Các hình thức của giao dịch dân sự theo Bộ luật dân sự 2015

Form of civil transaction? What is a conditional civil transaction? Validity conditions of civil transactions under the 2015 Civil Code?

A civil transaction is a legal event, including a unilateral or multilateral legal act (contract) giving rise to legal consequences. Depending on each specific transaction, that transaction gives rise to, change change or terminate civil rights and obligations. For example, when a civil transaction of land transfer and sale occurs, it will give rise to the rights and obligations of both the seller and the buyer.

1. Form of civil transaction:

Pursuant to Article 119 of the Civil Code 2015, as amended in 2017, the form of civil transactions is regulated as follows:

Article 119. Forms of civil transactions

1. Civil transactions are expressed verbally, in writing or by specific acts.

Civil transactions through electronic means in the form of data messages in accordance with the law on electronic transactions are considered written transactions.

2. Where the law stipulates that civil transactions must be expressed in writing notarized, authenticated or registered, such provisions must be complied with.

The form of a civil transaction is the outward expression of its contents in a certain tangible material form. Civil transactions are expressed in many different forms, including: words, documents or specific acts.

A specific form of verbal or behavioral transaction usually applies to civil transactions that are performed or terminated immediately after execution (such as hand-to-hand sales) or between trusted entities. or close relationship.

The form of a civil transaction expressed in writing is the fact that the subject parties make a written agreement on the terms of the transaction and the subject parties confirm their will in that document. Civil transactions through electronic means in the form of data messages in accordance with the law on electronic transactions are considered written transactions. Civil transactions must be in writing, and must be notarized, authenticated, registered or licensed, and must comply with such regulations.

Accordingly, this provision can be understood: in cases where it is provided by law to be expressed only in one of three forms: a notarized document, a certified document or a registered document, the parties only Only one form can be selected. Another interpretation: if the law allows the form of a transaction to be expressed in a notarized, authenticated and registered document, the transaction must show all three of these types of documents. Therefore, for civil transactions that need to be expressed in writing, there should be specific instructions when implementing the law.

see more: Civil transactions are invalid due to forgery under the Civil Code 2015

Meaning: Civil transactions are the most common and most common grounds for creating, changing or terminating civil rights and obligations, in moving assets and providing services to meet daily needs. increased by all members of society. In the production of goods according to the market mechanism, through civil transactions, subjects meet production and business needs and other needs in daily life.

2. Conditional civil transactions:

Article 120. Conditional civil transactions

1. Where the parties agree on conditions for arising or canceling a civil transaction, when such conditions occur, the civil transaction arises or is cancelled.

2. Where a condition giving rise to or canceling a civil transaction cannot occur due to a party’s direct or indirect intentional act of obstruction, such condition shall be deemed to have occurred; where there is a direct or indirect influence of a party to intentionally promote the occurrence of a condition, such condition shall be deemed not to have occurred.

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When a civil transaction is established, the parties may agree on the effective time or the time of termination of the civil transaction when an objective event occurs. An event is a predictive condition that is likely to happen but is not certain to happen in the future. A valid conditional civil transaction is one that has been entered into but has not yet taken effect and the parties must perform the transaction. On the contrary, a civil transaction with cancellation conditions is a transaction in progress, the time limit has not expired but the agreed conditions appear, the transaction will be cancelled. For a conditional transaction, an event is considered a condition that must occur objectively, if one party acts to prevent directly or indirectly from happening or has to perform an obligation. prompt the condition to happen quickly or not at all. The legal consequences of the transaction arise or terminate according to the conditions agreed upon by the parties when performing the civil transaction.

3. Validity conditions of civil transactions:

Article 117. Validity conditions of civil transactions

1. A civil transaction takes effect when the following conditions are fully satisfied:

a) The subject has civil legal capacity, civil act capacity in accordance with the established civil transaction;

see more: What is a civil transaction? What are the characteristics of civil transactions?

b) Entities participating in civil transactions completely voluntarily;

c) The purpose and content of the civil transaction do not violate the prohibition of the law and do not violate social ethics.

2. The form of a civil transaction is the effective condition of a civil transaction, in case it is provided for by law.

In order to ensure a valid civil transaction, the conditions in Article 117 of the 2015 Civil Code must be fully satisfied. If one of these conditions is missing, the civil transaction will automatically or may be considered invalid:

– Conditions on subjects participating in civil transactions: Subjects participating in civil transactions here must be understood in a broad sense, including all subjects participating in civil legal relations. Subjects participating in civil transactions must have civil legal capacity and civil act capacity suitable to the established transactions. Subjects participating in civil transactions being individuals must have civil act capacity, be aware of and master their acts in establishing, changing or terminating civil rights and obligations and taking responsibility for themselves. responsible for the performance of civil transactions.

Depending on the level of civil act capacity of the individual, the individual may engage in age-appropriate transactions. Subjects being legal entities participate in civil transactions through their representatives. Households, cooperative groups and other organizations without legal status are participants in establishing and performing civil transactions or authorizing their representatives to establish and perform civil transactions.

– Conditions on purpose and content of civil transactions: Here the purpose of civil transactions is the legitimate benefits that the parties wish to achieve when participating in civil transactions. The content of a civil transaction is a collection of terms and commitments defining the rights and obligations of the subjects, binding on the subjects when participating in civil transactions. The purpose and content of civil transactions do not violate the prohibition of the law and are not contrary to social ethics. In the transaction relationship, the subjects have the right to freely and voluntarily commit to an agreement to meet the interests that the parties wish to achieve but without violating the prohibitions of the law, not contrary to the code of conduct. common to the people.

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– Conditions of voluntariness when establishing civil transactions: In terms of the nature of civil transactions, it is the unity of will and expression of will, so the subjects participating in civil transactions must be completely voluntary. in expressing and expressing their will. Before participating in civil transactions, subjects have the right to freely decide to participate or not to participate in civil transactions, without being influenced or subject to coercion, prohibition or threats.

see more: What is a conditional civil transaction? Examples of conditional civil transactions

– Conditions on the form of civil transactions: The form of civil transactions is the method of expressing the content of the transaction. The subject parties have the right to choose the appropriate form to establish the transaction. However, in some cases, the law stipulates a mandatory form that the parties must comply with. If there is a violation, the transaction will not be effective.

4. Invalid civil transactions due to failure to comply with regulations on form:

Question summary:

Article 129. Invalid civil transactions due to failure to comply with regulations on form

A civil transaction that violates regulations on formal validity conditions shall be invalid, except for the following cases:

1. A civil transaction that has been established in accordance with regulations must be in writing but the document is not in accordance with the provisions of law and one party or parties has performed at least two-thirds of the obligations in the transaction. one party or parties, the Court shall issue a decision to recognize the validity of that transaction.

2. A civil transaction that has been established in writing but violates the compulsory regulations on notarization and authentication where one party or the parties has performed at least two-thirds of the obligations in the transaction shall, at the request of the one party or parties, the Court shall issue a decision to recognize the validity of that transaction. In this case, the parties are not required to perform the notarization or authentication.

Can you help me analyze it? Thank you?

Advisory lawyer:

see more: Validity conditions of civil transactions under the Civil Code 2015

For regulations on civil transactions that are invalid due to non-compliance with regulations on form, Article 134 of the 2005 Civil Code stipulates:

“Where the law stipulates that the form of a civil transaction is a valid condition for the transaction but the parties do not comply, at the request of one or the other parties, the court or other competent state agency shall decide to to force the parties to comply with the regulations on the form of the transaction within a period of time; Past that time limit, the transaction will be void.

This regulation requires the parties when performing civil transactions where the form of the transaction is the valid condition of the transaction, the parties must comply. If the parties do not comply with the regulations on the form of the transaction, at the request of one or the other parties, the Court or other competent state agency shall decide to force the parties to comply with the regulations on the form of the transaction. for a period of time; Past that time limit, if not executed, the transaction will be void.

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However, when implementing the regulations in practice, there were many problems and difficulties to ensure the feasibility because in many cases, one of the parties to the transaction did not cooperate to implement the regulations on the form of the transaction. transaction, although the transaction is entered into on the basis of the voluntary will of the parties, resulting in the transaction being void.

Therefore, in Article 129 of the 2015 Civil Code, this provision has been changed as follows:

“Civil transactions that violate the regulations on formal validity shall be invalid, except for the following cases:

1. A civil transaction that has been established in accordance with regulations must be in writing but the document is not in accordance with the provisions of law and one party or parties has performed at least two-thirds of the obligations in the transaction. one party or parties, the Court shall issue a decision to recognize the validity of that transaction.

2. A civil transaction that has been established in writing but violates the compulsory regulations on notarization and authentication where one party or the parties has performed at least two-thirds of the obligations in the transaction shall, at the request of the one party or parties, the Court shall issue a decision to recognize the validity of that transaction. In this case, the parties do not have to perform the notarization and authentication.”

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Accordingly, the civil transaction regulation that violates the regulations on valid conditions in terms of formality is the invalid civil transaction, but two cases are excluded:

1, The civil transaction has been established in writing but the document establishment is not in accordance with the provisions of law:

At that time, one party or parties to the transaction has performed at least two-thirds of the obligations, then at the request of one party or parties, the Court shall issue a decision to recognize the validity of that transaction;

2, Civil transactions that have been established in writing but violate the mandatory regulations on notarization and authentication:

At that time, one party or parties in a civil transaction has performed at least two-thirds of its obligations, then at the request of one party or parties, the Court shall issue a decision to recognize the validity of that transaction. . In this case, the parties are not required to perform the notarization or authentication.

Thus, with this provision, a transaction that violates the regulations on form but the parties to the transaction actively and in good faith perform the transaction, have performed at least two-thirds of the obligations in the transaction, then the transaction will be executed. such transaction is not identified as invalid transaction.

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