DECREE

Detailing a number of articles of the Law on Enterprises

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

Pursuant to the November 26, 2014 Law on Enterprises;

At the proposal of the Minister of Planning and Investment,

The Government promulgates the Decree detailing a number of articles of the Law on Enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Decree details Articles 10, 44, 189 and 208 of the Law on Enterprises.

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

3. This Decree’s provisions on the seal apply to joint stock companies, limited liability companies, partnerships and private enterprises that have made registration under the Law on Enterprises or the Law on Investment. Organizations and units established under the following laws shall not apply this Decree’s provisions on the seal, but shall comply with current regulations on management and use of the seal: 

a/ The Law on Notarization;

b/ The Law on Lawyers;

c/ The Law on Judicial Assessment;

d/ The Law on Insurance  Business;

dd/ The Law on Securities;

e/ The Law on Cooperatives.

Article 2. Policies to develop social enterprises

1. The State shall encourage and create conditions for organizations and individuals to establish social enterprises to operate for the purpose of solving social and environmental issues in the interest of the community.

2. Social enterprises are entitled to investment incentives and support in accordance with law.

3. Social enterprises shall fully exercise the rights and perform the obligations prescribed for their corresponding types and other rights and obligations prescribed by the Law on Enterprises and this Decree.

Article 3. Receipt of aid and financial donations

1. Social enterprises shall receive foreign non-governmental aid for achieving the purpose of solving social and environmental issues in accordance with the law on receipt of foreign non-governmental aid.

2. In addition to the aid specified in Clause 1 of this Article, social enterprises may receive financial donations in asset, finance or technical assistance from domestic individuals, agencies and organizations, and foreign organizations having registered for operation in Vietnam for achieving the purpose of solving social and environmental issues.

3. The order and procedures for receiving financial donations referred to in Clause 2 of this Article are as follows:

a/ The receipt of financial donations shall be recorded in writing. A financial donation receipt document must contain information about the donor, type and value of donated assets or money, time of provision of donation, requirements on the donation-receiving enterprise, and full names and signatures of competent representatives of the parties;

b/ Within 5 working days after the financial donation receipt document is signed, an enterprise shall notify the financial donation receipt to the provincial-level Department of Planning and Investment or the aid and financial donation management agency of the People’s Committee of the province or centrally run city (below referred to as provincial-level People’s Committee) where the enterprise’s head office is located. Such notice shall be enclosed with a copy of the financial donation receipt document.  

4. In case there is any change in the financial donation receipt document referred to at Point a, Clause 3 of this Article, a social enterprise shall notify such change according to the order and procedures prescribed at Point b, Clause 3 of this Article to the provincial-level Department of Planning and Investment or the aid and financial donation management agency of the provincial-level People’s Committee of the locality where the enterprise’s head office is located.

Article 4. Registration of social enterprises

1. A social enterprise shall make registration according to the order and procedures with a dossier prescribed for each type of enterprise in the Law on Enterprises.

2. A social enterprise shall be named according to Articles 38, 39, 40 and 42 of the Law on Enterprises and its name may be added with the word “social”.

Article 5. Publicization of social enterprises’ Commitment to achieve social and environmental objectives

1. Upon establishment or during the operation process, a social enterprise shall notify its Commitment to achieve social and environmental objectives to the business registration agency for posting on the National Enterprise Registration Portal.

2. In case there is any change in the Commitment to achieve social and environmental objectives, a social enterprise shall, within 5 working days after making decision on such change, notify it to the business registration agency for posting on the National Enterprise Registration Portal. Such notice shall be enclosed with the changed Commitment.

3. The business registration agency shall update information in the enterprise dossiers and post the notices specified in Clause 1 or 2 of this Article on the National Enterprise Registration Portal within 3 working days after receiving such notices.

4. A social enterprise shall make its Commitment to achieve social and environmental objectives according to a set form with the following contents:

a/ Social and environmental issues; and methods the enterprise intends to employ to solve these issues;

b/ The period for carrying out activities to solve social and environmental issues;

c/ The percentage (%) of profit retained annually for reinvestment in solving social and environmental issues;

d/ Principles and methods of using received aid and financial donations; principles and methods of handling the remainder of received aid and financial donations when the enterprise dissolves or is transformed into an ordinary one (if any);

dd/ Full name and signature of the owner, if it is a private enterprise; full names and signatures of partners, if it is a partnership; full names and signatures of individual members and shareholders and at-law representatives or authorized representatives of institutional members and shareholders, if it is a limited liability company or joint stock company.    

5. For a social enterprise operating in the form of limited liability company or joint stock company, the decision of its Members’ Council or Shareholders’ General Meeting on any change in its Commitment to achieve social and environmental objectives shall be approved by a percentage of votes prescribed at Point b, Clause 3, Article 60, and in Clause 1, Article 144, of the Law on Enterprises.

Article 6. Termination of social enterprises’ Commitment to achieve social and environmental objectives

1. A social enterprise may terminate its Commitment to achieve social and environmental objectives in the following cases:

a/ The Commitment expires;

b/ The social and environmental issues defined in the Commitment have changed or no longer exist;

c/ The enterprise does not realize or fully realize the Commitment and the level of profit retained for reinvestment;

d/ Other cases as decided by the enterprise or a competent state agency.

2. When a social enterprise terminates its Commitment to achieve social and environmental objectives, the remainder of assets and finance of aid and financial donations it has received shall be returned to donors or transferred to another social enterprise or an organization operating for similar social purposes. A social enterprise may terminate its Commitment to achieve social and environmental objectives only if it ensures full payment of debts and other property obligations after handling the remainder of aid and financial donations it has received.

3. For a social enterprise operating in the form of limited liability company or joint stock company, the decision of its Members’ Council or General Meeting of Shareholders on termination of its Commitment to achieve social and environmental objectives shall be approved by a percentage of votes prescribed at Point b, Clause 3, Article 60, and in Clause 1, Article 144, of the Law on Enterprises.

4. A social enterprise shall notify the business registration agency of the termination of its Commitment to achieve social and environmental objectives within 5 working days after issuing the decision on such termination for the latter to post it on the National Enterprise Registration Portal. Such notice shall be enclosed with the following documents:

a/ The decision and a copy of the minutes of the meeting of the enterprise or the decision (if any) of a competent state agency which clearly states the reason for the termination;

b/ Agreements with related individuals and organizations on the handling of the remainder (if any) of assets or finance of aid and financial donations the enterprise has received.

5. The business registration agency shall update information in the enterprise dossiers and post the notices on the National Enterprise Registration Portal within 3 working days after receiving such notices.

Article 7. Transformation of social protection establishments, social funds and charity funds into social enterprises

1. Social protection establishments, social funds or charity funds may use all of their assets, rights and obligations to register themselves as social enterprises after obtaining written decisions permitting them to be transformed into social enterprises issued by competent agencies that have granted their establishment licenses.

2. Social enterprises, once registered, shall automatically take over all lawful rights and interests, and assume all debts, including tax debts, labor contracts and other obligations of their preceding social protection establishments, social funds or charity funds. Social protection establishments, social funds or charity funds shall terminate their operation on the date social enterprises are granted enterprise registration certificates.

Article 8. Division, splitting, consolidation, merger and dissolution of social enterprises

1. Division, splitting, consolidation and merger of social enterprises may be carried out in the following cases:

a/ A social enterprise is divided or split into different social enterprises;

b/ Enterprises or social enterprises are consolidated into a social enterprise;

c/ An enterprise or a social enterprise is merged into a social enterprise.

2. The dossier, order and procedures for division, splitting, consolidation and merger of social enterprises must comply with relevant provisions of the Law on Enterprises.

3. In case of dissolution of a social enterprise, the remainder of assets or finance the enterprise has received shall be returned to donors or transferred to another social enterprise or an organization operating for similar social purposes.

The dossier, order and procedures for dissolution of social enterprises must comply with relevant provisions of the Law on Enterprises. In case a dissolved enterprise has a remainder of assets or finance of aid and financial donations it has received, its dissolution dossier must contain agreements with related individuals and organizations on the handling of such remainder.

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

1. Owners of private social enterprises, and members and shareholders of social enterprises may only transfer their contributed capital or shares to other organizations and individuals if the latter commit to continue achieving social and environmental objectives.

2. Shareholders that have signed the Commitment to achieve social and environmental objectives may only transfer their shares in accordance with Clause 3, Article 119 of the Law on Enterprises within the validity duration of the Commitment.

3. A social enterprise shall maintain its social and environmental objectives and level of profit retained for reinvestment and other contents in its Commitment to achieve social and environmental objectives throughout its operation. If failing to implement or fully implement its Commitment and the level of profit retained for reinvestment, a social enterprise shall return all incentives, and aid and financial donations it has received. At the same time, the owner of a private social enterprise, partners of a partnership or limited liability company, or shareholders of a joint stock company, who have signed the Commitment, and members of the Board of Directors of the joint stock company, must be jointly liable for returning all incentives and financial donations already received and compensating all arising damages due to their social enterprise’s violation of this Clause.

Article 10. Publicity of activities of social enterprises

1. In case of receiving incentives, aid or financial donations, on an annual basis, within 90 days from the end of the fiscal year, a social enterprise shall send a report on assessment of social impacts of its activities to the provincial-level Department of Planning and Investment or the aid and financial donation management agency of the provincial-level People’s Committee of the locality where the enterprise’s head office is located.

2. A report on assessment of social impacts shall be made according to a set form with the following contents:

a/ Name and code of the enterprise;

b/ Received incentives, aid or financial donations;

c/ Activities carried out in the year, and social and environmental issues solved by the enterprise;

d/ Benefits and social impacts achieved by the enterprise and corresponding groups of beneficiaries; figures evidencing the achieved impacts and benefits (if any).

3. Organizations and individuals have the right to request the provincial-level Department of Planning and Investment or the aid and financial donation management agency of the provincial-level People’s Committee of the locality where the social enterprise’s head office is located to provide information and copies of the social impact assessment report and aid or financial donation receipt document filed at such agency. The provincial-level Department of Planning and Investment or the aid and financial donation management agency of the provincial-level People’s Committee shall fully and promptly provide information as requested.

Article 11. Monitoring and supervision of activities of social enterprises

1.  Provincial-level People’s Committees shall monitor and supervise social enterprises whose head offices are located in their respective provinces or cities. Provincial-level Departments of Planning and Investment or aid and financial donation management agencies of provincial-level People’s Committees shall act as focal points to assist provincial-level People’s Committees in monitoring and supervising social enterprises. The monitoring and supervision of activities of social enterprises shall be carried out in the following manners:

a/ Requesting the enterprises to report on their compliance with their Commitment to achieve social and environmental objectives in necessary cases;

b/ Directly examining, or requesting a competent state agency to examine, the enterprises based on the contents of their Commitment to achieve social and environmental objectives.

2. The monitoring and supervision of social enterprises referred to in Clause 1 of this Article shall be carried out according to the following order and procedures:

a/ A request for reporting on the compliance with the Commitment to achieve social and environmental objectives shall be made in writing, specifying the reason and specific contents, deadline and method of meeting the request;

b/ A state agency may only directly examine an enterprise at least 15 days after sending its written request for examination to the enterprise;

c/ Within 5 working days after concluding the examination of a social enterprise, the examining agency shall make a written report on the examination result and send it to the social enterprise concerned, provincial-level People’s Committee and related agencies of the provincial-level People’s Committee.

Article 12. Quantity, form and contents of designs of seals of enterprises

1. Owners of private enterprises, Members’ Councils of partnerships, Members’ Councils or presidents of limited liability companies, and Boards of Directors of joint stock companies may decide on the quantity, forms, contents and designs, and the management and use of their seals, unless otherwise provided in their company charters. The contents of the charter or decision concerning the seal of an enterprise must include:

a/ The design of the seal, including form, size, content and ink color.

b/ The quantity of the seal;

c/ Regulations on the management and use of the seal.

2. The design of a seal of an enterprise shall be presented in a specific form (round, polygonal or another shape). Each enterprise must have a uniform design of its seal in terms of content, form and size.

3. Information on the code and name of an enterprise in its seal design must comply with Article 30 and Clause 1, Article 38 of the Law on Enterprises. In addition to this information, an enterprise may include other words and images in its seal design, except the cases specified in Article 14 of this Decree. 

Article 13. Quantity, forms and contents of designs of seals of branches and representative offices

1. Owners of private enterprises, Members’ Councils of partnerships, Members’ Councils or presidents of limited liability companies, and Boards of Directors of joint stock companies may decide on the quantity, forms, contents and designs, and the management and use of seals of their branches and representative offices, unless otherwise provided in their company charters.

2. The design of a seal of a branch or representative office must contain the name of the branch or representative office as prescribed in Clause 1 and 2, Article 41 of the Law on Enterprises. In addition to this information, an enterprise may include other words and images in the design of the seal of its branch or representative office, except the cases specified in Article 14 of this Decree.

Article 14. Images and words banned from use in seal designs

1.  Enterprises may not use the following images, words and signs in the contents or as forms of the designs of their seals:

a/ National flag, national emblem or Party flag of the Socialist Republic of Vietnam;

b/ Images, symbols and names of the State, state agencies, people’s armed forces units, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations or socio-professional organizations;

c/ Words, symbols and images that are against the historical and cultural traditions, ethics and fine customs of the Vietnamese nation.

2.  Enterprises shall comply with Clause 1 of this Article, the law on intellectual property and relevant laws when using images, words and signs in the contents or as the forms of the designs of their seals. Disputes between enterprises and other individuals and organizations over words, signs and images used in the contents of the designs of enterprises’ seals shall be settled before court or arbitration. Enterprises shall end the use of seals bearing words, signs or images that violate the provisions of this Article and shall compensate all arising damages according to effective court rulings or arbitral awards.

3. The business registration agency shall assume no responsibility for verifying the contents of designs of seals of enterprises when settling seal design notification procedures for enterprises.

Article 15. Management and use of seals

1. Enterprises that are established before July 1, 2015, may continue to use the seals already granted to them without having to notify the seal designs to the business registration agency. In case an enterprise makes an additional seal or changes the seal ink color, it shall carry out seal design notification procedures according to enterprise registration regulations.

2. An enterprise established before July 1, 2015, that makes a new seal in accordance with this Decree shall return the old seal and seal design registration certificate to the public security agency that has granted such certificate. The public security agency shall issue a receipt of the seal upon receiving it.

3. An enterprise established before July 1, 2015, that loses its seal or seal design registration certificate may make a seal in accordance with this Decree, and at the same time notify such loss to the public security agency that has granted the seal design registration certificate.

4. An enterprise shall notify its seal design to the business registration agency of the locality where the enterprise’s head office is located for the latter to post information on the National Enterprise Registration Portal in the following cases:

a/ Making a seal for the first time upon enterprise registration;

b/ Changing the number, content and design of a seal and its ink color;

c/ Destroying the seal design.

5. The order, procedures and dossier for seal design notification must comply with enterprise registration regulations.

Article 16. Limitation on cross-ownership among companies

1. Contribution of capital to establish an enterprise referred to in Clause 3, Article 189 of the Law on Enterprises includes contribution of capital to and purchase of shares to establish a new enterprise and purchase of contributed capital or shares of an established enterprise.

2. Cross-ownership means the concurrent mutual ownership of contributed capital and shares by two enterprises.

3. Joint contribution of capital to establish an enterprise mentioned in Clause 3, Article 189 of the Law on Enterprises means the case where total shares and contributed capital owned by capital-contributing companies account for at least 51% of the charter capital or total ordinary shares of the related company.

4. The presidents and Members’ Councils or Boards of Directors of related companies shall comply with Article 189 of the Law on Enterprises when deciding on contribution of capital to, and purchase of shares or contributed capital of other companies. In this case, the presidents or members of the Members’ Councils or members of the Boards of Directors of related companies must be jointly liable to compensate any damages incurred by their companies due to their violations of the provisions of this Article.

5. The business registration agency shall refuse to register a replacement of members or shareholders of a company if it detects in the course of processing dossiers that the contribution of capital and purchase of shares to establish an enterprise or transfer of shares or contributed capital violates the provisions of Clauses 2 and 3, Article 189 of the Law on Enterprises.

6. Companies without state-owned shares and state-contributed capital that have contributed capital or purchased shares before July 1, 2015, have the right to purchase and sell, transfer, increase or reduce contributed capital and shares, provided the exercise of such right does not result in an increase in the current cross-ownership ratio. 

Article 17. Principles of state management of enterprises

1. State agencies shall guide, support, conduct public information and create favorable conditions for enterprises to comply with laws.

2. In the course of receiving dossiers and settling procedures for enterprises, cadres and civil servants may neither request founders of enterprises to submit papers nor impose formalities and conditions other than prescribed ones, nor commit acts that cause difficulties and troubles to organizations and individuals.

3. Coordination and exchange of information about the situation of activities of enterprises shall be increased among state agencies; individuals and organizations shall be provided with favorable access to information about activities of enterprises which is archived at agencies and units, except cases involving secrets as prescribed by law.

4. Each state management agency at the central or local level and agency acting as representative of the owner shall monitor and supervise activities of enterprises within the scope of its assigned functions and tasks. Monitoring, supervision, inspection and examination activities of these agencies may neither adversely affect nor obstruct normal activities of enterprises.

Article 18. Coordination among agencies and units in the exchange of information on activities of enterprises

1. On a monthly basis, agencies of ministries, ministerial-level agencies and provincial-level People’s Committees, and district-level People’s Committees shall send to provincial-level business registration agencies of localities where enterprises’ head offices are located the following information:

a/ Business licenses, certificates of eligibility to do business, practice certificates, certificates or written approvals of business conditions granted to enterprises, branches, representative offices and managers of enterprises;

b/ Decisions to handle violations of enterprises, branches, representative offices and managers of enterprises in their business activities;

c/ Decisions to suspend business activities or terminate the suspension of business activities;

d/ Tax-related violations of enterprises.

2. Within 3 working days after receiving the information defined in Clause 1 of this Article, the business registration agency shall update it in relevant enterprise registration dossiers.

Article 19. Building of risk management systems to monitor and supervise activities of enterprises

1. Provincial-level People’s Committees shall take the initiative in building databases on activities of enterprises, and plans and methods of exchanging information with related agencies and publicizing information; and building risk management systems to monitor and supervise activities of enterprises within the scope of their state management functions.

2. A risk management system to monitor and supervise activities of enterprises must cover the following contents:

a/ The focal-point unit in charge of managing the risk system;

b/ A list of risks to be monitored and supervised;

c/ Risk levels to be controlled;

d/ Methods of warning, preventing and handling risks when detected;

dd/ Methods of collecting and exchanging information and methods of assessing risks.

3. On  a monthly basis, provincial-level Departments of Planning and Investment or other agencies as decided by provincial-level People’s Committees shall review activities and law compliance of enterprises and send a report thereon to provincial-level People’s Committees and concurrently to agencies of provincial-level People’s Committees and to district-level People’s Committees.

Article 20. Effect

This Decree replaces the Government’s Decree No. 102/2010/ND-CP of October 1, 2010, guiding in detail the implementation of a number of articles of the Law on Enterprises, and takes effect on December 8, 2015.

Article 21. Organization of implementation

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and subjects of application of this Decree shall implement this Decree.

2. The Ministry of Planning and Investment shall guide and issue forms for carrying out administrative procedures prescribed in this Decree.

3. Provincial-level People’s Committees shall develop and promulgate regulations on coordination among their attached agencies and lower-level People’s Committees in the exchange of information and building of risk management systems to monitor and supervise activities of enterprises.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG