Proposing to adjust legal documents in the spirit of Resolution 68-NQ/TW

Photo caption — Lawyer Nguyen Thi Ngoc Anh, Director of ATA Global Law Company Limited.

Reporter of Tin Tuc and Dan Toc Newspaper discussed with Lawyer Nguyen Thi Ngoc Anh, Director of ATA Global Law Company Limited about this issue.

Madam, the Politburo has just issued Resolution 68-NQ/TW on developing the private economy with many breakthrough contents. Which contents do you like the most?

There are many issues that the business community is concerned about, including two contents of Resolution 68 that are considered as the premise for the development of the private economy, which are the principle of facilitating businesses and the principle of prioritizing the protection of legitimate rights and interests of businesses. Specifically:

The principle of creating favorable conditions is fully demonstrated in the fact that the State will not intervene administratively in production and business activities that are contrary to market principles. Accordingly, people and enterprises are free to do business in sectors not prohibited by law; end the situation of overlapping, duplicate, prolonged, unnecessary inspections and examinations; strictly handle acts of abusing inspections and examinations that cause harassment. Strongly shift from pre-inspection to post-inspection, associated with strengthening inspection and supervision.

The principle of prioritizing the protection of legitimate rights and interests of enterprises is most clearly demonstrated in the solution of “not criminalizing civil and economic issues”. In the coming time, the State needs to amend the provisions on criminal law, civil law, criminal procedure, civil procedure to ensure the principle that when handling violations and civil and economic cases, priority is given to applying civil, economic, and administrative measures first, allowing enterprises and businessmen to proactively remedy violations and damages.

At the same time, clearly distinguish between legally formed assets and assets obtained from illegal acts and other assets related to the case; between assets, rights and obligations of the enterprise and of individual managers in the enterprise.

With these policies, businesses, entrepreneurs and investors will feel more secure when participating in investment and production and business in Vietnam, removing the fear of making mistakes due to the impact of a series of economic cases in recent times.

According to the Resolution on mechanisms and policies for developing the private economy recently passed by the National Assembly , the review and elimination of business conditions and overlapping regulations that hinder the development of the private economy must be completed no later than December 31, 2025. The National Assembly assigned the Government to review and amend regulations on land, planning, and investment. This must be completed before December 31, 2026.

So, 2025 will continue to be the year when the entire political system works hard, quickly and strongly to amend a series of relevant legal documents, especially legal documents directly regulating the operations of enterprises, madam?

The State will have to amend a series of related documents, from the Enterprise Law, Investment Law, Intellectual Property Law and specialized legal documents guiding business conditions in each field.

Although the Enterprise Law and Investment Law are currently quite "open" and "facilitating" in registering the establishment and adjusting the contents of enterprise registration, in reality, the implementation by Departments, branches and sectors tends to be more "cautious" and more tightly controlled than prescribed.

Lawmakers need to study and supplement the following issues in the Law and sub-law documents: It is necessary to supplement regulations clearly stating the principles allowing enterprises to conduct business in industries that are not prohibited by law; there should be clear regulations defining "business registration" procedures or other licensing registration procedures in accordance with the spirit of "autonomy" and "self-responsibility" of enterprises, strictly prohibiting the addition of additional document items and procedures for enterprises.

It is necessary to supplement and clarify the maximum time and number of times to handle procedures, give opinions and supplement the mechanism allowing the person performing the procedure to monitor and supervise the handling of documents at competent agencies; allow the mechanism of "silence is consent" for cases where it is necessary to participate in giving opinions or coordinating in handling documents but does not ensure the required time limit.

Regarding the issue of perfecting the Land Law, although the 2024 Land Law was issued "at lightning speed", its implementation still has many problems. The State needs to soon issue guiding Decrees, especially specifying the right to fair access to land among economic sectors, and removing obstacles in land allocation and land lease to private enterprises.

In addition, some prominent regulations in the Law on Bidding, the Law on Public Investment and the Law on Investment under the form of public-private partnership (PPP Law) currently make it difficult for private enterprises, especially small and medium-sized enterprises (SMEs), to compete with enterprises in the state sector.

The business community expects that the private sector will enjoy many special mechanisms. These include a series of policies to support credit, land, taxes, and the application of the principle of non-criminalization of economic relations. In your opinion, how should we adjust the Law on Support for Small and Medium Enterprises and the provisions of the Penal Code (CPC) to prevent the criminalization of economic and civil relations?

In my opinion, lawmakers need to adjust and supplement the Law on Support for SMEs to realize the above-mentioned orientations and solutions on support for enterprises, specifically:

Supplementing mechanisms to support access to capital, especially non-budgetary capital sources such as ODA funding, international preferential loans, venture capital, and crowdfunding; supplementing mechanisms to prioritize SMEs in public bidding, simplifying bidding conditions; supplementing policies and mechanisms to support SMEs in developing digital capacity and technological innovation; creating conditions for SMEs to participate in value chain linkages with large enterprises and participate in domestic and international supply chains.

Strengthening sanctions for violations and building a mechanism to manage and control activities related to intellectual property rights to increase deterrence and reduce violations of the Intellectual Property Law. This is also one of the factors that directly contribute to increasing the attractiveness of the investment environment in Vietnam.

A key content of Resolution 68 is not to criminalize economic and civil relations. Accordingly, this orientation will have a great impact and needs to be specified in legal documents in areas related to justice such as criminal law, criminal procedure and civil procedure.

It is necessary to add to the Handling Principles stipulated in Article 3 of the Penal Code the contents expressing the principle of "Not criminalizing economic and civil relations"; giving priority to applying civil, economic and administrative measures first; allowing enterprises and businessmen to proactively remedy violations and damages; not retroactively applying legal provisions to handle unfavorable situations for enterprises.

Clearly distinguish between acts of contract violation and management errors and acts showing signs of criminal offenses (Crime of violating regulations on economic management causing serious consequences - Article 219; Crime of tax evasion - Article 200).

Clearly distinguish between acts of borrowing capital, investment cooperation but encountering difficulties and being unable to repay debts and acts showing signs of criminal offenses (Crime of fraud to appropriate property - Article 174; Crime of abuse of trust to appropriate property - Article 175).

It is necessary to adjust and supplement the provisions of the Criminal Procedure Code to both ensure legitimate rights and interests and enhance the responsibility of enterprises in overcoming the consequences caused by violations; ensure the rights of enterprises and businessmen who are denounced and recommended for prosecution, especially the right to hire a lawyer to protect their rights from the beginning, the right to remain silent until the presence of a lawyer, and the lawyer has full access to the case file as well as the opportunity to meet and work with his client during the investigation.

Supplementing regulations to allow and encourage the application of civil or economic measures to remedy the consequences and damages that arise. For cases that have been prosecuted but the enterprise has completely remedied the consequences, allowing temporary suspension or suspension of investigation.

It is necessary to supplement the Joint Circulars between the Supreme People's Court - the Supreme People's Procuracy - the Ministry of Public Security and the Resolutions of the Supreme People's Court's Judicial Council to explain, clarify and guide the criteria for determining and/or eliminating criminal elements as a basis for not prosecuting and/or suspending/temporarily suspending the investigation of criminal cases.

Thank you very much!

Source: https://doanhnghiepvn.vn/tin-tuc/de-xuat-dieu-chinh-cac-van-ban-phap-luat-tren-tinh-than-nghi-quyet-68-nq-tw/20250520074739335