Chương 5 Nghị định 43/2010/NĐ-CP về đăng ký doanh nghiệp: Hồ sơ, trình tự, thủ tục đăng ký thay đổi nội dung đăng ký doanh nghiệp

Chapter V

DOSSIERS, ORDER AND PROCEDURES FOR REGISTRATION OF CHANGES IN ENTERPRISE REGISTRATION

Article 34. Registration of addition or change of business lines

1. In case of change of its business line, an enterprise shall send a notice to the business registration office with which it has registered its business. Such a notice has the following details:

a/ The enterprise's name, identification number, tax identification number or the number of its business registration certificate (for enterprises having no identification number and tax identification number);

b/The business line registered to be added or changed;

c/ The full name and signature of the enterprise's representative at law.

If the business line that is added or changed requires legal capital, a competent agency's written certification of the enterprise's legal capital shall be enclosed.

If the business line that is added or changed requires a practicing certificate, valid copies of practicing certificates of one or several persons defined in specialized laws shall be enclosed.

The notice shall be enclosed with the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members; of the Shareholders' General Meeting, for joint-stock companies; of general partners, for partnerships; the decision of the company owner, for one-member limited liability companies, on the addition or change of the business line. Changes in the company charter must be clearly indicated in the decision and the meeting minutes.

2. Upon receipt of the notice, the business registration office shall issue a receipt and register the business line addition or change for the enterprise.

Article 35. Registration of change of addresses of enterprises' head offices

1. Before registering the change of the address of its head office, an enterprise shall carry out relocation procedures with a tax office under the tax laws.

2. When relocating its head office to another place within the same province or centrally run city, an enterprise shall send a notice thereof to the business registration office with which it has registered its business. Such a notice has the following details:

a/ The enterprise's name, identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/The address of the planned new head office:

c/ The full name and signature of the enterprise's representative at law.

This notice shall be enclosed with the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members; of the Shareholders General Meeting, for joint-stock companies; of general partners, for partnerships; the decision of the company owner, for one-member limited liability companies. Changes in the company charter must be clearly indicated in the decision and the meeting minutes.

Upon receipt of the notice, the business registration office shall issue a receipt and register the head office address change for the enterprise.

3. When relocating its head office to another province or city, the enterprise shall send a notice to the business registration office of the locality where it plans to base its new head office. Such a notice has the following details:

a/ The enterprise's name, identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/ The address of the planned new head office:

c/ The full name, the number of the identity card, passport or another lawful personal identification paper as specified in Article 24 of this Decree, the permanent residence address and signature of the enterprise's representative at law.

The notice sent to the business registration office of the locality where the enterprise plans to base its new head office shall be enclosed with copy of the amended company charter and the list of members, for limited liability companies with two or more members; the list of authorized representatives, for one-member limited liability companies that are organized and managed under Clause 3, Article 67 of the Enterprise Law; the list of founding shareholders, for joint-stock companies; the list of general partners, for partnerships; the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members; of the Shareholders General Meeting, for joint-stock companies; of general partners, for partnerships: or the decision of the company owner, for one-member limited liability companies.

Upon receipt of the notice, the business registration office of the locality where the enterprise plans to base its new head office shall issue a receipt, register the relocation of the head office and re-grant an enterprise registration certificate to the enterprise.

Within 5 working days after re-granting an enterprise registration certificate to the enterprise, the business registration office of the locality where the enterprise bases its new head office shall send a copy of the new enterprise registration certificate to the business registration office with which the enterprise previously registered its business.

4. Change of the address of an enterprise's head office does not alter the rights and obligations of the enterprise.

Article 36. Registration of change of enterprise names

1. In case of change of its name, an enterprise shall send a notice to the business registration office that has granted an enterprise registration certificate to it. Such a notice must contain the following details:

a/ The enterprise's current name, identi­fication number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number):

b/ The expected new name:

c/ The full name and signature of the enterprise's representative at law.

This notice shall be enclosed with the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members; of the Shareholders General Meeting, for joint-stock companies; of general partners, for partnerships; the decision of the company owner, for one-member limited liability companies. Changes in the company charter must be clearly indicated in the decision and the meeting minutes.

2. Upon receipt of the notice, the business registration office shall issue a receipt and register the change of the enterprise's name if the enterprise's new name is not against regulations on enterprise naming.

3. Change of an enterprise's name does not alter the rights and obligations of this enterprise.

Article 37. Registration of change of general partners

When a partnership admits a new general partner or terminates the membership of a general partner under Clauses 1. 2 and 3. Article 138 of the Enterprise Law. it shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

1. The enterprise's name, identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number):

2. The full name, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, and the permanent residence address of the new general partner or the one whose membership is terminated;

3. The signatures of all general partners or authorized general partners, except partners whose membership is terminated:

4. Amendments to the company's charter.

Enclosed with the notice must be a copy of the identity card or passport or another personal identification paper of the new general partner as specified in Article 24 of this Decree.

Upon receipt of the notice, the business registration office shall issue a receipt and register the general partner change for the partnership.

Article 38. Registration of change of representatives at law of limited liability companies or joint-stock companies

In case a limited liability company or joint-stock company changes its representative at law. it shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

1. The company's name, enterprise identi­fication number and tax identification number or the number of its business registration certifi­cate (for enterprises having no enterprise identi­fication number and tax identification number);

2. The full names, the numbers of identity cards, passports or other legal personal identification papers as specified in Article 24 of this Decree, posts and permanent residence addresses of the incumbent representative at law and the successive representative at law of the company;

3. The full name and signature of the chairman of the Members' Council, for limited liability companies with two or more members; of the company owner or chairman of the Members' Council or the company president, for one-member limited liability companies; or of the chairman of the Board of Directors, for joint-stock companies. If the chairman of the Members' Council, the president of the company or the chairman of the Board of Directors has absconded from his/her residence, is held in custody, suffers a mental disease or other ailments which render him/her unable to perceive or control him/herself or refuses to sign the company's notice, the notice must contain the full names and signatures of the members of the Members' Council or the company owner or the members of the Board of Directors, who have attended and unanimously voted for the change of the company's representative at law.

The notice must be enclosed with the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members, of the Shareholders General Meeting, for joint-stock companies in case the change of the company's representative at law leads to no change in the company charter, or of the Board of Directors, for joint-stock companies in case the change of the company's representative at law leads to no change in the company charter: the decision of the company owner, for one-member limited liability companies, on the change of the representative at law; a copy of the identity card or passport or another personal identification paper of the substitute for the company's representative at law as specified in Article 24 of this Decree.

Changes in the company charter shall be clearly indicated in the decision and the minutes of the meeting of the Members' Council or the Shareholders' General Meeting, or the decision of the company owner.

Upon receipt of the notice, the business registration office shall issue a receipt and register the change of the representative at law of the limited liability company or joint-stock company.

Article 39. Registration for change of investment capital of private enterprise owners

In case of increase or decrease in the registered investment capital, the owner of a private enterprise shall send a notice on the change to the business registration office with which the enterprise has registered its business. Such a notice must contain the following details:

1. The enterprise's name, identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

2. The registered investment capital, new investment capital level and the time of investment capital change;

3. The full name and signature of the private enterprise owner:

Upon receipt of the notice, the business registration office shall issue a receipt and register the investment capital change for the enterprise.

Article 40. Registration of change of charter capital or in capital contribution proportions

1. In case of increase or decrease in its charter capital or change in its capital contribution proportions, a company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/ The full name, address, nationality, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree or the number of the establishment decision and enterprise identification number of each member, for limited liability companies with two or more members, of the owner and the authorized person, for one-member limited liability companies, of founding shareholders, for joint-stock companies, of general partners, for partnerships;

c/ The capital contribution proportion of each member, for limited liability companies with two or more members, or of each founding shareholder, for joint-stock companies, or the authorized ownership proportion of each authorized representative, for one-member limited liability companies organized and managed under Clause 3, Article 67 of the Law on Enterprises:

d/ The registered charter capital and the proposed new charter capital: the time and form of capital increase or reduction:

e/ The full name, nationality, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, the permanent residence address and signature of the representative at law of the company or of the authorized general partner, for partnerships, of the chairman of the Members'

Council, for limited liability companies, of the chairman of the Board of Directors, for joint-stock companies.

The notice must be enclosed with the written decision and a copy of the minutes of the Members' Council meeting, for limited liability companies with two or more members, of the Shareholders General Meeting, for joint-stock companies; the decision of the company owner, for one-member limited liability companies on the change of charter capital of the company. Changes in the company charter shall be clearly indicated in the decision, and the minutes of the meeting of the Members' Council or Shareholders General Meeting and the decision of the company owner.

In case of charter capital reduction, the enterprise shall make a commitment to ensure the payment of all debts and other asset liabilities after the capital reduction, and attach the notice with the latest financial statement available following the time of decision to reduce its charter capital. For a company with foreign-owned capital accounting for more than 50%. its financial statement shall be verified by an independent auditor.

Upon receipt of the notice, the business registration office shall issue a receipt and register the capital increase or reduction for the company.

2. Registration of charter capital increase or reduction does not apply to one- member limited liability companies.

3. In case of capital reduction for enterprises conducting business lines that require legal capital, registration of charter capital reduction shall be effected for enterprises only when their registered capital level after the reduction is not lower than the legal capital level applicable to such business lines.

4. Charter capital of a joint-stock company is exclusive of the value of shares allowed to be offered for sale.

Article 41. Registration of change of founding shareholders of joint-stock companies

1. Registration of change of founding shareholders of a joint-stock company in the case specified in Clause 3, Article 84 of the Law on Enterprises:

The company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number):

b/ The name, head office address, enterprise identification number or number of establishment decision, for institutional founding shareholders, or the full name, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, for individual founding shareholders who fail to fulfill their capital contribution commitments and their uncontributed capital portions:

c/ The name, head office address, enterprise identification number or number of establishment decision, for institutions, or the full name, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, for individuals who make additional capital contribution and the capital contribution portion after additional contribution.

d/ The full name, number of the identity card.

passport or another legal personal identification paper as specified in Article 24 of this Decree and signature of the representative at law of the company;

The notice shall be enclosed with the written decision, a copy of the minutes of the Shareholders’ General Meeting on the change of a founding shareholder due to failure to fulfill the capital contribution commitment: the list of founding shareholders after the change; copies of the establishment decision and enterprise registration certificate or equivalent papers, and a valid copy of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree and the relevant authorization decision, for institutions, or a copy of the identity card or passport or another legal personal identification paper specified in Article 24 of this Article, for individuals who make additional capital contribution.

Amendments to the company charter must be clearly indicated in the decision or minutes of the Shareholders' General Meeting.

Upon receipt of the notice, the business registration office shall issue a receipt and register the founding shareholder change for the company.

2. Registration of change of founding shareholders in the case specified in Clause 5. Article 84 of the Law on Enterprises:

The company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/ The name, head office address, enterprise identification number or number of establishment decision, for institutional founding shareholders, or the full name, the number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, for individual founding shareholders, capital contribution portions of the transferor and transferee;

c/ The full name, number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree and signature of the representative at law of the company.

The notice shall be enclosed with the written decision, a copy of the minutes of the Shareholders' General Meeting on the change of the founding shareholder; the list of founding shareholders after the change; the share transfer contract and written certifications of transfer completion; a copy of the establishment decision and valid copies of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree and the relevant authorization decision, for institutional founding shareholders receiving the transferred shares, or a copy of the identity card or passport or another legal personal identification paper specified in Article 24 of this Article, for individuals receiving transferred shares. Amendments to the company charter must be clearly indicated in the decision or minutes of the Shareholders' General Meeting.

Upon receipt of the notice, the business registration office shall issue a receipt and register the founding shareholder change for the company.

3. Registration of change of founding shareholders due to donation of shares:

Registration of change of founding shareholders due to donation of shares shall be made under the provisions applicable to registration of founding shareholders due to transfer of shares, with transfer contracts and written certifications of transfer completion replaced with share donation contracts.

Article 42. Registration of change of members of limited liability companies with two or more members

1. In case of admission of a new member, the company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number):

b/ The name, enterprise identification number and head office address, for institutional members; full name, nationality, number of the identity card or passport or another legal personal identification number as specified in Article 24 of this Decree, for individual members; capital contribution value, portions and timing, kinds of assets used for capital contribution, quantity and value of each kind of asset contributed as capital by new members;

c/ The newly changed capital contribution portions of all members after admission of the new member;

d/ The company's charter capital after the admission of the new member:

e/ The full name and signature of the representative at law of the company.

The notice shall be enclosed with the written decision and a copy of the minutes of the Members' Council meeting on the admission of the new member, and the written certification of the capital contribution of the new member to the company; a copy of the establishment decision and a valid copy of any personal identification papers of the authorized representative as specified in Article 24 of this Decree and the relevant authorization decision, for institutional members, or a copy of the identity card or passport or another legal personal identification paper as specified in Article 24 of this Decree, for individual members. Amendments to the company charter shall be clearly indicated in the decision, and the minutes of the Members' Council meeting.

Upon receipt of the notice, the business registration office shall issue a receipt and register the member change and charter capital increase for the company.

2. In case of change of members due to the transfer of a capital contribution portion, the company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/ The name and head office address, for organizations, or the full name, nationality, number of the people's identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, for individuals; and the capital contribution portions of the transferor and transferee;

c/ The capital contribution portions of the members after the transfer;

d/ The timing of the transfer;

e/ The full name and signature of the representative at law of the company.

The notice shall be enclosed with the transfer contract and written certifications of the transfer completion by the company; a copy of the establishment decision and a valid copy of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree and the relevant authorization decision, for new institutional members, or a copy of the identity card or passport or another personal identification paper as specified in Article 24 of this Decree, for new individual members.

Upon receipt of the notice, the business registration office shall issue a receipt and register the member change for the company.

3. In case of change of a member due to inheritance, the company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having no enterprise identification number and tax identification number);

b/The full name, number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, nationality and the capital contribution portion of the member that left the inheritance and of every heir;

c/ The timing of inheritance:

d/ The full name and signature of the representative at law of the company.

The notice shall be enclosed with a written certification of lawful inheritance by the heir: a copy of the identity card or passport or another personal identification paper of the heir as specified in Article 24 of this Decree.

Upon receipt of the notice, the business registration office shall issue a receipt and register the member change for the company.

4. In case of registration of member change due to a member's failure to fulfill the capital contribution commitment under Clause 3. Article 39 of the Law on Enterprises, the company shall send a notice to the business registration office with which it has registered its business. Such a notice must contain the following details:

a/ The company's name, enterprise identification number and tax identification number or the number of its business registration certificate (for enterprises having enterprise identification number and tax identification number);

b/ The name and head office address, for organizations, or the full name and number of the identity card, passport or another legal personal identification paper as specified in Article 24 of this Decree, nationality and the capital contribution portions of the member who fails to fulfill the capital contribution commitment and of the person who agrees to make supplementary contribution;

c/ The full name and signature of the representative at law of the company.

The notice shall be enclosed with the written decision and a copy of the minutes of the Members' Council meeting on the change of the member due to the unfulfilled commitment of capital contribution and the list of the remaining members of the company. Amendments to the company charter shall be clearly indicated in the decision and the minutes of the Members Council meeting.

Upon receipt of the notice, the business registration office shall issue a receipt and register the member change for the company.

5. Registration of member change due to donation of capital contribution portions:

Registration of member change due to donation of capital contribution portions shall be made like the registration of member change due to transfer of capital contribution portions, with transfer contracts and written certifications of transfer completion replaced with contracts on donation of capital contribution portions.

Article 43. Registration of change of owners of one-member limited liability companies

In case a company owner transfers the whole charter capital to an individual or organization, the transferee shall make registration of change of the company owner. A dossier for registration of change comprises:

A notice of change in enterprise registration jointly signed by the old owner or his/her/its representative at law and the new owner or his/ her/its representative at law.

A valid copy of any of personal identifica­tion papers of the transferee as specified in Article 24 of this Decree in case the transferee is an individual or a valid copy of the business registration certificate or enterprise registration certificate or establishment decision in case the transferee is an institution: and a valid copy of any of personal identification papers of the authorized representative as specified in Article 24 of this Decree.

The amended or supplemented company charter;

The capital transfer contract and documents evidencing the completion of capital transfer.

Upon receipt of dossiers for registration of a change, the business registration office shall issue receipts and register the change of the company owner.

Article 44. Registration of change of private enterprise owners in case of sale or donation of enterprises or death or missing of enterprise owners

In case a private enterprise owner sells or donates his/her enterprise or is dead or missing, the purchaser, recipient or heir shall register the change of private enterprise owner. A dossier for registration of such change comprises:

1. A notice of change of private enterprise owner bearing the signatures of the seller or donor and the purchaser or recipient of the private enterprise in case of sale or donation of the private enterprise: or the signature of the heir in case the private enterprise owner is dead or missing.

2. A valid copy of any of personal identification papers of the private enterprise purchaser, recipient or heir as specified in Article 24 of this Decree.

3. The enterprise sale and purchase or donation contract and documents evidencing the completion of the transfer or donation in case of sale or donation of the private enterprise: the death certificate or declaration of missing of the private enterprise owner issued by the court in case the private enterprise owner is dead or missing, and the written certification of the heir's lawful right to inheritance.

Upon receipt of a private enterprise's dossier for registration of change, the business registration office shall issue a receipt and register the change of the private enterprise owner.

Article 45. Registration of changes in tax registration

1. In case an enterprise changes its tax registration contents without changing its business registration contents, it shall send a notice to the provincial-level business registration office in the locality where its head office is based.

Such a notice must contain the following details:

a/ The name, head office address, enterprise identification number and date of grant of the business registration certificate, tax registration certificate or enterprise registration certificate;

b/ Changes in tax registration information.

2. The business registration office shall receive the notice, input data into the national enterprise registration information system for transmission to the database of the General Department of Taxation, and concurrently file
the notice in the enterprise registration dossier.

Article 46. Registration of changes in enterprise registration or operation registration under court rulings

In case of a change in its enterprise registration or operation registration under a court ruling, an enterprise shall register such change. A registration dossier must contain a valid copy of the court judgment or ruling which has taken legal effect.

Article 47. Registration of change in operation registration or notices of termination of operation of branches, representative offices or business places

1. When changing registration contents of their branches, representative offices or business places, enterprises shall send notices thereof to provincial-level business registration offices in localities where their branches or representative offices are based in order to have their branch or representative office operation registration certificates renewed.

2. In case of relocation of their branches or representative offices to other provinces or centrally run cities different from registered locations, enterprises shall send notices thereof to provincial-level business registration offices in localities to which their branches or representative offices are planned to move and provincial-level business registration offices in localities where their branches or representative offices are based. Provincial-level business registration offices in localities to which branches or representative offices are planned to move shall receive notices and grant operation registration certificates to these branches or representative offices.

3. Upon termination of operation of their branches, representative offices or business places, enterprises shall send notices thereof to business registration offices that have granted operation registration certificates to their branches or representative offices or have been notified by enterprises of the setting up of their business places. Business registration offices shall receive notices and carry out procedures for revocation of operation registration certificates of branches or representative offices or deletion of business places from enterprise registration certificates or operation registration certificates of branches or representative offices.

Article 48. The right of enterprises to complain

If after 5 working days from the date of sending its notice of change in enterprise registration to the business registration office, an enterprise does not have the change in its business registration registered under regulations or receives no request for modification or supplementation of the enterprise registration dossier from the business registration office, it may lodge a complaint under the law on complaints and denunciations.