Chương 4 Nghị định 109/2004/NĐ-CP: Trình tự, thủ tục đăng ký kinh doanh đối với các doanh nghiệp hoạt động theo luật doanh nghiệp

Chapter IV

BUSINESS REGISTRATION ORDER AND PROCEDURES FOR ENTERPRISES OPERATING UNDER THE ENTERPRISE LAW

Article 12.- Business registration dossiers

1. The business registration dossiers for limited liability companies and joint-stock companies shall each include:

a) The business registration application made according to a set form of the Ministry of Planning and Investment;

b) The company’s charter;

c) The member enterprises, for limited liability companies with two or more members, or the list of founding shareholders, for joint-stock companies.

For companies dealing in production and business lines which require legal capital, the certification of competent agencies or lawful certificate evidencing the companies’ capital amount is also required.

For companies dealing in production and business lines which require practice certificates, the valid copies of the practice certificate of one of the managers of the companies as provided for in Clause 12, Article 3 of the Enterprise Law are also required.

2. The business registration dossiers for partnerships shall each include:

a) The business registration application made according to a set form of the Ministry of Planning and Investment;

b) The company’s charter;

c) The list of partnership members.

For companies dealing in production and business lines which require legal capital, the certification of competent bodies or the lawful certificate evidencing the companies’ capital amounts is also required.

For companies dealing in production and business lines which require the practice certificates, the valid copies of the practice certificates of the partnership members are also required.

3. The business registration dossiers for private enterprises shall each include:

The business registration application made according to a set form of the Ministry of Planning and Investment.

For private enterprises dealing in production and business lines which require legal capital, the certification of competent bodies or lawful certificate evidencing the capital amounts of the enterprises is also required.

For private enterprises dealing in production and business lines which require the practice certificates, the valid copies of the practice certificates of the owners of the private enterprises or the enterprises’ executive managers are also required.

Article 13.- Business registration order and procedures

The business registration order and procedures shall be effected as follows:

1. The enterprise founders or their authorized representatives fully submit the dossiers prescribed in Article 12 of this Decree at the provincial-level business registration sections of the localities where the enterprises locate their headquarters. The founding members, founding shareholders, owners of companies, owners of private enterprises, partnership members shall, together with the enterprises’ representatives at law, jointly bear responsibility for the accuracy and truthfulness of the contents of the business registration dossiers.

The provincial-level business registration sections must not request the enterprise founders to additionally submit any other papers besides the dossiers prescribed in Article 12 of this Decree for each type of enterprise.

2. When receiving dossiers, the provincial-level business registration sections must hand the dossier receipts to the dossier submitters. The provincial-level business registration sections shall bear responsibility for the validity of the dossiers, and shall not bear responsibility for law violation acts committed by the enterprises after their business registration.

3. The provincial-level business registration sections shall grant business registration certificates to enterprises within fifteen days as from the date of receiving the dossiers, if the following conditions are fully met:

a) The business lines are not on the list of those banned from business;

b) The enterprises are named strictly according to the provisions in Chapter III of this Decree.

c) The business registration dossiers are valid under the provisions of Clause 3, Article 3 of the Enterprise Law;

d) The business registration fees are fully paid according to regulations.

After being granted business registration certificates, the enterprises may carve their own seals and are entitled to use them.

4. Where the dossiers are invalid or the enterprise names are given at variance with regulations, the provincial-level business registration sections shall notify such in writing to the enterprise founders within seven days as from the date of receiving the dossiers. The notices must clearly state the contents to be amended and ways of amending. Past the above-said time limit, if no notice is given, the enterprises’ names shall be considered having been accepted and the business registration dossiers shall be considered valid.

5. If past fifteen days as from the date the business registration dossiers are submitted they receive no business registration certificates, the enterprise founders are entitled to complain to the provincial-level business registration sections where the business registration dossiers are received. If after seven days as from the date of lodging complaints, the enterprise founders do not receive any reply of the provincial-level business registration sections, they are entitled to complain to the provincial-level People’s Committees or bring the cases to administrative courts of the provinces where they have submitted their business registration dossiers according to law provisions.

6. After being granted the business registration certificates, the enterprises may conduct their business activities without having to ask for permission of any State body, except where the enterprises deal in conditional business lines.

7. Within seven days after granting the business registration certificates to enterprises, the provincial-level business registration sections shall send the copies of such business registration certificates to the Ministry of Planning and Investment, the enterprise information center, tax offices, statistical agencies, the techno-economic branch-managing agencies of the same level and the district-level business registries of the localities where the enterprises locate their headquarters.

8. The business registration certificates granted by the provincial-level business registration sections are valid nationwide.

Article 14.- Registration for establishment of branches, representative offices

1. When setting up branches or representative offices, enterprises must send their notices to the provincial-level business registration sections of the localities where they plan to base such branches or representative offices. The contents of such a notice shall cover:

a) The name and address of the head-office of the enterprise;

b) Business lines of the enterprise;

c) The name of the branch or representative office to be set up; such name must be accompanied with the word “ branch” for branch establishment registration or the words “representative office” for cases of registration for establishment of representative offices;

d) Full name, people’s identity card number, signature and residence place of the enterprise’s representative at law;

e) The name and address of the branch, representative office;

f) The contents and scope of operation of the branch, representative office;

g) The full name, residence place and people’s identity card number of the head of the branch or representative office.

2. The notice prescribed in Clause 1 of this Article must be enclosed with:

a) The copy of the business registration certificate of the enterprise;

b) The copy of the company’s charter, for limited liability companies, joint-stock companies and partnerships.

c) The written decision, enclosed with the minutes of the meetings of the Members’ Council, for limited liability companies having two or more members; of the company owner, for one-member limited liability companies; of the Managing Board, for joint-stock companies; of partnership members, for partnerships, on the establishment of the branch, representative office.

For branches dealing in business lines which require practice certificates, the copy of the practice certificate of at least one of the people working at the branch or representative office is also required.

3. If the branches’ business lines are compatible with the business lines of their enterprises and the contents of operation of the representative offices are compatible with the contents of their enterprises’ operations, within seven days as from the date of receiving the notices, the provincial-level business registration sections shall grant the operation registration certificates to the branches or representative offices.

After being granted the operation registration certificates, the branches and representative offices may carve their own seals and are entitled to use them.

4. Where enterprises set up branches or representative offices in provinces or cities other than the localities where they are headquartered, within seven days as from the date of being granted the operation registration certificates of branches or representative offices, the enterprises must notify such in writing to the provincial-level business registration sections of the localities where the enterprises are headquartered and supplement the business registration dossiers.

5. The establishment of enterprises’ branches or representative offices in foreign countries shall comply with the law provisions of such countries.

Within fifteen days after inaugurating their overseas branches and/or representative offices, the enterprises shall have to notify such in writing to the provincial-level business registration sections of the localities where the enterprises are headquartered for supplementation of the business registration dossiers.

Article 15.- Registration of supplementation or change of business lines

1. When adding or altering their business lines, enterprises shall have to send notices to the provincial-level business registration sections where the enterprises have made their business registration. The contents of such a notice cover:

a) The enterprise’s name, business registration number, the date of issuance of business registration certificate;

b) The address of the enterprise’s head-office;

c) The registered business lines;

d) The added or altered business lines;

e) The full name, people’s identity card number, signature and residence place of the enterprise’s representative at law.

For added or altered business lines which require legal capital, the certification of competent body or lawful certificate evidencing the enterprise’s capital amount is additionally required.

For added or altered business lines which require the practice certificates, the valid copies of the practice certificates are additionally required under regulations.

Such a notice must be enclosed with the written decision and the copy of the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of the company owner, for one-member limited liability companies; of the Managing Board, for joint-stock companies; or of partnership members, for partnerships, on the addition or alteration of business lines.

2. Upon receipt of the notices, the provincial-level business registration sections must hand the receipts and register the business line addition or alteration within seven days after the receipt of the notices.

Article 16.- Registration for change of the addresses of enterprises’ head-offices

1. When relocating their offices to other places within the same provinces or centrally-run cities, the enterprises shall send their notices to the provincial-level business registration sections. The contents of such a notice cover:

a) The enterprise’s name, business registration number, the date of issuance of business registration certificate;

b) The address of the enterprise’s head-office;

c) The address of the new head-office;

d) The full name, people’s identity card number, signature and residence place of the enterprise’s representative at law.

Such a notice must be enclosed with the written decision and copy of the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of the company owner, for one-member limited liability companies; of the shareholders’ general assembly, for joint-stock companies; or of partnership members, for partnership companies, on registration for change of the enterprise’s head-office.

Upon receipt of notices, the provincial-level business registration sections must hand receipts and effect the registration for change of the enterprises’ head-offices within seven days after the receipt of the notices.

After the above-mentioned seven-day time limit, if the enterprises are still not allowed to change their head-offices, the enterprises have the right to move to their new head-offices, but have to send notices on the new head-offices to all creditors before moving to new addresses.

2. When relocating their head-offices to other provinces, the enterprises shall send notices to the provincial-level business registration sections where the enterprises have registered their businesses and the provincial business registration sections of the localities where the enterprises plan to locate their new head-offices. The contents of such notice cover:

a) The enterprise’s name, business registration number, date and place of issuance of the business registration certificate;

b) The address of the enterprise’s head-office;

c) The address of the new head-office;

d) The full name, people’s identity card number, signature and residence place of the enterprise’s representative at law.

The notice sent to the provincial-level business registration section of the locality where the enterprise plans to base its new head-office must be enclosed with the company charter and list of members, for limited liability companies with two or more members; the list of founding shareholders, for joint-stock companies; the list of partnership members, for partnerships; with the written decision and copy of the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of company owners, for one-member limited liability companies; and of partnership members, for partnerships.

Where the enterprise’s name is not identical to or does not cause confusion with the name of a registered enterprise within the locality where the enterprise moves to, the provincial-level business registration section of the locality where the enterprise plans to base their new headquarter shall register the headquarter relocation and re-grant business registration certificate to the enterprise within fifteen days as from the date of receiving the notice.

Where the enterprise’s name is identical to, or causes confusion with, the name of a registered enterprise within the locality where the enterprise moves to, within seven days as from the date of receiving the notice, the provincial-level business registration section of the locality where the enterprise plans to base its new headquarter must notify such in writing to the enterprise and at the same time guide the latter to choose another name and change the relevant contents in the enterprise’s dossier. In this case, the provincial-level business registration section shall register the headquarter address change when the enterprise fully satisfies the above-said requirements.

Within seven days as from the date of being re-granted a business registration certificate, the enterprise must send a valid copy thereof to the provincial-level business registration section where the enterprise previously registered its business.

3. The change of address of the enterprise’s headquarter shall not alter the rights and obligations of the enterprise.

Article 17.- Registration for renaming of enterprises

1. When changing their names, enterprises shall send notices to the provincial-level business registration sections where the enterprises have made their business registration. The contents of such a notice cover:

a) The enterprise’s current name; business registration number and the date of issuance of the business registration certificate;

b) The address of the enterprise’s headquarter;

c) The expected new name;

d) The full name, people’s identity card number, signature and residence place of the enterprise’s representative at law.

Such a notice must be enclosed with the written decision and copy of the minutes of the meeting of the Members’ Council, for limited liability companies; of the company owner, for one-member limited liability companies; of the shareholders’ general assembly, for joint-stock companies; or of partnership members, for partnerships, on the change of the enterprise’s name.

2. Upon the receipt of the notice, the provincial-level business registration section must hand a receipt and effect the registration for change of the enterprise’s name within seven days as from the date of receipt of the notice, if the enterprise’s expected new name does not contravene the regulations on naming of enterprises.

3. The change of an enterprise’s name shall not alter the rights and obligations of such enterprise.

Article 18.- Registration for change of the enterprise’s representative at law

1. Where a partnership admits new members, expels members or has a members withdrawing from the company, it shall send a notice to the provincial-level business registration section where the company has made business registration. The contents of such a notice cover:

a) The company’s name, business registration number, the date of issuance of business registration certificate;

b) The address of the company’s head-office;

c) The full names, residence places of new partnership members; of the expelled members or of members, who voluntarily withdraw from the company;

d) The signatures of all partnership members or authorized partnership members.

Upon receipt of the notice, the provincial-level business registration section shall hand the receipt and effect the registration of membership change within seven days after receiving the notice.

2. In cases of changing the representatives at law of limited liability companies or joint-stock companies, the companies shall have to sent notices to the provincial-level business registration sections where they have made their business registration. The contents of such a notice cover:

a) The company’s name, business registration number, the date of issuance of business registration certificate;

b) The address of the company’s head-office;

c) The full name, people’s identity card number, position and residence place of the incumbent representative at law of the company;

d) The full name, people’s identity card number, position and residence place of the substitute for the company’s representative at law;

e) The full name and signature of the president of the Members’ Council, for limited liability companies with two or more members; of the competent representative of the company owner, for one-member limited liability companies; of the president of the Managing Board, for joint-stock companies and one-member limited liability companies organized after the model with a Managing Board. Where the president of the Members’ Council, the Managing Board president or the representative at law of the company escapes from his/her residence place, is held in custody, suffers from mental diseases or other ailments which render him/her unable to cognize or control him/herself or refuses to sign his/her name in the company’s notice, the full names and signatures of the members of the Members’ Council or the members of the Managing Board, who have attended and unanimously voted for the change of the company’s representative at law, must be inscribed therein.

The notice must be enclosed with the decision and copy of the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of the company owner, for one-member limited liability companies; of the Managing Board, for joint-stock companies and one-member limited liability companies organized after the model with a Managing Board.

Upon receipt of notices, the provincial-level business registration sections must hand the receipts and effect the registration of the change of partnership members within seven days after receiving the notices.

Article 19.- Registration for changes in investment capital of private enterprise owners and charter capital of companies

1. When increasing or reducing their registered investment capital, the private enterprise owners must notify the changes in capital to the provincial-level business registration sections where the enterprises have made their business registration. The contents of such a notice cover:

a) The enterprise’s name, business registration number, the date of issuance of business registration certificate;

b) The full name, people’s identify card number, signature and residence place of the enterprise owner;

c) The address of the enterprise’s head-office;

d) Business lines;

e) The level of registered investment capital, the new level of capital registered for change, the mode and time of making changes in the investment capital.

Upon receipt of notices, the provincial-level business registration sections shall hand the receipts and effect the registration of changes in investment capital within seven days after receiving the notices.

2. When increasing or reducing the charter capital, the companies shall send notices to the provincial-level business registration sections where they have made their business registration. The contents of such a notice cover:

a) The company’s name, business registration number, the date of issuance of business registration certificate;

b) The address of the company’s head-office;

c) The business lines;

d) The registered charter capital and the charter capital after the registration of increase or decrease; the mode and time of making the capital increase or decrease;

e) The full name, people’s identify card number, the signature and residence place of the company’s representative at law or authorized partnership member, for partnerships.

The notice must be enclosed with the decision and copy of the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of the company owner, for one-member limited liability companies; of the shareholders’ general assembly, for joint-stock companies; or of partnership members, for partnerships; for the case of charter capital decrease, the notice must be enclosed also with the balance sheet of the company at the time of deciding to decrease the charter capital.

Upon receipt of the notices, the provincial-level business registration sections shall hand the receipts and effect the registration of capital increase or decrease for the companies within seven days after receiving the notices.

3. In case of capital decrease for enterprises dealing in business lines which require legal capital, the provincial-level business registration sections shall only register the decrease of investment capital or charter capital if the capital level registered after the decrease is not lower than the legal capital level applicable to such business lines.

Article 20.- Registration for change of company members

1. The change of founding shareholders of joint-stock companies shall not be registered; the change of shareholders of joint-stock companies shall be registered at the companies’ shareholder-registering books; the registration shall be effected by the Managing Board presidents on the basis of vouchers certifying the transfer of shares or purchase of newly-issued shares of the companies.

Shareholders being foreign organizations or foreign individuals not permanently residing in Vietnam shall be registered only in the shareholder-registering books and become shareholders of the companies if the total shares of the foreign shareholders do not exceed 30% of the total shares the companies have the right to issue.

2. The registration of change in the membership of limited liability companies with two or more members shall be effected as follows:

a) For the case of change due to the admission of new members by the companies, the companies shall send notices to the provincial-level business registration sections where the companies have made business registration. Such a notice shall cover the following contents:

- The company’s name;

- The business registration number;

- The head-office address;

- The names and head-offices (for members being organizations), the full names, people’s identity card or passport numbers (for members being individuals), nationality, contributed capital value and contributed capital amounts, capital contribution time, type of assets contributed as capital, the quantity and value of each type of capital-contributing assets of new members;

- The contributed capital amounts already altered correspondingly to the existing members after admission of new members;

- The company’s charter capital after the admission of new members;

- The full name, people’s identity card number and signature of the company’s representative at law.

Such a notice must be enclosed with the decision and the copy of the minutes of the meeting of the Members’ Council on the admission of new members, papers certifying the capital contribution to the company by the new members; for members being foreign organizations, the valid copies of their establishment permits or business registration certificates are also required; for members being foreign individuals, the copies of their valid passports are also required.

Upon receipt of the notices, the provincial-level business registration sections shall hand the receipts and register the membership changes, register the charter capital increase within seven days after receiving the notices. In cases where the new members are foreign organizations or foreign individuals not permanently residing in Vietnam, the registration of membership change shall be effected only when the foreign shareholders’ contributed capital portion does not exceed 30% of the company’s charter capital.

b) For the case of membership change due to transfer of contributed capital portions, the companies shall send notices to the provincial-level business registration sections where they have made their business registration. Such a notice must cover the following principal contents:

- The company’s name;

- The business registration number;

- The head-office address;

- The name and head-office (for organization) or the full name, people’s identity card or passport number (for individual), nationality, the contributed capital portion of the transferor-member;

- The name and head-office (for organization) or the full name, people’s identity card or passport number (for individual), nationality of the transferee and corresponding capital portion contributed to the company after the transfer;

- The time of effecting the transfer;

- Full names, signatures and people’s identity card numbers of the company’s representative at law, the transferor and the transferee.

The notice must be enclosed with the transfer contract and papers certifying the completion of the transfer, with certification by the company. The provincial-level business registration section shall receive the notice, hand the receipt and effect the registration of membership change within seven days after receiving the notice; if the transferees are foreign organizations or foreigners not permanently residing in Vietnam, the membership change registration shall be effected when the foreign shareholders’ contributed capital portion does not exceed 30% of the company’s charter capital.

c) For membership change due to inheritance, the companies shall send notices on membership change to the provincial-level business registration sections where they have made their business registration. Such a notice must cover the following principal contents:

- The company’s name;

- The business registration number;

- The head-office address;

- The full name, people’s identity card or passport number, nationality, contributed capital portion of the bequeathing member;

- The full name, people’s identity card or passport (if any) number, nationality, signature and contributed capital portion of each heir;

- The time of inheritance;

- The full name, signature and people’s identify card number of the company’s representative at law.

The notice must be enclosed with the copies of the papers certifying the inheritance. The provincial-level business registration section shall receive the notice, hand the receipt and effect the membership change registration within seven days after receiving the notice.

Article 21.- Companies’ right to complain

If after seven days as from the date of sending their notices on supplementation or change of the business registration contents prescribed in Articles 15, 16, 17, 18, 19 and 20 of this Decree to the provincial-level business registration sections, the enterprises do not receive the registration of supplementation or change of their business registration contents as prescribed, they are entitled to lodge their complaints under the provisions of Clause 5, Article 13 of this Decree.

Article 22.- Notices on temporary cessation of operation

Enterprises which temporarily cease their operations must send their written notices to the provincial-level business registration sections where they have made their business registration and the tax offices at least fifteen days before the temporary cessation of operation. The contents of such a notice shall include:

1. The enterprise’s name, business registration number and date of issuance of business registration certificate;

2. The address of the enterprise’s head-office;

3. The business lines;

4. The temporary cessation duration, the starting date and the closing date thereof;

5. The reasons for temporary cessation;

6. The full name, people’s identify card number and signature of the enterprise’s representative at law.

Such a notice must be enclosed with the decision and the minutes of the meeting of the Members’ Council, for limited liability companies with two or more members; of the company owner, for one-member limited liability companies; of the shareholders’ general assembly, for joint-stock companies; or of partnership members (for partnerships).

The provincial-level business registration sections shall receive the notices and enter the monitoring books.

Article 23.- Withdrawal of business registration certificates

1. Where the business registries detect that the declared contents in business registration are false, they shall issue notices on the violations and decide to withdraw the business registration certificates.

2. Where owners of private enterprises, members of limited liability companies, founding shareholders of joint-stock companies and partnership members of the registered enterprises are subjects banned from setting up enterprises under Article 9 of the Enterprise Law, the cases shall be handled according to the following regulations:

a) For private enterprises, the provincial-level business registration sections where the enterprises have made their business registration shall issue notices on the violations and decide to withdraw the business registration certificates.

b) For limited liability companies and joint-stock companies, the provincial-level business registration sections where the enterprises have made their business registration shall issue written notices requesting the companies to change their members or shareholders who are subjects not entitled to set up enterprises and make the registration of change of members, shareholders within three months as from the date of issuing the notices. If past the above-said time limit the change of members or shareholders is not registered, the provincial-level business registration sections shall issue notices on violations and decide to withdraw the business registration certificates.

c) For partnerships, the business registries shall issue written notices requesting the companies to change partnership members being subjects banned from setting up enterprises and register the changes of members within fifteen days as from the date of issuing notices. If past the above-mentioned time limit, the companies still fail to register the change of partnership members, the provincial-level business registration sections shall announce the violations and decide to withdraw the business registration certificates.

3. For cases of enterprises’ violations prescribed at Points b, c, d and e of Clause 7, Article 4 of this Decree, the provincial-level business registration sections shall issue written notices on such violations and request the enterprises’ representatives at law to come to their offices for explanation. If within fifteen days as from the appointment dates stated in the notices, the requested persons fail to come, the provincial-level business registration sections shall make public the violation acts of the enterprises and withdraw their business registration certificates.

4. Where enterprises fail to send reports according to the provisions of Clause 3, Article 116 of the Enterprise Law to the provincial-level business registration sections within six months as from the date of issuing the written requests under the provisions of Point d, Clause 3, Article 121 of the Enterprise Law, within fifteen days as from the date ending the time limit for reports, the provincial-level business registration sections shall send written notices, requesting the enterprises’ representatives at law to come to their offices for explanation. If after fifteen days as from the appointment dates stated in the notices the requested persons still fail to come, the provincial-level business registration sections shall make public the violation acts and withdraw the business registration certificates.

5. Where the provincial-level business registration sections detect that enterprises deal in bannes business lines, they shall issue written notices requesting the enterprises to immediately stop dealing in such business lines. If the enterprises continue dealing in the banned business lines, the provincial-level business registration sections shall withdraw the business registration certificates and at the same time notify such to competent State bodies for handling according to law provisions.

6. After issuing notices on enterprises’ violation acts prescribed in Clauses 1, 2, 3, 4 and 5 of this Article, the provincial-level business registration sections shall request the enterprises to carry out procedures for dissolution as provided for in Clause 5, Article 112 of the Enterprise Law. If after six months as from the date of deciding to withdraw the business registration certificates, the enterprise dissolution dossiers are not received, the enterprises are considered being already dissolved and the provincial-level business registration sections shall delete the enterprises’ names from the business registers. In this case, the representatives at law and all members of the limited liability companies, owners of one-member limited liability companies, all members of the Managing Boards of the joint-stock companies and all partnership members shall bear joint responsibility for unpaid debts (if any), including tax debts and financial obligations not yet fulfilled by the dissolved enterprises.