Thông tư 59/2015/TT-BCT

CIRCULAR

PRESCRIBING THE MANAGEMENT OF E-COMMERCE ACTIVITIES VIA APPLICATIONS ON MOBILE EQUIPMENT[1]

Pursuant to the Government’s Decree No. 95/2012/ND-CP of November 12, 2012, defining functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 52/2013/ND-CP of May 16, 2013, on e-commerce;

At the proposal of the Director General of the Vietnam E-Commerce and Information Technology Agency,

The Minister of Industry and Trade promulgates the Circular prescribing the management of e-commerce activities via applications on mobile equipment.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular details and guides the implementation of a number of articles on the management of e-commerce activities via applications on mobile equipment (below referred to as mobile applications) prescribed in the Government’s Decree No. 52/2013/ND-CP of May 16, 2013, on e-commerce (below referred to as Decree No. 52/2013/ND- CP).

2. This Circular does not apply to mobile applications in the fields of banking, credit and insurance; applications for trading and exchange of money, gold, foreign currencies and other payment instruments, payment, payment intermediary services and financial services, provision of online games, betting or prize-winning games. These applications shall be regulated by relevant specialized laws.

Article 2. Subjects of application

1. This Circular applies to traders, organizations and individuals engaged in e-commerce activities in Vietnam’s territory via mobile applications, including:

a/ Traders, organizations and individuals owning goods sale applications;

b/ Traders and organizations owning e-commerce service provision applications;

c/ Traders, organizations and individuals using e-commerce service provision applications for goods sale and service provision;

d/ Organizations and individuals that make online reports at the E- Commerce Management Portal.

2. Traders, organizations and individuals specified in Clause 1 of this Article are Vietnamese traders, organizations and individuals; foreign individuals residing in Vietnam; and foreign traders and organizations present in Vietnam through investment activities or establishment of their branches and representative offices.

Article 3. Interpretation of terms

1. Mobile application means an application installed on mobile equipment connected to a network that allows users to access the databases of traders, organizations and individuals to purchase and sell goods and provide or use services. Mobile applications include goods sale applications and e-commerce service provision applications.

2. Goods sale application means an e-commerce application on mobile equipment established by a trader or an organization or individual serving its/his/her trade promotion activities, goods sale or service provision.

3. E-commerce service provision application means an e-commerce application on mobile equipment established by a trader or an organization to create an environment for other traders, organizations and individuals to carry out trade activities. E-commerce service provision applications includes e-commerce trading floor applications, online auction applications and online sales promotion applications.

4. E-commerce trading floor application means a mobile application permitting traders, organizations and individuals other than the application owner to conduct part or the whole of the process of buying and selling goods or services on that application.

5. Online sales promotion application means a mobile application set up by a trader or an organization to practice sales promotion for goods and services of other traders, organizations and individuals under the terms of sales promotion service contracts.

6. Online auction application means a mobile application providing solutions to traders, organizations and individuals other than the application owner to auction their goods on the application.

7. Online ordering function is a mobile application function permitting customers to begin the process of conclusion of contracts under the terms publicized on that application, including conclusion of contracts with an automatic information system.

8. Digital content products are documents, data, images and sounds made in digital forms and archived and transmitted on the network environment.

Article 4. Principles for notification and registration of mobile applications

1. Traders and organizations owning mobile applications with the functions of goods sale and e-commerce service provision shall carry out procedures for registration with the Ministry of Industry and Trade under Section 2, Chapter IV of Decree No. 52/2013/ND-CP and Section 2, Chapter II of this Circular.

2. Traders, organizations and individuals shall carry out procedures for notification or registration only once for different versions of a mobile application.

Article 5. Responsibilities of traders, organizations or individuals owning goods sale applications

1. To notify the Ministry of Industry and Trade under Section 1, Chapter II of this Circular.

2. To provide the following information on their applications:

a/ Name and address of head office, for traders and organizations, or name and permanent address, for individuals;

b/ Telephone number, email address or another online contact method.

3. To protect consumers’ interests in e-commerce activities on mobile applications:

a/ Fulfilling obligations to protect consumers’ personal information specified in Section 1, Chapter V of Decree No. 52/2013/ND-CP;

b/ Notifying consumers of information to be collected via their mobile applications once such application are installed and used;

c/ Not compelling by default consumers to use attached services when installing and using their applications.

4. To comply with Articles 8 and 9 of this Circular if their applications have online ordering function.

5. To provide information on their business situation at the request of competent state agencies to serve the making of e-commerce statistics, inspection and examination and handling of violations in e-commerce activities.

6. To comply with the law on payment, advertising, sales promotion, and protection of intellectual property rights and consumers’ interests and other relevant laws when selling goods or providing services.

7. In case of using applications to trade in goods and services on the list of goods and services subject to conditional business, to fully comply with the law on business conditions for those goods and services; to concurrently publicize on the applications the date and place of grant of the certificate of business eligibility for goods and services in case such certificate is required by law.

Article 6. Responsibilities of traders and organizations owning e- commerce service provision applications

1. To register their applications with the Ministry of Industry and Trade in accordance with Section 2, Chapter II of this Circular.

2. To provide and publicize the following information on their applications:

a/ Their responsibilities in transactions carried out via their applications;

b/ Rights and obligations of involved parties carrying out transactions via their applications;

c/ Mechanisms for settling complaints and disputes between parties involved in transactions carried out via their applications;

d/ Policies to protect application users’ personal information under Article 69 of Decree No. 52/2013/ND-CP;

dd/ Measures to handle infringements of consumers’ interests in transactions carried out via their applications.

3. To request traders, organizations and individuals using their applications for goods sale and service provision to provide information under Clauses 1, 2 and 3, Article 29 of Decree No. 52/2013/ND-CP upon registering for use of e-commerce services.

4. To keep registration information of traders, organizations and individuals using their applications and regularly update related information.

5. To promulgate mechanisms permitting traders, organizations and individuals using their application to implement the process of conclusion of contracts under Articles 8 and 9 of this Circular if such applications have online ordering function.

6. To implement the responsibilities prescribed in Article 41 of Decree No. 52/2013/ND-CP if their applications have functions similar to online promotion websites.

7. To comply with Section 4, Chapter III of Decree No. 52/2013/ND-CP if their applications have online auction function.

8. To apply necessary measures to ensure information security relating to business secrets of traders, organizations and individuals and consumers’ personal information.

9. To prevent and remove from their applications information on sale of goods and services on the list of goods and services banned from business in accordance with law.

10. To remove from their applications information on sale of counterfeit goods, imitate goods, smuggled goods, goods infringing upon intellectual property rights, and other infringing goods and services when detecting, or receiving well-grounded reports on, such information.

11. To request persons selling via their applications goods and services on the list of goods and services subject to conditional business to provide a certificate of business eligibility for those goods and services (in case such certificate is required by law).

12. To provide information and assist state management agencies in investigating law-breaking business acts using their applications.

13. To provide information on their business situation at the request of competent state agencies to serve the making of e-commerce statistics, inspection and examination and handling of violations.

Article 7. Responsibilities of traders, organizations and individuals using e-commerce service provision applications for in goods sale or service provision

1. To fully and accurately provide information specified in Clauses 1, 2 and 3, Article 29 of Decree No. 52/2013/ND-CP to traders and organizations owning e-commerce service provision applications upon registration for application use.

2. To fully provide information about goods and services as specified in Article 30 of Decree No. 52/2013/ND-CP if permitting customers to make orders online.

3. To ensure the accuracy and truthfulness of information about the goods sold or services provided via the applications.

4. To provide information about their business situation at the request of competent state agencies to serve the making of e-commerce statistics.

Article 8. Conclusion of contracts using the online ordering function via mobile applications

1. The conclusion of contracts using the online ordering function via mobile applications must comply with Section 2, Chapter II of Decree No. 52/2013/ND-CP except the case prescribed in Clause 2 of this Article.

2. In case the object of a contract is a digital content product or an online service and the acceptance of the proposal for contract conclusion is shown by delivering products or providing services, the mechanism of review and confirmation must meet the following conditions:

a/ Displaying the name of the product or service, the total amount payable by customers for such goods or service and the payment method to be applied;

b/ Permitting customers to cancel or confirm the proposal for contract conclusion after reviewing the above information.

Article 9. Online payment via mobile applications

1. If mobile applications have the online payment function, traders, organizations or individuals shall create a mechanism for customers to review and confirm detailed information about each transaction before making the payment.

2. Traders, organizations and individuals that own mobile applications with the online payment function shall implement the responsibilities specified in Article 74 of Decree No. 52/2013/ND-CP.

Chapter II

PROCEDURES FOR NOTIFICATION AND REGISTRATION OF MOBILE APPLICATIONS

Section 1. NOTIFICATION OF GOODS SALE APPLICATIONS

Article 10. Subjects to make notification of goods sale applications

Subjects to make notification are owners of such applications, including:

1. Traders.

2. Organizations with their functions and tasks covering the organization of goods sale, service provision or performance of e- commerce activities.

3. Individuals who have tax identification numbers and are not subject to business registration in accordance with the law on business registration.

Article 11. Information about notification and process of notification of goods sale applications

1. Information about notification of a goods sale application includes:

a/ Name of the application;

b/ Archive address or address to download the application;

c/ Information specified at Points b, c, d, dd, and e, Clause 2, Article 53 of Decree No. 52/2013/ND-CP.

2. The process of notification of the goods sale application must comply with the process of notification of e-commerce websites for goods sale specified in Articles 9 and 10 of the Ministry of Industry and Trade’s Circular No. 47/2014/TT-BCT of December 5, 2014, on the management of e-commerce websites (below referred to as Circular No. 47/2014/TT-BCT).

Article 12. Updating, change or termination of notified information

1. Traders, organizations and individuals that own goods sale applications shall update notified information under Article 12 of Circular No. 47/2014/TT-BCT.

2. In case of a change in any of the information prescribed in Clause 1, Article 11 of this Circular or termination of operation of a notified goods sale application, a trader or an organization or individual shall notify such to the Ministry of Industry and Trade within 7 working days after such change occurs or operation terminates.

3. The process of change in or termination of notified information about goods sale applications must comply with the process applied to e-commerce websites for goods sale specified in Article 11 of Circular No. 47/2014/TT-BCT.

Section 2. REGISTRATION FOR E-COMMERCE SERVICE PROVISION APPLICATIONS

Article 13. Subjects of registration for e-commerce service provision applications

Subjects of registration are traders or organizations engaged in the field of trade promotion or assisting enterprises or owning e-commerce service provision applications under Clause 3, Article 3 of this Circular.

Article 14. Dossier of registration of e-commerce service provision applications

1. An application for registration of an e-commerce service provision provision (made according to the form provided in the Appendix (not translated) to this Circular).

2. A certified copy of the establishment decision (for organizations), or business registration certificate, investment certificate or investment license (for traders).

3. An e-commerce service provision scheme, comprising the contents specified in Clause 3, Article 54 of Decree No. 52/2013/ND-CP.

4. The regulation on operation management of the application, indicating:

a/ The contents prescribed in Article 38 of Decree No. 52/2013/ND-CP;

b/ The process and time limit for handling reported law-breaking business acts on the application.

5. A model service contract or a cooperation agreement between the trader or organization owning the application and traders, organizations and individuals engaged in trading or organization of auctions or sales promotion of goods and services on such application.

6. General terms applicable to trading activities or organization of auctions and sales promotion of goods and services on the application (if any).

Article 15. Process of registration of e-commerce service provision applications

The process of registration of an e-commerce service provision must comply with the process of registration of e-commerce service provision websites prescribed in Articles 15 and 16 of Circular No. 47/2014/TT-BCT.

Article 16. Modification or addition of registered information

1. In case of a change in any of the following information relating to a registered application, a trader or an organization shall notify such to the Ministry of Industry and Trade within 7 working days after such change occurs:

a/ Change of name and application archive address or address to download the application;

b/ Other changes prescribed at Points a, b, c, dd, e, g and h, Clause 1, Article 56 of Decree No. 52/2013/ND-CP.

2. The modification or addition of information must comply with the process of modification or addition of registered information on e- commerce service provision websites prescribed in Article 17 of Circular No. 47/2014/TT-BCT.

Article 17. Registration termination or deregistration

1. The Ministry of Industry and Trade shall terminate the registration of an e-commerce service provision application in the following cases:

a/ At the request of the trader or organization setting up the application;

b/ The trader or organization ceases its operation or transfers its application to another trader or organization;

c/ The application fails to operate after 30 days have passed since the date of having the registration certified, or the trader or organization sends no feedback at the request of a competent state management agency within the latter’s fixed time limit.

2. Seven working days before ceasing its operation or transferring its e-commerce service application, the trader or an organization owning the application shall notify such to the Ministry of Industry and Trade for termination of registration. The notification shall be carried out online through the granted system account or sent in writing directly or by post to the Ministry of Industry and Trade (the Vietnam E-Commerce and Information Technology Agency).

3. A trader or an organization will have its e-commerce service provision application deregistered in the following cases:

a/ He/she/it commits prohibited acts in e-commerce activities prescribed in Article 4 of Decree No. 52/2013/ND-CP;

b/ He/she/it fails to perform the reporting obligation prescribed in Article 57 of Decree No. 52/2013/ND-CP and relapses into such failure after being reprimanded by the Ministry of Industry and Trade (the Vietnam E-Commerce and Information Technology Agency);

c/ He/she/it has its operation suspended under a competent state agency’s decision on violation handling;

d/ He/she/it fails to fulfill the responsibilities prescribed in Article 6 of this Circular and relapses into such failure after being reprimanded by the Ministry of Industry and Trade (the Vietnam E-Commerce and Information Technology Agency).

4. Information on deregistered applications shall be posted at the E- Commerce Management Portal.

Article 18. Re-registration of e-commerce service provision applications

1. Within 30 days after being transferred its e-commerce service provision application, a trader or an organization receiving the application transfer shall make re-registration of the application under Articles 13, 14 and 15 of this Circular.

2. Traders and organizations having their applications deregistered under Points b and d, Clause 3, Article 17 of this Circular may carry out re-registration procedures after having remedied their violations which led to deregistration.

Article 19. Regular reporting obligation of traders and organizations having registered e-commerce service provision applications

Traders and organizations owning e-commerce service provision applications shall make regular reports under Article 20 of Circular No. 47/2014/TT-BCT.

Chapter III

PUBLICATION OF INFORMATION AT THE E-COMMERCE MANAGEMENT PORTAL

Article 20. Publication of the list of mobile applications having undergone notification and registration procedures

1. Right after mobile applications have undergone notification or registration procedures under this Circular and received confirmation from the Ministry of Industry and Trade, information on applications shall be put in the list of applications having undergone notification or registration procedures for publication at the E-Commerce Management Portal.

2. Publicized information includes:

a/ Names and types of applications as notified to or registered with the Ministry of Industry and Trade;

b/ Application archive addresses or addresses to download applications;

c/ Names and contact information of traders, organizations or individuals owning applications;

d/ Business registration numbers of traders, numbers of establishment decisions of organizations or tax identification numbers of individuals owning applications.

3. When a mobile application has its registration terminated or is deregistered, information on such application shall be removed from the list specified in Clause 1 of this Article and changed to the status of registration termination or moved to the list of law-breaking applications as prescribed in Article 21 of this Circular.

Article 21. Publication of the list of law-breaking mobile applications

1. The Ministry of Industry and Trade shall publicize the list of law- breaking mobile applications at the E-Commerce Management Portal under Article 4 of Decree No. 52/2013/ND-CP and other regulations on handling of administrative violations in e-commerce activities.

2. Publicized information includes:

a/ Names of applications, application archive addresses or addresses to download applications;

b/ Names and information of traders, organizations and individuals owning applications;

c/ Violations of traders, organizations or individuals and forms of sanction, degree of sanctions, and remedial measures under state competent agenciess; decisions on handling of administrative violations.

Article 22. Receipt and processing of reported information on law- breaking mobile applications

1. The Ministry of Industry and Trade shall receive reports of organizations or individuals on the following acts via mobile applications:

a/ Violation of regulations on notification and registration of mobile applications;

b/ Violation of regulations on conclusion of contracts and online payment via mobile applications under Articles 8 and 9 of this Circular;

c/ Violation of regulations on responsibilities of owners of goods sale or e-commerce service provision applications under Articles 5 and 6 of this Circular;

d/ Violation of regulations on responsibilities of users of mobile applications for goods sale or service provision under Article 7 of this Circular;

dd/ Other violations prescribed in Article 4 of Decree No. 52/2013/ND-CP and the law on handling of administrative violations.

2. The receipt and processing of reported information must comply with Clauses 2, 3 and 4, Article 31 of Circular No. 47/2014/TT-BCT.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 23. Implementation responsibility

1. The Vietnam E-Commerce and Information Technology Agency shall receive and settle the procedures for notification and registration of mobile applications, and publicize information at the E-Commerce Management Portal under this Circular.

2. Related agencies and units of the Ministry of Industry and Trade shall coordinate with one another in the state management of mobile applications according to their competence.

3. Provincial-level Industry and Trade Departments shall, within the ambit of their functions and powers, coordinate with the Vietnam E- Commerce and Information Technology Agency in verifying notified and registered information; monitor, update and publicize information at the E-Commerce Management Portal.

Article 24. Effect

1. This Circular takes effect on March 31, 2016.

2. Mobile applications set up and operating before the effective date of this Circular shall be notified or registered under this Circular within 60 days from the effective date of this Circular.

3. Any problem arising in the course of implementation of this Circular should be promptly reported to the Ministry of Industry and Trade for consideration and settlement.-