Chương VI Luật hợp tác xã 2023: Tài sản, tài chính của hợp tác xã, liên hiệp hợp tác xã

Chapter VI

ASSETS AND FINANCE OF COOPERATIVES AND COOPERATIVE UNIONS

Article 73. Contributed assets

1. Contributed assets include VND, convertible foreign currencies, gold, land use right (LUR), intellectual property rights, technologies, technical secrets, other assets and rights that can be converted into VND.

2. Only the individual or organization that has the lawful right to ownership or right to use the asset or another right mentioned in Clause 1 of this Article may contribute it as capital as prescribed by law.

3. With regard to assets that are LURs, vehicles or other assets, the organization or individual may select to contribute that asset or reach an agreement to allow the cooperative or cooperative union to enjoy that asset-related rights in accordance with regulations of the Land Law and Civil Code.

4. Members can use their assets for performing business operations of the cooperative or cooperative union under cooperation contracts or linkage agreements signed with the cooperative or cooperative union. These assets shall not be considered as contributed assets and the transfer of their ownership to the cooperative or cooperative union is not required.

Article 74. Charter capital of cooperatives and cooperative unions

1. Stakes of official members shall be subject to specific agreement, provisions of this law and the charter regarding minimum and maximum capital contribution. The maximum capital contribution shall not exceed 30% and 40% of the charter capital of the cooperative and cooperative union respectively.

2. Total stakes of all contributing members shall be subject to specific agreement and the charter but shall not exceed 30% and 40% of the charter capital of the cooperative and cooperative union respectively.

3. Total stakes of all members of a cooperative or cooperative union that are foreign-invested organizations or individuals being foreign investors shall not exceed 30% of its charter capital.

4. Charter capital contribution time limit, method and amounts are prescribed in the charter, provided that a member must complete the charter capital contribution within 06 months from the issuance date of the cooperative registration certificate or from the day on which the membership is granted, excluding the time needed to transport or import contributed assets and for completing ownership transfer procedures (if any). During this period, the members shall have rights and obligations that are proportional to the holdings they will have in the cooperative or cooperative union.

5. The members may only contribute assets that are different from their promised ones if such a change is approved by the Board of Directors (in case of fully-organized management model) or the GMM (in case of simplified management model).

6. In case a member fails to contribute or fully contribute capital as promised by the expiration of the period mentioned in Clause 4 of this Article:

a) The member that has not made capital contribution at all or has made a capital contribution which is smaller than the minimum one prescribed in the charter shall have their membership terminated;

b) The member that has not yet completed their capital contribution as promised but has made a capital contribution which is equal to or greater than the minimum one prescribed in the charter will have the rights that are proportional to their stake as prescribed in this Law and the charter.

7. Within 30 days from the deadline for capital contribution specified in Clause 4 of this Article, the cooperative or cooperative union shall register a change in its charter capital which must be equal to the actually contributed capital amount as prescribed in this Law, unless the missing capital amount has been fully contributed within this period. The member who fails to make full capital contribution as promised shall be responsible for the financial obligations incurred before the issuance date of the capital contribution certificate in proportion to their stake as prescribed in this Law and the charter.

Article 75. Capital contribution certificate

1. When the capital is fully contributed, the member shall be granted a capital contribution certificate by the cooperative or cooperative union and have their information recorded in the register of members.

2. A capital contribution certificate shall, inter alia, contain the following information:

a) Name, code and head office’s address of the cooperative or cooperative union;

b) The charter capital of the cooperative or cooperative union;

c) Full name, contact address, nationality, personal identification number or legal document number of the individual making capital contribution; name, head office’s address, EID number or legal document number of the organization making capital contribution;

d) The member’s stake and holding;

dd) The number and date of issuance of the capital contribution certificate;

e) Full name and signature of the legal representatives of the cooperative or cooperative union.

3. The cooperative or cooperative union shall re-issue a capital contribution certificate if it has been lost or damaged; replace a capital contribution certificate with a new one if any of the information in Clause 2 of this Article is changed; revoke the capital contribution certificate if the membership of its hold is terminated.

4. Procedures for issuance, re-issuance, replacement and revocation of capital contribution certificates are available in the charter.

Article 76. Transfer of ownership of contributed assets

1. Contribution of assets as capital to a cooperative or cooperative union shall be subject to the following provisions:

a) For assets whose ownership must be registered or LURs, the member making capital contribution shall follow procedures for transferring the ownership of such assets or LURs to the cooperative or cooperative union in accordance with regulations of law;

b) The contribution of assets whose ownership must not be registered shall be recorded in writing.

2. The contribution of capital to a cooperative or cooperative union by reaching an agreement that allows the cooperative or cooperative union to enjoy asset-related rights shall be subject to the following provisions:

a) The member and the cooperative or cooperative union must enter into a written agreement establishing asset-related rights which must specify the right enjoyment duration in accordance with regulations of law and the charter;

b) The right enjoyment duration must be specified in the capital contribution certificate;

c) The member must not transfer the ownership of the asset or LUR to the cooperative or cooperative union.

3. The record of transfer of contributed assets shall, inter alia, contain the following information:

a) Name and head office’s address of the cooperative or cooperative union;

b) Full name, contact address, nationality, personal identification number or legal document number of the individual making capital contribution; name, head office’s address, EID number or legal document number of the organization making capital contribution;

c) Types and quantities of contributed assets; total value of contributed assets and the ratio of this value to the company’s charter capital of the cooperative or cooperative union;

d) Date of transfer; signatures and full names of the individual making capital contribution or authorized representative or legal representative of the individual or organization making capital contribution and of the legal representative of the cooperative or cooperative union.

4. The capital contribution is considered completed once the asset ownership, LUT or other asset-related right has been transferred to the cooperative or cooperative union as prescribed in Clause 1 and Clause 2 of this Article.

Article 77. Valuation of contributed assets and undistributed assets

1. Assets contributed upon establishment of a cooperative or cooperative union shall be valued by official members/contributing members by consensus or by a qualified valuation organization.

In case the value of a contributed asset which is determined by official members/contributing members of the cooperative or cooperative union is higher than its actual value at the contribution time (overvalued), these members shall jointly contribute an amount equal to the difference upon completion of valuation process.

If a valuation organization is employed, the value of contributed assets must be accepted by more than 50% of total official members and contributing members that participate in the establishment meeting.

2. The value of assets contributed during the operation shall be determined under an agreement made between the GMM or the Board of Directors of the cooperative or cooperative union and the capital contributor or by an employed valuation organization. If a valuation organization is employed, the value of contributed assets must be accepted by the GMM or the Board of Directors of the cooperative or cooperative union.

3. The value of undistributed assets during the operation or in case of dissolution or bankruptcy shall be determined by an employed valuation organization and must be accepted by the GMM or the Board of Directors of the cooperative or cooperative union.

Article 78. Increase or decrease in charter capital of cooperatives and cooperative unions

1. Charter capital of a cooperative or cooperative union may be increased in the following cases:

a) Increase in the members’ stakes;

b) Receipt of capital contribution from new members.

2. Charter capital of a cooperative or cooperative union may be decreased in the following cases:

a) Members fail to contribute or fully contribute capital as promised by the expiration of the period prescribed in Clause 4 Article 74 of this Law;

b) The cooperative or cooperative union returns partial or entire stakes to its members.

3. A cooperative or cooperative union may only make decrease in its charter capital if it is still able to fully pay its debts and other liabilities after the return of stakes to its members.

4. In case the value of a member’s stakes exceeds the maximum capital contribution after decreasing its charter capital, the cooperative or cooperative union shall take one or some of the following actions to ensure its member’s compliance with the maximum capital contribution prescribed in this Law and its charter:

a) Return the excess amount to that member;

b) Raise more capital from other members;

c) Admit new members.

Article 79. Raising capital and receiving financial assistance, grants and donations

1. Each cooperative or cooperative union shall firstly use capital raised from its members for making investments and developing its business under a specific agreement made with its members.

2. If the amount of capital raised from its members is not sufficient to meet its business needs, the cooperative or cooperative union may raise capital from other sources as prescribed by laws and its charter.

3. Cooperatives or cooperative unions receive financial assistance from the State for fulfilling tax obligations as prescribed by the Law on corporate income tax. Amounts of financial assistance received from the State shall be managed according to the following provisions:

a) Amounts which must be recorded as undistributed assets shall be considered as the undistributed assets of the cooperative or cooperative union;

b) Amounts which must be repaid shall be recorded as debts of the cooperative or cooperative union;

a) Amounts other than those specified in Points a and b of this Clause shall be managed in accordance with the cooperative or cooperative union’s charter.

4. Cooperatives or cooperative unions receive, manage and use lawful grants and donations from organizations and individuals under specific agreements made in accordance with regulations of laws. Receipt, management and use of grants or donations from foreign entities must comply with regulations of law, international agreements or treaties to which the Socialist Republic of Vietnam is a signatory.

Article 80. Working capital of cooperatives and cooperative unions

1. Working capital of a cooperative or cooperative union includes stakes of official members and contributing members, membership fees, raised capital, accumulated capital, undistributed funds, other funds and other lawful revenues.

2. Working capital of a cooperative or cooperative union must be managed and used in accordance with the provisions of this Law and relevant laws.

Article 81. Establishment of enterprises by cooperatives and cooperative unions

1. Cooperatives or cooperative unions are allowed to establish enterprises for the purposes of assisting their operation, promotion of their linkages, consumption or use of their products and services. Enterprise establishment procedures shall be followed in accordance with regulations of the Law on enterprises.

2. Cooperatives or cooperative unions shall perform their rights and obligations as owners of enterprises in accordance with regulations of the Law on enterprises and relevant laws.

3. Other transactions and contracts between the cooperative or cooperative union and their established enterprise must be made and performed in an independent and impartial manner as same terms and conditions as those applied to independent legal entities.

4. The enterprise established by a cooperative or cooperative union shall not be allowed to become an official member or contributing member of that cooperative or cooperative union.

5. The enterprise establishment by a cooperative or cooperative union must:

a) be approved by its GMM; and

b) be carried out without use of its undistributed funds and undistributed assets.

6. The cooperative or cooperative union must notify its establishment of enterprise to the authority that has issued the cooperative registration certificate within 10 working days from the day on which the enterprise is established.

7. The Government shall stipulate enterprise establishment requirements to be satisfied by cooperatives and cooperative unions.

Article 82. Contributing capital and purchasing shares of enterprises

1. Cooperatives and cooperative unions have the right to contribute capital to and purchase shares of enterprises, except enterprises that are their official members or contributing members for the purposes of assisting their operation, promotion of their linkages, consumption or use of their products and services.

2. Cooperatives or cooperative unions shall perform their rights and obligations as members or shareholders of such enterprises in accordance with regulations of the Law on enterprises and relevant laws.

3. The cooperative or cooperative union shall not be allowed to admit the enterprise to which it contributes capital or of which it purchases shares as its official member or contributing member.

4. The contribution of capital to or purchase of shares of enterprises by a cooperative or cooperative union must:

a) be approved by its GMM; and

b) be carried out without use of its undistributed funds and undistributed assets.

5. The Government shall stipulate requirements to be satisfied by cooperatives and cooperative unions when contributing capital to or purchasing shares of enterprises.

Article 83. Internal lending by cooperatives and cooperative unions

1. Internal lending means a cooperative or cooperative union’s grant of loans with a term of not exceeding 12 months to its official members for the purposes of supporting their business and improving their living conditions following the rule of voluntariness, self-responsibility, non-profit making, capital conservation, sufficient debt repayment and offsetting of internal lending costs. Internal lending transactions are not considered as banking activities as prescribed by the Law on credit institutions.

2. In order to perform internal lending transactions, a cooperative or cooperative union shall be required to meet the following conditions:

a) The cooperative or cooperative union operates under the fully-organized management model and has established a Board of Controllers consisting of at least 03 members;

b) The cooperative or cooperative union only grants internal loans after it has allocated sufficient capital for its business; internal loans shall be granted without use of capital raised from either its members or external entities;

c) Internal loans must be monitored and recorded on separate accounts.

d) Internal lending transactions must be approved by its GMM and specified in its charter.

3. The Government shall elaborate Clause 2 of this Article and stipulate limits on loan amounts, interest rates and settlement of risks associated with internal loans of cooperatives or cooperative unions.

Article 84. Undistributed funds

Undistributed fund of a cooperative or cooperative union is established from the following sources:

1. Income from its internal transactions which is annually contributed to its undistributed fund at the rate specified in its charter;

2. Income from its external transactions; income earned from the enterprise established by the cooperative or cooperative union; income from its holding of stakes or shares of other enterprises which is annually contributed to its undistributed fund at the rate specified in its charter, provided it shall not be smaller than:

a) 5%, for cooperatives;

b) 10%, for cooperative unions.

3. Income from transfer or liquidation of undistributed assets as prescribed in Point a Clause 3 Article 79 and Point c Clause 2 Article 88 of this Law;

4. Grants or donations which are given by organizations and individuals in either VND or foreign currency as agreed by the parties and contributed to the cooperative or cooperative union's undistributed fund after fulfilling tax obligations as prescribed by laws.

Article 85. Incomes earned from internal transactions of a cooperative or cooperative union

1. Each cooperative or cooperative union shall separate its incomes from internal transactions from those from external transactions as the basis for competent authorities to consider its applications for CIT exemption/reduction or enjoyment of benefits from State policies as prescribed and for its income distribution as prescribed in Article 86 of this Law. If failing to do so, all incomes earned by the cooperative or cooperative union shall be treated as its incomes from external transactions.

2. The Government shall issue regulations on internal transactions and incomes therefrom of cooperatives and cooperative unions.

Article 86. Income distribution

After making contribution to its undistributed fund, paying taxes and fulfilling other financial obligations, and settling business losses as prescribed by laws, the remaining incomes of a cooperative or cooperative union shall be used for:

1. Making contributions to funds as prescribed by laws (if any);

2. Making contributions to other funds as decided by its GMM;

3. The incomes that remain after making contributions to the funds specified in Clauses 1 and 2 of this Article shall be distributed by the cooperative or cooperative union to its official members and contributing members as follows:

a) At least 51% of the remaining income earned from internal transactions shall be distributed to its official members in proportion to their levels of use of products/services and levels of labour contribution; the remainder shall be distributed to its official members and contributing members in proportion to their holdings as prescribed in its charter;

b) The remaining income earned from external transactions shall be distributed to its official members and contributing members as prescribed in its charter.

Article 87. Management and use of funds

1. Undistributed fund of a cooperative or cooperative union shall be used for establishing and increasing its undistributed assets; shall not be distributed to its members during its operation; shall be settled when the cooperative or cooperative union undergoes dissolution or bankruptcy procedures as prescribed in Articles 101 and 102 of this Law. The cooperative or cooperative union must open separate book to monitor and record its undistributed fund by its contribution sources.

2. The cooperative or cooperative union may use the idle balance on its undistributed fund to make deposits at credit institutions or provide collateral for its loans but must ensure capital conservation, except amounts of its undistributed fund derived from financial assistance given by the State and other organizations and individuals which cannot be used as collateral for loans as prescribed. Interests on such deposits shall be paid to the undistributed fund.

3. The undistributed fund and other funds shall be managed and used in accordance with provisions of the charter and financial management regulations of the cooperative or cooperative union, and regulations of law.

4. The Board of Directors or Director of the cooperative or cooperative union shall submit annual reports to its GMM on management and use of its funds during the year and plans to use such funds in the following year within its competence.

Article 88. Management and use of assets

1. Assets of a cooperative or cooperative union are established from the following sources:

a) Stakes of its official members and contributing members, and membership fees;

b) Capital raised from its members and other sources;

c) Capital and assets acquired during its operation;

d) State financial assistance and lawful grants or donations received from other organizations and individuals.

2. Undistributed assets of a cooperative or cooperative union include:

a) LURs over land areas allocated by the State without collecting land levies; LURs over land areas allocated by the State with collecting land levies or leased by the State or acquired from purchase of property attached to land or receipt of lawful transfer of LURs from others for which land levies, land rents or payments for purchase of property or receipt of transfer of LURs are covered by State financial assistance;

b) Assets established from its undistributed fund;

c) Assets which are partially or entirely acquired using the State financial assistance and must be considered as undistributed assets;

d) Assets lawfully given or donated by organizations and individuals and considered as undistributed assets as agreed upon by the parties;

dd) Assets which are works or structures invested or built by the State for public interests of communities and transferred to the cooperative or cooperative union for management and operation;

e) Other assets which are considered as undistributed assets as prescribed by its charter.

3. Management and use of undistributed assets of a cooperative or cooperative union are subject to the following provisions:

a) Assets specified in Clause 2 of this Article shall be managed and used in accordance with regulations of law and its charter or specific agreement between the donor and the cooperative or cooperative union. The cooperative or cooperative union must open separate book to monitor and record its undistributed assets by their sources.

b) The cooperative or cooperative union shall protect and carry out periodical maintenance and repair of undistributed assets using its funding during their use;

c) Undistributed assets whose values have been determined as prescribed in Clause 3 Article 77 of this Law may be transferred or liquidated if such transfer or liquidation is made with the GMM’s approval and in conformity with regulations of law and the cooperative or cooperative union’s charter or specific agreement between the donor and the cooperative or cooperative union;

d) The cooperative or cooperative union may use its undistributed assets as collateral when applying for loans but must ensure capital conservation, except those specified in Points a, c and dd Clause 2 of this Article and those which are established from donations or grants and cannot be used as collateral for loans as required by donors.

4. Assets of a cooperative or cooperative union shall be managed and used in accordance with its charter, resolutions of the GMM, its financial management regulations and regulations of law.

Article 89. Settling losses and debts of cooperatives and cooperative unions

1. At the end of the fiscal year, cooperatives or cooperative unions shall carry forward their losses, if any, to the following year in accordance with regulations of law on tax administration.

2. Debts of a cooperative or cooperative union shall be settled in accordance with regulations of law and its charter.

Article 90. Returning and inheriting stakes

1. A cooperative or cooperative union shall return stakes to its members upon termination of their membership or return the amount of stakes that exceed the maximum capital contribution to its members as prescribed in this Law and its charter.

2. Members shall have their stakes returned after they have fulfilled their financial obligations towards the cooperative or cooperative union.

3. In case an official member or contributing member that is an individual dies, his/her heir, if meeting eligibility requirements laid down in this Law and the cooperative or cooperative union’s charter, shall become a new official member or contributing member at his/her own free will and continue performing rights and obligations of the deceased person; otherwise, he/she will receive inherit the stakes left by the deceased person in accordance with regulations of law.

4. In case an official member or contributing member that is an individual is declared missing, his/her rights and obligations shall be performed through his/her asset manager in accordance with regulations of the Civil Code.

5. In case a member that is an individual is declared by a Court incapacitated or to be a person with limited capacity for civil acts or difficulty in awareness or control of his/her own acts, his/her rights and obligations shall be performed through his/her guardian or legal representative in accordance with regulations of the Civil Code.

6. In case a member that is an organization ceases to exist, is dissolved or declared bankrupt, its stakes shall be returned in accordance with regulations of law and the cooperative or cooperative union’s charter.

Article 91. Accounting

1. Cooperatives and cooperative unions shall perform accounting works and prepare financial statements in accordance with regulations of the Law on accounting.

2. Cooperatives and cooperative unions shall make their own decision to separately monitor and record their internal transactions and external transactions. If a cooperative or cooperative union fails to separately monitor and record their internal transactions, all transactions of the cooperative or cooperative union shall be considered its external transactions.

3. The Minister of Finance of Vietnam shall stipulate specific accounting policies applicable to cooperatives and cooperative unions.