Members: Nguyễn Ngọc Ninh, Phan Triệu Mẫn, Vương Ngọc Ánh, Lê Thị Xuân Diệu, Nguyễn Thị
Kim Tuyền, Trần Hiếu Ngân
SIMILARITIES:
1. Applies to valid contracts
2. Be the legal responsibility of the parties to the contract
3. Arising from the breach of contractual obligations
4. Protect the legitimate rights and interests of the violated party
DIFFERENCES:
CIVIL CODE 2015
DAMAGES - Each person has his/her civil
rights violated shall be eligible
for total damage, unless
otherwise agreed by parties or
unless otherwise prescribed by
law. (article 13)
- With respect to damage caused
by breach of an obligation, the
obligor must compensate for the
whole damage, unless
otherwise agreed or
prescribed by law. (article 360)
Conclusion : In short, the basis for arising liability to compensate for damage is caused by a breach of
obligation by one party. However, the Civil Code allows the parties to agree on the scope and obligation
to compensate for damage. Meanwhile, the Commercial Law clearly states that the compensation value is
based on the actual loss value that the aggrieved party has to bear.
CIVIL CODE 2015
VIOLATION -  Agreements on fines for
violations are reached by the
parties to a contract which
requires the violating party to
pay a fine to the aggrieved
party. (article 418.1)
- The fine levels shall be agreed
among the parties, unless
otherwise prescribed by relevant
laws. (article 418.2)
COMMERCIAL LAW 2005
- Damages means a remedy
whereby the breaching party
pays compensation for the loss
caused by a contract-breaching
act to the aggrieved party.
(article 302.1)
- The value of damages covers
the value of the material and
direct loss suffered by the
aggrieved party due to the
breach of the breaching party
and the direct profit which the
aggrieved party would have
earned if such breach had not
been committed. (article 302.2)
COMMERCIAL LAW 2005
- Fine for breach means a
remedy whereby the aggrieved
party requests the breaching
party to pay an amount of fine
for its breach of a contract, if so
agreed in the contract, except for
cases of liability exemption
specified in Article 294 of this
Law. (article 300)
- The fine level for a breach of a
contractual obligation or the
aggregate fine level for more
than one breach shall be agreed
upon in the contract by the
parties but must not exceed 8%
of the value of the breached
contractual obligation portion,
except for cases specified in
 Article 266 of this Law. (article
301)
- The parties may agree that
the breaching party must only
pay a penalty for the breach
without having to pay
compensation, or both must
pay a penalty for the violation
and have to pay compensation
for damage.
In case the parties agree on
penalties for violations but do
not agree on both paying
penalties for violations and
compensating for damage, the
breaching party will only have
to pay penalties for violations.
(article 418.3)

Conclusion : In short, the basis for the arising of fines for violations is due to the agreement of the parties
in the contract. However:

1. The fine level in the Civil Code is mutually agreed upon by the parties, and so is the Commercial
Law, however, the Commercial Law provides that the maximum level is not more than 8% of the
value of the breached contractual obligation. offense. (The fine level for violation will be adjusted
by each specialized law, for example LTM is 8% and Construction Law is 12%).
2. What is more remarkable is that, the Civil Code clearly states that, in case, the contract only
stipulates the penalty for violation without agreement on both compensation for damage and
penalty for violation, the breaching party is obliged to pay a fine. only to be fined for the
violation. But conversely, the Commercial Law does not require the parties to have such an
agreement, that is, if the contract applies the Commercial Law, as long as a breach occurs, the
aggrieved party can apply sanctions. penalty for breach at the same time as compensation for
damage (even if in the contract the parties do not agree on whether to apply at the same time as
compensation for damage, or there is no provision for compensation for damage).

The application of the Civil Code 2015 and the application of the Commercial Law 2005.

To answer this question, we need to clearly identify the subject that signs and participates in the
contract. Which party in a contract is required to give priority to the application of the Commercial Law is
specified in Articles 1 and 2 of the 2005 Commercial Law. Accordingly, in common understanding,
traders and enterprises when signing the contract. Contracts with each other will be governed by the
Commercial Law. However, according to the provisions of Clause 3, Article 1, in case a party to a
contract when signing it for non-profit purposes, that party has the right to choose whether to apply the
Commercial Law or apply the 2015 Civil Code.

In principle, the 2015 Civil Code is a general law and the 2005 Commercial Law is a specialized
law. Therefore, legal relations governed by both the 2015 Civil Code and the 2005 Commercial Law will
prioritize the application of the Commercial Law as a source of law for settlement. If the Commercial
Law does not provide for it, the general principles of the 2015 Civil Code will apply. Conversely, for
legal relationships that are not regulated by the 2005 Commercial Law, the application of the 2015 Civil
Code is reasonable.

Personally, if I am an enterprise manager and enter into a sale contract, I would prefer commercial
law (in case the partner is also a for-profit organization). These are reasons:
1) The civil code is so wide, it also refers to other aspects not related to business. While “the provisions of
the commercial law are meant to supplement or concretize the provisions of the civil law”, so it is more
detailed and specific to follow.
2) When considering the relationship between remedy of fines and remedy of damages in commercial law
(article 307) and civil code (article 418), we can see:
In civil code, it is more vulnerable to the aggrieved party when the contract does not mention
compensation for damage. In this case, the violating party only pays a maximum 8% or 12% of the value
of the breached contractual obligation portion. 
On the other hand, in commercial law, the violating party still has to bear compensation for damage even
if the contract does not mention and only refers to penalties. We know that compensation for damage
includes both material and direct loss and the direct profit which the aggrieved party would have earned if
such breach had not been committed. Therefore, commercial law has more protection for the aggrieved
party.