Recommendations on commenting the draft Decree replacing the Decree 86/2014 / ND-CP dated September 10, 2014 of the Government on transport business conditions by cars

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Name of recommendations: Recommendations on commenting the draft Decree replacing the Decree 86/2014 / ND-CP dated September 10, 2014 of the Government on transport business conditions by cars

Status: Responded

Recommended by units: TheThanh Buoi Co., Ltd

Official letter: No 2065/PTM - VP, dated: 2018-09-17

Recommended contents:

In the draft Decree replacing the Decree 86/2014 / ND-CP dated September 10, 2014 of the Government on conditions for transportation by cars, there were many inappropriate, inadequate and prohibited administrative contents, these caused difficulties for enterprises as well as intervened deeply in the business of enterprises. The replaced draft Decree did not simplifying, reducing business conditions but increasing many unreasonable business conditions, didnot handling and addressingproblems, difficulties and obstacles of enterprises.

Specifically werethe following Articles:

  1. In Clause 5, Article 4: "Businesses and cooperatives operating in passengers transportation along fixed routes must sign contracts with business units of bus terminals and organize transport in strict accordance with the registered routes exploitation plan. In paragraph 6 of Article 4: “Business unitsof bus terminal provides transport support services for businesses and cooperatives dealing in passengers transportation according to the fixed routesunder proper contents ofthe contract signed... "

This was a civil agreement between a transport business and a bus stationcompany, the State management agency should not intervene because when the transport businessoperated at a bus station, it must sign a contract with the bus station company.

  1.  In Clause 2, Article 5: "businesses and business co-operatives transporting passengers by buses register characterized paint colors by the Department of Transport where the transport business license is granted (except specialized bus routes)”.
  2. In some countries around the world, the state management agency regulated the characterized paint color for each different route, to create the image and brand of that route as well as to help passengers easily recognize and impress on the color of the that bus route. In my opinion, the Decree should regulate and assign the Department of Transportto regulate the paint colors of different bus routes, so that passengers can easily identify and easily get to the right bus routes.
  1.  At Point c, Clause 1, Article 7: "To transport business units ... ..; It is forbidden to set a fixed itinerary and schedule to serve many different transport hirers ... "We proposed to abandon" not allowing a fixed itinerary and a fixed schedule forthe purpose of serving many different transportation tenants. …"

This regulation wasin contrary to Article 12 "Rights and obligations of advertisers" of the Advertising Law No. 16/2012 / QH 13, businesses had the right to advertise services and products of their businesses. This was a truly unreasonable condition that prohibited and limited the freedom of business.

  1. Item 2, Article 8: "Passengers transport business is under contracts and drivers must not pick up and drop passengers regularly and repeat daily at the head office, branch offices and representative offices or at another fixed location hired by transport business unitsorbusiness cooperation ".
  2. and at Point d, Clause 1, Article 7; Point d, Clause 2, Article 8: "Within a month, each bus must not perform more than 30% of the total number of transports of that bus with the same departure and ending points"

The above provisions were the conditions that show prohibition, cause difficulties for businesses, limited the freedom of businessas well as limit services provision of business units. Because, if the head offices, branch offices or representative offices of the businesses had enough areas, it was eligible to stop the buses to pick up and drop passengers without affecting traffic safety and not violating the Law, Why these were banned? This regulation completely limited the right to do business and serve passengers of the transportcompany, because passengers who come to the offices or branches of the companywere not allowed to receive the company's bus, but must be received by another company.

Why should each vehicle not exceed 30% of the total number of vehicles that have the same starting and ending points?

For example: We only had 1 car, signed a contract with 1 company every month to bring passengersfrom Tan Son Nhat airport to Vung Tau about 15 trips / month, now with this regulation we must buy more cars and find more passengers to make sure my car did not run more than 30% of the total number of trips in that vehicle in the same month with departure and ending points or we must go bankrupt.

This regulation would increase the cost of companies, cause difficulties for companies andleaded to the situation that small companies and business households werebankrupted. Bigcompanies had many vehicles, which were widely operated, they can legalize this condition by rotating their cars from one point to another.

  1.  At Point e, Clause 1, Article 7; Point c, Clause 2, Article 8: "Transport business units ccould only sign transport contracts with organizations and individuals that needed to hire the entire car. For each vehicle, the transport business unit could only sign one contract ”.
  2. Under the provisions of the Enterprise Law No. 68/2014 / QH13, companies have the freedom right of business in industries and trades that are not prohibited by law; companies have the right to autonomy in business and choose the form of business organization ... With the above provisions: For companies which had to look for passengers who were organizations and individuals needed to rent a whole car,it could be understood as "finding a needle in the bottom of the sea" and with customers,
  3. For example, there were 5 people who wanted to go to a contract with a car included beds or wanted to join with other individuals to reduce the cost, but they had to rent an entire car, it is understood asthey only rent a bedroom for themselves, howeverthey had to rent the entire hotel.
  4.  In Clause 4, Article 7; Clause 5, Article 8: " transport business units of customers under contracts before transporting passengers, they must fully provide the minimum contents of transport contracts as prescribed in Clause 3 (except for Points f, g and h) Article 15 of this Decree to the Department of Transport where the transport business license is issued in writing or by email (Email) ... "

This regulation madean increaseof administrative procedures for businessesor must specify more.The information reported by transport business unitswas confidential related to business secrets of transport business units. The Department of Transport may only provided this information to competent state management agencies to avoid this information provided outside or disclosed to competitors.

For example: In the case of the Thanh Buoi Co., Ltd, the companyhad reported to the Ho Chi Minh City Department of Transport, then Ho Chi Minh Department of Transportprovided full information, number of passengers, number of buses of theThanh Buoi Company for the Transport Newspaper and then, theTransport Newspaperinformed to competitors of the Thanh Buoi Company.

7. Point b, Clause 6, Article 11: "Must use drivers with at least 02 years of experience in controllingbussesof transporting passengers with a design tonnage of 30 seats (including drivers) or more to control buses of transporting passengersincluded two-story beds. ”

This was a condition that restricted the labor rights of workers and this regulation was not suitable because currently there were two-story bedbuses with only 16 seats and 20 seats, why was it required drivers having at least 2 years experience in controlling 30-seat busesor more in order to control two – story bed buswith 20-seats?. It was a ridiculous provision and in contrary to Article 59 of the Road Traffic Act No. 23/2008 / QH12 stipulating a driver's license.

  1. At Point b, Clause 3, Article 15: "The transport contract must contain the following minimum contents: .. Information about the driver: full name, driver's license class, driver's license number, phone number; .. ”

In Article 522, 523 of the Civil Code No. 91/2015 / QH13 has stipulated: " Contract for transport of passengers means an agreement between parties whereby a carrier transports passengers and luggage to an agreed destination and the passengers must pay transport fares.

"1. A contract for transport of passengers may be made in writing or orally

  1. A ticket is evidence of the entry into a contract for transport of passengers by the parties. "

So the draft Decree should not included regulations on the transport contract.

  1. At Point c; Point d, Clause 2; Point c, Clause 3, Article 20: Business transport units havetheir business license revoked for one month when violating one of the following contents:

"c) Within a period of 3 consecutive months, if there is  an average of 20% or more of the number of transport business drivers handled and deprived the driving license for a definite time by competent authoritiesbecause of violations.

  1. d) During 01 month of operation, there are more than 10% of operating vehicles that drivers violate the law and cause serious traffic accidents. ”

This was in contrary to Point d, Clause 1, and Article 3 of the Law on handling of administrative violations. "Only sanctioning administrative violations when there are administrative violations prescribed by law and an act of administrative violation is only penalized once”

Moreover, the above provisions defined violations of individuals (drivers), but penalized organizations and companies "Tangerine does, orange received" that affect the operation of businesses and other non-violators. If sanctioned as the above, due to an individual's fault (driver),but it affected the jobs of thousands of other drivers who did not violate that experience.

 The above provisions had no clear purpose thatcause difficulties for competent agencies to handle, or handle asynchronously with each other, each place handle according to eachtype, it wasneeded to define,how was"serious phrase"?

The Thanh Buoi Co., Ltd wished the competent agencies to advise the Government to issue changing policies to create favorable conditions for companies to operate in a favorable, developed and lawful manner.

Responded by units: The Ministry of Transport

Official letter: No 340/ BGTVT –VT, dated: 2019-01-11

Responded contents:

Following the opinion of the Government’s Deputy Prime Minister Trinh Dinh Dung in the Official Letter No. 349 / VPCP - CN dated January 11, 2018 of the Government’s Office, in which he proposed the following ministries:

The Ministries of Public Security, Justice, Industry and Trade, Finance, Information and Communications, Science and Technology as well as People's Committees of cities: Hanoi and Ho Chi Minh should urgently comment on the draft Decree. (the Ministry of Transport was presented in the document No. 14725 / TTr-BGTVT dated December 29, 2017) to the Ministry of Transport before January 20, 2018 to study and finalize the draft Decree and send it to the Ministry of Justice for re-appraisal, submited to the Government’s Prime Minister before January 31, 2018 in accordance with the provisions of the law promulgating legal documents; the Document No. 1498ATPCP-CN dated February 9, 2018 of the Government’s Office; received opinions of the Ministry of Justice at the evaluation report No. 97 / BC-BTP dated April 19, 2018. implementedthe Resolution No. 19-2018 / NQ-CP dated May 15, 2018 of the Government on continuous carrying out the main tasks, solutions to improve the business environment, improve competitiveness in 2018 and the following years; implemented the Notice No. 242 / TB-VPCP dated July 12, 2018 of the Government’s Office on the conclusion of the Government’s Deputy Prime Minister Truong Hoa Binh - Chairman of National Traffic Safety Committee at the Conference on preliminary review of work ensuring traffic safety in the first 6 months; key tasks for the third quarter and the last 6 months of 2018.

On July 31, 2018, the Ministry of Transport issued an Official Letter No. 8354 / TTr-BGTVT to submit the draft Decree attached to the submission documents included the draft Decree; the Report No. 8355 / BC-BGTVT dated July 31, 2018 of the Ministry of Transport reported to be receptive the Ministry of Justice's comments on the draft Decree; the Report No. 83 56 / BC-BGTVT dated July 31, 2018 of the Ministry of Transport reported the price impact of the draft Decree; consolidated reports, summary tables and comments from relevant ministries, sectors, organizations, associations and relevant agencies; comments of agencies, units, organizations and individuals; some other related documents. At the same time, the Ministry of Transport published all documents to submit the draft decree on the portal of electronic information of the Ministry of Transport.

Continuously direct the documents in Document No. 8165 / VPCP-CN dated August 29, 2018 of the Government’s Office and the direction of the Government’s Prime Minister, the Ministry of Transport seriously has studied and received and explaned contributed ideas of related agencies and units and reported to the Government’s Prime Minister on reviewing and finalizing the draft Decree, ensuring strict management of transport activities, healthy competition on the basis of boosting application using science and technology in management of transport activities; In particular, the contents that the Government’s Office has directed to consider in Document No. 8165 / VPCP-CN dated August 29, 2018, In which 08 recommendations and proposals of the Thanh Buoi Co., Ltd. in the Official Letter No. 0708-01 / CV-TB dated August 7, 2018 have been also seriously studied by the Ministry of Transport to receive, explain and complete re-drafting the draft Decree to report to the Government’s Prime Minister as directed in Document No. 8165 / VPCP-CN. The contents to be received and explained in detail in section 6 of the summary of comments on the draft decree replacing the Decree No. 86 (from page 81 to page 84 of the Summary Table) attached to the Official Letter 11251 / BGTVT-VT on October 5, 2018 that the Ministry of Transport reported to the Government’s Prime Minister and posted publicly on the Ministry of Transport's Web Portal.

Currently, the Ministry of Transport is implementing the comments of the Government Members and according to preliminary results, the Government Members also have different opinions about the content of this regulation. Therefore, the Ministry of Transport is continuing to review  the provisions of the relevant Laws to amend and supplement the current regulations to ensure constitutional and legal.


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