The most recent instances where authorization is not permitted in the fields of civil law, marriage and family law, criminal law, administrative law, and economic law…
1. What is authorization?
Authorization is the agreement between the parties whereby the authorized party has the obligation to perform work on behalf of the authorizing party.
Authorization is one of the two forms of representation recognized by law as stated in Article 135 of the Civil Code of Vietnam 2015. Accordingly, the right of representation is established through authorization between the represented person and the representative (referred to as representation by authorization) or by the decision of a competent state authority, according to the charter of a legal entity, or as prescribed by law (collectively referred to as legal representation).
2. Instances where authorization is not permitted
2.1. Instances where authorization is not permitted in civil law and marriage and family law
2.1.1. Marriage registration
When registering for marriage, both parties, male and female, must be present (according to Decision 3814/QĐ-BTP).
2.1.2. Divorce
In the case of a divorce application, the parties may seek the assistance of a lawyer or a representative to carry out some procedures when filing for divorce. However, the parties cannot authorize another person to participate in the proceedings on their behalf in the divorce case. If a parent or relative requests the court to resolve the divorce according to Clause 2, Article 51 of the Law on Marriage and Family 2014, they are the representatives (Clause 4, Article 85 of the Civil Procedure Code of Vietnam 2015).
2.1.3. Registration of acknowledgment of parentage
When registering for acknowledgment of parentage, all parties must be present (Clause 1, Article 25 of the Civil Status Law of Vietnam 2014).
2.1.4. Notarizing one’s will
The testator must personally request the notarization of the will and cannot authorize another person to request the notarization (according to Article 56 of the Notarization Law of Vietnam 2014).
2.1.5. Conflicting rights and interests with the authorizing party in the same case
If the authorized party is also a party in the same case as the authorizing party, and the legitimate rights and interests of the authorized party conflict with those of the authorizing party (according to Point a, Clause 1, Article 87 of the Civil Procedure Code of Vietnam 2015).
2.1.6. Currently being authorized by another party in the same case with conflicting rights and interests
If the authorized party is the legal representative in civil proceedings for another person (the one who has authorized) and the legitimate rights and interests of that party conflict with those of the authorized party in the same case (the one about to authorize) (according to Point b, Clause 1, Article 87 of the Civil Procedure Code of Vietnam 2015).
2.2. Instances where authorization is not permitted in criminal law
2.2.1. Confessing on behalf of oneself
According to the spirit of the Criminal Code, the regulations on penalties are aimed at deterring and educating individuals who commit offenses. Therefore, if one is allowed to authorize another person to confess on their behalf, it does not reflect the true nature and purpose of enacting the Criminal Code.
2.2.2. Instances where authorization is not permitted in criminal proceedings
- Heads and Deputy Heads of Investigation Agencies cannot authorize investigators to perform their duties and powers (Clause 4, Article 36 of the 2015 Criminal Procedure Code).
- Heads and deputy heads of agencies such as border guards, customs, forestry, coast guards, and fishery inspectors assigned to carry out certain investigative activities, as well as public security and military agencies, cannot authorize investigators to perform their duties and powers (Point d, Clause 1, and Clause 5, Article 39 of the 2015 Criminal Procedure Code).
- The Chief Prosecutor and Deputy Chief Prosecutor of the People’s Procuracy cannot authorize prosecutors to perform their duties and powers (Clause 4, Article 41 of the 2015 Criminal Procedure Code).
- The Chief Judge and Deputy Chief Judge of the Court cannot authorize judges to perform their duties and powers (Clause 4, Article 44 of the 2015 Criminal Procedure Code).
2.3. Instances where authorization is not permitted in administrative law
- Provincial and district People’s Committees with the authority to decide on land allocation, lease land, or permit changes in land use purposes cannot delegate this authority (according to Clause 5, Article 123 of the Land Law of Vietnam 2024).
- In administrative proceedings, the authorized party cannot further delegate authority to a third party (according to Clause 5, Article 60 of the Administrative Procedure Law of Vietnam 2015).
- Agencies authorized to issue detailed regulatory documents cannot further delegate this authority (according to Clause 2, Article 11 of the Law on the promulgation of legal documents of Vietnam 2015).
- Local state administrative agencies receiving delegation cannot further delegate to other agencies or organizations to carry out the tasks and powers authorized by the upper-level state administrative agency (according to Clause 2, Article 14 of the Law on the organization of local government of Vietnam 2015).
- Individuals requesting to issue Criminal Record Certificate No. 2 cannot authorize others to complete the procedures for issuing this certificate (according to Clause 2, Article 46 of the Criminal Record Law of Vietnam 2009).
- Persons being questioned cannot authorize others to answer on their behalf at sessions of the National Assembly, the Standing Committee of the National Assembly, the People’s Council, and the Standing Committee of the People’s Council (according to Point b, Clause 3, Article 15; Point b, Clause 2, Article 26; Point b, Clause 3, Article 60; Point b, Clause 2, Article 69 of the Law on the activities of the National Assembly and People’s Council of Vietnam 2015).
- Organizations testing veterinary drugs cannot directly register or receive authorization to register veterinary drugs in Vietnam (according to the Veterinary Law of Vietnam 2015).
2.4. Instances where authorization is not permitted in economic law
- The Chairman and members of the Board of Directors of credit institutions that are cooperatives cannot authorize non-members of the Board of Directors to perform their rights and obligations (according to Clause 6, Article 87 of the Law on Credit Institutions of Vietnam 2024).
- The Prime Minister, Ministers of Finance, National Defense, Public Security, Transport, Agriculture and Rural Development, Health, Industry and Trade, and the Chairman of the provincial People’s Committee cannot delegate authority to decide on asset requisition (according to Clause 3, Article 14 of the Law on requisition of Vietnam 2008).
- Project investors in real estate business cannot authorize partners involved in investment cooperation, joint ventures, business cooperation, or capital contribution to sign contracts for the purchase, transfer, or lease of real estate (according to Clause 4, Article 17 of the Law on Real Estate Business of Vietnam 2023).
- Depositing savings at credit institutions (Point a, Clause 1, Article 8 of the Savings Regulation issued together with Decision No. 1160/2004/QĐ-NHNN).
- In cases where an enterprise has only one legal representative, and this person is absent from Vietnam for more than 30 days without authorizing another person to perform the rights and obligations of the legal representative of the enterprise, or in the event of death, disappearance, criminal investigation, detention, serving a prison sentence, undergoing administrative sanctions at a compulsory detoxification facility, educational institution, or facing limitations or loss of civil legal capacity, difficulties in perception and behavioral control, or being prohibited by the Court from holding certain positions, performing certain professions, or carrying out certain jobs, then the company owner, Member Council, or Board of Directors shall appoint another person as the legal representative of the company (Clause 5, Article 12 of the Law on Enterprises of Vietnam 2020).
- Individuals cannot authorize others to settle taxes for the income-paying organization if:
- Individuals meet the conditions for delegation as prescribed in the points above but have already received income-paying organizations’ withholding tax certificates, they cannot authorize the income-paying organization to settle taxes (unless the income-paying organization has recalled and canceled the issued withholding tax certificate).
- Individuals with income from salary and wages with labor contracts lasting three months or more at one unit but are not working at that organization at the time of authorizing tax settlement.
- Individuals with income from salary and wages with labor contracts lasting three months or more at one unit, while also having occasional income that has not been withheld tax or insufficiently withheld tax (including cases where income is below the threshold for withholding and cases where income has reached the threshold for withholding but has not been withheld).
- Individuals with income from salary and wages with contracts of three months or more at multiple locations.
- Individuals with only occasional income that has been withheld tax at the rate of 10% (including cases where there is only one source of occasional income).
- Individuals who have not registered for a tax code.
- Residents with income from salary and wages who are also subject to tax reduction due to natural disasters, fires, accidents, or serious illnesses cannot authorize tax settlement but must self-declare and settle taxes with a tax reduction application as per Clause 1, Article 46 of Circular 156/2013/TT-BTC.
According to: Official Letter 5749/CT-TNCN.
