Chương 4 Nghị định 43/2010/NĐ-CP về đăng ký doanh nghiệp: Hồ sơ, trình tự, thủ tục đăng ký doanh nghiệp đăng ký hoạt động chi nhánh, văn phòng đại diện

Chapter IV

DOSSIERS. ORDER AND PROCEDURES FOR ENTERPRISE REGISTRATION, REGISTRATION OF OPERATION OF BRANCHES AND REPRESENTATIVE OFFICES

Article 19. Enterprise registration dossier for a private enterprise

1. An application for enterprise registration;

2. A valid copy of any of lawful personal identification papers of the private enterprise owner specified in Article 24 of this Decree;

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

4. Valid copies of practicing certificates of
one or several persons as required for enterprises conducting business lines for which practicing certificates are required by law.

Article 20. Enterprise registration dossier for a limited liability company with two or more members, joint-stock company or partnership

1. An application for enterprise registration;

2. The draft company charter, which must bear all signatures of general partners, for partnerships; of the representative at law and members or their authorized representatives; for limited liability companies with two or more members; of the representative at law and founding shareholders or their authorized representatives, for joint-stock companies. Members or founding shareholders shall take joint responsibility for the lawfulness of the company charter;

3. A list of members, for limited liability companies with two or more members and partnerships; or a list of founding shareholders, for joint-stock companies, made according to the form set by the Ministry of Planning and Investment. The list of members or list of founding members shall be enclosed with the following:

a/ A valid copy of any of lawful personal identification papers specified in Article 24 of this Decree, of founding members or founding shareholders who are individuals;

b/ A copy of the establishment decision; business registration certificate or enterprise registration certificate or an equivalent document: a valid copy of any of the personal identification papers of the authorized representative as specified in Article 24 of this Decree and the relevant authorization decision for founding members or founding shareholders that are legal entities.

4. Written certification of legal capital, issued by a competent agency or organization, for companies conducting business lines for which legal capital is required by law:

5. Valid copies of practicing certificates of general partners, for partnerships, of one or several individuals, for limited liability companies and joint-stock companies, in case these companies conduct business lines for which practicing certificates are required by law.

Article 21. Enterprise registration dossier for a one-member limited liability company

1. An application for enterprise registration;

2. The draft company charter, which must bear all signatures of the owner and the representative at law of the company in case the company owner is an individual: authorized representatives and representative at law in case the company owner is an organization. The company owner shall take responsibility for the lawfulness of the company charter;

3. A valid copy of any of personal identification papers specified in Article 24 of this Decree of the company owner who is an individual, or the establishment decision, business registration certificate, enterprise registration certificate or an equivalent document, the charter or an equivalent document of the company owner that is an organization (unless the company owner is the State);

4. A list of authorized representatives, for one- member limited liability companies organized and managed under Clause 3. Article 67 of the Law on Enterprises, made according to the form set by the Ministry of Planning and Investment. This list shall be enclosed with a valid copy of any of personal identification papers of each authorized representative as specified in Article 24 of this Decree.

A valid copy of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree for a one-member limited liability company organized and managed under Clause 4 Article 67 of the Law on Enterprises;

5. An authorization document issued by the company owner for the authorized representative, for companies whose owners are organizations;

6. Written certification of legal capital, issued by a competent agency or organization, for companies conducting business lines for which legal capital is required by law;

7. Valid copies of practicing certificates of one or several individuals required for companies conducting business lines for which practicing certificates are required by law.

Article 22. Enterprise registration dossiers for companies established on the basis of division, separation or consolidation, and for merging companies

1. In case a limited liability company or joint-stock company is divided into several companies of the same type, in addition to the papers specified in Articles 20 and 21 of this Decree, the enterprise registration dossier must comprise the company division decision as specified in Article 150 of the Law on Enterprises, the minutes of the Members' Council meeting, for limited liability companies with two or more members, the minutes of the Shareholders' General Meeting, for joint-stock companies, on the company division, and a valid copy of the business registration certificate or enterprise registration certificate or an equivalent paper of the company.

2. In case one or several new companies of the same type is/are formed by separation from an existing limited liability company or joint-stock company, in addition to the papers specified in Articles 20 and 21 of this Decree, the enterprise registration dossier of the separated company must comprise the company separation decision as specified in Article 151 of the Law on Enterprises, the minutes of the Members' Council meeting, for limited liability companies with two or more members, the minutes of the Shareholders' General Meeting, for joint-stock companies, on the company separation, and a valid copy of the business registration certificate or enterprise registration certificate or an equivalent paper of the company.

3.. In case several companies of the same type are consolidated into a new company, in addition to the papers specified in Articles 20 and 21 of this Decree, the enterprise registration dossier must comprise the company consolidation contract as specified in Article 152 of the Law on Enterprises, the minutes and decision of the Members' Council meeting, for limited liability companies with two or more members, the minutes and decision of the Shareholders' General Meeting, for joint-stock companies on consolidation, for joint-stock companies, and business registration certificates or enterprise registration certificates or equivalent papers of all consolidated companies.

4.. In case one or several companies are merged into another company of the same type, in addition to the papers specified in Chapter V of this Decree, the enterprise registration dossier of the merging company must additionally comprise the merger contract as specified in Article 153 of the Law on Enterprises, the minutes and decision of the Members' Council meeting, for limited liability companies with two or more members, the minutes of the Shareholders' General Meeting on merger, for joint-stock companies, and business registration certificates or enterprise registration certificates of the merging company and all merged companies.

The announcement of the establishment of a new enterprise shall be published concurrently with the announcement of termination of the old enterprise's operation and the settlement of relevant rights and obligations.

Article 23. Enterprise registration dossiers for cases of enterprise transformation

1. In case of transformation of a one-member limited liability company into a limited liability company with two or more members, a transformation registration dossier comprises:

a/ An application for enterprise transformation:

b/ The charter of the new company as specified in Article 22 of the Law on Enterprises;

c/ A list of members, made according to a form set by the Ministry of Planning and Investment, and a valid copy of any of personal identification papers of individual company members as specified in Article 24 of this Decree, and copies of business registration certificates or enterprise registration certificates of institutional company members;

d/ The transfer contract or written certification of donation of part of the company ownership in case the company owner transfers or donates part of his/her company ownership to one or several other individuals; the company owner's decision on mobilization of capital contributions from one or several other individuals.

When receiving the enterprise registration certificate of the new company, the company shall return the original enterprise registration certificate or an equivalent paper of the transformed company.

2. In case of transformation of a limited
liability company with two or more members into a one-member limited liability company, a transformation registration dossier comprises:

a/ An application for enterprise transformation;

b/ The charter of the new company as specified in Article 22 of the Law on Enterprises;

c/ A valid copy of the establishment decision or the enterprise registration certificate or an equivalent paper of institutional company owners or a copy of any of other personal identification papers specified in Article 24 of this Decree of individual company owners;

d/ A list of authorized representatives, for one-member limited liability companies organized under Clause 3, Article 67 of the Law on Enterprises; a copy of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree, for one-member limited liability companies organized under Clause 4. Article 67 of the Law on Enterprises.

e/ The contract on transfer of capital contributions within the company;

f/ A written decision and a copy of the minutes of the Members' Council meeting on the company transformation.

When receiving the enterprise registration certificate of the new company, the company shall return the original enterprise registration certificate or an equivalent paper of the transformed company.

3. In case of transformation of a private enterprise into a limited liability company, a transformation registration dossier comprises:

a/ An application for enterprise transformation;

b/ The charter of the company;

c/ A list of creditors and unpaid debts, including also tax arrears, and payment deadlines: a list of existing employees: and a list of unliquidated contracts:

d/ A list of members as specified in Article 23 of the Law on Enterprises, for transformation of private enterprises into limited liability companies with two or more members: a valid copy of any of personal identification papers of individual company members as specified in Article 24 of this Decree, or copies of business registration certificates or enterprise registration certificates of institutional company members;

e/ The private enterprise owner's written commitment to bear personal liability for all unpaid debts of the private enterprise with all his/her assets and commitment to fully pay due debts:

f/ Written agreements with parties to unliquidated contracts on the receipt and performance of these contracts by the new limited liability company;

g/ The private enterprise owner's written commitment or an agreement between the private enterprise owner and other capital contributors on the receipt and employment of existing employees of the private enterprise.

When receiving the enterprise registration certificate of the new company, the enterprise shall return the original enterprise registration certificate or an equivalent paper of the transformed enterprise.

4. In case of transformation of a limited liability company into a joint-stock company or vice versa, a transformation registration dossier comprises:

a/ An application for enterprise transformation;

b/ The company owner's decision or decision and minutes of the Members' Council meeting or the Shareholders' General Meeting on the company transformation:

c/ The charter of the company after transformation:

d/ A list of members or a list of founding shareholders or general shareholders and papers specified in Clause 3, Article 19 of the Law on Enterprises;

e/ The contract on transfer of capital contributions or an agreement on investment capital contribution.

When receiving the enterprise registration certificate of the new company, the company shall return the original enterprise registration certificate or an equivalent paper of the transformed enterprise.

Article 24. Personal identification papers in an enterprise registration dossier

1. Valid identity card or passport, for Vietnamese citizens.

2. Any of the following papers that is still valid, for overseas Vietnamese:

a/ Vietnamese passport;

b/ Foreign passport (or a paper that can substitute the foreign passport) and any of documents evidencing the Vietnamese origin of overseas Vietnamese.

3. Temporary residence registration certificate granted by a competent Vietnamese agency and a valid passport, for foreigners permanently residing in Vietnam.

4. Valid passport, for foreigners not permanently residing in Vietnam.

Article 25. Receipt of enterprise registration dossiers

1. Enterprise founders or their authorized representatives shall submit complete dossiers as specified in this Decree to provincial-level business registration offices in the localities where their enterprises are headquartered.

2. An enterprise registration dossier shall be received for inputting information into the national enterprise registration information system when:

a/ It comprises all papers specified in this Decree;

b/ The enterprise name is indicated in the enterprise registration application or enterprise transformation application;

c/ The address of the enterprise registration dossier submitter is indicated;

d/ The enterprise registration fee is paid under regulations.

3. Upon receipt of dossiers, business registration offices shall hand dossier receipt slips to dossier submitters.

4. After receiving enterprise registration dossiers, business registration offices shall check the validity of these dossiers and input adequate and accurate information in enterprise registration dossiers into the national enterprise registration information system.

In case dossiers are invalid or names of enterprises to be registered are incompliant with regulations, business registration offices shall clearly notify in writing contents to be modified or supplemented to enterprise founders within 5 working days after receiving the dossiers.

In case of online enterprise registration, business registration offices shall inform via the net enterprise registrants of the time of notifying enterprise registration results or contents to be supplemented or modified (if any).

Article 26. Process of coordination in the creation and grant of enterprise identification numbers

When enterprise registration dossiers satisfy the prescribed conditions for the grant of enterprise registration certificates, information on enterprise registration dossiers shall be transferred to the database of the General Department of Taxation (the Ministry of Finance). Within 2 working days after receiving information from the national enterprise registration database, the General Department of Taxation shall create enterprise identification numbers and transfer them to the national enterprise registration database to be granted by provincial-level business registration offices to enterprises. Information on the grant of enterprise registration certificates shall be transferred to the General Department of Taxation.

In case the General Department of Taxation refuses to grant enterprise identification numbers, it shall notify such to the Ministry of Planning and Investment, clearly stating reasons; for subsequent notification by provincial-level business registration offices to enterprises.

Article 27. Online enterprise registration

1. Online enterprise registration means enterprise registration conducted by enterprise founders through the national enterprise registration portal.

2. Business registration offices shall receive and examine dossiers, guide the modification and supplementation of dossiers and notify results of processing of enterprise registration procedures through the national enterprise registration information system.

3. In case enterprise founders have no e-signatures. online enterprise registration may be conducted according to the following procedures: After enterprise registration dossiers are accepted on the national enterprise registration information system, enterprises shall print out the certification of online submission of their enterprise registration dossiers from the system. Enterprises' representatives at law shall sign on the certification of online submission of their enterprise registration dossiers and send such certification to provincial-level business registration offices in localities where their enterprises are located. After receiving the certification of online submission of enterprise registration dossiers, provincial-level business registration offices shall examine the dossiers and grant enterprise registration certificates to enterprises.

4. Enterprise registration dossiers submitted through the national enterprise registration portal are legally valid as paper dossiers.

Article 28. Time limit for grant of enterprise registration certificates

Within 5 working days after receiving valid dossiers, provincial-level business registration offices shall grant enterprise registration certificates to applying enterprises, or carry out registration of changes in enterprise registration, division, separation, merger, consolidation or transformation, registration of operation of branches or representative offices or notification of the setting up of business places of enterprises.

Past that time limit, if they receive neither an enterprise registration certificate nor a request for modification or supplementation of their enterprise registration dossiers, enterprise founders may lodge a complaint under the law on complaints and denunciations.

Article 29. Grant of enterprise registration certificates

1. Enterprises shall be granted enterprise registration certificates if they satisfy all the conditions specified in Article 24 of the Law on Enterprises.

2. Enterprises may receive enterprise registration certificates directly at business registration offices or register and pay a fee for receiving enterprise registration certificates via delivery service.

3. From the date of receiving enterprise registration certificates, all enterprises may commence their business operations, except those engaged in conditional business lines.

4. Enterprises may request business registration offices to grant copies of enterprise registration certificates and shall pay a fee as prescribed.

5. When receiving new enterprise registration certificates in case of registration of changes in enterprise registration, enterprises shall return old enterprise registration certificates or old business registration certificates or other equivalent papers.

Article 30. Correction of information in enterprise registration certificates

1. Upon detecting that contents of an enterprise registration certificate are inconsistent with those of the enterprise registration dossier, an enterprise may send a notice requesting the business registration office to correct contents of the enterprise registration certificate to be consistent with the submitted enterprise registration dossier.

2. Business registration offices shall receive notices, examine dossiers and re-grant enterprise registration certificates to enterprises within 2 working days after receiving the notices, provided information in such notices is accurate.

Article 31. Provision of information on enterprise registration contents

1. Periodically in the second week every month, provincial-level business registration offices shall send lists of enterprises registered in the last month enclosed with their information to agencies that manage economic and technical branches at the same level and district-level business registration offices. In localities where information technology infrastructure conditions permit, exchange of information on enterprise registration may be made online.

2. Organizations and individuals may request business registration offices to provide information on enterprise registration stored in the national enterprise registration information system and shall pay a fee as prescribed.

Article 32. Enterprise registration fee

1. Enterprise founders shall pay an enterprise registration fee at the time of submitting enterprise registration dossiers. This fee may be paid directly at business registration offices or remitted into accounts of business registration offices. It will not be refunded to enterprises that are not granted enterprise registration certificates.

2. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, guiding the fee levels and the use of the fee for the registration of enterprises and business households to partially pay expenses for the operation of business registration offices. The level of retention of the fee by business registration offices must not be lower than 50% of the total collected fee amount. The enterprise registration fee level shall be uniformly applied nationwide.

Article 33. Registration of the operation of branches or representative offices, and notification of the setting up of business places

1. Dossiers of registration of the operation of branches or representative offices:

Upon setting up a branch or representative office, an enterprise shall send a notice of such setting-up to the provincial-level business registration office of the locality where the enterprise locates its branch or representative office. Such a notice has the following details:

a/ Enterprise identification number;

b/ Name and address of the head office of the enterprise;

c/ Name of the branch or representative office to be set up;

d/ Address of the branch or representative office;

e/ The field and scope of operation of the branch or representative office:

f/ Full name, residence, identity card or passport number or other legal personal identification papers as specified in Article 24 of this Decree, of the head of the branch or representative office;

g/ Full name and signature of the representative at law of the enterprise.

The notice specified in this Clause must be enclosed with:

- A written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members; of the company owner or the Members' Council or the company president, for one-member limited liability companies; of the Board of Directors, for joint-stock companies; or of general partners, for partnerships, on the setting up of a branch or representative office;

- A valid copy of the decision appointing the head of the branch or representative office;

-A valid copy of any of personal identification numbers specified in Article 24 of this Decree of the head of the branch or representative office;

With regard to branches planned to conduct business lines that require a practicing certificate, a valid copy of the practicing certificate of the head of the branch or another concerned person shall be included under specialized laws.

2. Notification of the setting up of business places:

Business places of enterprises can be outside their registered head offices. Enterprises may only set up business places in provinces or centrally run cities where their head offices or branches are based. Within 10 working days after making decisions to set up their business places, enterprises shall send notices of business places to provincial-level business registration offices. Such a notice has the following details:

a/ Enterprise identification number;

b/ Name and address of the head office of the enterprise, name and address of the branch (in case the business place is attached to the branch);

c/ Name and address of the business place;

d/ The field of operation of the business place;

e/ Full name, residence, identity card or passport number or another legal personal identification paper specified in Article 24 of this Decree, of the head of the business place;

f/ Full name and signature of the representative at law of the enterprise.

3. After receiving valid dossiers of enterprises, provincial-level business registration office shall input information into the national enterprise registration information system to request identification numbers for branches, representative offices or business places, then grant branch or representative office operation registration certificates, or add business place addresses in the enterprise registration certificates or branch operation registration certificates of enterprises.

4. In case an enterprise sets up a branch or representative office outside the province or city where its head office is based, within 7 working days after being granted a branch or representative office operation registration certificate, it shall send a written notice thereof to the provincial-level business registration office of the locality where its head office is based in order to be added to the enterprise registration dossier and will be re-granted an enterprise registration certificate.

5. The setting up of overseas branches or representative offices by enterprises must comply with the laws of host countries.

Within 30 working days after officially opening an overseas branch or representative office, an enterprise shall send a notice thereof to the business registration office where it has registered its business. Such a notice shall be enclosed with a valid copy of the operation registration certificate of the branch or representative office or equivalent documents to be added to the enterprise registration dossier so that the enterprise shall be re-granted an enterprise registration certificate.