Chương VII Luật hợp tác xã 2023: Tổ chức lại, giải thể, phá sản hợp tác xã, liên hiệp hợp tác xã

Chapter VII

REORGANIZATION, DISSOLUTION AND BANKRUPTCY OF COOPERATIVES AND COOPERATIVE UNIONS

Article 92. Split-up of cooperatives and cooperative unions

1. A cooperative or cooperative union (hereinafter referred to as “parent cooperative or cooperative union”) may split all of its existing assets, rights, obligations and members to establish two or more new cooperatives or cooperative unions.

2. Split-up procedures:

a) The GMM of the parent cooperative or cooperative union shall ratify the resolution on its split-up in accordance with this Law and its charter.

The resolution shall, inter alia, contain the following information: name and head office's address of the parent cooperative or cooperative union; names of the new cooperatives or cooperative unions; rules, methods and procedures for division of rights and assets, including undistributed fund and undistributed assets; employment plan; methods for division, time limit and procedures for transfer of stakes from the parent cooperative or cooperative union to the new ones; rules for settlement of obligations of the parent cooperative or cooperative union; time limit for completing the split-up;

b) The resolution shall be sent to all creditors, made known to employees, and sent to the People’s Committee that has issued the cooperative registration certificate within 15 days from its ratification date;

c) Registration of new cooperatives or cooperative unions shall comply with the provisions of Articles 41 and 42 of this Law. In this case, an application for cooperative or cooperative union registration shall include the documents in Points a, b, d, dd, e and g Clause 2 Article 42 of this Law and the split-up resolution.

3. The parent cooperative or cooperative union shall cease to exist after the new cooperatives or cooperative unions are issued with the cooperative registration certificate. The new cooperatives or cooperative unions shall be jointly responsible for unpaid debts, ongoing employment contracts and other obligations of the parent cooperative or cooperative union or reach an agreement with creditors, clients and employees of the parent cooperative or cooperative union that one of the new cooperatives or cooperative unions will fulfill these obligations. The new cooperatives or cooperative unions shall obviously inherit all rights, obligations and lawful interests of the parent cooperative or cooperative union under the split-up resolution.

4. Undistributed assets and undistributed fund of the parent cooperative or cooperative union shall be transferred to and used as undistributed assets and funds of the new cooperatives or cooperative unions under a division plan approved by the GMM of the parent cooperative or cooperative union.

Article 93. Split-off of cooperatives and cooperative unions

1. A cooperative (hereinafter referred to as “parent cooperative”) may split some of its assets, rights, obligations and members to establish one or some new cooperatives. A cooperative union (hereinafter referred to as “parent cooperative union”) may split some of its assets, rights, obligations and members to establish one or some new cooperative unions. Parent cooperative or cooperative union shall not cease their existence.

2. Split-off procedures:

a) The GMM of the parent cooperative or cooperative union shall ratify the resolution on its split-off in accordance with this Law and its charter.

The resolution shall, inter alia, contain the following information: name and head office's address of the parent cooperative or cooperative union; name(s) of the new cooperative(s) or cooperative union(s); employment plan; rules, methods and procedures for partial transfer of assets, rights and obligation from the parent cooperative or cooperative union to the new cooperative(s) or cooperative union(s), including undistributed fund and undistributed assets; time limit for completing the split-off;

b) The resolution shall be sent to all creditors, made known to employees, and sent to the People’s Committee that has issued the cooperative registration certificate within 15 days from its ratification date;

c) Registration of new cooperative(s) or cooperative union(s) shall comply with the provisions of Articles 41 and 42 of this Law. In this case, an application for cooperative or cooperative union registration shall include the documents in Points a, b, d, dd, e and g Clause 2 Article 42 of this Law and the split-off resolution;

d) Registration of revisions to the cooperative registration certificate and notification of changes in registration information of the parent cooperative or cooperative union shall comply with the provisions of Articles 41, 47 and 48 of this Law. In this case, the split-off resolution must be submitted when following registration or notification procedures.

3. The parent cooperative or cooperative union and the new cooperative(s) or cooperative union(s) shall be jointly responsible for unpaid debts, ongoing employment contracts and other obligations of the former, unless otherwise agreed upon by the parent cooperative or cooperative union, the new cooperative(s) or cooperative union(s), creditors, clients and employees. The new cooperative(s) or cooperative union(s) shall obviously inherit all rights, obligations and lawful interests which are transferred from the parent cooperative or cooperative union under the split-off resolution.

4. Undistributed assets and undistributed fund of the parent cooperative or cooperative union shall be transferred to and used as undistributed assets and funds of the new cooperative(s) or cooperative union(s) under a division plan approved by the GMM of the parent cooperative or cooperative union.

Article 94. Consolidation of cooperatives and cooperative unions

1. Two or more cooperatives or cooperative unions (hereinafter referred to as “consolidating cooperatives or cooperative unions”) may be consolidated into a new cooperative or cooperative union of the same business type (hereinafter referred to as “consolidated cooperative or cooperative union”), after which the consolidating cooperatives or cooperative unions shall cease to exist.

2. Consolidation procedures:

a) The consolidating cooperatives or cooperative unions shall prepare the draft consolidation contract and the draft charter of the consolidated cooperative or cooperative union.

The consolidation contract shall, inter alia, include the following information: names and head office’s addresses of the consolidating cooperatives or cooperative unions; name and head office’s address of the consolidated cooperative or cooperative union; employment plan; debt settlement plan; time limit, procedures and conditions for transfer of assets, including undistributed funds and undistributed assets; time limit and procedures for transfer of stakes from the consolidating cooperatives or cooperative unions to the consolidated cooperative or cooperative union; time limit for completing consolidation procedures;

b) The GMMs of the consolidating cooperatives or cooperative unions shall ratify the consolidation contract and charter of the consolidated cooperative or cooperative union, decide to adopt management model and elect chairperson and members of the Board of Directors or Director, the head and members of the Board of Controllers or Controller;

c) The consolidation contract shall be sent to all creditors, made known to employees, and sent to the People’s Committee that has issued the cooperative registration certificate within 15 days from its ratification date;

d) Registration of the consolidated cooperative or cooperative union shall comply with the provisions of Articles 41 and 42 of this Law. In this case, an application for cooperative or cooperative union registration shall include the documents in Points a, b, d, dd, e and g Clause 2 Article 42 of this Law, the consolidation contract and the resolutions on ratification of the consolidation contract of the consolidated cooperatives or cooperative unions.

3. The consolidated cooperative or cooperative union shall inherit lawful rights and interests, and assume responsibility for unpaid debts, ongoing employment contracts and other obligations of the consolidating cooperatives or cooperative unions. The consolidated cooperative or cooperative union shall obviously inherit all rights, obligations and lawful interests of the consolidating cooperatives or cooperative unions under the consolidation contract.

4. Undistributed assets and undistributed funds of the consolidating cooperatives or cooperative unions shall be transferred to and used as undistributed assets and funds of the consolidated cooperative or cooperative union.

Article 95. Acquisition of cooperatives and cooperative unions

1. One or some cooperatives or cooperative unions (hereinafter referred to as “acquired cooperative(s) or cooperative union(s)”) may be acquired by another cooperative or cooperative union of the same business type (hereinafter referred to as "acquiring cooperative or cooperative union”) by transferring all of their assets, rights, obligations and lawful interests to the latter.

2. Acquisition procedures:

a) The acquiring cooperative or cooperative union and the acquired cooperative or cooperative union shall prepare the draft acquisition contract and the draft charter of the former.

The acquisition contract shall, inter alia, include the following information: name and head office’s address of the acquiring cooperative or cooperative union; name and head office’s address of the acquired cooperative or cooperative union; employment plan; methods, procedures, time limit and conditions for transfer of assets, including undistributed funds and undistributed assets; transfer of stakes from the acquired cooperative or cooperative union to the acquiring cooperative or cooperative union; time limit for completing acquisition procedures;

b) The GMMs of the acquiring cooperative or cooperative union and the acquired cooperative or cooperative union shall ratify the acquisition contract and the charter of the former;

c) The acquisition contract shall be sent to all creditors, made known to employees, and sent to the People’s Committee that has issued the cooperative registration certificate within 15 days from its ratification date;

d) Registration of revisions to the cooperative registration certificate and notification of changes in registration information of the acquiring cooperative or cooperative union shall comply with the provisions of Articles 41, 47 and 48 of this Law. In this case, the submitted application must include the acquisition contract and resolutions on ratification of the acquisition contract of the acquiring cooperative or cooperative union and the acquired cooperative or cooperative union.

3. After completing procedures for registration of the acquiring cooperative or cooperative union, the acquired cooperative or cooperative union shall cease to exist. The acquiring cooperative or cooperative union shall inherit rights and lawful interests, and assume responsibility for unpaid debts, ongoing employment contracts and other obligations of the acquired cooperative or cooperative union. The acquiring cooperative or cooperative union shall obviously inherit all rights, obligations and lawful interests of the acquired cooperative or cooperative union under the acquisition contract.

4. Undistributed assets and undistributed funds of the acquired cooperative or cooperative union shall be transferred to and used as undistributed assets and funds of the acquiring cooperative or cooperative union.

Article 96. Business suspension and termination of cooperatives and cooperative unions

1. A cooperative or cooperative union shall send a written notification to the business registration authority at least 03 working days before its intended business suspension or resumption date.

2. The business registration authority and competent authorities are entitled to request a cooperative or cooperative union to:

a) suspend or terminate business operation in conditional business lines or business lines restricted to foreign investors if the cooperative or cooperative union is found not to satisfy corresponding business conditions;

b) suspend business operation at the request of competent authorities in accordance with regulations of laws on tax administration, environment and relevant laws;

c) suspend or terminate one or some business lines under a court decision.

3. During the suspension period, the cooperative or cooperative union shall fully pay outstanding taxes and social insurance contributions, and keep paying its debts and performing contracts signed with its clients and employees, unless otherwise agreed.

4. The Government shall elaborate this Article.

Article 97. Cases of dissolution of cooperatives and cooperative unions

1. A cooperative or cooperative union shall follow dissolution procedures in one of the following cases:

a) The cooperative or cooperative union is voluntarily dissolved under the resolution of its GMM;

b) The cooperative or cooperative union is compulsorily dissolved under a court decision or in case its cooperative registration certificate is revoked, unless otherwise prescribed by laws.

2. A cooperative or cooperative union may only be dissolved after all of its debts and liabilities are fully paid and it is not involved in any disputes at a Court or arbitral tribunal. The legal representative, chairperson and members of the Board of Directors Director (General Director) and relevant title holders of the cooperative or cooperative union shall be jointly responsible for debts of that cooperative or cooperative union; individually responsible for any damage caused by their failure to comply or strictly comply with regulations on dissolution laid down in this Law.

Article 98. Voluntary dissolution of cooperatives and cooperative unions

1. The GMM shall ratify the resolution on dissolution of the cooperative or cooperative union. The resolution shall, inter alia, contain the following information:

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

b) Reasons for dissolution;

c) Time limit and procedures for transfer of undistributed assets and undistributed fund;

d) Time limit and procedures for finalizing contracts and paying debts, debt settlement plan. The debt settlement plan must contain creditors’ names and addresses, debt amounts, deadline, location and method of payment, method and deadline for settlement of creditors' complaints;

dd) Plan for settlement of obligations under employment contracts.

2. The Board of Directors (in case of fully-organized management model) or Director (in case of simplified management model) shall directly organize the liquidation of assets of the cooperative or cooperative union under the GMM’s resolution, unless a separate liquidation organization must be established as prescribed by its charter.

3. Within 07 working days from the ratification date of its resolution, the legal representative of the cooperative or cooperative union must complete the following tasks:

a) Send the dissolution resolution to the business registration authority or People's Committee that has issued the cooperative registration certificate, tax authority and employees of the cooperative or cooperative union;

b) Openly post the dissolution resolution at the head office, branch(es) and representative office(s) of the cooperative or cooperative union;

c) Send the dissolution resolution to creditors and persons with related rights, obligations and interests if the cooperative or cooperative union still has unpaid debts.

4. The business registration authority shall post a notification that the cooperative or cooperative union is undergoing dissolution, accompanied with the dissolution resolution, on its electronic information system.

5. Assets of the cooperative or cooperative union shall be settled in accordance with the provisions of Article 101 of this Law.

6. The legal representative of the cooperative or cooperative union shall send an application for dissolution to the business registration authority within 05 working days from the day on which the cooperative or cooperative union’s debts are fully paid. Before submitting an application for dissolution, the cooperative or cooperative union shall follow procedures for shutdown of its branches, representative offices and/or business locations as prescribed by the Government.

7. The business registration authority shall update the cooperative or cooperative union’s dissolution status on its electronic information system:

a) within 05 working days from the receipt of the application for dissolution; or

b) after 06 months from the receipt of the dissolution resolution as prescribed in Point a Clause 3 of this Article without receiving any application for dissolution and further comments from the cooperative or cooperative union and written opinions from relevant parties.

8. The Government shall elaborate this Article.

Article 99. Compulsory dissolution of cooperatives and cooperative unions

1. The business registration authority shall send a notification that the cooperative or cooperative union is undergoing dissolution to the People's Committee that has issued the cooperative registration certificate and also post that notification on its electronic information system on the same day on which the decision to revoke the cooperative registration certificate is issued or right after an effective court decision on the cooperative or cooperative union’s dissolution is received. The notification must be accompanied with the decision to revoke the cooperative registration certificate or the effective court decision.

2. Within 10 days from the receipt of the decision to revoke the cooperative registration certificate or the effective court decision, the cooperative or cooperative union shall follow the guidelines in Clauses 1, 2, 3, 5 and 6 Article 98 of this Law. When being sent as prescribed in Point a Clause 3 Article 98 of this Law, the dissolution resolution must be accompanied with the copy of the decision to revoke the cooperative registration certificate or the effective court decision.

3. After 06 days from the date on which a notification is made as prescribed in Clause 1 of this Article without receiving any written objections from relevant parties, or within 05 working days from the receipt of the application for dissolution, the business registration authority shall update the cooperative or cooperative union’s dissolution status on its electronic information system.

4. The Government shall elaborate this Article.

Article 100. Prohibited acts upon dissolution of cooperatives and cooperative unions

1. From the issuance date of the dissolution resolution, the decision to revoke the cooperative registration certificate or the effective court decision, the legal representative, chairperson and members of the Board of Directors, Director (General Director) and members of the cooperative or cooperative union are prohibited from the following acts:

a) Concealing, disguising assets;

b) Denying or reducing the creditors’ claims to the debts;

c) Converting unsecured debts into debts secured with the cooperative or cooperative union’s assets;

d) Concluding new contracts, except for those serving the dissolution of the cooperative or cooperative union;

dd) Pledging, donating, leasing out assets;

e) Terminating effective contracts;

g) Raising capital in any shape or form.

2. The persons who commit the violations mentioned in Clause 1of this Article, depending on the nature and severity of each violation, will be held liable to administrative penalties or criminal prosecution and pay compensation for any damage caused to the cooperative or cooperative union in accordance with regulations of law.

Article 101. Settlement of assets upon dissolution of cooperatives and cooperative unions

1. Upon its dissolution, a cooperative or cooperative union shall get back and settle its undistributed fund and undistributed assets; get back other assets; transfer or liquidate assets.

2. Upon its dissolution, a cooperative or cooperative union’s undistributed fund shall be settled according to the following rules:

a) Undistributed fund derived from the proceeds earned from transfer or liquidation of undistributed assets which are entirely or partially acquired using the State financial assistance shall be paid to state budget;

b) The undistributed fund specified in Clause 4 Article 84 of this Law shall be settled under specific agreement between the donor and the cooperative or cooperative union. If such agreement is not available, the provisions of Clauses 4 and 5 of this Article shall prevail;

c) The undistributed fund specified in Clauses 1 and 2 Article 84 of this Law shall be settled according to the provisions of Clauses 4 and 5 of this Article.

3. Upon its dissolution, a cooperative or cooperative union’s undistributed assets shall be settled according to the following rules:

a) The undistributed assets specified in Points a, c and dd Clause 2 Article 88 of this Law shall be transferred to competent authorities that shall settle such assets by their sources as prescribed by laws;

b) The undistributed assets specified in Point d Clause 2 Article 88 of this Law shall be settled under specific agreement between the donor and the cooperative or cooperative union. If such agreement is not available, the provisions of Clauses 4 and 5 of this Article shall prevail;

c) The undistributed assets specified in Points b and e Clause 2 Article 88 of this Law shall be settled according to the provisions of Clauses 4 and 5 of this Article.

4. Remaining assets of the cooperative or cooperative union upon its dissolution shall be distributed in the following order of priority:

a) Pay dissolution costs, including costs incurred from recovery, valuation and liquidation of assets;

b) Pay unpaid salaries, severance pay, social insurance premiums as prescribed by laws, and other benefits of employees under the collective bargaining agreement and signed employment contracts;

c) Pay tax debts;

d) Pay other debts.

5. The assets that remain after they are distributed according to Clause 4 of this Article shall be distributed to official members and contributing members of the cooperative or cooperative union in proportion to their holdings.

6. The Government shall elaborate this Article.

Article 102. Bankruptcy of cooperatives and cooperative unions

1. Bankruptcy of cooperatives or cooperative unions shall comply with regulations of the Law on bankruptcy.

2. Undistributed fund and undistributed assets of a cooperative or cooperative union that goes bankrupt shall be settled in the same manner as those of a cooperative or cooperative union that is dissolved as prescribed in Article 101 of this Law.

Article 103. Revocation of cooperative registration certificate

1. The cooperative registration certificate of a cooperative or cooperative union shall be revoked in one of the following cases:

a) The application for cooperative or cooperative union registration is found to contain fraudulent information;

b) The cooperative or cooperative union is suspended for more than 12 months without notifying the business registration authority and the tax authority;

c) The cooperative or cooperative union fails to send reports on its compliance as prescribed in this Law within 12 months from the receipt of the request from the business registration authority;

d) The cooperative or cooperative union fails to maintain the minimum number of members as prescribed for a period of 12 consecutive months; fails to meet the requirement regarding the maximum number of members that are foreign-invested organizations and individuals being foreign investors laid down in this Law for a period of 06 consecutive months;

dd) The cooperative or cooperative union fails to meet the requirement regarding its members’ maximum capital contribution laid down in this Law for a period of 12 consecutive months;

e) The cooperative or cooperative union fails to convene the annual GMM for 18 consecutive months from the date of the latest GMM, except force majeure events;

g) The revocation is made according to a Court decision or request of a competent authority as prescribed by relevant laws.

2. The Government shall elaborate the procedures for revoking the cooperative registration certificate.

Article 104. Shutting down branches, representative offices and business locations

1. Branch or representative office of a cooperative or cooperative union shall be shut down in the following cases:

a) The cooperative or cooperative union decides to shut down its branch or representative office;

b) The certificate of branch or representative office registration is revoked as prescribed by law.

2. Business locations of a cooperative or cooperative union shall be shut down under decision issued by its Director (General Director).

3. The legal representative of the cooperative or cooperative union and the head of the branch or representative office that is shut down shall be jointly responsible for the accuracy and truthfulness of the application for shutdown of that branch, representative office or business location.

4. The cooperative or cooperative union whose branch is shut down shall perform the contracts and pay the debts, including tax debts, of the branch that is shut down, and continue employing or fully provide lawful benefits for that branch’s employees as prescribed by law.

5. The Government shall elaborate this Article.

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