Chương 2 Luật doanh nghiệp 1999: Thành lập và đăng ký kinh doanh

Chapter II

ESTABLISHMENT AND BUSINESS REGISTRATION

Article 9.- The right to establish and manage enterprises

Organizations and individuals have the right to establish and manage enterprises, except for the following cases:

1. State bodies and units of people’s armed forces using State assets and public funds to establish enterprises to make profits for their own bodies and units;

2. State officials and employees as prescribed by the legislation on State officials and employees;

3. Officers, non-commissioned officers, career servicemen, national defense workers in bodies or units of the People’s Army; officers, career non-commissioned officers in bodies or units of the People’s Police;

4. Management personnel, professional management personnel in the State enterprises, except for those appointed to be representatives to manage the State’s share of contributed capital in other enterprises;

5. Minors; adults whose capacity for civil acts is restricted or lost;

6. Persons being examined for penal liability or in the process of serving imprisonment sentences or having their practicing right revoked by a Court for having committed smuggling, producing fake goods, trading in fake goods, conducting illegal business, tax evasion, deceiving clients and other offences as provided for by law;

7. The owner of a private enterprise, the partners of a partnership, the Director (General Director), chairman and members of the Board of Management or the Members’ Council of an enterprise which has been declared bankrupt may not establish an enterprise, may not act as manager of an enterprise for one to three years from the date of declaration of bankruptcy of the enterprise, except for the cases stipulated in the Law on Business Bankruptcy;

8. Foreign organizations and individuals not having permanent residence in Vietnam.

Article 10.- The right to contribute capital

1. Organizations and individuals may contribute capital into limited liability companies, joint-stock companies and partnerships except for the following cases:

a/ State bodies and units of people’s armed forces using State assets and public funds to contribute capital into enterprises to make profits for their own bodies and units;

b/ Subjects not entitled to contribute capital into enterprises as prescribed by the legislation on State officials and employees.

2. Foreign organizations, foreign individuals not having permanent residence in Vietnam and overseas Vietnamese may contribute capital into limited liability companies, joint-stock companies, partnerships in accordance with the Law on Domestic Investment Promotion.

Article 11.- Contracts to be signed prior to business registration

1. A founding member or a representative authorised by the group of founding members may sign contracts for the purpose of the establishment of the enterprise;

2. Where the enterprise is established, the enterprise will assume the rights and obligations arising from the signed contracts referred to in Clause 1 of this Article;

3. Where the enterprise is not established, the person who signed the contracts under Clause 1 of this Article shall be solely or jointly liable for the performance of such contracts.

Article 12.- Procedures for establishment of an enterprise and registration of business

1. The founder of an enterprise must prepare and submit all the business registration dossiers as prescribed by this Law to the business registration body under the People’s Committee of the province or centrally-run city where the enterprise is headquartered and will be responsible for the accuracy and truthfulness of the business registration dossiers.

2. The business registration body is not entitled to request the founder of an enterprise to submit additional documents other than those prescribed by this Law for each type of enterprise. The business registration body shall be responsible for only the regularity of the business registration dossiers.

3. The business registration body shall have to register the business within fifteen days from the date of receipt of the dossiers; where the business registration certificate is refused, the founder of the enterprise must be notified thereof in writing. The notice must clearly state the reasons and the amendments or supplements required.

Article 13.- Business registration dossiers

A business registration dossier shall comprise:

1. The application for business registration;

2. The charter in case of companies;

3. The list of members in case of a limited liability company, the list of partnership members in case of a partnership, the list of founding shareholders in case of a joint-stock company;

4. For enterprises conducting lines of business which require legal capital, the certification of capital by the competent body or organization as prescribed by law is additionally required.

Article 14.- Contents of the application for business registration

1. An application for business registration must contain the following principal contents:

a/ Name of the enterprise;

b/ Address of the head office of the enterprise;

c/ Objectives and lines of business;

d/ Charter capital in case of a company, or initial investment capital of the owner of the enterprise in case of a private enterprise;

e/ The share of capital contributed by each member in case of a limited liability company or a partnership; the number of shares subscribed for by the founding shareholders, types of shares, face value of shares and the total number of shares of each type to be offered in case of a joint-stock company;

f) Full names, signatures, permanent address(es) of the owner(s) of the enterprise in case of a private enterprise; of the legal representative in case of a limited liability company or a joint-stock company; of all partners in case of a partnership.

2. An application for business registration shall be made in a standard form prescribed by the business registration body.

Article 15.- Contents of the Charter of a company

The Charter of a company must contain the following principal contents:

1. Names and addresses of the head office, branch, representative office (if any);

2. Objectives and lines of business;

3. Charter capital;

4. Full names and addresses of all partners in case of a partnership; names, addresses of members in case of a limited liability company; names and addresses of founding shareholders in case of a joint-stock company;

5. The contributed capital share and its value of each member in case of a limited liability company or a partnership; the number of shares subscribed for by founding shareholders, face value of shares and the total number of shares of each type to be offered for sale, in case of a joint-stock company;

6. Rights and obligations of members in case of a limited liability company or a partnership; of shareholders in case of a joint-stock company;

7. Management and organizational structure;

8. Legal representative in case of a limited liability company or a joint-stock company;

9. Procedures for approving decisions of the company; principles for resolution of internal disputes;

10. Circumstances where a member may request the company to redeem his/her contributed capial share in a limited liability company or shares in a joint-stock company;

11. Assorted funds and the limits of each fund to be set up in the company; principles for distribution of profits, payment of dividends and loss bearing in the business;

12. Cases of dissolution, the order of dissolution and the procedures for liquidation of the assets of the company;

13. Procedures for amending or supplementing the Charter of the company;

14. Signatures of all partners in case of a partnership; of the legal representative or all members in case of a limited liability company; of the legal representative or all founding shareholders in case of a joint-stock company.

Other contents of the Charter of the company shall be agreed upon by the members or shareholders but may not contradict the provisions of law.

Article 16.- List of members of a limited liability company, partnership, list of founding shareholders of a joint-stock company.

The list of members of a limited liability company, partnership, the list of founding shareholders of a joint-stock company must contain the following principal details:

1. Names and addresses of members in case of a limited liability company or a partnership; of founding shareholders in case of a joint-stock company;

2. Share of contributed capital and its value, type of assets, quantity, residual value of each type of asset contributed as capital, time schedule for capital contribution in case of a limited liability company or a partnership; the number of shares, type of shares, type of assets, quantity of assets, residual value of each asset contributed into the share capital, time schedule for contribution to the share capital in case of a joint-stock company;

3. Full names and signatures of the legal representative or all the members, founding shareholders, in case of a limited liability company or a joint-stock company; of all the partners in case of a partnership.

Article 17.- Conditions for granting of business registration certificate and the time of business commencement.

1. An enterprise shall be granted a business registration certificate if it satisfies all the following conditions:

a/ Its line of business is not prohibited;

b/ The name of the enterprise complies with the provisions of Clause 1, Article 24 of this Law;

c/ Having regular business registration dossiers as prescribed by law;

d/ Paying fully business registration fee as prescribed.

2. An enterprise may commence its business from the date of issue of the business registration certificate. For lines of business subject to conditions, an enterprise may only conduct business from the date it is granted the business registration certificate by the competent State body or when it satisfies all the prescribed conditions.

Article 18.- Content of a business registration certificate

A business registration certificate must contain the following principal details:

1. Names and addresses of the head office of the enterprise, branch or representative office (if any);

2. Objectives and lines of business;

3. Charter capital, in case of a limited liability company, joint-stock company or a partnership; initial investment capital, in case of a private enterprise; legal capital, in case of an enterprise conducting a line of business which requires legal capital;

4. Full names and permanent address of the legal representative of the enterprise;

5. Names and addresses of members, in case of a limited liability company; of founding shareholders, in case of a joint-stock company; full names and permanent residence addresses of partners, in case of a partnership.

Article 19.- Alterations of business registration

1. When any changes are made to the names, addresses of the head office, branch, representative office (if any), objectives and line of business, charter capital, investment capital of the owner of the enterprise, change of the manager, legal representative of the enterprise and other matters included in the business registration dossiers, the enterprise must register with the business registration body no later than 15 days before effecting the changes.

2. In case where any change is made to the content of the business registration certificate, the enterprise will be granted a new business registration certificate; in case of other changes, the enterprise will be granted a certificate of business registration alteration.

Article 20.- Providing information on business registration

1. Within seven days from the date of issuance of the business registration certificate or the certificate of business registration alteration, the business registration body must send a copy of such certificate to the tax office, statistics office, the economic or technical administrative body at the same level, the People’s Committee of the rural or urban district, township or provincial city where the enterprise is headquartered.

2. Organizations and individuals may request the business registration body to provide information on business registration, to grant a copy of business registration certificate, certificate of business registration alteration or a business registration extract and shall have to pay fees as prescribed by law.

3. The business registration body shall have to provide fully and promptly the information on business registration required by organizations and individuals, as provided for in Clause 2 of this Article.

Article 21.- Publication of business registration

1. Within thirty days from the date it is granted the business registration certificate, the enterprise must publish on a local newspaper or a central daily for three consecutive issues the following principal contents:

a/ Name of the enterprise;

b/ Addresses of the head office of the enterprise, branch, representative office (if any);

c/ Objectives and lines of business;

d/ Charter capital, in case of a limited liability company, a joint-stock company or a partnership; initial investment capital, in case of a private enterprise;

e/ Names and addresses of the owner, all founding members;

f/ Full name and permanent residence address of the legal representative of the enterprise;

g/ The place of business registration.

2. When any change is made to the business registration, the enterprise shall have to make public such change as prescribed in clause 1 of this Article.

Article 22.- Transfer of ownership of assets

1. After being granted the business registration certificate, persons who undertake to contribute capital into a limited liability company, a joint-stock company or a partnership shall have to transfer the ownership of the assets contributed as capital to the company according to the following regulations:

a/ For registered assets or the value of the land use right, the person contributing capital shall have to carry out the procedures for the transfer of the ownership over such assets or the value of the land use right to the company at the competent State body.

The transfer of ownership of assets contributed as capital is not liable to registration fee;

b/ For assets the ownership over which is not registered, the capital contribution is made by the transfer and receipt of assets, as evidenced by minutes.

The minutes of such transfer and receipt must contain the following principal details: name and head office address of the company; name and address of the person making the capital contribution; type of asset and number of units of asset contributed as capital; the total value of assets contributed as capital and the percentage of the total value of such assets in the charter capital of the company; the date of transfer and receipt; signature of the person making the capital contribution and the legal representative of the company;

c/ Shares or capital contributions in the form of assets other than Vietnamese currency, freely convertible foreign currency or gold will be deemed contributed when the legal ownership over the assets contributed as capital is transferred to the company.

2. Assets used for the business of private enterprises shall not have to go through the procedures for transferring the asset ownership to the enterprises.

Article 23.- Valuation of assets contributed as capital

1. Assets contributed as capital which are not Vietnamese currency, freely convertible currency or gold must be valued.

2. For assets contributed as capital to the enterprise upon its establishment, all the founding members shall be the valuers of such assets. The value of assets contributed as capital must be approved on the principle of consensus.

3. In the course of operation, the Board of Management of a joint-stock company, the Members� Council of a limited liability company or all the partners of a partnership shall be the valuers of assets contributed as capital.

4. People valuing assets referred to in Clauses 2 and 3 of this Article must be responsible for the truthfulness and accuracy of the value of assets contributed as capital. Where an asset contributed as capital is valued higher than its actual value at the time of contribution, the contributor and the valuers of such assets shall have to make contributions to ensure the full amount as valued; if damage is caused to any other person, they must be jointly liable for compensation.

Where a person having related rights, obligations or interests proves that an asset contributed as capital was not valued at its actual value at the time of contribution, such person may request the business registration body to force the valuer to revalue the asset or to appoint a valuation organization to revalue the asset contributed as capital.

Article 24.- Name, head-office and seal of the enterprise

1. The name of an enterprise must:

a/ not be identical or cause confusion with the name of another enterprise which has registered its business;

b/ not contravene the nation’s historical traditions, culture, ethics and fine customs;

c/ be inscribed in Vietnamese and in addition may be inscribed in one or more foreign languages in smaller letters;

d/ Apart from the provisions stated in Points (a), (b) and (c) of this Clause, the type of enterprise must be clearly inscribed: for a limited liability company, the phrase "trach nhiem huu han" (limited liability) is abbreviated as "TNHH" (Ltd.); for a shareholding company, the term "co phan" (joint-stock ) is abbreviated as "Cp"; for a partnership, the term "hop danh" (partnership) is abbreviated as "HD"; for a private enterprise, the word "tu nhan" (private) is abbreviated as "TN".

2. The head office of an enterprise must be located on the Vietnamese territory; must have a definite address including the house number, street (or alley) name or the name of the village, commune, ward, township; district, provincial town; province or centrally-run city; telephone and fax numbers (if any).

3. An enterprise shall have its own seal as prescribed by the Government.

Article 25.- Representative offices and branches of an enterprise

1. A representative office is a dependent unit of the enterprise, having the task of representing under authorization the interests of the enterprise and protecting such interests. The operations of a representative office must be in line with the operations of the enterprise.

2. A branch is a dependent unit of the enterprise, having the task of performing the entire or part of the function of the enterprise, including the function of an authorized representative. The line of business of the branch must be in accordance with the line of business of the enterprise.

3. An enterprise may set up branches and representative offices at home and abroad. The order and procedures for setting up branches and representative offices shall be stipulated by the Government.