Guidelines for implementation of Law on Enterprises

DECREE

GUIDELINES FOR SOME ARTICLES OF THE LAW ON ENTERPRISES

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Enterprises dated November 26, 2014;

At the request of the Minister of Planning and Investment;

The Government promulgates a Decree to provide guidelines for some Articles of the Law on Enterprises.

Article 1. Scope of application and applicable entities

1. This Decree provides guidelines for Article 10, Article 44, Article 189, and Article 208 of the Law on Enterprises.

2. This Decree applies to enterprises, agencies, organizations, and individuals prescribed in Article 2 of the Law on Enterprises.

3. Provisions on seals of this Decree apply to joint-stock companies, limited liability companies, partnerships and private enterprises registered under the Law on Enterprises and the Law on Investment. Organizations, units established under the following laws do not apply the provisions on seals of this Decree but comply with current regulations on management and use of seals:

a) Law on Notarization;

b) Law on Lawyers;

c) Law on Judicial Assessment;

d) Law on Insurance Business;

e) Law on Securities; and

e) Law on Cooperatives.

Article 2. Policy for development of social enterprises

1. The State encourages and creates favorable conditions for organizations and individuals to establish social enterprises operating to address social and environmental issues for benefits of the community.

2. Social enterprises shall be entitled to investment incentives and support as prescribed by law.

3. Social enterprises shall fulfill the rights and obligations corresponding for their type of enterprise and the rights and obligations as stipulated under the Law on Enterprises and this Decree.

Article 3. Receiving funding and aid

1. Social enterprises shall receive aid from international non-governmental organizations to achieve the objectives to solve social and environmental issues in accordance with legal regulations on management and utilization of aid from international non-governmental organizations.

2. In addition to the aid mentioned in Paragraph 1 of this Article, social enterprises shall receive aid in form of assets, financial or technical support from local and foreign individuals, agencies, organizations and institutions registered their operations in Viet Nam to achieve the objectives to solve social and environmental issues.

3. Order and procedures for receiving aid stipulated in Paragraph 2 of this Article shall be implemented as follows:

a) Aid agreement must be made in writing. Aid agreement must contain: Information on individuals, donors, type of asset, asset or aid value, time of receiving aid, requirements for the enterprise receiving aid, full name and signature of authorized representatives of the relevant parties.

b) Within 05 working days from the date the aid agreement is signed, the enterprise shall have to notify the Department of Planning and Investment or an aid management agency under the provincial/municipal People's Committee (hereinafter referred to as provincial People's Committee) where headquarters of the enterprise receiving funding is based, the notification must be accompanied by a copy of the aid agreement.

4. Where there are changes in content of the aid agreement in Point a Paragraph 3 of this Article, the social enterprise must notify the Department of Planning and Investment or an aid management agency under the provincial People's Committee where the enterprise’ headquarter is based on the changes according to the order and procedures prescribed in Point b Paragraph 3 of this Article.

Article 4. Registration of social enterprises

1. Registration of social enterprises follows the corresponding order, procedures and dossiers for different types of enterprise stipulated under the Law on Enterprises.

2. Social enterprise shall be named in accordance with Articles 38, 39, 40 and 42 of the Law on Enterprises and the word "social" may be included in the name of the enterprise.

Article 5. Disclosure of social enterprises’ commitments to pursue social and environmental targets

1. Social enterprise shall have to notify their commitment to social and environmental targets to the business registration agency for disclosure on the National Business Registration Portal during the establishment or operation of enterprises.

2. Where there are changes in the commitment to social and environmental targets, social enterprises shall have to notify the business registration agency of the changes within 05 working days from the date decision of the changes is made for disclosure on the National Business Registration Portal. The notification must be accompanied by the revised commitment.

3. The business registration agency shall update information in the business profile and disclose on the National Business Registration Portal within 03 working days from the date of receiving the notification as stipulated under Paragraph 1 and Paragraph 2 of this Article.

4. The commitment to social and environment targets shall be made using the set form and include the following contents:

a) Social and environmental issues; approach the enterprise plans to implement to address those social and environmental issues.

b) Timeline of activities to address social and environmental issues.

c) Ratio (%) of annual retained earnings reinvested to address social and environmental issues.

d) Principles and methods on the use of aid and funding from organizations and individuals; principles and methods on the use of residual aid and funding once the enterprise is dissolved or converted into a normal enterprise (if any).

dd) Full name and signature of owner of private enterprise for private enterprises; members of partnership for partnerships; individual members or shareholders who are legal representatives or authorized representatives of organization members or shareholders for limited liability companies and shareholding companies.

5. Decision of Board members, General Meeting of shareholders on changes in content of the commitment to pursue social and environmental issues shall be voted as stipulated under Point b, Paragraph 3 of Article 60 and Paragraph 1 of Article 144 of the Law on Enterprises for social enterprises operating in the form of limited liability companies and joint stock companies.

Article 6. Termination of the social enterprises’ commitment to pursue social and environmental targets

1. A social enterprise shall terminate its commitment under the following cases:

a) Upon the expiry of the commitment.

b) The social and environmental issues under the commitment have changed or no longer exist.

c) Do not perform or fulfill the commitment and retained earnings for reinvestment.

d) Other cases as decided by the enterprise or competent authority.

2. In the event of termination of the commitment of the social enterprise, the entire residual assets or finance of the funding and aid received shall have to return to donating or funding individuals, agencies and organizations, or transferred to other social enterprises or organizations with similar social goals. A social enterprise shall only terminate the commitment if payment of all debts and performance of other financial obligations are guaranteed after residuals of funding and aids received by the enterprise has been settled.

3. Decision of Board of members, General Meeting of Shareholders on termination of the commitment must be made by vote as stipulated under Point b, Paragraph 3 of Article 60 and Paragraph 1 of Article 144 of the Law on Enterprises for social enterprises operating in the form of limited liability companies and shareholding companies.

4. The social enterprise shall have to notify the business registration agency on the termination of the commitment within 05 working days from the date the termination decision is made for disclosure on the National Business Registration Portal. The notification shall include the following documents:

a) The decision and a copy of minutes of meeting of the enterprise or decision of a competent state authority (if any), which clearly states the reasons for termination.

b) Agreements with concerned individuals and organizations about the handling of residual assets or finance of the funding and aids received by the social enterprise (if any).

5. The business registration agency shall update the enterprise’s profile information and publish on the National Business Registration Portal within 03 working days from receipt of the notification.

Article 7. Conversion of social protection centers, social funds and charity funds into social enterprises

1. Social protection centers, social funds and charity funds may use all assets, rights and obligations for registration as social enterprises after receiving written decision authorizing conversion into social enterprises by the competent agency that issued permit for the establishment of social protection centers, social funds and charity funds.

2. A registered social enterprise shall inherit all legitimate rights and interests, liability for all debts, including tax debts, labor contracts and other obligations of a social protection center, social fund and charity fund. A social protection center, social fund and charity fund shall terminate operation from the date the business registration certificate is granted to the social enterprise.

Article 8. Division, separation, consolidation, merger or dissolution of social enterprises

1. Division, separation, consolidation, merger of social enterprises is conducted in the following cases:

a) A social enterprise is divided or separated into social enterprises.

b) Enterprises, social enterprises are consolidated into one social enterprise.

c) Merger of enterprises, social enterprises into one social enterprise.

2. Dossiers, order and procedures for division, separation, consolidation and merger of social enterprises shall comply with the respective provisions of the Law on Enterprises.

3. In case a social enterprise dissolved, residual assets or finance of the total assets and finance received by the social enterprise shall be returned to funding individuals, agencies and organizations or transferred to other social enterprises or organizations with similar social goals.

Dossiers, order and procedures for dissolution of social enterprises shall comply with the respective provisions on enterprise dissolution of the Law on Enterprises. Where a social enterprise still has residual aid and finance, the dissolution dossier must include agreements with concerned individuals and organizations about the handling of the residual aid and finance.

Article 9. Responsibilities of owners of private enterprises, members and shareholders of social enterprises

1. Owners of private enterprises, members and shareholders of social enterprises shall only be allowed to transfer their equity or shares to other organizations and individuals if the transferees have committed to continue social and environmental objectives.

2. Shareholders who have signed the commitment to pursue social and environmental targets shall only be allowed to transfer their shares in accordance with Paragraph 3 of Article 119 of the Law on Enterprises, within the timeline of the commitment to pursue social and environmental targets.

3. A social enterprise must maintain social and environmental objectives, retained earnings for reinvestment and other contents in the social and environmental commitment throughout its operation. In case of failure to perform or fulfill the commitment and the ratio of retained earnings for reinvestment, the social enterprise shall have to repay the whole amount of incentives, grants, and aid granted. At the same time, owners of private enterprises (if enterprises are private), members (if enterprises are partnerships and limited liability), and shareholders (if enterprises are joint stock), who signed the commitment to pursue social and environmental targets, and members of Board of Directors of joint stock companies, are jointly liable for refunding received incentives and aid and compensating the losses incurred where the social enterprise violates this Paragraph.

Article 10. Disclosure of social enterprises’ activities

1. If a social enterprise receives incentives, grants, aid, every year it shall have to submit to the Department of Planning and Investment or aid management agency under the provincial People's Committee, where the social enterprise’s headquarters is located, an annual assessment report on social impacts o the business activities within 90 days after fiscal year ends.

2. An assessment report on the social impacts must follow the format and include the following contents:

a) Enterprise’s name and code number;

b) Incentives, grants or aid received;

c) Business activities performed in the year; social and environmental issues addressed;

d) Social benefits and impacts achieved by the enterprise and respective beneficiary groups; figures demonstrating the impacts and benefits achieved (if any).

3. Organizations and individuals may request the Department of Planning and Investment or aid management agency under the provincial People's Committee, where the social enterprise’s headquarters is located, to provide information and copies of social impact assessment reports and aid agreement archived at the agency. The Department of Planning and Investment or aid management agency under the provincial People's Committee have the obligation to provide in full and timely manner information required by organizations and individuals.

Article 11. Monitoring and supervision of social enterprises’ operation

1. The provincial People's Committee shall be responsible for monitoring and supervision of social enterprises headquartered in the province. The Department of Planning and Investment or aid management authority under the provincial People’s Committee are the line agencies to assist the provincial People's Committee in the monitoring and supervision of social enterprises. The monitoring and supervision of activities of social enterprises shall be implemented in the following manner:

a) Request enterprises to report on their compliance with the commitment to pursue social and environmental targets where needed;

b) Directly inspect or request competent state agencies to inspect enterprises according to content in the commitment to pursue social and environmental targets.

2. Monitoring and supervision of social enterprises in Paragraph 1 of this Article shall comply with the following order and procedure:

a) The request to report on compliance with the commitment to pursue social and environmental targets must be made in writing, where specific reasons, requirements, as well as deadlines and implementation methods must be clearly specified.

b) State agencies shall only be allowed to directly inspect an enterprise at least 15 days after inspection notification is sent to the enterprise.

c) Within 05 working days from last date of inspection of the social enterprise, the inspection agency must have a written report on the inspection results. The report must be submitted to the social enterprise, the provincial People's Committee and relevant agencies under the provincial People's Committee.

Article 12. Quantity, design, and content of corporate seals

1. Owners (for private enterprises), Board of Partners (for partnership enterprises) , Board of members or Chairman (for limited liability companies), Board of Directors (for joint stock companies) shall decide the quantity, form, content and design of the seal, management and use of the seal unless the company's charter stipulates otherwise. The Charter or Decision on enterprise’s seal shall include:

a) Seal design, including: Style, size, content, ink color.

b) The quantity of seals.

c) Rules on the management and use of the seal.

2. Seal design of an enterprise shall be in a specific shape (circle, polygon or other shapes). Each enterprise shall have a uniform seal design in terms the content, form and size.

3. Information on enterprise code number and enterprise’s name on the seal shall comply with Article 30 and Paragraph 1 of Article 38 of the Law on Enterprises. In addition to the aforesaid information, the enterprise may add other words and images to the seal except for the cases stipulated in Article 14 of this Decree.

Article 13. Quantity, form, content and design of seals of branches and representative offices

1. Owners (for private enterprises), Board of Partners (for partnership enterprises) , Board of members or Chairman (for limited liability companies), Board of Directors (for joint stock companies) shall decide the quantity, form, content and design of the seal, management and use of seal of branches and representative offices, unless the company's charter stipulates otherwise.

2. Content of the seal design of branches and representative offices shall have to include name of branches and representative offices as stipulated under Paragraphs 1 and 2 of Article 41 of the Law on Enterprises. In addition to this information, enterprises can add other words and images to the seal content except for the cases stipulated in Article 14 of this Decree.

Article 14. Images and languages not allowed in content of seal design

1. Enterprises shall not be allowed to use the following images, words, symbols in their seals:

a) The national flag, national emblem, Communist Party’s Flag of the Socialist Republic of Viet Nam.

b) The images, symbols, names of the State, State agencies, units of the people's armed forces, political organizations, socio-political organizations, political-social-professional organizations, social organizations and professional - social organizations.

c) Words, symbols and images that contravene historical traditions, culture, ethics and fine traditions and customs of the Vietnamese people.

2. Enterprises shall be responsible for ensuring compliance with Paragraph 1 of this Article, regulations on intellectual property and related laws when using images, words, and symbols in seal content or design. Disputes between enterprises, related individuals and organizations on the words, symbols and images used in the content of seal design shall be resolved through court or arbitration proceedings. Enterprises must terminate the use of the seal with words, symbols or images violating this Article and shall be liable for damages arising from the effective decisions of the court or arbitrator.

3. Business registration authorities shall not responsible for verification of content of seal designs when processing procedures for notification of seal designs.

Article. 15 Management and use of seals

1. Enterprises established before July 1, 2015 shall keep using the seals without having to notify the Agency for Business Registration of the seal designs. Any enterprise that makes an additional seal or changes the ink color of its seal shall follow procedures for notifying the seal design according to regulations on enterprise registration.

2. In case an enterprise established before July 01, 2015 makes a new seal following provisions under this Decree, the old seal and the certificate of seal registration must be returned to the police authority that issued the certificate. The police authority shall issue a note of receipt when receiving the enterprise’s seal.

3. In case an enterprise established before July 01, 2015 loses its seal or certificate of seal registration, it may make a new seal in accordance with this Decree and must concurrently notify the loss of the seal or certificate to the police authority that issued the certificate.

4. Enterprises shall have the responsibility to notify the seal design to the Agency for Business Registration where the headquarters is located for public disclosure on the National Business Registration Portal in the following cases:

a) Making seal for the first time after business registration;

b) Changing the quantity, content, form and ink color of the seal;

c) Cancelling the seal.

5. Order, procedures and dossiers for notifying the seal design shall follow regulations on business registration.

Article 16. Restricting cross-ownership among companies

1. Capital contribution for the establishment of an enterprise as defined in Paragraph 3 of Article 189 of the Law on Enterprises shall include capital contribution and share purchase to establish a new enterprise, repurchase of capital contribution and shares of established enterprises.

2. Cross-ownership means two enterprises owning each other’s shares/stakes.

3. Joint capital contribution to establish an enterprise in accordance with Paragraph 3 of Article 189 of the Law on Enterprise is the case where total shares and contributed capital are equal or exceeds 51% of charter capital or total ordinary shares of the related enterprise.

4. Chairman, Board of members, Board of Directors of related enterprises shall be responsible for ensuring compliance with the provisions of Article 189 of the Law on Enterprises when deciding to contribute capital and purchase shares or stocks of other enterprises. In this case, the company’s chairman or members of the Board members, or members of the Board of Directors of the relevant enterprises shall be jointly liable to pay damages if provisions in this Article are breached.

5. The Agency for Business Registration shall reject registration for changes of the company’s members and shareholders if capital contribution and share purchase for enterprise establishment or transfer of shares/stakes infringe upon Paragraphs 2 and 3 of Article 189 of the Law on Enterprises.

6. Enterprises whose shares/stakes held by the State that have contributed capital or purchase shares before July 1, 2015 shall have the right to purchase, transfer, increase or decrease their shares/stakes and shares without raising the existing ratio of cross-ownership.

Article 17. Principles for state management of enterprises

1. State agencies shall be responsible for guiding, supporting, creating favorable conditions for enterprises to comply with legal regulations.

2. Officials and civil servants shall not be allowed to require founders of enterprises to submit additional papers, pose additional procedures and conditions which are not stipulated by laws or harass organizations and individuals upon reception of dossiers and processing applications.

3. To strengthen coordination and information sharing among government agencies on operation of enterprises; create favorable conditions for involved individuals and organizations in access to information on operation of enterprises archived in agencies and units, unless otherwise confidentiality is required as stipulated by law.

4. Each state management agency from central to local level, and representative bodies of ownership shall be responsible for monitoring and supervising operation of enterprises within the functions and tasks assigned. Supervision, monitoring, inspection and examination by state management agencies and representative bodies of ownership must not cause adverse impacts or hinder the normal operation of enterprises.

Article 18 Coordination in sharing information on operation of enterprises among agencies and units

1. Every month, agencies under ministries, ministerial-level agencies, provincial and district-level People's Committees shall send the provincial Agency for Business Registration where the enterprise’s headquarters is located the following information:

a) Business licenses, certificates of eligibility for business operation, professional practicing certificates, certificate or written document approving eligibility for business operation issued to enterprises, branches or representative offices and business managers;

b) Decision on handling violations of enterprises, branches, representative offices, and business managers;

c) Decision to suspend business operation, decision to terminate business suspension;

d) Information on violations of corporate tax law.

2. Within 03 working days from the date of receipt of the information as stipulated under Paragraph 1 of this Article, the Agency for Business Registration shall update registration dossiers of the related enterprise.

Article 19. Development of risk management system to monitor and supervise business operation

1. The provincial People's Committee shall actively develop a database on business operation, plans and means of information communication with relevant authorities and publish the information; develop risk management system for monitoring and supervising business operation within their state management functions.

2. The risk management system for monitoring and supervising business operation includes:

a) The focal bodies responsible for the risk management system;

b) The list of risks must be monitored and supervised;

c) The levels of risk to be controlled;

d) Mode of warning, prevention and management of risks once detected.

e) Methods to collect and exchange information and assess the risks.

3. The Department of Planning and Investment or another agency as decided by the provincial/municipal People's Committees shall act as focal point to prepare monthly reports on enterprises’ operations and observation of laws and submit them to the municipal/provincial People’s Committees; simultaneously share those reports with agencies under municipal/provincial People's Committees and district level People's Committees.

Article 20. Effect

This Decree shall replace Decree No. 102/2010/ND-CP dated October 1, 2010 of the Government on detailed implementation of a number of articles of the Law on Enterprises and shall take effect on December 08, 2015.

Article 21. Organization of implementation

1. Ministers, heads of ministerial-level agencies, heads of governmental agencies, Chairmen of municipal People's Committees and the applicable entities of this Decree shall be responsible for the implementation of this Decree.

2. The Ministry of Planning and Investment shall issue guidelines and forms for the implementation of administrative procedures as stipulated under this Decree.

3. The municipal/provincial People's Committees shall be responsible for the development and promulgation of regulations on coordination among agencies under their authority and the People's Committees at lower-levels in information exchange and development of risk management system in monitoring and supervision of business operation. /.

ON BEHALF OF THE GOVERNMENT

PRIME MINISTER

(Signed)

Nguyen Tan Dung