In other jurisdictions, a de-facto director is a person who performs the function of a director but who has not been formally appointed as a director. Under Article 11.3 of Circular 121/2012, if a Board Member ceases to be Board Member then the Board may appoint another person to temporarily replaces the former Board Member. The temporary Board Member will need to be formally elected at the next meeting of the Shareholders Meeting. A temporary Board Member may be viewed as a de-facto Director as he/she is not formally appointed by the Shareholders Meeting.

However, under the Enterprise Law, only the Shareholders Meeting has the power to appoint a Board Member. Accordingly, it is not clear if Article 11.3 of Circular 121/2012 can be considered as (1) a special law which prevails the Enterprise Law and is valid or (2) a sub-ordinate law which is different from a higher law (i.e. the Enterprise Law) and is invalid. If Article 11.3 of Circular 121/2012 is valid then it is likely that a temporary Board Member appointed under Article 11.3 of Circular 121/2012 will have the liabilities and obligations of a normal Board Member.

Other than the context of Article 11.3 of Circular 121/2012, Vietnamese law does not have any general provision about a person acting as a de-facto Director of a Joint stock company (JSC). Therefore, it would be difficult to make a de-facto Director subject to the obligations and liabilities of a Director of a JSC.

Under Article 8 of the Enterprise Law, a JSC is entitled to operate and run its business in its own discretion. Article 11.7 of the Enterprise Law prohibits any action which interferes or prevents shareholders and owners of a JSC to exercise their rights under the Enterprise Law or the charter of the company. Accordingly, a de-factor Director who exercises the functions of a Director of a JSC without being formally appointed may be considered as violating the rights of the JSC to conduct its business under Article 8 of the Enterprise Law or as interfering or preventing shareholders and owners of the JSC to exercise their rights under Article 11.7 of the Enterprise Law. As a result, a de-factor Director may potentially be subject to non-contractual liabilities in case his/her action causes damages to the JSC.