Chương II Luật doanh nghiệp 2005: Thành lập doanh nghiệp và đăng ký kinh doanh

Chapter II

ESTABLISHMENT OF ENTERPRISES AND BUSINESS REGISTRATION

Article 13.- The right to establishment, capital contribution, share buying and management of enterprises

1. Vietnamese and foreign organizations and individuals shall be entitled to establish and manage enterprises in Vietnam in accordance with this Law, except those stated in Clause 2 of this Article.

2. The following organizations and individuals shall not be entitled to establish and manage enterprises in Vietnam:

a/ State agencies and units of the people's armed forces in case they use state assets to set up enterprises for making their own profits;

b/ Cadres, public servants as provided for in the law on cadres and public servants;

c/ Officers, non-commissioned officers, professional army members, defense workers at agencies or units of the Vietnam People's Army; officers, professional non-commissioned officers working in agencies or units of the Vietnam People's Police;

d/ Leading officials, managers in enterprises with 100% state-owned capital, excluding those who are appointed as authorized representatives to manage state-owned capital contributions in other enterprises:

e/ Minors; persons whose civil act capacity is restricted or lost;

f/ Persons who are serving an imprisonment penalty or prohibited from doing business by the Court;

g/ Other cases as provided for by the law on bankruptcy.

3. Organizations and individuals shall be entitled to buy shares from joint-stock companies, make capital contribution to limited liability companies or partnerships in accordance with this Law, except those stated in Clause 4 of this Article.

4. The following organizations and individuals shall not be entitled to buy shares from joint-stock companies and make capital contribution to limited liability companies or partnerships:

a/ State agencies and units of the people's armed forces in case they use state assets to set up enterprises for making their own profits:

b/ Persons who shall not be entitled to contribute capital to enterprises as provided for in the law on cadres and public servants.

Article 14.- Contracts signed prior to business registration

1. Founding members and shareholders or their authorized representatives may enter into contracts in service of enterprise establishment before making business registration.

2. All rights and obligations resulting from contracts stated in Clause 1 of this Article shall be taken over by the enterprises that are established afterward.

3. If the enterprises fail to be established, the contract-signing persons stated in Clause 1 of this Article shall be solely or jointly liable for the performance of such contracts.

Article 15.- Order of business registration

1. Persons decided to establish an enterprise must submit a complete business registration dossier as provided for by this Law to a competent business registration office and shall be responsible for the truthfulness and accuracy of information contained in the dossier.

2. The business registration office shall examine the business registration dossier and issue a business registration certificate within ten working days as from the date of receipt of the dossier; if refusing to issue a business registration certificate, it shall notify the applicant thereof in writing. The notification must clearly state the reason for refusal and requirements for amendment or supplement.

3. The business registration office shall examine and be responsible for the validity of the dossier when issuing a business registration certificate: and shall not be allowed to ask applicants for any document other than those provided for by this Law.

4. The time limit for issuing business registration certificates associated with specific investment projects shall comply with the law on investment.

Article 16.- Business registration dossiers of private enterprises

1. Business registration application, made according to a form set by competent business registration offices.

2. Copy of the people's identity card, passport or other lawful personal certification.

3. Written certification of legal capital issued by a competent agency or organization, for enterprises conducting business lines which are required by law to have legal capital.

4. Practice certificates of the director and other individuals, for enterprises conducting business lines which are required by law to have practice certificates as provided for by law.

Article 17.- Business registration dossiers of partnerships

1. Business registration application, made according to a form set by competent business registration offices.

2. Draft of the partnership charter.

3. List of partners; copies of the people's identity cards, passports or other lawful personal certifications of partners.

4. Written certification of legal capital issued by a competent agency or organization, for partnerships conducting business lines which are required by law to have legal capital.

5. Practice certificates of general partners and other individuals, for partnerships conducting business lines which are required by law to have practice certificates.

Article 18.- Business registration dossiers of limited liability companies

1. Business registration application, made according to a form set by competent business registration offices.

2. Draft of the company's charter.

3. List of members, which is attached with the following papers:

a/ Copy of the people's identity card, passport or other lawful personal certification, for individual members;

b/ Copy of the establishment decision, business registration certificate or other equivalent document, for member organizations: copies of the authorization document, the people's identity card, passport or other lawful personal certification, for authorized representatives.

Copies of the business registration certificates of the foreign member organizations must be authenticated within three months before the date of submission of the business registration dossier by agencies where such organizations are registered.

4. Written certification of legal capital issued by a competent agency or organization, for companies conducting business activities which are required by law to have legal capital.

5. Practice certificates of directors or general directors and other individuals, for companies conducting business lines which are required by law to have practice certificates.

Article 19.- Business registration dossiers of joint-stock companies

1. Business registration application, made according to a form set by competent business registration offices.

2. Draft of the company's charter.

3. List of founding shareholders, which is attached with the following documents:

a/ Copy of the people's identity card, passport or other lawful personal certification, for shareholders being individuals;

b/ Copy of the establishment decision, business registration certificate or other equivalent document, for shareholders being organizations; copies of the authorization document, the people's identity card, passport or other lawful personal certification, for authorized representatives.

Copy of the business registration certificate of the shareholder being a foreign organization must be authenticated within three months before the date of submission of the business registration dossier by the agency where such organization is registered.

4. Written certification of legal capital issued by a competent agency or organization, for companies conducting business activities which are required by law to have legal capital.

5. Practice certificates of directors or general directors and other individuals, for companies conducting business lines which are required by law to have practice certificates.

Article 20.- Dossiers, procedural order, conditions for, and contents of, registration of business or investment for foreign investors who invest in Vietnam for the first time

Dossiers, order, procedures, conditions for, and contents of, registration of business or investment for foreign investors who invest in Vietnam for the first time shall comply with this Law and the law on investment. Investment certificate shall be also business registration certificate.

Article 21.- Contents of business registration applications

1. Enterprise name.

2. Address of the enterprise's head office; telephone number, fax, email address (if any).

3. Business lines.

4. Charter capital, for companies, or start-up investment capita! of the enterprise owner, for private enterprises.

5. Capital share owned by every member, for limited liability companies or partnerships; number of shares owned by every founding shareholder, types and par value of shares, total number of shares of each type eligible for sale offer, for joint-stock companies.

6. Full name, signature, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification of the owner, for private enterprises; of owner or his/her authorized representative, for one-member limited liability companies; of every member or every member's authorized representative, for limited liability companies with two or more members; of every founding shareholder or every shareholder's authorized representative, for joint-stock companies; of every general partner, for partnerships.

Article 22.- Contents of the company's charter

1. Company name, address of the company head office, branch(es) and/or representative office(s).

2. Business lines.

3. Charter capital; methods of raising and reducing charter capital.

4. Full name, address, nationality and other basic characteristics of every general partner, for partnerships; of the owner and every member, for limited liability companies; of every founding shareholder, for joint-stock companies.

5. Capital share and the value of contributed capital by each member, for limited liability companies or partnerships: number of shares held by the founding shareholders, types of shares, par value of shares and total number of shares of each type for sale offer, for joint-stock companies.

6. Rights and obligations of members in limited liability companies or partnerships; of shareholders in joint-stock companies.

7. Management organizational structure.

8. The representative-at-law, for limited liability companies or joint-stock companies.

9. Formalities for approval of decisions of the company; principles for settlement of internal disputes.

10. Bases and methods to decide on remuneration, salaries and bonuses for managers and members of the Control Board or controllers.

11. Circumstances where a member or shareholder may request the company to buy back his/her contributed capital, for limited liability companies, or shares, for joint-stock companies.

12. Principles for distribution of after-tax profit and handling of losses.

13. Cases of dissolution and procedures for dissolution and liquidation of assets of the company.

14. Formalities for amending and supplementing the company's charter.

15. Full name and signature of every general partner, for partnerships; of the representative-at-law, owner, every member or every member's authorized representative, for limited liability companies; of the representative-at-law, every founding shareholder or every founding shareholder's authorized representative, for joint-stock companies.

16. Other agreements made by members or shareholders according to law.

Article 23.- List of members of a limited liability company or partnership; list of founding shareholders of a joint-stock company

The list of members of a limited liability company or partnership, and the list of founding shareholders of a joint-stock company shall be made according to a form set by the business registration office and must contain the following principal details:

1. Full name, address, nationality, permanent address and other basic identifications of every member, for a limited liability company or partnership: of every founding shareholder, for a joint-stock company.

2. Capital share, value of contributed capital, type, quantity and value of contributed assets and schedule for capital contribution of every member, for a limited liability company or partnership; number and types of shares, type, quantity, and value of contributed assets of every founding shareholder, for joint-stock companies.

3. Full name and signature of the representative-at-law of every member or founding shareholder or their authorized representative, for limited liability companies or joint-stock companies; of every partner, for partnerships.

Article 24.- Conditions for the grant of business registration certificates

Enterprises shall be granted business registration certificates if they fully meet following conditions:

1. Registered business lines are not prohibited;

2. The enterprise name complies with Articles 31,32,33 and 34 of this Law;

3. There is a head office that complies with Clause 1, Article 35 of this Law;

4. Business registration dossier is valid as provided for by law;

5. Business registration fee is fully paid as provided for by law.

Business registration fees shall be determined on the basis of the number of registered business lines; specific fee rates shall be stipulated by the Government.

Article 25.- Contents of the business registration certificate

1. Enterprise name, addresses of the head office, branch(es) and/or representative office(s).

2. Full name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification of the representative-at-law of the enterprise.

3. Full name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification of the member or founding shareholder being an individual; number of the establishment decision or registration business certificate of the owner, member or founding shareholder being an organization, for limited liability or joint-stock companies; name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification of every general partner, for partnerships; name, permanent address, nationality, number of the identity card, passport or other lawful personal certification of the owner being an individual, for limited liability companies or private enterprises.

4. Charter capital, for limited liability companies or partnerships: number of shares, value of contributed equities and number of shares allowed to be sold, for joint-stock companies; start-up investment capital, for private enterprises; legal capital, for enterprises conducting business lines required to have legal capital;

5. Registered business lines.

Article 26.- Changes in business registration dossiers

1. Enterprises must register changes related to enterprise name, address of the head office, branch or representative office, business objectives and lines, charter capital, number of shares allowed for sale offer, invested capital, representative-at-law of the enterprises and other contents of the business registration dossiers with the business registration office within ten working days as from the date of decision on such changes.

2. For changes in the contents of the business registration certificate, enterprises shall be re-granted the business registration certificates.

3. If the business registration certificate is lost, torn, burnt or otherwise destroyed, it shall be re-issued at a fee.

Article 27.- Disclosure of business registration contents

1. Within seven working days as from the date of grant of a business registration certificate or registration of changes in a business registration dossier, the business registration office shall have to send a notice on the contents of such business registration certificate to the tax office, statistics office and other competent state agencies at the same level, the People's Committee of the district, town or provincial city and the People's Committee of the commune, ward or township where the enterprise's head office is located.

2. Organizations and individuals shall have the right to request the business registration offices to supply information on the contents of business registration, issue copies of business registration certificates, certificates of changes in business registration or extracts of contents of business registration and have to pay fees therefor in accordance with the provisions of law.

3. The business registration offices shall have to provide fully and promptly business registration information at the request of organizations and individuals as provided for in Clause 2of this Article.

Article 28.- Publication of business registration contents

1. Within thirty days as from the date of receiving the business registration certificate, enterprises must publish in the business website of the business registration office or in three consecutive issues of a newspaper or electronic newspaper the following information:

a/ Enterprise name;

b/ Addresses of the enterprise's head office, branches and/or representative offices;

c/ Business lines;

d/ Charter capital, for limited liability companies or partnerships; number of shares, value of contributed equities and number of shares allowed for sale offer, for joint-stock companies; start-up investment capital, for private enterprises: legal capital, for enterprises conducting business lines required to have legal capital;

e/ Full name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification, number of the establishment decision or business registration certificate of the owner, every member or founding shareholder;

f/ Full name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification of the representative-at-law of the enterprise;

g/ Place of business registration.

2. Any change in the business registration dossier must be also published by enterprises within the time limit and by the method stated in Clause 1 of this Article.

Article 29.- Transfer of property ownership

1. Members of limited liability companies or partnerships, and shareholders of joint-stock companies must transfer ownership of assets used to make capital contribution to the companies according to the following provisions:

a/ For assets of which ownership has been registered or for land-use rights, capital contributors shall have to carry out procedures for transferring ownership of such assets or land-use rights to the companies at a competent state agency.

Transfer of ownership of assets used to make capital contribution shall not be subject to registration fee;

b/ For assets of which ownership is not required to register, they shall be contributed in the form of asset delivery and receipt certified by a written minute.

The delivery and receipt minutes must clearly state: name and address of the company's head office; full name, permanent address, nationality, number of the people's identity card, passport or other lawful personal certification, number of the establishment decision or business registration certificate of the capital contributor; types of assets, quantity of assets of each type, total value of assets and its proportion in the company's charter capital; date of asset delivery and receipt and signature of the capital contributor or his/her authorized representative and the representative-at-law of the company;

c/ Shares or capital shares that are not paid in Vietnamese currency, freely convertible foreign currency and gold shall be regarded as fully paid when ownership of assets used to make capital contribution is lawfully transferred to the company.

2. Private enterprise owners shall not be required to carry out procedures for transferring ownership of their own assets used in business operation to their enterprises.

Article 30.- Valuation of assets used to make capital contribution

1. Assets used to make capital contribution other than Vietnamese currency, freely convertible foreign currency or gold must be valuated by members, founding shareholders or professional valuation organization.

2. Valuation of assets used to make capital contribution for setting up an enterprise must be agreed by all members or founding shareholders on the principle of consensus. If such assets are valued higher than their actual value at the time of capital contribution, members or founding shareholders shall be jointly liable for the company's debts or other financial obligations with the difference between the determined value and the actual value of assets at the time of termination of valuation.

3. Valuation of assets used to make capital contribution during the enterprise operation shall be agreed by such enterprise and capital contributor or effected by a professional valuation organization. If such assets are valued by a professional valuation organization, their value must be agreed by the enterprise and capital contributor. If such assets are valued higher than their actual value at the time of capital contribution, the capital contributor or the valuation organization and the representative-at-law of the enterprise shall be jointly liable for the company's debts or other financial obligations with the difference between the determined value and the actual value of assets at the time of termination of valuation.

Article 31.- Enterprise name

1. The name of an enterprise must be written in Vietnamese, may comprise numeric and symbols, and must be pronounceable and have at least two components as follows:

a/ Type of business;

b/ Specific name.

2. The enterprise name must be inscribed or hang at the enterprise's head office, branch(es) and/or representative office(s). Such name must also be printed or written on all transactional papers, dossiers or publications of the enterprise.

3. In accordance with Articles 32, 33 and 34 of this Law, the business registration offices shall be entitled to reject or accept a proposed enterprise name. Decisions made by the business registration offices shall be final.

Article 32.- Prohibitions in choosing an enterprise name

1. Using a name that is identical or causes confusion with an existing enterprise name already registered.

2. Using names of state agencies, units of people's armed forces, political organizations, socio-political organizations, politico-socio- professional organizations, social organizations or socio-professional organizations to constitute fully or partially the enterprise name, unless otherwise agreed by such agencies, units or organizations.

3. Using words and symbols running counter to historical and cultural traditions, ethics, and fine customs and practices of the nation.

Article 33.- Enterprise names in foreign languages and abbreviated forms

1. The enterprise name in a foreign language is that translated from Vietnamese into a foreign language. Translation may be done without or with translating the specific name of the enterprise name into a foreign language.

2. The enterprise name in a foreign language must be presented in a size font smaller than that in Vietnamese when it is shown at the enterprise's establishments, on its transactional papers, dossiers or publications.

3. The abbreviated name of the enterprise shall be the name shortened from the name in Vietnamese or a foreign language.

Article 34.- Identical and confused names

1. An identical name means an enterprise name requested to be registered which is read and written in Vietnamese in the same ways as the name of an existing registered enterprise.

2. In the following cases an enterprise name requested to be registered shall be regarded as to cause confusion with the name of an existing registered enterprise:

a/ It is read, in Vietnamese, in the same way as the name of an existing registered enterprise;

b/ It is differed, in Vietnamese, from the name of an existing registered enterprise by the sign "&"only;

c/ Its abbreviation is identical to the abbreviation of the name of an existing registered enterprise;

d/ It is, in foreign language, identical to the name of an existing registered enterprise in foreign language;

e/ It is differed from the name of an existing registered enterprise by a number or ordinal or a Vietnamese letter after such name, except that it is given to a subsidiary of the existing registered enterprise;

f/ It is differed from the name of an existing registered enterprise by the word "tan" or "moi" (new) right before or after such name;

g/ It is differed from the name of an existing registered enterprise by the word "mien bac" (northern), "mien nam" (southern), "mien trung" (central), "mien tay" (western), "mien dong" (eastern) or other equivalent words, except that it is given to a subsidiary of the existing registered enterprise.

Article 35.- Head offices of enterprises

1. The head office is contacting and transactional place of an enterprise; must be based in the territory of Vietnam, have a specified address comprising home number, name of street (street lane) or commune, ward, township, rural or urban district, provincial city, province or centrally run city; telephone number, facsimile number and email address (if any).

2. Enterprises must inform the business registration office of the opening time of their head offices within fifteen days as from the date of receiving the business registration certificates.

Article 36.- The enterprise seal

1. Every enterprise shall have its own seal. Enterprises must keep and preserve their seals at their head offices. The design and contents of seals, conditions for making seals and regulations on seal usage shall comply with regulations of the Government.

2. Seal is a property of an enterprise. The representative-at-law of an enterprise must be responsible for managing the use of its seal in accordance with the provisions of law. In case of necessity, an enterprise can have a duplicate of its seal if it obtains approval from the seal-issuing agency.

Article 37.- Representative offices, branches and business places of enterprises

1. Representative office is an affiliated unit of an enterprise and is authorized to act on behalf of the enterprise to protect its interests. The organization and operation of representative offices shall comply with the provisions of law.

2. Branch is an affiliated unit of an enterprise and is tasked to perform all or some functions of such enterprise, including acting as an authorized representative. Business lines of branches must be consistent with those of their enterprises.

3. Business place is an area where an enterprise carries out its business activities. A business place may be located outside the registered location of the head office.

4. Branches, representative offices and business places of the enterprises must bear the names of the enterprises supplemented with indications of such branches, representative offices or business places.

5. Enterprises shall be entitled to open their branches and/or representative offices in Vietnam or foreign countries. An enterprise can open more than one representative office and/or branch in the administrative territory of a locality. The order and procedures for opening branches or representative offices shall be stipulated by the Government.