Chương II Nghị định 93/2019/NĐ-CP: Điều kiện, thủ tục cấp giấy phép thành lập quỹ

Chapter II

CONDITIONS AND PROCEDURES FOR LICENSING OF FUND ESTABLISHMENT

Article 10. Conditions to be satisfied to obtain a fund establishment license

1. The fund has operation objectives as defined in Article 3 hereof.

2. It has founding members as prescribed in Article 11 hereof.

3. The fund founding board has sufficient assets to contribute for the fund establishment as prescribed in Article 14 hereof.

4. It has an application for establishment as prescribed in Article 15 hereof.

Article 11. Founding members of funds

1. Founding members of a fund are required to meet the following conditions:

a) They must be Vietnamese citizens or organizations;

b) If the founding member is a Vietnamese citizen, he/she must have full capacity for civil acts and no previous criminal convictions;

c) If the founding member is a Vietnamese organization, it must be duly established and have its charter or document defining its functions and tasks, a resolution of its leadership or decision of its head on the establishment of fund, and a decision on appointment of a representative to act as a fund's founding member; in case of a foreign-invested organization, its representative who acts as a fund’s founding member must be a Vietnamese citizen;

d) They have contributed assets to establish the fund as prescribed in Article 14 hereof;

dd) If a founding member is subject to the management of a competent authority, a written approval from such competent authority must be obtained according to regulations on management of officials before submitting an application for establishment license and acknowledgment of the fund’s charter to the competent authority as prescribed in Article 18 hereof.

2. Founding members shall establish a fund founding board. Such fund founding board is comprised of at least 03 founding members, including its head, deputy head and member.

3. The fund founding board shall prepare an application for establishment license as prescribed in Article 15 hereof and send it to a competent authority as prescribed in Article 18 hereof. It shall request the Fund Management Council to compile the draft charter and other documents included in the application for establishment license.

Article 12. Establishment of funds with asset contribution by foreign and Vietnamese citizens and organizations

1. Foreign citizens and organizations are allowed to contribute their assets with Vietnamese citizens and organizations to establish a fund in Vietnam.

2. In order to make asset contribution to a fund, a foreign citizen or organization must:

a) commit to pay taxes and take responsibility for the lawfulness of his/her/its contributed assets;

b) commit to strictly comply with the law of Vietnam and the fund’s operation objectives; and

c) contribute assets to establish the fund as prescribed in Article 14 hereof.

3. The value of assets contributed by foreign citizens and organizations shall not exceed 50% of total value of assets contributed to establish the fund as prescribed herein.

Article 13. Establishment of funds under testaments or by donations

1. If a Vietnamese citizen or organization that receives an inheritance under a testament or receives donation establishes a fund, he/she/it shall comply with Clause 1 Article 11 hereof and prepare an application for establishment license as prescribed in Article 15 hereof and send it to the competent authority as prescribed in Article 18 hereof. If the value of the inheritance or donation contributed to the fund meets the minimum value of the fund’s assets as prescribed in Article 14 hereof, no additional founding members is required. If the value of the inheritance or donation contributed to the fund does not meet the prescribed minimum value of the fund’s assets, the fund must have additional founding members that shall make asset contributions to the fund as regulated.

2. If a fund is established under a testament or by donation, a certified copy of such testament or written agreement on donation is required.

3. If a fund is established under the authorization of an organization or individual, a notarized authorization contract is required.

Article 14. Assets contributed to funds

1. Assets contributed to a fund include:

a) Amounts of money in Vietnam dong;

b) Assets converted into Vietnam dong (including objects, foreign currencies, financial instruments and other property rights) of Vietnamese citizens and organizations that are the fund's founding members and those contributed by foreign citizens and organizations to establish the fund with Vietnamese citizens and organizations. Assets which are offices, equipment or technologies must be valued by a duly established valuation organization. Such valuation must be carried out within the last 06 months before the date of submission of application for establishment license;

c) If other assets, excluding the amounts of money in Vietnam dong, are contributed to the fund, the amounts of money in Vietnam dong must be accounted for at least 50% of total value of the fund's assets.

2. If a fund is established by Vietnamese citizens and/or organizations, the value of contributed assets converted into Vietnam dong must meet the following limits:

a) VND 6,500,000,000 (six billion five hundred million), if the fund operates nationwide or in more than one province;

b) VND 1,300,000,000 (one billion three hundred million), if the fund operates within a province;

c) VND 130,000,000 (one hundred thirty million), if the fund operates within a district;

d) VND 25,000,000 (twenty-five million), if the fund operates within a commune.

3. If a fund is established by asset contribution by foreign citizens and/or organizations and Vietnamese citizens and/or organizations, the value of contributed assets converted into Vietnam dong must meet the following limits:

a) VND 8,700,000,000 (eight billion seven hundred million), if the fund operates nationwide or in more than one province;

b) VND 3,700,000,000 (three billion seven hundred million), if the fund operates within a province;

c) VND 1,200,000,000 (one billion two hundred million), if the fund operates within a district;

d) VND 620,000,000 (six hundred twenty million), if the fund operates within a commune.

4. The ownership of assets contributed to a fund must be transferred to that fund within 45 business days from the date on which the fund is granted an establishment license and has its charter acknowledged. Assets contributed to a fund must not be under any disputes or used for fulfillment of any financial liabilities.

Article 15. Application for establishment of funds

1. 01 set of application for fund establishment shall be made and sent to the competent authority defined in Article 18 hereof.

2. An application for fund establishment comprises:

a) An application form for fund establishment;

b) The draft charter of the fund;

c) The written commitment on asset contribution made by the fund’s founding members or documentary evidences of assets contributed to the fund as prescribed in Article 14 hereof;

d) CVs and criminal records of members of the fund founding board and documents prescribed in Article 11, Article 12 or Article 13 hereof. If a founding member is subject to the management of a competent authority, a written approval from such competent authority must be submitted according to regulations on management of officials;

dd) Documents indicating the appointment of title holders of the fund founding board;

e) Documents certifying the planned head office of the fund.

Article 16. Principal contents of a fund's charter

A fund’s charter must include, inter alia, the following contents:
1. The fund’s name, address, telephone number, fax number, email and website (if any).

2. The fund’s operation objectives, fields and scope.

3. Information on the fund’s founding members.

4. The fund’s functions, tasks and powers.

5. The fund’s legal representative, its organization and operation, organizational structure, tasks and powers of its Management Council, Control Board, chairman, director and other leading position holders.

6. Principles of fundraising and receipt and use of donations.

7. Management and use of the fund’s assets and finances.

8. Responsibility to report on the fund’s organization, operation and financial issues to competent authorities.

9. Commendation and reward, discipline and settlement of internal complaints/denunciations and actions against violations committed during the fund’s operation.

10. Consolidation, merger, full/partial division, renaming and dissolution of the fund.

11. Procedures for amending the fund’s charter.

12. Other contents as prescribed by law.

Article 17. Issuance of establishment license and acknowledgment of fund's charter

1. When receiving an application for fund establishment, the competent authority specified in Article 18 hereof shall make an application-receiving note which shall be used as the basis for determining the time limit for solving the application. Such application-receiving note must specify date and method of receipt, information about the application, and particulars of the applicant and receiving official. If an application is insufficient or invalid as prescribed in Article 15 hereof, within 05 business days from the receipt of the application, the competent authority shall give a written response in which reasons for insufficient or invalid application must be specified.

2. Within 40 business days from the receipt of a sufficient and valid application, the competent authority prescribed in Article 18 hereof shall issue the establishment license and written acknowledgment of the fund's charter. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.

3. If a new fund is established, the establishment license shall be also valid as the written acknowledgment of the fund's charter.

Article 18. Authority to settle fund-related procedures

1. The Minister of Home Affairs is competent to issue establishment licenses and written acknowledgements of charters; give approval for consolidation, merger, full/partial division, dissolution or renaming of funds; suspend the operation of funds for fixed periods; give approval for the resumption of operation of funds after fixed-period suspension; certify funds’ eligibility for operation; certify members of funds’ Management Councils; give approval for modification of or re-issue establishment licenses; give approval for expansion of operation scope and development/conversion of funds; revocation of establishment licenses with regard to:

a) Funds operating nationwide or in more than one province;

b) Funds established with asset contribution by foreign and Vietnamese citizens and organizations and operating within a province.

2. Chairpersons of provincial-level People’s Committees are competent to:

a) issue establishment licenses and written acknowledgements of charters; give approval for consolidation, merger, full/partial division, dissolution or renaming of funds; suspend the operation of funds for fixed periods; give approval for the resumption of operation of funds after fixed-period suspension; certify funds’ eligibility for operation; certify members of funds’ Management Councils; give approval for modification of or re-issue establishment licenses; give approval for expansion of operation scope and development/conversion of funds; and revocation of establishment licenses of funds operating within a province;

b) Funds established with asset contribution by foreign and Vietnamese citizens and organizations and operating within a district or commune.

Article 19. Revocation of establishments and seals of funds

1. A fund shall have its establishment license revoked in the following cases:

a) The decision on full division, merger, consolidation or dissolution of the fund comes into force;

b) The fund fails to comply with Clause 4 Article 14 hereof after obtaining the establishment license and acknowledgment of the fund’s charter, as a result, its establishment license and acknowledgement of the fund's charter are invalidated. If the fund has not yet complied with Clause 4 Article 14 hereof because of objective reasons, within 10 business days before the prescribed deadline, the fund founding board shall send a written request for extension to the competent authority that has granted its establishment license and acknowledgement of the fund's charter. Only one extension shall be allowed for a period not exceeding 20 business days. Upon the expiration of the extension period, if the fund still fails to comply with Clause 4 Article 14 hereof, its establishment license and acknowledgement of the fund's charter shall cease to be effective.

2. Within 15 business days from the effective date of the decision specified in Point a Clause 1 of this Article or the expiration of the period specified in Point b Clause 1 of this Article, the competent authority prescribed in Article 18 hereof shall issue a decision on revocation of the fund’s establishment license.

3. Revocation of a fund’s seal complies with law regulations on management and use of seals and relevant laws.

Article 20. Procedures for modification or re-issuance of establishment licenses and acknowledgements of fund's charters

1. The establishment license and the acknowledgement of the fund’s charter may be modified or re-issued at the request of the Fund Management Council.

2. The modification of the establishment license and acknowledgement of the fund’s charter shall be made when the fund’s charter is revised. When wishing to modify the establishment license and acknowledgement of the fund’s charter, the Fund Management Council shall submit an application to the competent authority prescribed in Article 18 hereof. Such application includes:

a) An application form for modification of the establishment license and acknowledgement of the fund’s charter;

b) The Management Council’s resolution stating the reasons for modification of the establishment license and acknowledgement of the fund’s charter;

c) The draft of revised fund’s charter.

3. Within 30 business days from the receipt of a sufficient and valid application for modification of the establishment license and acknowledgement of the fund’s charter, the competent authority prescribed in Article 18 hereof shall consider making decision on approval for modification of the establishment license and acknowledgement of the fund’s charter. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.

4. When its establishment license and acknowledgement of the fund’s charter are lost, torn, rumpled or otherwise destroyed, the fund shall submit an application to the competent authority prescribed in Article 18 hereof for re-issuance of the establishment license and acknowledgement of the fund’s charter, clearly stating the reasons for re-issuance.

5. Within 15 business days from the receipt of a valid application, the competent authority that has issued the establishment license shall re-issue the establishment license and acknowledgement of the fund’s charter, in which the number of re-issuance and the serial number of the previously issued establishment license must be indicated. If an application for re-issuance is refused, reasons for such refusal must be given.

Article 21. Conditions, application and procedures for expansion of operation scope

1. Conditions, application and procedures for expansion of operation scope of a fund:

The fund that wishes to expand its scope of operation and has met the prescribed value of contributed assets as prescribed in Article 14 hereof shall submit an application, including:

a) An application form for expansion of operation scope;

b) The documents specified in Points b, c Clause 2 Article 15 hereof.

2. Within 30 business days from the receipt of a sufficient and valid application, the competent authority prescribed in Article 18 hereof shall issue the establishment license and written acknowledgement of the fund's charter. If an application is refused, written reasons for such refusal shall be given.

Article 22. Announcement of establishment of funds

1. Within 30 business days after obtaining the establishment license and acknowledgement of the fund's charter, the fund shall announce its establishment on 03 consecutive issues of a central print or online newspaper, for funds licensed by the Minister of Home Affairs, or of a local print or online newspaper, for funds licensed by Chairpersons of provincial-level People’s Committees. The following information shall be announced:

a) The fund’s name;

b) The fund’s head office, telephone number, email or website (if any);

c) The fund’s guidelines and objectives;

d) The fund’s operation scope;

dd) The fund’s main operation fields/sectors;

e) The fund’s account number and name and address of the bank where the fund’s account is opened;

g) Serial number, code and date of the fund's establishment license and acknowledgement of the fund's charter, and licensing authority;

h) Assets contributed by the fund’s founding members.

2. In case of modification of the fund’s establishment license and acknowledgement of the fund's charter, the fund is required to announce these modifications within the time limit and according to the method specified in Clause 1 of this Article.

Article 23. Transfer of ownership of assets contributed by founding members

A fund’s founding members shall transfer the ownership of assets they contribute to the fund as follows:

1. Vietnam dong shall be transferred directly to the fund’s account.

2. For registered assets or the value of land-use rights, founding members shall carry out procedures for transfer of the ownership of such assets or land-use rights to the fund at competent authorities. The transfer of land-use rights shall comply with law regulations on land.

3. The contribution of non-registered assets shall be made through the delivery of assets which must be certified in a record. A record of asset delivery must clearly state the fund’s name and head office; full name, permanent residence and ID card or citizen identity card or passport number of individuals contributing assets, or serial number of the establishment license of organizations contributing assets; type and number of units of contributed assets; total value of contributed asset; date of delivery; signatures of the asset contributor or its/his/her authorized representative and the fund’s legal representative.

Article 24. Conditions for operation of funds

A fund may operate upon its satisfaction of the following conditions:

1. The fund has an establishment license and acknowledgement of the fund's charter issued by a competent authority as prescribed in Article 18 hereof.

2. It has made announcement of establishment as prescribed in Article 22 hereof.

3. It has obtained from the bank where its account is opened a written certification of the availability of money amounts contributed by its founding members in its account. For other assets, it has completed procedures for transfer of ownership of assets as prescribed in Clauses 2, 3 Article 23 hereof.

4. The competent authority prescribed in Article 18 hereof has issued a decision on certification of the fund’s eligibility for operation and members of the Fund Management Council.

Article 25. Certification of a fund’s eligibility for operation and members of its Management Council

1. After completing all the procedures specified in Clause 2 and Clause 3 Article 24 hereof, the Fund Management Council shall prepare and send an application to the competent authority as prescribed in Article 18 hereof for certification of the fund’s eligibility for operation and members of the Fund Management Council.

An application for certification of the fund’s eligibility for operation must be sent to the competent authority within 45 business days after obtaining its establishment license.

2. Such application includes:

a) Documents proving the fund’s compliance with Clause 2 and Clause 3 Article 24 hereof;

b) A list indicating names, addresses and telephone numbers of members of the Fund Management Council, enclosed with their CVs and criminal records. The CV of a foreign member must be certified by a competent authority of the country of his/her citizenship;

c) Documents on the election of members of and other positions in the Fund Management Council.

3. Within 30 business days from the receipt of a sufficient and valid application, the competent authority as prescribed in Article 18 hereof shall issue a decision to certify the fund’s eligibility for operation and members of the Fund Management Council. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.

4. In case of changing members of or adding new members to the Fund Management Council during its operation, the fund shall send to the competent authority as prescribed in Article 18 hereof an application for certification of new members of the Fund Management Council, clearly stating the reasons for such change or addition of members (enclosed with a list indicating names, addresses and telephone numbers of new members, their CVs and criminal records). Within 15 business days from the receipt of a sufficient and valid application, the competent authority as prescribed in Article 18 hereof shall issue a decision to certify new members of the Fund Management Council. If an application is refused, it shall issue a written response clearly stating reasons for such refusal.