. Initial Evaluations and Conclusions ……………………………………….54 Chapter 3. Introduction to the Vietnamese Legal System ………………………….. 59 3.1. A Brief History of Vietnam Prior to the Doi Moi Era …………………….60 3.2. The Doi Moi Policy and the New Model of Economic Development …….68 vi 3.3. State Economic Management in Vietnam …………………………………77 3.4. The Vietnamese Concepts of “Law” and “Rule of Law” …………………82 3.5. The Rise of the National Assembly ……………………………………….90 3.6. Central and Local Government ……………………………………………95 3.6.1. Government and Ministries ……………………………………95 3.6.2. Local Government …………………………………………….98 3.7. The Court System in Vietnam ……………………………………………102 3.8. Brief Conclusions ………………………………………………………...106 Chapter 4. Consumer Protection in Vietnam before the Adoption of the Consumer Protection Law ……………………………………………………………………….. 108 4.1. A Brief History of Consumer Protection in Vietnam ……………………108 4.2. The CPO of 1999 ………………………………………………………...116 4.3. Regulation of Unfair Commercial Practices ……………………………..124 4.3.1. Advertising Regulation ………………………………………..124 4.3.2. Mandatory Label Regulation ………………………………….127 4.3.3. Quality Standard Regulation …………………………………..128 4.3.4. Weight and Measurement Regulation …………………………130 4.4. Regulation of Consumer Contracts ………………………………………131 4.5. Enforcement of Consumer Protection Provisions ………………………...137 4.5.1. Private Enforcement ……………………………………………137 4.5.2. Public Enforcement …………………………………………….138 4.5.3. Vinastas and Its Provincial Consumer Protection Associations .143 4.5.4. Outcomes of Enforcement ……………………………………..145 4.6. Brief Conclusions ………………………………………………………….146 Chapter 5. The Drafting of the Consumer Protection Law ……………………….. 148 5.1. An Overview of the Law-making Process in Vietnam ……………………149 5.2. Proposal to Construct a CPL ………………………………………………159 5.3. The Government Stage of Drafting the CPL ……………………………...162 5.3.1. Creating the DC ……………………………………………….162 5.3.2. The Start-up Workshop ………………………………………..164 5.3.3. Activities Preparatory to Completing Draft 1 …………………168 vii 5.3.4. Public Consultation ……………………………………………178 5.3.5. Voices from MoJ and the Government ………..………………187 5.4. The National Assembly Stage of Debating and Adopting the CPL ……….191 5.4.1. The First Debate ……………………………………………….192 5.4.2. Preparing for the Final Debate ………………………………...197 5.4.3. The Final Debate and the Adoption of the CPL ………………200 5.5. Closing Observations ……………………………………………………...202 Chapter 6. Measuring the Influence of Foreign Inputs: Challenges and Limitations ………………………………………………………………………………….. 206 6.1. Concepts of “Consumer” and “Trader” .…………………………………..208 6.1.1. Consumers as Vulnerable Market Participants ……………….208 6.1.2. Definitions of “Consumer” and “Trader” …………………….215 6.2. Unfair Commercial Practices ……………………………………………...220 6.3. Consumer Contracts ……………………………………………………….225 6.3.1. Interpretation of Unclear Contractual Terms …………………228 6.3.2. Invalidity of Unfair Contractual Terms ………………………229 6.3.3. Control of Standard Consumer Contracts …………………….231 6.3.4. Door-to-door Sales and Distance Sales Contracts ……………233 6.4. Improving Consumers’ Access to Justice ………………………………...234 6.5. State Management and State Sanctions …………………………………..243 6.5.1. State Management of Consumer Protection ………………….243 6.5.2. State Sanctions for Violations of the CPL ……………………249 6.6. Brief Conclusions …………………………………………………………254 Chapter 7. Testing Watson’s Legal Transplantation Theory and The Seidmans’ Legislative Theory ………………………………………………………………... ….. 257 7.1. The Nature and Culture of Law-making in Vietnam …………………….258 7.1.1. The Nature of Law-making Process …………………………258 7.1.2. A Law-making Culture in Vietnam ………………………….265 7.2. Testing Watson’s Theory ………………………………………………...272 7.3. Testing The Seidmans’ Theory …………………………………………..280 7.4. Reconciling Watson and the Seidmans? …………………………………287 viii 7.5. Brief Conclusions ………………………………………………………...292 Conclusion …………………………………………………………………………..294 Bibliography …………………………………………………………………………...298 Appendix 1. Hierarchy of Legal Normative Documents as Stipulated in the Law on Laws of 1996 (article 1) ………………………………………………………………………343 Appendix 2. Hierarchy of Legal Normative Documents as Stipulated in the Law on Laws of 1996 (article 1) ………………………………………………………………………344 Appendix 3. List of Members of the CPL Drafting Committee ……………………….345 Appendix 4. List of Members of the CPL Editing Group……………………………....347 Appendix 5. Members of the Ministry of Justice’s Evaluation Council Who Assessed the Draft CPL ………………………………………………………………………………348 Appendix 6. Timeline of Each Draft of the CPL ………………………………………349 Appendix 7. Detailed Timeline
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