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Vietnam
DECREE Guiding the implementation of a number of articles of the Enterprise Law

THE GOVERNMENT
No: 139/2007/ND-CP
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Ha Noi, day 05 month 09 year 2007                          

DECREE

Guiding the implementation of a number of articles of the Enterprise Law

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Enterprise Law;

At the proposal of the Minister of Planning and Investment,

DECREES:

Article 1.- Scope of regulation

This Decree guides in detail the implementation of a number of articles of the Enterprise Law regarding the establishment, management organization, operation, re-organization and dissolution of enterprises.

Article 2.- Subjects of application

This Decree applies to:

1. Limited liability companies, joint-stock companies, partnerships and private enterprises, including limited liability companies, joint-stock companies transformed from 100% state-owned enterprises, enterprises of the Party or socio-political organizations, joint-venture enterprises and 100% foreign-owned enterprises (below collectively referred to as enterprises);

2. Joint-venture enterprises and 100% foreign-owned enterprises which do not re-register under the Government's Decree No. 101/2006/ND-CP of September 21, 2006, on re-registration, transformation and registration for renewal of investment certificates of foreign-invested enterprises in accordance with the Enterprise Law and the Investment Law (below referred to as Decree No. 101/2006/ND-CP for short);

3. Individual business households;

4. Other organizations and individuals involved in the establishment, management organization, operation, re-organization and dissolution of enterprises.

Article 3.- Application of the Enterprise Law, treaties and relevant laws

1. The establishment, management organization and operation of enterprises comply with the Enterprise Law, except for cases defined in Clauses 2 and 3 of this Article.

2. If a treaty to which the Socialist Republic of Vietnam is a contracting party otherwise provides for the dossiers, order, procedures and conditions for enterprise establishment, business registration, ownership structure and business autonomy, the provisions of that treaty prevail.

In this case, if a bilateral commitment has contents different from those in a multilateral commitment, the commitment contents which are more favorable for enterprises and investors apply.

3. The following laws prevail when there is a disparity between them and the Enterprise Law regarding dossiers, order, procedures and conditions for enterprise establishment and business registration; management organization, competence of internal management bodies of enterprises, business autonomy, re-organization and dissolution of enterprises:

a/ The Law on Credit Institutions;

b/ The Petroleum Law;

c/ The Law on Vietnam Civil Aviation;

d/ The Publication Law;

e/ The Press Law;

f/ The Education Law;

g/ The Securities Law;

h/ The Law on Insurance Business;

i/ The Law on Lawyers;

j/ The Law on Public Notary;

k/ Laws amending and supplementing those specified in this Clause and other specific laws passed by the National Assembly after the effective date of this Decree.

Article 4.- Prohibited business lines

1. Prohibited business lines include:

a/ Trading in weapons, military equipment or techniques, ammunition, special-use facilities for military or security purposes; military uniforms (including stripes, badges and insignias of military or security forces), military equipment for people's armed forces; specialized components, parts, accessories, supplies and equipment, and technologies used exclusively for their manufacture;

b/ Trading in narcotics of all kinds;

c/ Trading in Schedule-1 chemicals (according to the International Convention);

d/ Trading in cultural products which are reactionary, depraved, superstitious or harmful to aesthetic or personality education;

e/ Trading in firecrackers of all kinds;

f/ Trading in toys or games which are dangerous or harmful to personality education, health of children, or national security, order and safety;

g/ Trading in wild plants or animals, including live animals and their processed parts, on the lists of precious and rare plants and animals banned from exploitation and use provided for by treaties to which Vietnam is a contracting party;

h/ Dealing in prostitution, organizing prostitution, trafficking in women or children;

i/ Providing services of organizing gambling or running gambling dens in any forms;

j/ Providing services of investigation into secrets, infringing upon the State interests or the lawful rights and interests of organizations or citizens;

k/ Providing services of brokering marriages involving foreign elements;

l/ Providing services of brokering adoption involving foreign elements;

m/ Trading in imported scraps which cause environmental pollution;

n/ Trading in products, goods or equipment banned from circulation or use or not yet permitted for circulation or use in Vietnam;

o/ Other business lines banned under specialized laws, ordinances and decrees.

2. In some particular cases, the business lines specified in Clause 1 of this Article may be permitted in accordance with relevant specialized laws, ordinances or decrees.

Article 5.- Conditional business lines and business conditions

1. Conditional business lines and business conditions comply with relevant specialized laws, ordinances, decrees or Prime Ministerial decisions (below collectively referred to as specialized laws).

2. Business conditions take the following forms:

a/ Business permit;

b/ Business eligibility certificate;

c/ Practice certificate;

d/ Professional liability insurance certificate;

e/ Certification of legal capital;

f/ Other approvals of competent state agencies;

g/ Other requirements which enterprises must satisfy in order to acquire the right to do business in certain business lines without having to obtain certification or approval in any form by a competent state agency.

3. Provisions on conditional business lines and relevant business conditions in all legal documents other than those mentioned in Clause 1 of this Article cease to be effective from September 1, 2008.

Article 6.- Business lines for which practice certificates are required

1. Practice certificates defined in Clause 2, Article 7 of the Enterprise Law means documents granted by competent Vietnamese state agencies or state-authorized professional associations to individuals with adequate professional qualifications and experience in a certain business line.

Practice certificates granted in foreign countries are invalid in Vietnam, unless otherwise provided for by a specialized law or a treaty to which Vietnam is a contracting party.

2. Business lines for which practice certificates are required and conditions for the grant of practice certificates comply with relevant specialized laws.

3. Enterprises engaged in business lines for which practice certificates are required by law shall register their business or addition of those business lines according to the following provisions:

a/ If the law requires that to deal in a business line, the director of an enterprise or head of a business establishment must have a practice certificate, he/she must acquire such a certificate.

b/ If the law requires that to deal in a business line, the director of an enterprise and other persons must have practice certificates, that director and at least one professional officer of the enterprise as prescribed by the relevant specialized law must acquire such certificates.

c/ If the law does not require that to deal in a business line, the director of an enterprise or the head of a business establishment must have a practice certificate, at least one professional officer of that enterprise as prescribed by the relevant specialized law must acquire such a certificate.

Article 7.- Business lines for which legal capital is required

1. For business lines for which legal capital is required, the specific levels of legal capital, competent state agencies managing legal capital, agencies and organizations competent to certify legal capital, dossiers, conditions and modes of certifying legal capital comply with relevant specialized laws.

2. The chairman of the Members' Council or the company president and the director/general director (of a limited liability company); the chairman of the Management Board and the director/general director (of a joint-stock company); all partners (to a partnership), and the owner (of a private enterprise) are responsible for the truthfulness and accuracy of the capital amount certified as legal capital upon enterprise establishment. An enterprise is obliged to ensure that the actual amount of its charter capital is not less than the amount of its legal capital throughout its business operation process.

3. If an enterprise makes business registration or registration of an additional business line for which legal capital is required, such business registration or additional business registration is also subject to certification of legal capital by a competent agency or organization, except for cases in which the level of own capital identified in the latest total asset balance sheet of the enterprise is higher or equal to the prescribed level of legal capital.

4. Persons directly certifying legal capital shall bear joint responsibility for the accuracy and truthfulness of the legal capital amount at the time of certification.

Article 8.- Right to business registration and business activities

1. An enterprise may take the initiative in making business registration and conducting business activities without having to ask for permission or approval from or consulting any state agency if its business lines:

a/ Are not banned by law;

b/ Are not conditional as prescribed by law.

2. An enterprise may engage in conditional business lines from the time it fully meets the conditions prescribed for those business lines.

If an enterprise conducts business activities when it has not fully satisfied the prescribed conditions, the chairman of the Members' Council or the president of the company and the director/general director (of a limited liability company); the chairman of the Management Board and the director/general director (of a joint-stock company); all partners (to a partnership), and the owner (of a private enterprise) shall take joint responsibility before law for such business.

Article 9.- Right to establish enterprises

1. All organizations being legal entities, including foreign-invested enterprises in Vietnam, regardless of head office registration places, and all individuals, regardless of their residence places and nationalities, other than those defined in Clause 2, Article 13 of the Enterprise Law, may establish or participate in the establishment of enterprises in Vietnam in accordance with the Enterprise Law.

2. An individual may register to establish only one private enterprise or an individual business household, or to become a partner to one partnership, unless otherwise agreed upon by the other partners. An individual owning a private enterprise or an individual business household or joining a partnership may establish or join in the establishment of a one-member limited liability company, a limited liability company with two or more members or a joint-stock company.

3. Foreign organizations or individuals making first-time investment in the establishment of an enterprise in Vietnam shall comply with the following provisions:

a/ If foreign investors own more than 49% of charter capital of the to-be-established enterprise, they must have investment projects and register investment together with the establishment of an economic organization in accordance with the investment law. In this case, the enterprise shall be granted an investment certificate which concurrently is a business registration certificate (below referred to as investment certificate for short).

b/ If foreign investors own 49% of charter capital of the to-be-established enterprise, the establishment of that enterprise complies with the Enterprise Law and the Government's Decree No. 88/2006/ND-CP of August 29, 2006, on business registration (below referred to as Decree No. 88/2006/ND-CP for short). In this case, investment registration complies with corresponding regulations applicable to domestic investment projects.

Article 10.- Right to contribute capital and purchase shares

1. All organizations being legal entities, including foreign-invested enterprises in Vietnam, regardless of their head office registration places, and all individuals, regardless of their residence places and nationalities, other than those defined in Clause 4, Article 13 of the Enterprise Law, may contribute unlimited capital amounts to, or buy unlimited shares from, enterprises in accordance with relevant provisions of the Enterprise Law, except the following cases:

a/ Foreign shareholdings in listed companies comply with the securities law;

b/ Foreign shareholdings in particular cases comply with the laws specified in Clause 3, Article 3 of this Decree and relevant specialized laws;

c/ Foreign shareholdings in 100% state-owned enterprises which are equitized or otherwise transformed comply with the law on equitization and transformation of 100% state-owned enterprises;

d/ Foreign shareholdings in service enterprises comply with Schedules of specific commitments on trade and services (Appendices to the Protocol on Vietnam's WTO accession).

2. Foreign investors may contribute capital to limited liability companies or receive capital portions from members or owners of companies according to regulations on capital contribution or transfer; and shall register the change of membership according to relevant provisions of the Enterprise Law and Decree No. 88/2006/ND-CP.

The registration of a change in membership of companies already possessing investment certificates is effected at competent state agencies in charge of investment.

The registration of a change in membership in other cases is effected at competent business registration agencies.

3. Foreign investors may purchase newly issued shares and receive transferred shares according to regulations on share purchase and transfer and register shareholdings or changes in shareholdings in shareholder registers in accordance with relevant provisions of the Enterprise Law.

Foreign investors that received contributed share capital from founding shareholders defined in Clause 3, Article 84 or shares transferred by founding shareholders defined in Clause 5, Article 84 of the Enterprise Law, must also register the change of founding shareholders according to Decree No. 88/2006/ND-CP at competent business registration agencies or state agencies in charge of investment.

Article 11.- Ban on state agencies and people's armed forces units from using state capital and assets to contribute capital to, purchase shares from, or establish, enterprises for profit-seeking purposes

1. State agencies and people's armed forces units are banned from using state assets and funds to contribute capital to, purchase shares from, or establish, enterprises for their own profit-seeking purposes.

2. State assets and funds defined in this Article include:

a/ Assets procured with state budget capital and capital of state budget origin;

b/ Funds allocated from the state budget;

c/ Land allocated for use to perform the functions and tasks prescribed by law;

d/ Other assets and incomes generated from the use of the above assets and funds.

3. Seeking own profits means that agencies or units use incomes generated in any form from business, capital contribution or share purchase activities for at least one of the following purposes:

a/ Sharing in any form to a number or all of their cadres and employees;

b/ Supplementing their budgets in contravention of the law on the state budget;

c/ Setting up funds or supplementing their funds for their own interests.

Article 12.- Additional guidance on a number of rights and obligations of members of limited liability companies

1. If an individual member of a limited liability company is kept in custody or detention, subject to a prison sentence or deprived by a court of the right to professional practice due to his/her commission of such violations or crimes as smuggling, counterfeiting or illegally trading in goods, evading tax, deceiving customers or other crimes prescribed by law, he/she may authorize another person to participate in the Members' Council managing the company.

2. If an individual member being the at-law representative of a limited liability company with two or more members is kept in custody or detention, escapes from his/her place of residence or has his/her civil act capacity restricted or is deprived by a court of the right to professional practice due to his/her commission of such violations or crimes as smuggling, counterfeiting or illegally trading in goods, evading tax, deceiving customers or other crimes as prescribed by law, the remaining member will naturally become the at-law representative of the company until a new decision is issued by the Members' Council.

3. If a company does not buy back the contributed capital portion, pay for the contributed capital portion or reach agreement on the buying-back price of the contributed capital portion of a member at his/her request according to Article 43 of the Enterprise Law, that member may transfer his/her capital portion to other persons. In this case, the transfer needs not comply with Article 44 of the Enterprise Law.

4. A member who has not contributed capital, has not fully and on time contributed capital already committed shall pay interest on the to be-contributed capital amount to his/her company at the highest lending rate applied by commercial banks until he/she fully pays the committed capital amount, unless otherwise provided by the company charter or agreed upon by the members.

Article 13.- Additional guidance on directors (general directors) and Management Board members

1. The director (general director) of a joint-stock company or a limited liability company with two or more members must meet the following criteria and conditions:

a/ Having full civil act capacity and being not banned from establishing and managing enterprises according to Clause 2, Article 13 of the Enterprise Law;

b/ Being a shareholder who holds at least 5% of ordinary shares (of a joint-stock company) or a member holding at least 10% of the charter capital (of a limited liability company) or a person with adequate professional qualifications or actual experience in business administration or in the major business lines of the company.

If the company charter provides criteria and conditions different from those prescribed at this Point, such criteria and conditions apply;

c/ With regard to a subsidiary of a company in which state-owned capital or shares represent more than 50% of its charter capital, in addition to the criteria and conditions set at Points a and b of this Clause, the director (general director) of the subsidiary must not be the wife or husband, father or adoptive father, mother or adoptive mother, a child or adoptive child or a blood sibling of the person managing the parent company or the person representing the state capital portion at that company.

2. The director (general director) of a one-member limited liability company with the sole member being an organization must satisfy the following criteria and conditions:

a/ Having full civil act capacity and being not banned from establishing and managing enterprises according to Clause 2, Article 13 of the Enterprise Law;

b/ Having adequate professional qualifications and actual experience in business administration or in major business lines of the company, unless otherwise provided for by the company charter;

c/ If the company owner is a state agency or an enterprise in which state-owned capital represents more than 50%, in addition to the criteria and conditions set at Points a and b of this Clause, the director (general director) must not be the wife or husband, father or adoptive father, mother or adoptive mother, a child or adoptive child or a blood sibling of the head or deputy head of the state agency or of the representative of the state capital portion at that company.

3. A member of the Management Board of a joint-stock company must satisfy the following criteria and conditions:

a/ Having full civil act capacity, being not banned from establishing and managing enterprises according to Clause 2, Article 13 of the Enterprise Law;

b/ Being a shareholder who holds at least 5% of the total of ordinary shares; or a member holding less than 5% of total shares, or a person who is not a shareholder but has adequate professional qualifications or experience in business administration or in the major business lines of the company.

If the company charter provides criteria and conditions different from those prescribed at this Point, the criteria and conditions set in the company charter apply.

4. Unless otherwise provided for by the company charter, the chairman of the Members' Council, the president, the chairman of the Management Board or the director/general director of a company may concurrently act as the chairman of the Members' Council, the president, the chairman of the Management Board or the director/general director (except director/general director of a joint-stock company) of another company.

5. If a foreigner is assigned to act as the at-law representative of an enterprise, that foreigner must stay in Vietnam throughout his/her term of office and register temporary residence in accordance with law. In case of exit from Vietnam for more than 30 consecutive days, he/she shall:

a/ Give a written mandate to another person according to the company charter for the latter to exercise the powers and perform the tasks of the enterprise's at-law representative;

b/ At least 2 days before his/her exit, send that written mandate to the provincial/municipal Planning and Investment Service or the Management Board of the industrial park or economic zone where the enterprise has registered its head office.

Article 14.- Number of authorized representatives joining in a Members' Council or attending a Shareholders' Meeting

1. Unless otherwise prescribed by the company charter:

a/ An institutional member of a limited liability company holding at least 35% of the company's charter capital may nominate not more than 3 authorized representatives to join in the Members' Council;

b/ An institutional shareholder of a joint-stock company holding at least 10% of the company's total ordinary shares may authorize not more than 3 persons to attend a Shareholders' Meeting.

2. The number of institutional members of the Members' Council of a one-member limited liability company with the sole member being an institution shall be decided by the company's owner.

Article 15.- Founding shareholders

1. A founding shareholder is a person contributing capital to, participating in drafting, approving and signing the first charter of, a joint-stock company.

2. A newly established joint-stock company must have founding shareholders; a joint-stock company transformed from a 100% state-owned enterprise or a limited liability company or divided, split from, consolidated or merged with, another joint-stock company needs not have founding shareholders.

If a joint-stock company has no founding share-holders, its charter in its business registration dossier must contain the signature of its at-law representative.

3. Three years after being granted a business registration certificate, if its shares offered for sale specified in Clause 4, Article 84 of the Enterprise Law are not sold out, a company shall register the decrease of its equity capital to a level equal to the quantity of issued shares.

Article 16.- Setting up of branches and representative offices of foreign-invested enterprises

1. A foreign-invested enterprise which has been established under the Investment Law and the Enterprise Law or registered transformation according to law may set up branches or representative offices in addition to its head office. The setting up of a branch needs not be accompanied by or conducted concurrently with the completion of investment procedures under the investment law. The dossiers, order and procedures for registration of operation of branches and representative offices comply with relevant provisions of Decree No. 88/2006/ND-CP and such registration is conducted at competent state agencies in charge of investment.

2. If a branch's operation is registered together with an investment project, dossiers include a branch registration dossier prescribed by Decree No. 88/2006/ND-CP and an investment registration dossier prescribed by the investment law.

In this case, the branch shall be set up and granted an investment certificate, which is also the branch operation registration certificate, when the investment project has been registered or approved after verification and the branch registration dossier is valid. In this case, the investment certificate covers the branch's operation registration contents and the investment project's registration contents as prescribed by law.

Article 17.- Election by accumulative calculation of votes

1. The method of accumulatively calculating votes specified at Point c, Clause 3, Article 104 of the Enterprise Law applies to all joint-stock companies, including listed companies, unless otherwise provided for by the securities law.

2. Before and during a Shareholders' Meeting, shareholders may together join in a group to nominate their candidates and accumulate votes for those candidates.

3. The number of candidates that each group may recommend depends on the number of candidates decided by the Meeting and the shareholding percentage of each group. Unless otherwise prescribed by the company charter or decided by the Shareholders' Meeting, the number of candidates that each group may nominate is as follows:

a/ A shareholder or group of shareholders holding between 10% and under 20% of total shares with voting right may nominate one candidate at most:

b/ A shareholder or group of shareholders holding between 20% and under 30% of total shares with voting right may nominate two candidates at most;

c/ A shareholder or group of shareholders holding between 30% and under 40% of total shares with voting right may nominate three candidates at most;

d/ A shareholder or group of shareholders holding between 40% and under 50% of total shares with voting right may nominate four candidates at most;

e/ A shareholder or group of shareholders holding between 50% and under 60% of total shares with voting right may nominate five candidates at most;

f/ A shareholder or group of shareholders holding between 60% and under 70% of total shares with voting right may nominate six candidates at most;

g/ A shareholder or group of shareholders holding between 70% and under 80% of total shares with voting right may nominate seven candidates at most;

h/ A shareholder or group of shareholders holding between 80% and under 90% of total shares with voting right may nominate eight candidates at most.

If the number of candidates nominated by a shareholder or a group of shareholders is less than the number which he/she/it may nominate, the remaining candidates may be nominated by the Management Board or the Control Board or other shareholders.

4. Elected members of the Management Board or the Control Board shall be determined based on the number of votes for, to be calculated downwards, starting from the candidate winning the highest number of votes for until a sufficient number of members is obtained under the charter of the company.

Article 18.- Additional guidance on meetings of the Management Board

1. A meeting of the Management Board according to the first letter of convention is conducted when at least three fourths of total members attend it.

2. If a meeting convened according to Clause 1 of this Article is not attended by a sufficient number of members as prescribed, the second letter of convention shall be issued within 15 days from the first scheduled meeting date. In this case, the meeting shall be conducted when more than half of the Management Board members attend it.

Article 19.- Transformation of a one-member limited liability company into a limited liability company with two or more members

1. A one-member limited liability company may be transformed into a limited liability company with two or more members when its owner has fully contributed the committed capital amount to the company. The company may be transformed in the following way:

a/ Its owner transfers, donates or gives away part of his/her holdings at the company to one or some others; or,

b/ The company mobilizes more capital from one or some other persons.

2. In case of transformation according to Point a, Clause 1 of this Article, a transformation dossier comprises:

a/ The written request for transformation;

b/ The charter of the transforming company according to Article 22 of the Enterprise Law;

c/ The list of members, including contents defined in Clauses 1 and 3, Article 23 of the Enterprise Law and corresponding capital portions of each member;

d/ The transfer contract or the document certifying the donation or giving away of part of holdings in the company.

3. In case of transformation according to Point b, Clause 1 of this Article, a transformation dossier comprises:

a/ The written request for transformation;

b/ The charter of the transforming company according to Article 22 of the Enterprise Law;

c/ The list of members according to Article 23 of the Enterprise Law;

d/ The company owner's decision on the additional mobilization of contributed capital.

4. Within 15 working days after the company owner transfers, donates or gives away part of his/her holdings at the company to one or some others or the company mobilizes more contributed or committed capital from one or some others, the company shall send or submit the transformation dossier to the competent business registration agency or state agency in charge of investment which has granted it an investment certificate.

Within 5 working days after receiving a transformation dossier, the competent business registration agency or state agency in charge of investment shall re-grant a business registration certificate or an investment certificate; and, at the same time, revoke the old business registration certificate or investment certificate of the transformed company.

5. The transforming company shall take over all lawful rights and interests, and take responsibility for all debts, including tax debts, labor contracts and other liabilities of the transformed company.

6. Within 7 working days after granting a business registration certificate or an investment certificate prescribed in Clause 4 of this Article, the competent business registration agency or state agency in charge of investment shall notify concerned state agencies specified in Clause 1, Article 27 of the Enterprise Law, and concurrently delete the name of the transformed company from the business register.

Article 20.- Transformation of joint-stock companies or limited liability companies with two or more members into one-member limited liability companies

1. A joint-stock company or a limited liability company with two or more members may be transformed into a one-member limited liability company in one of the following ways:

a/ A shareholder or a member receives all shares or capital portions transferred by other shareholders or members; or,

b/ A shareholder or a member being a legal entity contributes an amount of investment capital equal to all shares or capital portions of other shareholders or members; or

c/ A person other than a member or a shareholder is transferred with or contributes an amount of investment capital equal to total shares or contributed capital amount of all shareholders or members of the company.

2. A transformation dossier comprises:

a/ The written request for transformation;

b/ The charter of the transforming company;

c/ The contract on the transfer of shares or contributed capital portions, or written agreement on the acceptance of investment capital contributed in the form of shares or contributed capital portions.

3. Within 15 working days after a shareholder or a member is transferred shares or capital under Point a or contributes investment capital under Point b, or another person is transferred shares or capital or contributes investment capital under Point c, Clause 1 of this Article, the company shall send or submit the transformation dossier to the business registration agency where the former enterprise has registered or to the competent state agency in charge of investment which has granted the investment certificate.

Within 5 working days after receiving the transformation dossier, the competent business registration agency or state agency in charge of investment shall re-grant a business registration certificate or an investment certificate, and at the same time, revoke the one already granted to the transformed company.

4. The transforming company shall take over all lawful rights and interests, take responsibility for all debts, including tax debts, labor contracts and other obligations, of the transformed company.

5. Within 7 working days after granting a business registration certificate or an investment certificate according to Clause 3 of this Article, the competent business registration agency or state agency in charge of investment shall notify concerned state agencies specified in Clause 1, Article 27 of the Enterprise Law; and at the same time, delete the name of the transformed company from the business register.

Article 21.- Transformation of limited liability companies into joint-stock companies

1. A limited liability company may be transformed into a joint-stock company. If a limited liability company has less than 3 members, the mobilization of new members may be conducted concurrently with the transformation of the company. A new member may be a transferee of a part of the contributed capital of existing members or a new capital contributor of the company.

2. A transformation dossier comprises:

a/ The written request for transformation;

b/ The decision of the company owner or the Members' Council on the transformation of the company;

c/ The charter of the joint-stock company;

d/ The list of founding shareholders (if any) or ordinary shareholders, with contents specified in Clause 3, Article 19 of the Enterprise Law;

e/ The contract on the transfer of contributed capital portions or written agreement on contribution of investment capital.

3. Within 15 working days after the company owner or the Members' Council issues a transformation decision, the company shall send or submit the transformation dossier to the competent business registration agency or state agency in charge of investment which has granted the investment certificate.

Within 5 working days after receiving the transformation dossier, the business registration agency or the state agency in charge of investment shall re-grant a business registration certificate or investment certificate; and at the same time, revoke the one already granted to the transformed company.

4. The transforming company shall take over all lawful rights and interests and take responsibility for all debts, including tax debts, labor contracts and other obligations, of the transformed company.

5. Within 7 working days after granting a business registration certificate or an investment certificate according to Clause 3 of this Article, the competent business registration agency or state agency in charge of investment shall notify concerned state agencies specified in Clause 1, Article 27 of the Enterprise Law; and at the same time, delete the name of the transformed company from the business register.

Article 22.- Major contents of written requests for transformation

A written request for transformation specified in Articles 19, 20 and 21 of this Decree must have at least the following contents:

1. The name of the transformed company.

2. The name of the transforming company (if it plans to rename after transformation).

3. The address of the company's head office, telephone number, fax number and email address (if any).

4. The business lines.

5. The current amount of charter capital and the amount of charter capital after mobilization of contributed capital or shares.

6. The form of transformation.

7. The full name, permanent residence address, people's identity card number or passport number of the company's at-law representative.

8. Other contents specified in Clauses 5 and 6, Article 21 of the Enterprise Law.

Article 23.- Contents of business registration certificates or business registration in investment certificates applicable to cases of transformation

A business registration certificate of a transforming company defined in Articles 19, 20 and 21 of this Decree has the following main contents:

1. The name of the transformed company, the serial number and date of grant of the business registration certificate or investment certificate; its charter capital.

2. The name of the transforming company; the serial number and date of grant of its business registration certificate or investment certificate;

3. Addresses of the head office, branches, representative offices; telephone number, fax number and email address (if any) of the transforming company.

4. The charter capital of the transforming company, for a limited liability company; the number of shares and value of the sold shares; the number of shares which may be offered for sale, for a joint-stock company.

5. The business lines.

6. The full name, permanent residence address or temporary residence registration (for a foreigner), nationality, people's identity card number or passport number (for a foreigner) or other lawful personal identification, of the company's at-law representative.

7. Other contents as specified in Clause 3, Article 25 of the Enterprise Law.

Article 24.- Transformation of private enterprises into limited liability companies

1. A private enterprise may be transformed into a limited liability company under its owner's decision if it meets all the following conditions:

a/ Having all the conditions prescribed in Article 24 of the Enterprise Law;

b/ Its owner must be the owner of the company (in case the enterprise is transformed into a limited liability company with the sole individual member) or a member of the company (in case the enterprise is transformed into a limited liability company with two or more members);

c/ Its owner makes a written commitment to take personal responsibility with all of his/her property for its undue debts and to pay all those debts when they come due;

d/ Its owner has a written agreement with parties to unliquidated contracts that the limited liability company shall accept and perform those contracts;

e/ Its owner make a written commitment or agreement with other capital-contributing members on the acceptance and use of its existing labor.

2. A transformation dossier comprises:

a/ The company charter;

b/ The written request for transformation and business registration;

c/ The list of creditors and unpaid debts, including tax debts and payment deadlines; the list of existing laborers; the list of unliquidated contracts and relevant documents defined at Points c, d and e, Clause 1 of this Article;

d/ The business registration certificate of the private enterprise;

e/ The list of members as prescribed in Article 23 of the Enterprise Law, in case the enterprise is transformed into a limited liability company with two or more members.

3. Within 10 working days after receiving the dossier, the business registration agency shall consider and grant a business registration certificate to the limited liability company that satisfies the conditions set in Clause 1 of this Article. In case of refusal, it shall give a written reply, stating the reason, and instructions on required amendments or supplements.

4. Within 7 working days after granting a business registration certificate according to Clause 3 of this Article, the competent business registration agency or state agency in charge of investment shall notify concerned state agencies specified in Clause 1, Article 27 of the Enterprise Law; and concurrently delete the name of the private enterprise from the business register.

Article 25.- Joint-venture enterprises, 100% foreign-owned enterprises which have not been registered or re-registered under the Government's Decree No. 101/2006/ND-CP

1. To be entitled to deal in only business lines and within the duration specified in their investment licenses; not to expand their business scope.

2. To be entitled to execute new investment projects and open branches beside their head offices, within the business lines specified in their investment licenses.

3. To comply, in the organization of their internal management and operation, with their charters or relevant provisions of the Enterprise Law and guiding documents, for issues not provided for in their charters.

4. To have the rights and obligations prescribed by the Enterprise Law, the Investment Law and relevant laws in business activities within the business lines stated in their investment licenses.

Article 26.- Additional guidance on economic groups

1. An economic group consists of companies with the independent legal person status, which are combined or associated through investment, capital contribution, merger, acquisition, re-organization or other forms of association; bound together on a long-term basis in terms of economic interests, technology, market and other business services, thus formulating a business complex with enterprises organized at two or more levels, operating in the form of parent company-subsidiary company.

2. An economic group has no legal person status and needs not register business according to the Enterprise Law. The organization and operation of the group is decided by agreement among its founding companies.

3. A parent company is organized in the form of a joint-stock company or a limited liability company, meeting the conditions set in Clause 15, Article 4 of the Enterprise Law. A subsidiary company is organized in the form of a joint-stock company or a limited liability company under the Enterprise Law or relevant laws.

The parent company, subsidiary companies and other companies forming an economic group have the rights, obligations, organization and management apparatus and operation compatible with the form of enterprise organization provided for in the Enterprise Law, relevant laws and the company charter.

4. The word "group" may be used as a component of the name of a parent company in accordance with Articles 31 thru 34 of the Enterprise Law on enterprise name.

5. The Ministry of Finance shall guide the consolidated financial reporting regime, supervise financial activities of economic groups, of parent companies and subsidiary companies of an economic group.

The Ministry of Industry and Trade shall guide the supervision of economic groups and parent companies-subsidiary companies of an economic group in the implementation of regulations on competition restriction and fight against abuse of the dominant position or monopoly in the market.

Article 27.- Supervision by business registration agencies of the order and procedures for conducting Shareholders' Meetings and issuing decisions of Shareholders' Meetings

1. Shareholders or a group of shareholders defined in Clause 2, Article 79 of the Enterprise Law may request the competent business registration agency or state agency in charge of investment to supervise the order of, and procedures for, convening and conducting a Shareholders' Meeting and issuing decisions of a Shareholders' Meeting they convene according to Clause 6, Article 97 of the Enterprise Law.

2. Such a request must be made in writing and has the following main contents:

a/ The name and address of the company's head office;

b/ The serial number and date of grant of the business registration certificate;

c/ The list of shareholders or shareholders in the group who request convention of the Shareholders' Meeting, including full names (of individuals), names and addresses of the head offices (of legal entities), number of ordinary shares and ownership percentages, dates and serial numbers of shareholding registration in the shareholder register;

d/ Reasons for convening the Shareholders' Meeting, time and place of the meeting.

e/ Signatures of all shareholders or shareholders in the group convening the meeting.

3. The request prescribed in Clause 2 of this Article must be enclosed with:

a/ The written request for the Management Board and the Control Board to convene a Shareholders' Meeting according to Point c, Clause 3, Article 97 of the Enterprise Law;

b/ The letter of invitation to the Shareholders' Meeting;

c/ The meeting's agenda and documents.

4. If receiving a complete dossier as specified in Clauses 2 and 3 of this Article, at least 3 days before the meeting, the competent business registration agency or state agency in charge of investment shall appoint a representative to supervise the Shareholders' Meeting, provided that the shareholders or group of shareholders convening the meeting have registered their shareholdings in the shareholder register and their shareholdings are sufficient under the provisions of Clause 2, Article 79 of the Enterprise Law.

5. The representative of the competent business registration agency or state agency in charge of investment shall supervise the order of, and procedures for, conducting the Shareholders' Meeting and issuing the meeting's decisions on matters on its agenda according to the Enterprise Law and guiding documents. At the request of the chairperson, that representative may explain the mode and procedures for conducting the Shareholders' Meeting and voting, if deeming it necessary.

6. One day after the conclusion of the Shareholders' Meeting, the representative of the competent business registration agency or state agency in charge of investment shall make a report on the results of supervision of the meeting. That report must contain his/her comment on the legality of the meeting's order and procedures.

Article 28.- Dissolution of enterprises

1. Enterprises shall be dissolved in the cases specified in Clause 1, Article 157 of the Enterprise Law, have their investment certificates revoked according to Article 68 of the Government's Decree No. 108/2006/ND-CP, detailing and guiding the implementation of a number of articles of the Investment Law, or are declared dissolved by a court.

2. The order of, and procedures for, dissolution and liquidation of assets of enterprises comply with Clauses 1 thru 4, Article 158 of the Enterprise Law.

3. Within 7 working days after fulfilling the dissolution and paying all debts for the enterprise, its at-law representative shall send the liquidation dossier to the competent business registration agency or agency in charge of investment. An enterprise liquidation dossier prescribed in Clause 5, Article 158 of the Enterprise Law comprises:

a/ The dissolution decision or decision on revocation of the business registration certificate or investment certificate, or the court decision on dissolution of the enterprise;

b/ The list of creditors and paid debts, including tax debts and social insurance premium debts;

c/ The list of existing laborers and their settled interests;

d/ The business registration certificate or investment certificate;

e/ The seal, certificate of registration of the seal specimen, certificate of registration of the tax identification number, of the enterprise;

f/ The serial numbers of unused value added tax invoices;

g/ A brief report on the implementation of dissolution procedures, including commitments on full payment of debts, including tax debts, and settlement of laborers' lawful interests.

4. Members of the Management Board and the Members' Council of a limited liability company, the owner(s) of a company, the owner(s) of a private enterprise, the director or general director and partners to a partnership are responsible for the truthfulness and accuracy of the enterprise's dissolution dossier.

5. If a dissolution dossier is inaccurate or counterfeit, the persons defined in Clause 4 of this Article shall take joint responsibility for paying all unpaid debts and tax amounts and settling the unsettled interests of laborers; take personal responsibility before law for consequences arising within three years from the date of submitting the enterprise dissolution dossier to the competent business registration agency or state agency in charge of investment.

6. Within 7 working days, the agency receiving the enterprise's dissolution dossier defined in Clause 3 of this Article shall notify the tax agency and the police of the enterprise's dissolution and delete the name of the enterprise from the business register or the investment register, unless the tax agency and the police otherwise request.

7. The dissolution of enterprises and economic organizations set up and operating according to law specified in Clause 3, Article 3 of this Decree complies with relevant provisions of law.

Article 29.- Dissolution of branches

1. Branches of an enterprise may be dissolved under decisions of that enterprise or decisions on revocation of branch operation certificates issued by competent state agencies.

2. A branch dissolution dossier comprises:

a/ The enterprise's decision on the branch dissolution or the decision on revocation of the branch's operation certificate, issued by a competent state agency;

b/ The list of creditors and unpaid debts, including tax debts, of the branch and unpaid social insurance premiums;

c/ The list of laborers and their related current interests;

d/ The seal, certificate of registration of the seal specimen, and certificate of registration of the tax identification number of the enterprise;

e/ The serial numbers of unused value added tax invoices;

3. The enterprise's at-law representative and the director of the dissolved branch shall take joint responsibility for the truthfulness and accuracy of the branch's dissolution dossier.

4. The enterprise having a dissolved branch shall perform contracts, pay debts, including tax debts, of the branch, and continue employing or settling all lawful interests of the branch's employees in accordance with law.

5. Within 7 working days after receiving a complete dissolution dossier as prescribed in Clause 2 of this Article, the competent business registration agency or state agency in charge of investment shall notify the tax agency and the police of the dissolution of the enterprise's branch, and concurrently delete the name of that branch from the branch operation register, unless the tax agency and the police otherwise request.

Article 30.- Implementation effect

This Decree takes effect 15 days after its publication in "CONG BAO."

Article 31.- Organization of implementation

The Minister of Planning and Investment shall guide and organize the implementation of this Decree.

Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shall implement this Decree.

THE GOVERNMENT
PRIME MINISTER
(signed)
 
Nguyen Tan Dung
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Relevant link
Commission Regulation (EC) No 834/2009 of 11 September 2009 implementing Regulation (EC) No 716/2007 of the European Parliament and of the Council on Community statistics on the structure and activity of foreign affiliates, as regards the quality reports Text with EEA relevance [2009-09-12]
International Companies Amendment Act [2009-02-03]
AN ACT TO AMEND TITLE 5 OF THE DELAWARE CODE RELATING TO TRUST COMPANIES. [2008-07-17]
COUNCIL REGULATION (EC) NO 72/2008 OF 20 DECEMBER 2007 SETTING UP THE ENIAC JOINT UNDERTAKING [2007-12-20]
DECREE Guiding the implementation of a number of articles of the Enterprise Law [2007-09-05]