Chương 2 Nghị định 63/2001/NĐ-CP: Trình tự, thủ tục chuyển đổi doanh nghiệp thành công ty trách nhiệm hữu hạn một thành viên

Chapter II

ORDER AND PROCEDURES FOR CONVERSION OF ENTERPRISES INTO ONE-MEMBER LIMITED LIABILITY COMPANIES

Article 5.- Decision on the list of to be-converted enterprises and plan for conversion

1. For State enterprises

a/ The ministers, the heads of the ministerial-level agencies and agencies attached to the Government and the presidents of the provincial-level People’s Committees shall decide on the lists and plans for conversion of independent enterprises set up under their respective decisions;

b/ The Managing Boards of the State corporations set up by decisions of the Prime Minister shall draw up lists and plans for conversion of the corporations’ member enterprises and submit them to the Prime Minister for decision;

c/ The Managing Boards of the State corporations set up by the ministers, the heads of the ministerial-level agencies or agencies attached to the Government or the presidents of the provincial-level People’s Committees under the Prime Minister’s authorization shall draw up lists and plans for conversion of the corporations’ member enterprises and submit them to the ministers, the heads of the ministerial-level agencies or agencies attached to the Government or the presidents of the provincial-level People’s Committees for decision;

d/ The ministers, the heads of the ministerial-level agencies and agencies attached to the Government, the presidents of the provincial-level People’s Committees and the Managing Boards of the State corporations set up by decisions of the Prime Minister shall notify the converted enterprises and organizations authorized to be the company owners’ representatives, of the conversion plans.

2. For enterprises of political organizations or socio-political organizations

a/ Political organizations and socio-political organizations shall classify enterprises under their respective management, clearly identify capital sources in each enterprise and proceed with the reorganization of their dependent enterprises before deciding on the conversion thereof.

b/ Basing themselves on the plans for classification and reorganization of enterprises as well as the subjects defined in Article 1 of this Decree, political organizations and socio-political organizations shall decide on the lists and plans for conversion of their dependent enterprises into one-member limited liability companies and notify the converted enterprises and organizations authorized to be the company owners representatives, of the conversion plans.

Article 6.- Responsibilities of converted enterprises

1. A converted enterprise shall have the responsibility:

a/ To inventory, classify and determine types of available capital and property as well as existing debt and labor of the enterprise; to make financial reports till the time of conversion;

b/ To work out plans on the transfer of interests, obligations, properties, capital, debts and laborers to the one-member limited liability company; and capital amount expected to be registered as the company’s charter capital;

c/ To draft charter of the one-member limited liability company;

d/ To report to the company owner or organization authorized to be the representative of the company owner, on the dossiers prescribed at Points a, b and c of this Clause.

2. The Managing Boards of the State corporations shall submit to the persons competent to decide on the lists and plans for conversion of enterprises defined in Article 5 of this Decree, the conversion plans for consideration and decision.

Article 7.- Principles for the handling of capital, properties, finance and laborers of converted enterprises

1. All properties of converted enterprises shall be calculated according to their value.

2. The available properties under the management and use right of enterprises shall be inventoried, classified, quantified and evaluated so as to be transferred to the one-member limited liability companies.

3. Regarding the leased, borrowed, kept in custody or consigned properties: the companies shall continue to hire, borrow, keep or consign them according to agreements with the lessors, lenders or consignors.

4. Regarding unused properties and properties in stock waiting for liquidation: enterprises may sell or liquidate them according to current regulations.

5. Principles for financial and debt settlement:

a/ For redundant properties: enterprises are allowed to account them as the increase of the owners� capital at enterprises;

b/ For the diminished and lost properties as well as other property damage incurred by enterprises: it is necessary to clearly determine the reasons and responsibilities of collectives and individuals, and request the involved parties to pay compensation as prescribed by law. The difference between the damage value and compensations paid by individuals, collectives and insurance agencies (if any) shall be accounted by enterprises as the decrease of the owners capital at enterprises;

c/ For the to be-recovered debts: the companies shall have to accept the to be-recovered debts of converted enterprises and retrieve the recoverable due debts. Regarding the bad debts, after clearly determining the reasons and responsibilities of collectives and individuals therefor, enterprises are allowed to account the difference between the loss value and compensations paid by collectives and individuals as the decrease of the owners capital;

d/ For the to be-repaid debts: The companies shall have to inherit the to be-repaid debts and repay them to creditors according to commitments, including tax debts and budget debts as well as debts owed to officials and employees; and pay due debts. Regarding the to be-paid debts without any claimants and with the property value being indeterminable, the company owners may account them in their capital.

6. One-member limited liability companies shall have to continue employing all laborers of the converted enterprises and inherit all the latter’s rights and obligations towards the laborers according to the provisions of the legislation on labor, except for laborers who voluntarily terminate labor contracts.

Laborers who voluntarily terminate labor contracts shall enjoy the regimes prescribed by law.

Article 8.- Determination of the company’s charter capital

1. The company’s charter capital shall be determined on the basis of the owner’s actual capital amount recorded in the enterprise’s accounting books after having been handled according to the principles prescribed in Article 7 of this Decree, and the capital amount (if any) the owner commits to supplement to the company.

Regarding enterprises of political organizations and socio-political organizations with properties formed from the State budget capital and capital originating from the State budget, such political organizations and socio-political organizations shall be authorized to act as representatives of the owners of this capital.

2. Regarding the business lines, which require legal capital as prescribed by law, the company�s charter capital must not be less than the legal capital.

3. In cases where the company’s capital is supplemented, the capital amount to be supplemented and the committed time limit therefor must be clearly inscribed. The company owner shall have to invest enough charter capital for the company according to the committed time limit. If the owner fails to do so, it shall take responsibility therefor according to the provisions of Clause 1, Article 27 of the Enterprises Law.

Article 9.- Company’s charter

1. The company’s charter shall include the following contents:

a/ The names and addresses of the company’s head office, branches and representative offices (if any);

b/ The objectives and business lines;

c/ The charter capital;

d/ The name, address, rights and obligations of the company owner or organization authorized to act as the company owner’s representative;

e/ The company’s organizational and managerial structure;

f/ The company’s representative at law;

g/ The principles for using the company’s profits;

h/ Cases of dissolution and procedures for liquidation of properties of the company;

i/ The procedures for amendment and/or supplement of the company’s charter;

j/ Other contents to be decided by the company owner or organization authorized to act as representative of the company owner, which must not be contrary to law.

2. The company’s charter must be approved by the company owner or organization authorized to act as the company owner’s representative.

Article 10.- Decision on conversion

1. The persons competent to decide on the conversion plans and lists of converted enterprises defined in Article 5 of this Decree shall be the persons to sign decisions to convert enterprises into one-member limited liability companies.

2. A conversion decision shall include the following contents:

a/ The name, address and account number of the converted enterprise;

b/ The objectives and business lines;

c/ The company’s charter capital;

d/ The name and address of the organization being the company owner or organization authorized to be the company owner’s representative;

e/ The company’s responsibility for inheritance of the rights and obligations as well as the handling of remaining and newly arising problems of the converted enterprise.

Article 11.- Business registration

The converted enterprises shall make business registration and announcement on the mass media according to the provisions of the Enterprises Law. The business registration dossier shall comply with the provisions of the Enterprises Law and must be enclosed with the conversion decision.

Article 12.- Re-registration of the property ownership right

After being granted business registration certificates, one-member limited liability companies must fill in the procedures for re-registration of the property ownership right over the properties transferred from the converted enterprises to the companies, at the State agencies competent to grant the registration. The re-registration of the property ownership right shall not be subject to the registration fee.