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Providing detailed guidelines for implementation of a number of articles of the law on enterprise, decree 102-2010-ND-CP
Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com i DECREE 102-2010-ND-CP PROVIDING DETAILED GUIDELINES FOR IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON ENTERP RISES TABLE OF CONTENTS Article 1 Governing scope 1 Article 2 Applicable entities 1 Article 3 Applicability of the Law on Enterprises, international treaties and relevant laws 2 Article 4 Party and mass organizations within an enterprise 2 Article 5 Capital contribution using intellectual property rights 3 Article 6 Charter capital of company and number of shares which a shareholding company has the right to issue 3 Article 7 Prohibited lines of business 3 Article 8 Conditional lines of business and business conditions 4 Article 9 Lines of business which require a practising certificate 5 Article 10 Lines of business which require legal capital 6 Article 11 Right to business registration and to carry out business activities 6 Article 12 Right to establish enterprises 7 Article 13 Right to contribute capital and to purchase shareholding 7 Article 14 Prohibition on State bodies and units of the people’s armed forces using State capital and assets to contribute capital, purchase shareholding and establish enterprises in order to earn private profit 8 Article 15 Supplementary guidelines on director (general director) and members of board of management 9 Article 16 Authorization of legal representative of enterprise 10 Article 17 Establishment of branches and representative offices of enterprises with foreign owned capital 11 Article 18 Implementation of a capital contribution in, and rights and obligations related to capital contribution in a multiple member limited liability company 11 Article 19 Right of members to institute legal proceedings against chairman of members' council and director (general director) 12 Article 20 Supplementary guidelines on a number of rights and obligations of members of a limited liability company 13 Article 21 Signature of members or their representatives on minutes of meetings of members' council 13 Article 22 Number of authorized representatives who may participate in members’ council or attend general meeting of shareholders 13 Article 23 Founding shareholders 14 Article 24 Offer of shares for sale 15 Article 25 Right to institute legal proceedings against members of board of management and director (general director) 16 Article 26 Some issues relating to general meeting of shareholders 17 Article 27 Effectiveness of resolutions and decisions of the general meeting of shareholders, of the members’ council and of the board of management 17 Article 28 Disclosure of related persons and their transactions with company 17 Article 29 Method of cumulative voting 18 Article 30 Supplementary guidelines on meetings of board of management 19 Article 31 Conversion of a single member limited liability company into a multiple member limited liability company 19 Article 32 Conversion of shareholding company or multiple member limited liability company into single member limited liability company 20 Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com ii Article 33 Conversion of a limited liability company into a shareholding company 20 Article 34 Basic contents of an application for conversion 21 Article 35 Contents of an enterprise registration certificate or business registration items in an investment certificate applicable to a case of conversion 21 Article 36 Conversion of a private enterprise into a limited liability company 22 Article 37 Joint venture enterprises and enterprises with 100% foreign owned capital which have not re-registered pursuant to Decree 101: 23 Article 38 Supplementary guidelines on economic groups 23 Article 39 Supervision by business registration office of order and procedures for conducting meetings of general meeting of shareholders and [for issuing] decisions of general meeting of shareholders 23 Article 40 Dissolution of enterprises 25 Article 41 Termination of operation of branches 25 Article 42 Effectiveness 26 Article 43 Organization of implementation 26 Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 1 GOVERNMENT SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness No. 102-2010-ND-CP Ha Noi, 1 October 2010 DECREE PROVIDING DETAILED GUIDELINES FOR IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON ENTERPRISES The Government Pursuant to the La w on Organization of the Government dated 25 December 2001; Pursuant to the La w on Enterprises dated 29 November 2005; Having considered the proposal of the Minister of Planning and Investment; Decrees: Article 1 Governi ng scope This Decree provides detailed guidelines for impl ementation of a number of articles of the Law on Enterprises on establishment, managerial organization, operation, reorganization and dissolution of enterprises. Article 2 Applica ble entities This Decree shall apply to: 1. Limited liability companies, shareholding companies, partnerships and private enterprises, including limited liability companies [and] 1 shareholding companies after conversion from enterprises with 100% State owned capital, enterprises of Party organizations and of socio-political organizations, and to joint venture enterprises and enterprises with 100% foreign owned capital (hereinafter all referred to as enterprises). 2. Joint venture enterprises and enterprises with 100% foreign owned capital which have not re-registered pursuant to Decree 101-2006-ND-CP of the Government dated 21 September 2006 on re-registration, conversion and re-registration for replacement with investment certificates by enterprises with foreign owned capital pursuant to the Law on Enterprises and the Law on Investment (hereinafter abbreviated to Decree 101). 3. Individual family household businesses. 4. Other organizations and individuals involved in the establi shment, managerial organization and operation, reorganization and dissolution of enterprises. 1 Allens Arthur Robinson footnote: Square brackets contain translator's comments only. Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 2 Article 3 Applicability of the Law on Enterprises, international treaties and relevant laws 1. The La w on Enterprises shall apply to the establishment, managerial organization and operation of enterprises, except for the cases stipulated in clauses 2 and 3 of this article. 2. In a case where an international treaty of which t he Socialist Republic of Vietnam is a member contains other provisions on application files, order, procedures, and conditions for establishment, business registration, ownership structure and the right to autonomy in business, then the provisions of such international treaty shall apply. 3. If there are differences between the provisions in the La w on Enterprises and the following laws on application files, order, procedures, and conditions for establishment and business registration; on the structure of managerial organization, on authority of internal management bodies within an enterprise, on the right to autonomy in business, and on restructuring and dissolution of enterprises, then the provisions of these following laws shall apply: (a) Law on Credit Institutions; (b) Law on Petroleum; (c) Law on Civil Aviation of Vietnam; (d) Law on Publishing; (dd) Law on Press; (e) Law on Education; (g) Law on Securities; (h) Law on Insurance Business; (i) Law on Lawyers; (k) Law on Notarization; (l) Any law amending one of the laws stipulated in this clause and any other special law 2 which the National Assembly passes after this Decree takes effect. Article 4 Party an d mass organizations within an enterprise 1. Party and mass organizations within an enterprise shall ope rate in accordance with the framework of the Constitution, the law, and the organizational charters [of such organizations]. 2. Enterprises shall respect and facilitate information and campaigns for establishment of Party and mass organizations within the enterprise, and the admission of employees at the enterprise into such organizations. 2 Allens Arthur Robinson footnote: It is apparent from article 40.6 that an alternative translation here is "specialized branch law". Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 3 3. Enterprises shall create favourable conditions regarding material facilities, time and other necessary conditions in order for members of Party and mass organizations working at the enterprise to fully implement the regime on everyday pursuits prescribed in the charters and internal rules of such organizations. Article 5 Capital contribution using intellectual property rights Intellectual property rights used for capital contribution shall comprise rights of authors and related rights of authors, industrial property rights, rights to plant varieties, and other intellectual property rights stipulated in the law on intellectual property. Only individuals or organizations being owners of the aforesaid rights shall have the right to use such assets for capital contribution. The Ministry of Finance shall provide guidelines on valuation of capital contribution using intellectual property rights. Article 6 Cha rter capital of company and number of shares which a shareholding company has the right to issue 1. The charter capital of a multiple mem ber limited liability company 3 is the total aggregate value of capital contribution portions which members have made or undertake to make within a specified period and as stated in the company charter. 2. The charter capital of a single member limited liability company is the total value of capital which the owner has made or undertakes to make within a specified period and as stated in the company charter. 3. The period within which members or the owner of the company must pay the full charter capital unde rtaken and as prescribed in clauses 1 and 2 of this article shall not exceed 36 months from the date of issuance of the enterprise registration certificate or certificate registering an addition or change of member. 4. The charter capital of a shareholding company is the total par value of the number of issued shares. The number of issued shares is the number of shares fully paid up to the company by shareholders. The charter capital of a shareholding company on the date of registration of business [and] establishment of the enterprise is the total par value of shares for which founding and other shareholders have subscribed and as stated in the company charter; such number of shares must be paid in full within 90 days from the date of issuance of the enterprise registration certificate. 5. The number of shares which a shareholding company has the right to issue is the number of shares whi ch the general meeting of shareholders decides to issue in order to raise additional capital. The number of shares which a shareholding company has the right to issue on the date of business registration is the total number of shares for which founding and other shareholders have subscribed as at the date of business registration plus the number of additional shares which will be issued within a period of three years from the date of issuance of the enterprise registration certificate and as stated in the company charter. Article 7 Prohibite d lines of business 1. The list of prohibited lines of business shall comprise: 3 Allens Arthur Robinson footnote: Alternative translation is "limited liability company with two or more members" as used in our translation of the Law on Enterprises. Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 4 (a) Business in weapons, military equipment and technical facilities, ammunition and specialized facilities for the army and police; military paraphernalia (including badges, medals and insignia of the army and police); military supplies for the armed forces; and components, accessories and materials and technology used to manufacture the former items; (b) Business in all types of drugs of addiction; (c) Business in List I chemicals (stipulated i n international treaties); (d) Business in products of reactionary culture a nd pornographic products; products serving superstitious purposes or products harmful to aesthetic education and personal development; (dd) Business in all types of firecrackers; (e) Business in all types of games and toys dang erous or harmful to the personal development and health of children or to the security, order and safety of society; (g) Business in all types of rare wild animals and plants, including both living animals and processed matter taken from animals, on the lists in international treaties of which Vietnam is a member, and all types of rare wild animals and plants on the lists prohibiting the use and exploitation of such animals and plants; (h) Brothel businesses, organizing prostitution, trafficking in women and children; (i) Business services being organized gambling or keeping a gambling house in any form; (k) Business services being investigation [private d etective] services into infringement of State rights or the legitimate rights and interests of organizations and citizens; (l) Business services being marriage broking involving a foreign element; (m) Business services for foster parents or adoption involving a foreign element; (n) Business in all types of imported scrap causing environmental pollution; (o) Business in all types of products, goods and equip ment prohibited from circulation or use, or not yet permitted to be circulated or used in Vietnam; (p) Other lines of business prohibited by speciali zed branch laws, ordinances and decrees. 2. Business in the lines stipulated in clause 1 above in a number of specific cases shall be applicable pursuant to the relevant specialized branch law, ordinance or decree. Article 8 Con ditional lines of business4 and business conditions 1. The provisions of specialized branch laws, ordin ances and decrees or relevant decisions of the Prime Minister of the Government (hereinafter all referred to as specialized branch laws) shall apply to conditional lines of business and to the business conditions which are applicable. 2. Business conditions shall be expressed in the following forms: 4 Allens Arthur Robinson footnote: The literal translation is "Lines of business subject to conditions". Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 5 (a) Business licences; (b) Certificates of satisfaction of business conditions; (c) Practising certificates; (d) Certificates of professio nal indemnity insurance; (dd) Certification of legal capital; (e) Other approvals from com petent State authorities; (g) Other requirements which an enterprise must imple ment or satisfy before it has the right to conduct business in such line of business without the need for certification or approval in any form from a competent State authority. 3. Provisions regarding conditional lines of business a nd their business conditions in legal instruments other than those mentioned in clause 1 of this article shall no longer be effective. Article 9 Line s of business which require a practising certificate 1. A practising certificate as refe rred to in article 7.2 of the Law on Enterprises means a document issued by a competent State authority of Vietnam or by an occupational-professional association to which the State delegates authority to issue practising certificates, to individuals with the professional qualifications and experience required for a certain industry or profession. A practising certificate issued overseas shall not be e ffective in Vietnam, unless a specialized branch law or an international treaty of which Vietnam is a member contains a different provision. 2. Whether any one line of business req uires a practising certificate and the conditions for issuing such practising certificate shall be decided by application of the relevant specialized branch law. 3. Business registration or registration of an additio nal line of business by an enterprise conducting business in a line for which the law requires a practising certificate shall be conducted in accordance with the following provisions: (a) The director of the enterprise or head of the bu siness establishment must have a practising certificate if the enterprise conducts business in a line for which the law requires that the director of the enterprise or head of the business establishment have such practising certificate; (b) The director of the enterprise and at least o ne other specialized senior staff member as stipulated by the relevant specialized branch law must have practising certificates if the enterprise conducts business in a line for which the law requires the director and another person to have practising certificates; (c) At least one specialized senior staff member a s stipulated by the relevant specialized branch law must have a practising certificate if the enterprise conducts business in a line for which the law does not require the director or head of the business establishment to have a practising certificate. Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 6 Article 10 Lines of business which require legal capital 1. The provisions of specialized branch laws shall a pply to lines of business requiring legal capital, to the specific levels of such legal capital, to the State body with authority regarding legal capital, to the body or organization authorized to certify legal capital, and to the application file, conditions and method of certifying legal capital. 2. The chairman of the members’ council or company ch airman and the director (general director) in the case of a limited liability company; the chairman of the board of management and the director (general director) in the case of a shareholding company; all partners in the case of a partnership; and the owner in the case of a private enterprise shall be liable for the truthfulness and accuracy of the amount certified as legal capital when establishing the enterprise. The enterprise shall be responsible to ensure that the actual level of charter capital is no lower than the certified legal capital during the entire process of the business operation of the enterprise. 3. In the case of business registration to establish an enterprise conducting a line of business requiring legal capital, the file for enterprise registration must contain certification from a competent body or organization about such legal capital. The person directly certifying legal capital shall be jointly liable for the accuracy and truthfulness of the amount of such capital as at the time of providing certification. 4. In the case of an enterprise registering an additional line of business requiring legal capital, it shall not be necessary to have certification from a competent body or organization about such legal capital if the equity recorded in the total list of assets of the enterprise on a date within three months prior to the date of lodging the file is equal to or more than the stipulated level of legal capital. Article 11 Right to bu siness registration and to carry out business activities 1. Enterprises shall the right to take the initiative in conductin g business registration and in conducting business activities without applying for permission or approval from, and without seeking the opinion of any State administrative body, if such line of business: (a) Is not a prohibited line of business; (b) Is not a conditional line of business pursuant to specialized branch law. 2. An enterprise shall have the right to conduct business in a conditional line of business as from the time it satisfie s all the stipulated conditions. If an enterprise conducts business when it fails to satisfy all stipulated conditions, then the following person s shall be jointly liable before the law for such business: the chairman of the members’ council or the company chairman and director (general director) in the case of a limited liability company; the chairman of the board of management and director (general director) in the case of a shareholding company; all partners in the case of a partnership; and the owner in the case of a private enterprise. 3. Investment and business conditions the same as those applicable to domestic investors shall apply to an e nterprise already established in Vietnam with foreign investor ownership not exceeding 49% of the charter capital, unless an international treaty of which Vietnam is a member or a specialized branch law contains some other provision. 4. Investment and business conditions the same as those applicable to foreign investors shall apply to an ente rprise already established in Vietnam with foreign investor ownership exceeding 49% of the charter capital, unless an international treaty of which Vietnam is a member or a specialized branch Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 7 law contains some other provision. 5. The ownership ratios prescribed in clauses 3 and 4 of this article shall apply throughout the entire process of an enterprise implementing investment and business in the relevant sector. Article 12 Right to esta blish enterprises 1. All organizations being legal entities including enterp rises with foreign owned capital in Vietnam irrespective of the place of registration of their head office and all individuals irrespective of their place of residence and nationality, so long as they are not in the categories stipulated in article 13.2 of the Law on Enterprises, shall have the right to establish and to participate in establishment of an enterprise in Vietnam in accordance with the provisions of the Law on Enterprises. 2. Each individual shall only have the right to register th e establishment of one private enterprise or one individual family household business or to be a partner of one partnership, unless the remaining partners have some other agreement. An individual owner of a private enterprise, an individual household business or an individual partner of a partnership shall have the right to establish [or] participate in establishment of a single member limited liability company, a multiple member limited liability company [or] a shareholding company. 3. An investor being a foreign organization or individual e stablishing for the first time an enterprise in Vietnam shall conduct investment registration associated with establishment of an economic organization in accordance with the law on investment. In this case the enterprise shall be issued with an investment certificate which shall concurrently be the enterprise registration certificate. 4. An enterprise with foreign invested capital alrea dy established in Vietnam which proposes to establish a new enterprise in Vietnam shall implement the following provisions: (a) If more than 49% of the charter capital of the e nterprise proposed to be established will be owned by the foreign investor/s establishing [or] participating in establishing it, then there must be an investment project and registration of such investment associated with establishment of an economic institution in accordance with the law on investment. In this case the enterprise shall be issued with an investment certificate which shall concurrently be the enterprise registration certificate. (b) If foreign investor/s establishing [or] participating in establishing the new enterprise will not own more than 49% of its charter capital, then establishment of the enterprise shall be implemented in accordance with the provisions of the Law on Enterprises. In this case the same regulations which apply to domestic investment projects shall apply to registration of the investment. Article 13 Right to co ntribute capital and to purchase shareholding 1. All organizations being legal entities including enterprise s with foreign owned capital, irrespective of the place of registration of their head office, and all individuals irrespective of their nationality and place of residence, so long as they do not belong to the categories stipulated in article 13.4 of the Law on Enterprises, shall have the right to contribute capital and to purchase shareholding at an unrestricted level in an enterprise pursuant to the corresponding provision of the Law on Enterprises, except for the following cases: (a) The ownership ratio of foreign investors in listed companies shall be implemented in acc ordance with the law on securities; Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 8 (b) The laws specified in article 3.3 of this Decree and other relevant specialized branch laws shall apply to the ownership ratio of foreign investors in special cases; (c) The ownership ratio of foreigners in enterpri ses with 100% State owned capital undergoing equitization or converting their form by other methods shall be implemented in accordance with the law on equitization and conversion of enterprises with 100% State owned capital; (d) The ownership ratio of foreigners in enterprises engaged in services business shall be impleme nted in accordance with the Schedule of specific commitments on commercial services (in the Appendix to the Decree on Vietnam's WTO accession). 2. Any foreign investor contributing capital to a limited l iability company or receiving an assignment of the capital contribution portion of a member or owner of the company shall implement the provisions on capital contribution or assignment of capital contribution portion and shall register change of membership in accordance with the corresponding provision of the Law on Enterprises and relevant laws. Registration of change of membership of a company which has been issued with an investment certificate sh all be conducted at the competent State administrative body for investment. Registration of change of membership in other cases shall be conducted at the business registration office. 3. A foreign investor purchasing newly issued shares [or] re ceiving an assignment of shares shall do so in accordance with the provisions on purchase of shareholding [or] assignment of shareholding and shall register as a shareholder or shall register a change of shareholder in accordance with the corresponding provision of the Law on Enterprises and relevant laws. There must also be registration of change of founding shareholder in accordance with the La w on Enterprises at the business registration office or competent State administrative body for investment in a case of receipt of the shareholding capital portion [undertaken to be] contributed by a founding shareholder as stipulated in article 84.3 of the Law on Enterprises, or receipt of an assignment of shares of a founding shareholder as stipulated in article 84.5 of the Law on Enterprises. Article 14 Prohibitio n on State bodies and units of the people’s armed forces using State capital and assets to contribute capital, purchase shareholding and establish enterprises in order to earn private profit 1. It shall be strictly prohibited for any State body or u nit of the people’s armed forces to use State assets or public funds to establish an enterprise, or to contribute capital to or purchase shareholding in an enterprise in order to earn private profit for one's own State body or unit. 2. State assets and public funds stipulate d in this article comprise: (a) Assets procured with State budg et funds or with capital sourced from the State budget; (b) Funding issued by the State budget; (c) Land allocated for use in order to exercise function s and discharge duties stipulated by law; (d) Other assets and revenue created from the use of the above-mentioned assets and funding; (dd) Funding donated by foreign governments, organizations and individuals. [...]... in the Law on Enterprises or other relevant laws The parent company, subsidiary companies and other companies forming the economic group shall have rights and obligations, and an organizational structure of management and operation consistent with the form of organization of an enterprise as stipulated in the Law on Enterprises, relevant laws and the company charter/s 4 The expression "group" may be... certificate 3 Head office address, address of any branch or representative office; telephone and fax numbers and email address (if any) of the converted company 4 Charter capital of the converted company in the case of a limited liability company; number of shares and value of shares already sold, and number of shares carrying the right to offer for sale in the case of a shareholding company 5 Line/s of business... or for that of another organization or individual; Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 12 (c) (d) 2 The chairman of the members' council and/or director (general director) abused his or her station or position and assets of the company for his or her personal benefit or for that of another organization or individual; Other cases as stipulated by law and the. .. in accordance with such specialized branch law Article 41 Termination of operation of branches 1 The branch of an enterprise shall have its operation terminated pursuant to the decision of such enterprise or pursuant to a decision of a competent State administrative body revoking the operational certificate of the branch 2 A file for termination of operation of a branch shall comprise: (a) Decision of. .. certificate of registration of an additional member or change of member; and on each occasion on which a member makes a capital contribution, such member shall be issued with a certificate certifying the amount of capital paid on such occasion 2 The legal representative of the company shall, within 15 days after each capital contribution payment tranche as undertaken, report to the business registration office... registering the operation of a branch or representative office shall be implemented in accordance with the corresponding provisions in the Law on Enterprises, and the registration of the operation of a branch or representative office shall be conducted at the competent State administrative body for investment Article 18 Implementation of a capital contribution in, and rights and obligations related to capital... of the head or deputy head of the State body or of the representative of the State owned capital portion in such company Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 9 3 Members of the board of management of a shareholding company must satisfy the following criteria and conditions: (a) Have full capacity for civil acts and not be prohibited from establishing and managing... shall contain the following basic particulars: Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 21 1 Name of the company prior to conversion, number and date of issuance of its enterprise registration certificate or investment certificate, and charter capital 2 Name of the converted company, number and date of its enterprise registration certificate or investment certificate... observations on the legality of the order and procedures for conducting the meeting, and send the report to the company and archive [a copy] in the enterprise registration file of the company Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 24 Article 40 Dissolution of enterprises 1 An enterprise shall be dissolved in the cases stipulated in article 157.1 of the Law on Enterprises,... Full name and permanent residential address or registered temporary address (in the case of a foreigner), nationality and number of people's identity card or passport (in the case of a foreigner) or other legal personal identification of the legal representative of the company 7 Other items as stipulated in article 25.3 of the Law on Enterprises Article 36 1 Conversion of a private enterprise into a limited . (g) Law on Securities; (h) Law on Insurance Business; (i) Law on Lawyers; (k) Law on Notarization; (l) Any law amending one of the laws stipulated in this clause and any other special. comments only. Allens Arthur Robinson - Vietnam Laws Online Database on www.vietnamlaws.com 2 Article 3 Applicability of the Law on Enterprises, international treaties and relevant laws. shall ope rate in accordance with the framework of the Constitution, the law, and the organizational charters [of such organizations]. 2. Enterprises shall respect and facilitate information