Luật Doanh nghiệp 2020 số 59/2020/QH14 mới nhất
NATIONAL ASSEMBLY
——–
SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
—————
No. 59/2020/QH14
Hanoi, June 17, 2020
LAW
ON ENTERPRISES
Pursuant
to the Constitution of the Socialist Republic of Vietnam;
The
National Assembly promulgates the Law on Enterprises.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Law
provides for establishment, management, reorganization, dissolution and
relevant activities of enterprises, including limited liability companies,
joint stock companies, partnerships and sole proprietorships; groups of
companies.
Article 2. Regulated entities
1.
Enterprises.
2.
Organizations and individuals relevant to establishment, management,
reorganization, dissolution and relevant activities of enterprises.
Article 3. Application of the Law on Enterprises and other
laws
In case
there are other laws that provide for establishment, management,
reorganization, dissolution and relevant activities of special enterprises,
regulations of these laws shall apply.
Article 4. Definitions
For the
purpose of this document, the terms below are construed as follows:
1. “copy”
means a copy extracted from master register or a copy that has been certified
by a competent organization or compared to the original document.
2.
“foreigner” means a person who has a foreign nationality according to his/her
documents.
3.
“shareholder” means the individual or organization that holds at least a share
of a joint stock company.
4.
“founding shareholder” means a shareholder that holds at least an ordinary
share and has his/her signature in the list of shareholders that are also
founder of the joint stock company.
5.
“dividend” means a net profit on each share in cash or other assets.
6. A
“company” can be a limited liability company, joint stock company or
partnership.
7. A
“limited liability company” can be a single-member limited liability company or
multiple-member limited liability company.
8.
“National Enterprise Registration Portal” means a web portal used for
enterprise registration and access and publishing of enterprise registration.
9.
“national enterprise registration database” means the collection of nationwide
enterprise registration data.
10.
“enterprise” means an organization that has a proper name, assets, premises, is
established or registered in accordance with law for business purposes.
11. A
“state-owned enterprise” means an enterprise more than 50% charter capital or
voting shares of which is held by the State as prescribed in Article 88 of this
Law.
12. A
“Vietnamese enterprise” means an enterprise that is registered in accordance
with Vietnam’s law and has its headquarters located within Vietnam.
13.
“mailing address” means the address registered as the headquarters of an
organization; the permanent residence, working place or another address of an
individual that is registered as mailing address with an enterprise.
14.
“market value” of a stake or share means the price at which the stake or share
is traded on the market at the nearest time, the price agreed on by the buyer
and the seller, or the price determined by a valuation organization.
15.
“Certificate of Enterprise Registration” means a physical or electronic
document bearing enterprise registration information provided for the
enterprise by a business registration authority.
16.
“legal documents” of an individual include the ID card (old or new format),
passport and other legal personal identification documents.
17.
“legal documents” of an enterprise include the Establishment Decision,
Certificate of Enterprise Registration and equivalent documents.
18.
“capital contribution” means the contribution of capital as charter capital to
establish a new company or contribution of additional capital to an existing
company.
19.
“National Enterprise Registration Information System” includes the National
Enterprise Registration Portal, national enterprise registration database,
relevant databases and technical infrastructure.
20.
“valid application” means an application that contains adequate documents
specified in this Law and all the documents are completed as prescribed by law.
21.
“business” or “business operation” means continuous execution of one, some or
all stages including investment, manufacturing, sale or provision of services
on the market for profit.
22.
“relatives” of a person include: the spouse, biological parents, adoptive
parents, parents-in-laws, biological children, adopted children,
children-in-law, biological siblings, siblings-in-law and biological siblings
of the spouse.
23.
“related person” means any individual or organization that has a direct or
indirect relationship with an enterprise in the following cases:
a) The
parent company, its executive and legal representative, and the person who has
the power to designate the executive officer of the parent company;
b) The
subsidiary company, its executive and legal representative;
c) Any
individual, organization or group of individuals or organizations that can
influence the enterprise’s operation through ownership, acquisition of
shares/stakes or making corporal decisions;
d) The
enterprise’s executive, legal representative, controllers;
dd)
Spouses, biological parents, adoptive parents, parents-in-laws, biological
children, adopted children, children-in-law, biological siblings,
siblings-in-law and biological siblings of spouses of the executive officer,
legal representative, controllers, members/partners and shareholders holding
the controlling stakes/shares;
e) Any
individual that is the authorized representative of the companies or
organizations mentioned in Point a, b and c of this Clause;
g) Any
enterprise in which an individual, company or organization mentioned in Points
a, b, c, d, dd and e of this Clause has the controlling interest.
24.
“executive of an enterprise means the owner of a sole proprietorship, a general
partner of a partnership, chairperson or member of the Member/Partner Assembly,
President of a company, President or member of the Board of Directors,
Director/General Director, or holder of another managerial position prescribed
in the company’s charter.
25.
“founder” means the individual or organization that establishes or contributes
capital to establish an enterprise.
26.
“foreign investor” means an individual or organization as defined by the Law on
Investment.
27.
“stake” means the total value of assets that a member/partner has contributed
or promises to contribute to a limited liability company/partnership. “holding”
means the ratio of a member/partner’s stake to the charter capital of the
limited liability company/partnership.
28.
“public products and services” are essential products and services of a
country, area or community, thus have to be maintained by the State for
assurance of common interests or defense and security, and the costs of
provision of which under market mechanism are hardly recoverable.
29.
“member” or “partner” means the individual or organization that holds part or
all of charter capital of a limited liability company or partnership.
30. A
“partner” of a partnership can be a general partner or limited partner.
31.
“reorganization” of an enterprise means the full division, partial division,
consolidation, acquisition or conversion of an enterprise.
32.
“foreign organization” means an organization established overseas under the
foreign country’s laws.
33.
“voting capital” means the stake or share that endows the holder the right to
vote on the issues within the jurisdiction of the Board of Members or General
Meeting of Shareholders.
34.
“charter capital” means the total value of assets that have been contributed or
promised by the members/partners/owners when the limited liability company or
partnership is established; or the total of nominal values of the sold or
subscribed shares when a joint stock company is established.
Article 5. Protection of enterprises and their owners by
the State
1. The
State recognizes the long-term existence and development of the types of
enterprises prescribed in this Law; ensures equality of enterprises before the
law regardless of their types of business and economic sector; recognizes
lawful profitability of business operation.
2. The
State recognizes and protects the rights to ownership of assets, capital,
income, other lawful rights and interests of enterprises and their owners.
3. Lawful
assets and capital of enterprises and their owners shall not be nationalized or
administratively confiscated. Unless strictly necessary, the State may purchase
or requisition assets of enterprises, in which case these enterprises shall be
paid or reimbursed for in accordance with regulations of law on purchase and
requisitioning of assets and in a manner that ensures the enterprises’
interests and non-discrimination among the types of business.
Article 6. Internal political organizations,
socio-political organizations and employee representative organizations of
enterprises
1. The
internal political organization, socio-political organization and employee
representative organization of an enterprise shall operate in accordance with
the Constitution, the law and the enterprise’s charter.
2.
Enterprises shall respect and not obstruct the establishment of internal
political organizations, socio-political organizations and employee
representative organizations; must not obstruct participation of their
employees in such organizations.
Article 7. Rights of enterprises
Every
enterprise has the right to:
1. Freely
engage in any business line that is not banned by law.
2. Freely
run the business and choose a type of business organization; choose business
lines, area of operation and type of operation; change the scale of business
and business lines.
3. Choose
the method of mobilizing, distributing and using capital.
4. Freely
find markets, customers and enter into contracts.
5. Export
and import.
6. Hire
employees in accordance with employment laws.
7. Apply
technological advances to improve business efficiency; have intellectual
property rights protected in accordance with intellectual property laws.
8.
Acquire, use, dispose of their assets.
9. Reject
unlawful requests for provision of resources from other organizations and
individuals.
10. File
complaints and participate in proceedings as prescribed by law.
11. Other
rights prescribed by law.
Article 8. Obligations of enterprises
1.
Maintain the fulfillment of conditions for conducting restricted business lines
and business lines restricted to foreign investors (hereinafter referred to as
“restricted business lines”) prescribed by law throughout the course of
business operation.
2. Apply
for enterprise registration; register changes to enterprise registration
information; publish information about the establishment and operation of the
enterprise; submit reports and fulfill other obligations prescribed by this
Law.
3. Take
responsibility for the accuracy of information in the enterprise registration
application and reports; promptly rectify incorrect information if found.
4.
Organize accounting works; pay taxes and fulfill other financial obligations
prescribed by law.
5.
Protect lawful rights and interests of employees as prescribed by law; do not
discriminate against or insult employees; do not mistreat or force employees to
work; do not employ minors against the law; enable employees to improve their
vocational skills through training; buy social insurance, unemployment
insurance, health insurance and other insurance for employees as prescribed by
law.
6. Other
obligations prescribed by law.
Article 9. Rights and obligations of enterprises providing
public products and services
An
enterprise providing public products and services shall:
1. Have
the rights and obligations specified in Article 7, Article 8 and relevant
regulations of this Law.
2. Be
reimbursed in accordance with bidding laws or collect payments as prescribed by
competent authorities.
3. Have
appropriate time to provide products/services to recoup investment and make
reasonable profit.
4.
Provide products/services with adequate quantity, good quality and on schedule
at the prices imposed by competent authorities.
5. Ensure
fairness and convenience for customers.
6. Take
legal responsibility for the quantity, quality, supply conditions and prices
for their products/services.
Article 10. Criteria, rights and obligations of social
enterprises
1. A
social enterprise shall:
a) Be
registered in accordance with this Law;
b)
Operate for the purposes of resolving social and environmental issues for
public interests;
c) Use at
least 51% of the annual post-tax profit for re-investment to achieved
registered targets.
2. In
addition to the rights and obligations of an enterprise prescribed in this Law,
a social enterprise also has the following rights and obligations:
a) The
owner or executive of a social enterprise shall be enabled to obtain relevant
licenses and certificates prescribed by law;
b) A
social enterprise may raise and receive donations from individuals, enterprises,
non-governmental organizations and other Vietnamese and foreign organizations
to cover its administrative expenses and operating costs;
c) Adhere
to the objectives and fulfill the conditions specified in Point b and Point c
Clause 1 of this Article throughout its course of operation;
b) Do not
use donations for purposes other than covering administrative expenses and
operating costs and resolving the social and environmental issues registered by
the enterprise;
dd) When
receiving donations and aids, submit annual reports on the enterprise’s
operation to a competent authority;
3. Inform
the competent authority when an social or environmental objective is terminated
or profit is not used for re-investment in accordance with Point b and Point c
Clause 1 of this Article.
4. The
State shall adopt policies to encourage and assist in development of social
enterprises.
5. The
Government shall elaborate this Article.
Article 11. Document retention
1. An
enterprise, depending on its type of business, shall retain the following
documents:
a) The
charter, internal rules and regulations; the member/partner/shareholder
register;
b) The
certificate of Industrial property rights; the certificate of registration of
product/service quality; other licenses and certificates;
c)
Documents proving the enterprise’s ownership of its assets;
d) Votes,
vote counting records, minutes of meetings of the Board of Members/Partners,
General Meeting of Shareholders, Board of Directors; the enterprise’s
decisions;
dd) The
prospectus for offering or listing securities;
e)
Reports of the Board of Controllers, verdicts of inspecting authorities and
audit organizations;
g)
Accounting books, accounting records and annual financial statements.
2. The
documents mentioned in Clause 1 of this Article shall be retained at the
enterprise’s headquarters or another location specified in the enterprise’s
charter for a period of time prescribed by law.
Article 12. The enterprise’s legal representative
1. The
enterprise’s legal representative is the person that, on behalf of the
enterprise, exercises and performs the rights and obligations derived from the
enterprise’s transactions, acts as the plaintiff, defendant or person with
relevant interests and duties before in court, arbitration, and performs other
rights and obligations prescribed by law.
2. A
limited liability company or joint stock company may have one or more than one
legal representative. The enterprise’s charter shall specify the quantity,
position, rights and obligations of its legal representatives. In case there
are more than one legal representative, the charter shall specify the rights
and obligations of each of them. Otherwise, each of the legal representatives
shall fully representative the enterprise and take joint responsibility for any
damage to the enterprise as prescribed by civil laws and relevant laws.
3. An
enterprise shall have at least one legal representative residing in Vietnam.
Whenever this representative leaves Vietnam, he/she has to authorize another
Vietnamese resident, in writing, to act as the legal representative, in which
case the authorizing person is still responsible for the authorized person’s
performance.
4. In
case the authorizing person has not returned to Vietnam when the letter of
authorization mentioned in (3) expires and does not have any further actions:
a) In
case the enterprise is a sole proprietorship, the authorized person shall
continue acting as the enterprise’s legal representative until the authorizing
person returns;
b) In
case the enterprise is a limited liability company, joint stock company or
partnership, the authorized person shall continue acting as the enterprise’s
legal representative until the authorizing person returns or until the
enterprise’s owner, Board of Members/Partners or Board of Directors designates
another legal representative.
5. In
case the only legal representative of an enterprise she is not present in
Vietnam for more than 30 days without authorizing another person to act as the
enterprise’s legal representative, or is dead, missing, facing criminal
prosecution, kept in temporary detention, serving an imprisonment sentence,
serving an administrative penalty in a correctional institution or
rehabilitation center, has limited legal capacity or is incapacitated, has
difficulty controlling his/her own behaviors, is banned by the court from
holding certain positions or doing certain works, the enterprise’s owner, Board
of Members/Partners or Board of Directors shall appoint another legal
representative, except for the cases specified in Clause 6 of this Article.
6. In a
two-member limited liability company, if the member who is the company’s legal
representative is dead, missing, facing criminal prosecution, kept in
temporary detention, serving an imprisonment sentence, serving an administrative
penalty in a correctional institution or rehabilitation center, making getaway;
has limited legal capacity or is incapacitated, has difficulty controlling
his/her own behaviors, is banned by the court from holding certain positions or
doing certain works, the other member shall obviously assume the position of
the company’s legal representative until the Board of Members issues a new
decision on the company’s legal representative.
7. The
court and other proceeding authorities are entitled to appoint the legal
representative who participates in proceedings as prescribed by law.
Article 13. Responsibilities of the enterprise’s legal
representative
1. An
enterprise’s legal representative shall:
a)
Exercise and perform his/her rights and obligations in an honest and prudent
manner to protect the enterprise’s lawful interests;
b) Be
loyal to the enterprise’s interests; not abuse his/her power and position or
use the enterprise’s information, secrets, business opportunities and assets
for personal gain or serve any other organization’s or individual’s interests;
c)
Promptly and fully provide the enterprise with information about the
enterprises that he/she or his/her related person owns or has shares/stakes in
as prescribed in this Law.
2. The
enterprise’s representative shall be personally responsible for any damage to
the enterprise within the limits of responsibilities specified in Clause 1 of
this Article.
Article 14. Authorized representatives of the
owner/members/partners/shareholders that are organizations
1.
Authorized representatives of the owner/members/partners/shareholders that are
organizations shall be authorized in writing by the
owner/members/partners/shareholders in accordance with this Law.
2. Unless
otherwise prescribed by the charter, the designation of the authorized
representative shall comply with the following regulations:
a) An
organization that is a member of a multiple-member limited liability company
and holds at least 35% of charter capital may designate up to 03 authorized representatives;
b) An
organization that is a shareholder of a joint stock company and holds at least
10% of ordinary shares may designate up to 03 authorized representatives.
3. In
case the owner/members/partners/shareholders designate more than one authorized
representative, the holding represented by each of them shall be specified.
Otherwise, the total holding shall be equally divided among the authorized
representatives.
4. The
document designating the authorized representative shall be informed to the company,
be effective on the date it is received by the company and contain the
following information:
a) Names,
enterprise identification (EID) numbers, headquarters addresses of the
owner/members/partners/shareholders;
b)
Quantity of authorized representatives and their holdings;
c) Full
name, mailing address, nationality, legal document number of each authorized
representative;
d) The
beginning date and duration of authorization of each authorized representative;
dd) Full
names and signatures of the legal representatives of the
owner/members/partners/shareholders and of the authorized representatives.
5. An
authorized representative shall satisfy the following requirements:
a) The
authorized representative is not an entity specified in Clause 2 Article 17 of
this Law;
b)
Members/partners/shareholders of state-owned enterprises prescribed in Point b
Clause 1 Article 88 of this Law must not designate a relative of the executive
and the person having the power to designate the executive as representative of
another company;
c) Other
requirements specified in the company’s charter.
Article 15. Responsibilities of authorized representatives
of the owner/members/partners/shareholders that are organizations
1.
Authorized representatives of the owner/members/partners/shareholders shall
exercise and perform their rights and obligations in accordance with this Law.
All limits imposed by the owner/members/partners/shareholders to the authorized
representatives’ performance at the Board of Members/Partners or General Meeting
of Shareholders shall not apply to any third party.
2.
Authorized representatives have the responsibility to attend all meetings of
the Board of Members/Partners or General Meeting of Shareholders; exercise and
perform the authorized rights and obligations in an honest and prudent manner
to protect lawful interest of the owner/members/partners/shareholders that
designated them.
3.
Authorized representatives shall be responsible to the owner,
members/partners/shareholders for fulfillment of the responsibilities specified
in this Article. The owner, members/partners/shareholders that designate these
authorized representatives shall be responsible to third parties for
performance of these authorized representative.
Article 16. Prohibited actions
1. Issuing
or refusing to issue the Certificate of Enterprise registration against
regulations of this Law; requesting the founder to submit additional documents
against regulations of this Law; delaying, obstructing, harassing enterprise
founders and business operation of enterprises.
2.
Obstructing the enterprise’s owner, members/partners/shareholders from
performing their rights and obligations prescribed in this Law and the
enterprise’s charter.
3. Doing
business as an enterprise without applying for enterprise registration;
carrying on busines operation after the Certificate of Enterprise Registration
has been revoked or while the enterprise is being suspended.
4.
Providing dishonest or incorrect information in the enterprise registration
application or application for changes to enterprise registration information.
5.
Declaring false charter capital; failure to contribute adequate charter capital
as registered; deliberate contribution of assets with false value.
6.
Engaging in banned business lines or business lines from which foreign
investors are banned; engaging in restricted business lines without fulfillment
of conditions or failure to maintain fulfillment of conditions during operation
in restricted business lines.
7.
Frauds, money laundering, terrorism financing.
Chapter II
ENTERPRISE ESTABLISHMENT
Article 17. The rights to
establish, contribute capital, buy shares/stakes and manage enterprises
1.
Organizations and individuals have the right to establish and manage
enterprises in Vietnam in accordance with this Law, except for the cases
specified in Clause 2 of this Article.
2. The
following organizations and individuals do not have the right to establish and
manage enterprises in Vietnam:
a) State
authorities, People’s armed forces using state-owned assets to establish
enterprises to serve their own interests;
b)
Officials and public employees defined by the Law on Officials and the Law on
Public Employees;
c)
Commissioned officers, non-commissioned officers, career military personnel,
military workers and public employees in agencies and units of Vietnam People’s
Army; commissioned officers, non-commissioned officers and police workers in
police authorities and units, except for those designated and authorized
representatives to manage state-owned stakes in enterprises or to manage
state-owned enterprises;
d)
Executive officers and managers of state-owned enterprises prescribed in Point
a Clause 1 Article 88 of this Law, except those who are designated as
authorized representatives to manage state-owned stakes in other enterprises;
dd)
Minors; people with limited legal capacity; incapacitated people; people having
difficulties controlling their behaviors; organizations that are not juridical
persons;
e) People
who are facing criminal prosecution, kept in temporary detention, serving an
imprisonment sentence, serving an administrative penalty in a correctional
institution or rehabilitation center, has limited legal capacity or is
incapacitated, is not able to control his/her own behaviors, is banned by the
court from holding certain positions or doing certain works; other cases
prescribed by the Law on Bankruptcy and the Anti-corruption Law.
If
requested by the business registration authority, the applicant shall submit
the judicial records;
g)
Juridical persons that are banned from business operation or banned from
certain fields as prescribed by the Criminal Code.
3.
Organizations and individuals have the right to contribute capital, buy shares
and stakes of joint stock companies, limited liability companies and
partnerships in accordance with this Law, except:
a) State
authorities, People’s armed forces contributing state-owned assets to
enterprises to serve their own interests;
b) The
entities that are not allowed to contribute capital to enterprises prescribed
by the Law on Officials, the Law on Public Employees, and Anti-corruption Law.
4. The
act of serving one’s own interests mentioned in Point a Clause 2 and Point a
Clause 3 of this Article means the use of incomes from business operation,
capital contribution, acquisition of shares/stakes for any of the following
purposes:
a) Any
kind of distribution to some or all of the persons specified in Point b and
Point c Clause 2 of this Article;
b)
Inclusion in the operating budget of the organization/unit against state budget
laws;
c)
Establishment or contribution to an internal fund of the organization/unit.
Article 18. Pre-registration contracts
1. The
enterprise’s founder may sign contracts serving the establishment and operation
of the enterprise before and during the process of enterprise registration.
2. When
the Certificate of Enterprise Registration is granted, the enterprise shall
continue exercising and performing the rights and obligations under the
concluded contracts mentioned in Clause 1 of this Article, and the parties
shall transfer the rights and obligations in accordance with the Civil Code,
unless prescribed by the contracts.
3. IN
case the Certificate of Enterprise Registration is not granted, the persons who
conclude the contracts mentioned in Clause 1 of this Article are responsible
for their execution. Any other participant in the establishment of the
enterprise is also responsible for the execution of these contracts.
Article 19. Application for registration of a sole
proprietorship
1. The
enterprise registration application form.
2. Copies
of legal documents of the sole proprietorship’s owner.
Article 20. Application for registration of a partnership
1. The
enterprise registration application form.
2. The
company’s charter.
3. The
list of partners.
4. Copies
of legal documents of the partners.
5. Copies
of the Certificate of Investment Registration of foreign investors as
prescribed by the Law on Investment.
Article 21. Application for registration of a limited
liability company
1. The
enterprise registration application form.
2. The
company’s charter.
3. The
list of members.
4. Copies
of:
a) Legal
documents of members who are individuals and legal representatives;
b) Legal
documents of members that are organizations, documents about designation of
authorized representatives and their legal documents.
Legalized
copies of legal documents of the members that are foreign organizations.
c) The
Certificate of Investment Registration of foreign investors as prescribed by
the Law on Investment.
Article 22. Application for registration of a joint stock
company
1. The
enterprise registration application form.
2. The
company’s charter.
3. The
list of founding shareholders; the list of shareholders that are foreign
investors.
4. Copies
of:
a) Legal
documents of founding shareholders and shareholders that are foreign investors
who are individuals and legal representatives;
b) Legal
documents of shareholders that are organizations, documents about designation
of authorized representatives; legal documents of authorized representatives of
founding shareholders and shareholders that are foreign organizations.
Legalized
copies of legal documents of the members that are foreign organizations.
c) The
Certificate of Investment Registration of foreign investors as prescribed by
the Law on Investment.
Article 23. Content of the enterprise registration
application form
The
following information shall be provided in the enterprise registration
application form:
1. The
enterprise’s name;
2. The
enterprise’s headquarters, phone number, fax number, email address (if any);
3. The
enterprise’s business lines;
4. The
charter capital (or investment capital if the enterprise is a sole
proprietorship);
5. Types
of shares, face value of each type and total authorized shares of each type if
the enterprise is a joint stock company;
6. Tax
registration information;
7.
Expected quantity of employees;
8. Full
name, signature, mailing address, nationality and legal documents of each
partner (for partnerships) or the owner (for sole proprietorships);
9. Full
name, signature, mailing address, nationality and legal documents of the legal
representative (for limited liability companies and joint stock companies).
Article 24. The company’s charter.
1. The
company’s charter includes the initial charter submitted upon enterprise
registration and revisions made during the operation.
2.
Primary contents of the company’s charter:
a) The
company’s name, addresses of the headquarters, branches and representative
offices (if any);
b) The
company’s business lines;
c) The
charter capital; total quantity of shares, types of shares and face value of
each type (for joint stock companies);
d) Full
name, mailing address, nationality of each partner (for partnerships), the
owner and each member (for limited liability companies) or the founding
shareholders (for joint stock companies). Stakes held by each member or
partner (for limited liability companies and partnerships) and values thereof.
Quantity of shares, types of shares and value of each type held by founding
shareholders (for joint stock companies);
dd)
Rights and obligations of the members or partners (for limited liability
companies and partnerships) or shareholders (for joint stock companies);
e) The
organizational structure;
g)
Quantity, titles, rights and obligations of each of the enterprise’s legal
representatives;
h) Method
for ratifying the company’s decisions; rules for settlement of internal
disputes;
i) Basis
and method for determination of salaries and bonuses of the executives and
controllers;
k) Cases
in which members/shareholders may request the company to repurchase their
stakes/shares (For limited liability companies/joint stock companies);
l) Rules
for distribution of post-tax profits and settlement of business losses;
m) Cases
of dissolution; procedures for dissolution and liquidation of the company’s
assets;
m)
Procedures for revising the company’s charter.
3. The
initial company’s charter shall contain the full names and signatures of:
a) For
partnerships, the partners;
b) For
single-member limited liability companies, the owner that is an individual or
the legal representative of the owner that is an organization;
c) For
multi-member limited liability companies, the members that are individuals or
authorized representatives of members that are organizations;
d) For
joint stock companies, founding shareholders that are individuals and legal
representatives or authorized representatives of founding shareholders that are
organizations.
4. The
revised company’s charter shall contain the full names and signatures of:
a) For
partnerships: the President of the Partner Assembly;
b) For
single-member limited liability companies: the owner, the legal representative
of the owner, or the legal representative;
c) For
multi-member limited liability companies and joint stock companies: the legal
representative.
Article 25. List of members/partners of a limited liability
company/partnership; list of founding shareholders and foreign shareholders of
a joint stock company
The List
of members/partners of a limited liability company/partnership; the list of
founding shareholders and foreign shareholders of a joint stock company shall
contain:
1. Full
names, signatures, nationalities, mailing addresses of
members/partners/founding shareholders/foreign shareholders that are
individuals;
2. Names,
EID numbers, addresses of headquarters of members/partners/founding
shareholders/foreign shareholders that are organizations;
3. Full
names, signatures, nationalities, mailing addresses or legal representatives or
authorized representatives of members/partners/founding shareholders/foreign
shareholders that are organizations;
4. Stakes
and values thereof, holdings, types, quantities and values of assets
contributed as capital, capital contribution time of each member/partner (for
limited liability companies and partnerships); types and quantities of shares,
holdings, types, quantities and values of assets contributed as capital,
capital contribution period of each founding shareholder and foreign
shareholder (for joint stock companies).
Article 26. Enterprise
registration procedures
1. The
enterprise’s founder or the authorized person shall apply for enterprise
registration at the business registration authority as follows:
a) Direct
application at the business registration authority;
b)
Submission of the application by post;
c) Online
enterprise registration.
2. Online
enterprise registration means the enterprise’s founder submitting the
electronic enterprise registration application to the National Enterprise
Registration Portal. An electronic enterprise registration application shall
contain the information prescribed in this Law and has the same legal value as
a physical one.
3.
Applicants may choose between digital signatures and business registration
accounts for online enterprise registration.
4. A
business registration account means an account created by the National
Enterprise Registration Information System for an individual to apply for
online enterprise registration. The account holder is legally responsible for
the obtainment and use of the account for online enterprise registration.
5. Within
03 working days from the receipt of the application, the business registration
authority shall consider the validity of the application and decide whether to
issue enterprise registration. The business registration authority shall inform
the applicant of necessary supplementation in writing if the application is
invalid or inform the applicant and provide explanation if the application is
rejected.
6. The
Government shall provide detailed regulations on documentation and
interconnected procedures for enterprise registration.
Article 27. Issuance of the Certificate of Enterprise Registration
1. An
enterprise will be granted the Certificate of Enterprise Registration when the
following conditions are fully satisfied:
a) The
registered business lines are not banned;
b) The
enterprise’s name is conformable with regulations of Articles 37, 38, 39 and 41
of this Law;
c) The
enterprise registration application is valid;
d) The
enterprise registration fees are fully paid in accordance with regulations of
law on fees and charges.
2. In
case a Certificate of Enterprise Registration is lost or damaged, it will be
reissued at a fee prescribed by law.
Article 28. Content of the Certificate of Enterprise Registration
A
Certificate of Enterprise Registration shall contain the following information:
1. The
enterprise’s name and EID number;
2. The
enterprise’s headquarters address;
3. Full
name, signature, mailing address, nationality and legal document number of the
legal representative (for limited liability companies and joint stock
companies), each partner (for partnerships), the owner (for sole
proprietorships). Full name, mailing address, nationality and legal document
number of each member that is an individual; name, EID number and headquarters
address of each member that is an organization (for limited liability
companies);
4. The
charter capital (or investment capital if the enterprise is a sole
proprietorship).
Article 29. Enterprise
identification (EID) number
1. EID
number is a serial number generated by the National Enterprise Registration
Information System, issued to the enterprise when it is created and written on
the Certificate of Enterprise Registration. Each enterprise shall have a sole
EID number, which must not be issued to any other enterprise.
2. The
EID number shall be used for paying taxes, following administrative procedures,
exercising and performing other rights and obligations.
Article 30. Registering revisions to the Certificate of
Enterprise Registration
1.
Revisions to any of the information specified in Article 28 of this Law on the
Certificate of Enterprise Registration shall be registered by the enterprise
with the business registration authority.
2. An
application for revision shall be submitted within 10 days from day on which
the change occurs.
3. Within
03 working days from the receipt of the application for revision, the business
registration authority shall consider the validity of the application and decide
whether to issue a new Certificate of Enterprise Registration. The business
registration authority shall inform the applicant of necessary supplementation
in writing if the application is invalid or inform the applicant and provide
explanation if the application is rejected.
4.
Procedures for registering revisions to the Certificate of Enterprise
Registration under a court decision or arbitration award:
a) The
applicant shall submit the application for revision to the competent business
registration authority within 15 days from the effective date of the court
decision or arbitration award. The application shall include copies of the
effective court decision or arbitration award;
b) Within
03 working days from the receipt of the application, the business registration
authority shall consider issuing a new Certificate of Enterprise Registration
in accordance with the effective court decision or arbitration award. The
business registration authority shall inform the applicant of necessary
supplementation in writing if the application is invalid or inform the
applicant and provide explanation if the application is rejected.
5. The
Government shall provide for documentation and procedures for registering
revisions to the Certificate of Enterprise Registration.
Article 31. Notification of changes to enterprise
registration information
1. The
enterprise shall notify the business registration authority of any change to:
a) The
enterprise’s business lines;
b) The
founding shareholders and foreign shareholders (for joint stock companies,
except listed companies);
c) Other
content of the enterprise registration application.
2. The
enterprise shall notify a change to enterprise registration information within
10 days from its occurrence.
3. A
joint stock company shall send a written notification to the business
registration authority in charge of the area where the company is headquartered
within 10 days from the occurrence of the change to foreign shareholders
registered in the company’s shareholder register. Such a notification shall
contain:
a) The
company’s name, EID number, headquarter address;
b) For
foreign shareholders who transfer their shares: Names and headquarter addresses
of shareholders that are organizations; full names, nationalities, mailing
addresses of shareholders that are individuals; quantities and types of shares
they are holding; quantities and types of shares being transferred;
c) For
foreign shareholders who receive shares: Names and headquarter addresses of
shareholders that are organizations; full names, nationalities, mailing
addresses of shareholders that are individuals; quantities and types of shares
being received; their holdings;
d) Full
names and signatures of the company’s legal representatives.
4. Within
03 working days from the receipt of the notification, the business registration
authority shall consider its validity and decide whether to accept the change.
The business registration authority shall inform the enterprise of necessary
supplementation in writing if the application is invalid or inform the
applicant and provide explanation if the change is not acceptable.
5.
Procedures for notifying changes to enterprise registration information under a
court decision or arbitration award:
a) The
organization or individual that requests to make the change (the requester)
shall send a notification to the competent business registration authority
within 10 days from the effective date of the court decision or arbitration
award. The notification shall include copies of the effective court decision or
arbitration award;
b) Within
03 working days from the receipt of the notification, the business registration
authority shall consider accepting the change in accordance with the effective
court decision or arbitration award. The business registration authority shall
inform the applicant of necessary supplementation in writing if the
notification is invalid or inform the applicant and provide explanation if the
change is not acceptable.
Article 32. Publishing of enterprise registration
information
1. After
an enterprise is granted the Certificate of Enterprise Registration, it shall
announce it on the National Enterprise Registration Portal and pay the fee as
prescribed by law. The announcement shall include the content of the
Certificate of Enterprise Registration and:
a) The
enterprise’s business lines;
b) The
list of founding shareholders and foreign shareholders (for joint stock
companies).
2. Any
change to enterprise registration information shall be announced on the
National Enterprise Registration Portal.
3. The
information mentioned in Clause 1 and Clause 2 of this Article shall be
published for 30 days.
Article 33. Provision of enterprise registration
information
1.
Organizations and individuals are entitled to request business registration
authorities to provide information on the National Enterprise Registration
Information System and pay fees.
2.
Business registration authorities shall fully and promptly provide information
in accordance with Clause 1 of this Article.
3. The
Government shall elaborate this Article.
Article 34. Contributed assets
1.
Contributed assets include VND, convertible foreign currencies, gold, land use
right (LUR), intellectual property rights, technologies, technical secrets,
other assets that can be converted into VND.
2. Only
the individual or organization that has the lawful right to ownership or right
to use the asset mentioned in Clause 1 of this Article may contribute it as
capital as prescribed by law.
Article 35. Transfer of ownership of contributed assets
1. Transfer
of contributed assets by members of a limited liability company, partners of a
partnership, shareholders of a joint stock company shall comply with the
following regulations:
a) For
assets whose ownership have been registered and LURs, the capital contributor
shall follow procedures for transfer the ownership of such assets or the LUR to
the company as prescribed by law. This transfer is exempt from registration
fee;
b)
Contribution of assets whose ownership is not registered shall be recorded in
writing unless the contribution is made by wire transfer.
2. The
record on transfer of contributed assets shall contain the following
information:
a) The
company’s name and headquarters address;
b) Full
name, mailing address, legal document number of the contributor that is an
individual; legal document number of the contributor that is an organization;
c) Types
and quantities of contributed assets; total value of contributed assets and the
ratio of this value to the company’s charter capital;
d) Date
of transfer; signatures of the contributor or the contributor’s authorized
representative and the company’s legal representative.
3. The
contribution is considered complete once the lawful ownership of the assets has
been transferred to the company.
4.
Procedures for ownership transfer are exempt for assets serving business
operation of the sole proprietorship’s owner.
5.
Payment for transfer of shares/stakes, receipt of dividends of remittance of
profits by foreign investors shall be carried out through accounts in
accordance with foreign exchange laws, except for payment in assets and
cashless payment.
Article 36. Valuation of contributed assets
1.
Contributed assets that are not VND, convertible foreign currencies or gold
shall be valued by members/partners/shareholders or a valuation organization
and expressed as VND.
2. Assets
contributed upon establishment of an enterprise shall be valued by
members/partners/founding shareholders by consensus or by a valuation
organization. In the latter case, the value of contributed assets must be
accepted by more than 50% of the members/partners/founding shareholders.
In case a
contributed asset is valued at a value higher than its actual value at
contribution time (overvalued), the members/partners/founding shareholders shall
jointly contribute an amount equal to the difference and are jointly
responsible for the damage caused by the overvaluation.
3. Assets
contributed during the operation shall be valued by the owner or the Board of
Members/Partners (for limited liability companies and partnerships) or the
Board of Directors (for joint stock companies) and the contributor or by a
valuation organization. In the latter case, the value shall be accepted by the
contributor and the owner, the Board of Members/Partners/Directors.
In case a
contributed asset is overvalued, the contributor, the owner and members of the
Board of Members/Partners/Director shall jointly contribute an amount equal to
the difference and are jointly responsible for the damage caused by the
overvaluation.
Article 37. Names of enterprises
1. The
Vietnamese name of an enterprise shall contain two elements in order:
a) The
type of enterprise;
b) The
proper name.
2. The
type of enterprise shall be “công ty trách nhiệm hữu hạn” or “công ty TNHH” for
limited liability companies; “công ty cổ phần” or “công ty CP” for joint stock
companies; “công ty hợp danh” or “công ty HD” for partnerships; “doanh nghiệp
tư nhân”, “DNTN” or “doanh nghiệp TN” for sole proprietorships.
3. The
proper name shall consist of letters in the Vietnamese alphabet, the letters F,
J, Z, W, numbers and symbols.
4. The
enterprise’s name shall be displayed at the headquarters, branches,
representative offices and business locations of the enterprise and printed or
written on transaction documents, records and printed materials published by
the enterprise.
5.
Pursuant to regulations of this Article, Articles 38, 39 and 41 of this Law,
the business registration authority is entitled to refuse to register
enterprise’s name.
Article 38. Prohibited acts of naming enterprises
1. Use of
any name that is identical or confusingly similar to another enterprise’s name
that is registered in accordance with Article 41 of this Article.
2. Use of
the name of a state authority, the People’s military unit, political
organization, socio-political organization, socio-political-professional
organization, social organization, social-professional organization as part or
all of an enterprise’s name, unless it is accepted by that authority, unit or
organization.
3. Use of
words or symbols that against the country’s history, culture, ethical values
and good traditions.
Article 39. Enterprise’s
name in foreign language and abbreviated name
1. The
enterprise’s name in a foreign language is the name translated from the Vietnamese
name into one of the Latin-based languages. The proper name of the enterprise’s
may be kept unchanged or translated into the foreign language.
2. In
case an enterprise’s name is in a foreign language, the text size of the
foreign name shall be smaller than the Vietnamese name displayed at the
enterprise’s headquarters, branches, representative offices and business
locations and on the enterprise’s transaction documents, records and materials
published by the enterprise.
3. The
abbreviated name of an enterprise may be abbreviation of its Vietnamese name or
foreign language name.
Article 40. Names of branches, representative offices and
business locations
1. The
name of a branch, representative office or business location shall consist of
letters in the Vietnamese alphabet, the letters F, J, Z, W, numbers and
symbols.
2. The
name of a branch, representative office or business location shall consist the
enterprise’s name and the phrase “Chi nhánh”, “Văn phòng đại diện” or “Địa điểm
kinh doanh” respectively.
3. The
name of a branch, representative office or business location shall be displayed
at the branch, representative office or business location. The name of an
enterprise’s branch or representative office be smaller than the Vietnamese
name of the enterprise on the transaction documents, records and printed
materials issued by the branch or representative office.
Article 41. Identical and confusingly similar names
1.
Identical name means a Vietnamese name that is chosen by the applying
enterprise and is identical to the Vietnamese name of a registered enterprise.
2. A name
is considered identical to a registered enterprise’s name in the following
cases:
a) The
Vietnamese name of the applying enterprise is pronounced similarly to a
registered enterprise’s name;
b) The
abbreviated name of the applying enterprise is identical to the abbreviated
name of a registered enterprise;
c) The
foreign language name of the applying enterprise is identical to the foreign
language name of a registered enterprise;
d) The proper
name of the applying enterprise is only different from the proper name of a
registered enterprise by a natural number or a letter in the Vietnamese
alphabet or any of the letters F, J, Z, W that is written right after the
proper name with or without a space;
dd) The
proper name of the applying enterprise is only different from the proper name
of an registered enterprise of the same type by the word “và” (“and”) or the
symbol “&”, ”, “.”, “,”, “+”, “-”, “_”;
e) The
proper name of the applying enterprise is only different from the proper name
of an registered enterprise of the same type by the word “tân” or “mới” (“new”)
that is written right before or after the proper name;
g) The
proper name of the applying enterprise is only different from the proper name
of an registered enterprise of one of the phrases “miền Bắc” (“north”), “miền
Nam” (“south”), “miền Trung” (“central”), “miền Tây” (“west”), “miền Đông”
(“east”);
h) The
proper name of the applying enterprise is identical to that of a registered
enterprise.
3. The
cases specified in Points d, dd, e, g, h Clause 2 of this Article do not apply
to subsidiary companies of the registered company.
Article 42. The enterprise’s headquarters
The
enterprise’s headquarters shall be located within Vietnam’s territory, is the
enterprise’s mailing address, has phone number, fax number and email address
(if any).
Article 43. The enterprise’s seals
1. The
enterprise’s seals can be physical or digital as prescribed by e-transaction
laws.
2. The
enterprise shall decide the type, quantity, design and content of its seal and
the seals of its branches, representative offices and other units.
3. The
management and storage of seals shall comply with the company’s charter or
regulations of the enterprise, branch, representative office or unit that owns
the seal. Seals shall be used by enterprises in transactions as prescribed by
law.
Article 44. Branches, representative offices and business
locations of an enterprise
1. A
branch of an enterprise is its dependent unit which has some or all functions
of the enterprise, including authorized representative. The business lines of a
branch shall match those of the enterprise.
2. A
representative office of an enterprise is its dependent unit which acts as the
enterprise’s authorized representative, represents and protect the enterprise’s
interests. A representative office shall not do business.
3. A
business location of an enterprise is the place at which specific business
operations are carried out.
Article 45. Registration of branches and representative
offices; notification of business location
1. An
enterprise may establish branches and representative offices in Vietnam and
other countries. An enterprise may have more than one branch and representative
office in an administrative division.
2. When
establishing a domestic branch/representative office, the enterprise shall
submit an application for branch/representative office registration to the
business registration authority in charge of the area where the
branch/representative office is established. Such an application shall consist
of:
a) The
notice of establishment of the branch/representative office;
b) Copies
of the Establishment Decision and minutes of the meeting on the establishment
of the enterprise’s branch/representative office, legal documents of the head
of the branch/representative office.
3. Within
03 working days from the receipt of the application, the business registration
authority shall consider the validity of the application and decide whether to
issue a Certificate of Branch/Representative Office Registration. The business
registration authority shall inform the applicant of necessary supplementation
in writing if the application is not satisfactory or inform the applicant and
provide explanation if the application is rejected.
4. The
enterprise shall apply for revision of the Certificate of Branch/Representative
Office Registration 10 days from the day on which a change occurs.
5. Within
10 days from the day on which the business location is decided, the enterprise shall
send a notice of business location establishment to the business registration
authority.
6. The
Government shall elaborate this Article.
Chapter III
LIMITED LIABILITY COMPANIES
Section 1. MULTI-MEMBER LIMITED LIABILITY COMPANIES
Article 46. Multi-member limited liability companies
1. A
multiple-member limited liability company means an enterprise that has 02 – 50
members that are organizations or individuals. A member’s liability for the
enterprise’s debts and other liabilities shall be equal to the amount of
capital that member contributed to the enterprise, except for the cases
specified in Clause 4 Article 47 of this Law. The member’s stake (contributed
capital) may only be transferred in accordance with Articles 51, 52 and 53 of
this Law.
2. A multiple-member
limited liability company has the status of a juridical person from the day on
which the Certificate of Enterprise Registration is issued.
3.
Multiple-member limited liability companies must not issue shares except for
equitization.
4. Multiple-member
limited liability companies may issue bonds in accordance with this Law and
relevant laws; private placement of bonds shall comply with Article 128 and
Article 129 of this Law.
Article 47. Capital contribution to establish the company
and issuance of the certificate of capital contribution
1. The
initially registered charter capital of a multiple-member limited liability
company is the total capital contributed or promised by the members and shall
be written in company’s charter.
2. The
members shall contribute sufficient and correct assets as promised when
applying for enterprise registration within 90 days from the issuance date of
the Certificate of Enterprise Registration, excluding the time needed to
transport or import the contributed assets and for completing ownership
transfer procedures. During this period, the members shall have rights
and obligations that are proportional to their promised contribution. The
members may only contribute assets that are different from the promised ones if
the change is approved by more than 50% of the remaining members.
3. In
case a member fails to contribute or fully contribute capital as promised by
the expiration of the period mentioned in Clause 2 of this Article:
a) The
member that has not contributed capital at all is obviously no longer a member
of the company;
b) The
member that has not fully contributed capital will have the rights that are
proportional to the contributed capital;
c) The
right to contribute the missing capital will be sold under a resolution or
decision of the Board of Members.
4. In the
cases mentioned in Clause 3 of this Article, the company shall register the
change in charter capital and the members’ holdings within 30 days from the
deadline for contributing capital specified in Clause 2 of this Article. The
members who fail to contribute or fully contribute capital shall be responsible
for the financial obligations incurred by the company during the period before
the company registers the change in charter capital and the members’ holdings
in proportion to their promised contributions.
5. In the
cases specified in Clause 2 of this Article, the capital contributor will
become the company’s member from the day on which capital is fully contributed
and information about the capital contributor prescribed Points b, c, dd Clause
2 Article 48 of this Law has been fully recorded in the member register. On
that day, the company shall issue the capital contribution certificate to the
member.
6. The
capital contribution certificate shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b) The
company’s charter capital;
c) Full
name, signature, mailing address, nationality and legal document number if the
member is an individual; EID number or legal document number, headquarters
address if the member is an organization;
d) The
capital contributed and the member’s holding;
dd) The
number and date of issuance of the certificate of capital contribution;
e) Full
names and signatures of the company’s legal representatives.
7. In
case the capital contribution certificate is lost or damaged, the member will
be reissued with another certificate following the procedures specified in the
company’s charter.
Article 48. Member register
1. The
company shall make a member register upon issuance of the Certificate of
Enterprise Registration. The member register can be physical or electronic and
shall contain information about the members’ holdings.
2. A
member register shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b) Full
name, signature, mailing address, nationality and legal document numbers of
members that are individuals; names, EID numbers or legal document numbers and
headquarters addresses of members that are organizations;
c)
Stakes, holdings, contribution time, types of contributed assets, quantity and
value of each type of contributed assets of each member;
d)
Signatures of members that are individuals and of legal representatives of
members that are organizations;
dd) The
number and date of issuance of the certificate of capital contribution of each
member.
3. The
company shall update changes to members in the member register as requested by
relevant members in accordance with company’s charter.
4. The
member register shall be retained at the company’s headquarters.
Article 49. Rights of members of the Board of Members
1. A
member of the Board of Members has the rights to:
a)
Participate in meetings of the Board of Members; discuss, propose, vote on the
issues within the jurisdiction of the Board of Members;
b) Have a
number of votes that are proportional to the member’s holding, except for the
cases specified in Clause 2 Article 47 of this Law;
c)
Receive profit in proportion to the member’s holding after the company has
fully paid taxes and fulfilled other financial obligations prescribed by law;
d)
Receive part of the remaining assets in proportion to the member’s holding when
the company is dissolved or goes bankrupt;
dd) Be
given priority to contribute more capital when the company increases its
charter capital;
e)
Transfer, give away or otherwise dispose of the member’s own stake in
accordance with regulations of law and the company’s charter;
g) File
lawsuits in their own name of in the company’s name against the President of
the Board of Members, the Director/General Director, other executives, legal
representatives in accordance with Article 72 of this Law;
h) Other
rights prescribed by this Law and the company’s charter.
2. In
addition to the rights specified in Clause 1 of this Article, a group of
members that hold at least 10% of the charter capital (or a smaller ratio
prescribed by the company’s charter or in the cases specified in Clause 3 of
this Article) also has the rights to:
a) Demand
meetings of the Board of Members be convened to resolve issues within its
jurisdiction;
b)
Inspect, access logbooks and monitor transactions, accounting books and annual
financial statements;
c)
Inspect, access, make photocopies of the member register, meeting minutes, resolutions
Decree decisions of the Board of Members and other documents of the company;
d)
Request the Court to invalidate the resolution or decision of the Board of
Members within 90 days from the end of its meeting if the meeting procedures or
contents of the resolution or decision are not fully followed or contradict
regulations of this Law and the company’s charter.
3. In
case a member holds more than 90% of the charter capital and the company’s
charter does not provide for any smaller ratio as prescribed in Clause 2 of
this Article, the group of remaining members obviously have the rights
specified in Clause 2 of this Article.
Article 50. Obligations of members of the Board of Members
1. Fully
and punctually contribute capital as promised; take on a liability for the
company’s debts and liabilities which is equal to the contributed capital,
except for the cases specified in Clause 2 and Clause 4 Article 47 of this Law.
2. Do not
withdraw capital from the company in any shape or form; except for the cases
specified in Articles 51, 52, 53 and 68 of this Law.
3. Comply
with the company’s charter.
4.
Implement the resolutions and decisions of the Board of Members.
5. Take
personal responsibility when performing the following actions in the name of
the company:
a)
Violations of law;
b)
Business operations or transactions that do not serve the company’s interests
and cause damage to others;
c) Pay
debts before they are due while the company is facing financial risks.
6. Other
obligations prescribed by law.
Article 51. Repurchase of stakes
1. A
member is entitled to request the company to repurchase that member’s stake if
that member has voted against a resolution or decision of the Board of Members
on the following issues:
a)
Amendments to regulations of the company’s charter on rights and obligations of
members and the Board of Members;
b)
Reorganization of the company;
c) Other
issues prescribed by the company’s charter.
2. A
written request for stake repurchase shall be sent to the company within 15
days from the day on which the resolution or decision mentioned in Clause 1 of
this Article is ratified.
3. Within
15 days from the day on which the request mentioned in Clause 1 of this Article
is received, the company shall repurchase that member’s stake at market value
or at a value determined in accordance with the company’s charter, unless
another value is agreed upon by both parties. The payment shall only be made if
the company is still able to pay its debts and other liabilities afterwards.
4. In
case the company is not able to pay for the repurchase of the stake as
requested, the member is entitled to sell the stake to another member or a
non-member.
Article 52. Transfer of stakes
1. Except
for the cases specified in Clause 4 Article 51, Clause 6 and Clause 7 Article
53 of this Law, a member of a multiple-member limited liability company is
entitled to transfer part or all of their stake to another person as follows:
a) Offer
the stake to other members in proportion to their holdings under the same
conditions;
b)
Transfer the stake under the same conditions as those applied to other members
mentioned in Point a of this Clause to a non-member if the other members do not
purchase or fully purchase the stake within 30 days from the first day of
offering.
2. The transferor
still has the rights and obligations to the company in proportion to the stake
until information about the buyer mentioned in Point b, c and dd Clause 2
Article 48 of this Law is fully recorded in the member register.
3. In
case only one member remains after transfer or change of the members’ stakes,
the company shall be converted into a single-member limited liability company
and apply for change of enterprise registration information within 15 days from
the day on which the transfer is complete.
Article 53. Settlement of stakes in some special cases
1. In
case of the death of a member that is an individual, his/her heir at law or
designated by a will shall become a member of the company.
2. In
case a member that is an individual is declared missing by the Court, his/her
rights and obligations shall be performed through his/her asset manager as
prescribed by civil laws.
3. In
case a member that is an individual is incapacitated, has limited legal
capacity or has difficulty controlling his/her behaviors, his/her rights and
obligations shall be performed through his/her representative.
4. A
member’s stake shall be transferred or repurchased by the company in accordance
with Article 51 and Article 52 of this Law in the following cases:
a) The
member’s heir does not wish to become a member;
b) The
beneficiary mentioned in Clause 6 of this Article is not accepted as a member
by the Board of Members;
c) The
member that is an organization is dissolved or goes bankrupt.
5. In
case a member that is an individual dies without an heir or the heir refuses
the inheritance or is disinherited, the stake shall be settled in accordance
with civil laws.
6. In
case a member gives away part or all of his/her stake to another person, the
beneficiary will become a member of the company in the following cases:
a) If the
beneficiary is a lawful heir as prescribed by the Civil Code, he/she is
obviously a member of the company;
b) If the
beneficiary is not a lawful hair mentioned in Point a of this Clause, he/she
will only become a member if it is accepted by the Board of Members.
7. In
case a member uses that member’s stake to pay debt, the beneficiary may:
b) become
a member of the company if it is accepted by the Board of Members;
b) Offer
and sell the stake in accordance with Article 52 of this Law.
8. In
case a member that is an individual is being kept in temporary detention,
serving an imprisonment sentence, serving an administrative penalty in a
correctional institution or rehabilitation center, he/she shall authorize another
person to perform some or all of his/her rights and obligations to the company.
9. A
member that is an individual and is banned by the court to do certain jobs must
not do those jobs at the company; A member that is a juridical person and is
banned by the court from certain business lines must suspend or stop business
operation in those business lines.
Article 54. Organizational structure
1. A
multiple-member limited liability company shall have a Board of Members,
President of the Board of Members, Director/General Director.
2. A
state-owned multiple-member limited liability company prescribed in Point b
Clause 1 Article 88 of this Law and each subsidiary company of a state-owned
enterprise prescribed in Clause 1 Article 88 of this Law shall have a Board of
Controllers. The establishment of the Board of Controllers in other companies
shall be decided by themselves.
3. A
company shall have at least one legal representative who holds the title of
President of the Board of Members, Director/General Director. Unless otherwise
prescribed by the company’s charter, the President of the Board of Members
shall be the company’s legal representative.
Article 55. The Board of Members
1. The
Board of Members is the supreme governing body of the company, consists of all
members that are individuals and authorized representatives of members that are
organizations. The company’s charter shall specify the frequency of meetings of
the Board of Members but at least one meeting shall be held per year.
2. The
Board of Members has the following rights and obligations:
a) Decide
the company’s annual business plan and development strategy;
b) Decide
increase or decrease in charter capital, time and method for raising more
capital; issuance of bonds;
c) Decide
investments in the company’s development projects; solutions for market
development, marketing and technology transfer;
d)
Approve contracts for borrowing, lending, sale of assets and other contracts
prescribed by the company’s charter whose value are at least 50% of the total
assets written in the latest financial statement (or a smaller ratio or value
specified in the company’s charter);
dd)
Elect, dismiss the President of the Board of Members; designate, dismiss, sign
and terminate contracts with the Director/General Director, chief accountant,
controllers and other executives specified in the company’s charter;
e) Decide
the salaries, remunerations, bonuses and other benefits of the President of the
Board of Members, Director/General Director, chief accountant, controllers and
other executives specified in the company’s charter;
g) Ratify
annual financial statements, plans for use and distribution of profits or
settlement of losses;
h) Decide
the company’s organizational structure;
i) Decide
establishment of subsidiary companies, branches and representative offices;
k) Revise
the company’s charter;
l) Decide
reorganization of the company;
m) Decide
dissolution or file bankruptcy of the company;
n) Other
rights and obligations prescribed by Law and the company’s charter.
Article 56. President of the Board of Members
1. The
Board of Members shall elect a member as the President, who may concurrently
hold the position of Director/General Director of the company.
2. The
President of the Board of Members has the following rights and obligations:
a) Plan
the activities of the Board of Members;
b) Draw
up agenda and prepare documents for meetings or surveys of the Board of
Members;
c)
Convene and chair meetings of the Board of Members or organize surveys of the
Board of Members;
d)
Supervise or organize supervision of the implementation of resolutions and
decisions of the Board of Members;
dd) Sign
resolutions and decisions of the Board of Members on its behalf;
e) Other
rights and obligations prescribed by Law and the company’s charter.
3. The
term of office of the President of the Board of Members shall be specified in
the company’s charter bust must not exceed 05 years and has no term limit.
4. In
case the President of the Board of Members is not present or not able to
perform his tasks, he/she shall authorize another member in writing to perform
the rights and obligations of the President of the Board of Members in
accordance with the company’s charter. In case no member is authorized or the
President is dead, missing, detained, serving an imprisonment sentence, serving
an administrative penalty in a correctional institution or rehabilitation
center, making a getaway; has limited legal capacity or is incapacitated, has
difficulty controlling his/her behavior, is prohibited by the court from
holding certain positions or doing certain works, one of the Board of Members
shall convene a meeting with the remaining members to elect one of them as the
interim President under the majority rule until a new decision is issued by the
Board of Members.
Article 57. Convening meetings of the Board of Members
1.
Meetings of the Board of Members shall be convened by the President of the
Board of Members or at the request of the member or group of members prescribed
in Clause 2 and Clause 3 Article 49 of this Law. In case the President of the
Board of Members does not convene a meeting as requested by the aforementioned
member of group of members within 15 days from the day on which the request is
received, the member of group of members may convene the meeting themselves.
Reasonable costs of convening and conducting meetings of the Board of Members
shall be reimbursed by the company.
2. The
President of the Board of Members or the person that convenes the meeting shall
draw up the meeting agenda and prepare meting document; convene and chair the
meeting. Members are entitled to propose additional contents to the meeting
agenda in writing. Such a written proposal shall contain the following
information:
a) Full
name, signature, mailing address, nationality and legal document number if the
member is an individual; EID number or legal document number and headquarters
address if the member is an organization; full name and signature of the
proposing member or the proposing member’s authorized representative;
b) The
member’s holding, number and date of issuance of the certificate of capital
contribution;
c) The
proposed contents;
d)
Reasons for proposal.
3. The
President of the Board of Members or the person that convenes the meeting shall
accept a proposal that contains adequate information as prescribed in Clause 2
of this Article and is sent to the company’s headquarters at least 01 working
day before the meeting date. In case a proposal is put forward right before the
beginning of the meeting, it may be accepted if it is accepted the majority of
the participants.
4.
Invitations to a meeting of the Board of Members can be sent physically, by
phone, fax, electronically or by other methods prescribed by the company’s
charter to each member of the Board of Members. The invitation shall specify
the time, location and agenda of the meeting.
5. The
meeting agenda and documents shall be sent to members before the meeting date.
Documents about revisions of the company’s charter, ratification of the
company’s development strategy, annual financial statements, reorganization or
dissolution shall be sent to the members at least 07 working days before the
meeting date. The deadlines for sending other documents shall be specified in
the company’s charter.
6. Unless
otherwise prescribed by the company’s charter, a request to convene a meeting
of the Board of Members mentioned in Clause 1 of this Article shall be made in
writing and contain the following information:
a) Full
name, signature, mailing address, nationality and legal document numbers of
members that are individuals; names, EID numbers or legal document numbers and
headquarters addresses of members that are organizations; each member’s
holding, number and issuance date of each member’s capital contribution certificate;
b)
Reasons for convening the meeting and issues that need resolving;
c) The
draft agenda;
d) Full
names and signatures of the requesting members or their authorized
representatives.
7. In
case the request does not contain adequate information as prescribed in Clause
6 of this Article, the President of the Board of Members shall send a written
rejection to the requesting member(s) within 07 working days from the day on
which the request is received. If the request is valid, the President of the
Board of Members shall convene the meeting within 15 days from the day on which
the request is received.
8. In
case the President of the Board of Members fails to convene the meeting as
prescribed in Clause 7 of this Article, he/she shall be personally responsible
for the damage incurred by the company and relevant members.
Article 58. Conditions and procedures for conducting
meetings of the Board of Members
1. The
meeting shall be conducted when it is participated by a number of members that
hold at least 65% of charter capital; a specific ratio shall be specified in
the company’s charter.
2. In
case the conditions for conducting a meeting specified in Clause 1 of this
Article are not fulfilled and the company’s charter does not provide for this
situation otherwise:
a) The
invitation to the second meeting shall be sent within 15 days from the first
meeting date. The second meeting shall be when it is participated by a number
of shareholders that hold at least 50% of charter capital;
b) In
case the conditions for conducting the second meeting prescribed in Point a of
this Clause are not fulfilled, the invitation to the third meeting shall be
sent within 10 days from the second meeting date. The third meeting shall be
conducted regardless of the number of charter capital held by the participants.
3.
Members and their authorized representatives shall participate in and vote at
meetings of the Board of Members. The procedures for conducting meetings of the
Board of Members and voting methods shall be specified in the company’s
charter.
4. In
case the duration of a meeting is longer than expected, it may be extended but
must not exceed 30 days from its opening date.
Article 59. Resolutions and decisions of the Board of
Members
1. The
Board of Members shall ratify its resolution and decisions by voting at the
meeting, questionnaire survey or another method specified in the company’s
charter.
2. Unless
otherwise prescribed by the company’s charter, a decision on one of the
following issues shall be voted on at the meeting:
a)
Revisions to the company’s charter;
b)
Orientation for development of the company;
c)
Election, dismissal of the President of the Board of Members; designation,
dismissal of the Director/General Director;
d)
Ratification of the annual financial statement;
dd)
Reorganization or dissolution of the company.
3. Unless
otherwise prescribed by the company’s charter, a resolution or decision of the
Board of Members will be ratified at the meeting if:
a) It is
voted for by a number of participants that hold at least 65% of the total
stakes of all participants, except the case in Point b of this Clause;
b) It is
a resolution or decision to sell assets whose value is at least 50% of the
total assets written in the latest financial statement (or a smaller ratio or
value specified in the company’s charter), a resolution or decision on
revisions to the company’s charter, reorganization or dissolution of the
company, and is voted for by a number of participants that hold at least 75% of
the total stakes of all participants.
4. It
will be considered that a member participates in and votes at the meeting of
the Board of Members in the following cases:
a) The
member directly participates in and votes at the meeting;
b) The
member authorizes another person to participate in and vote at the meeting;
c) The
member participates and votes online or through other electronic methods;
d) The
member sends the votes to the meeting by post, fax or email.
5. In
case of questionnaire survey, a resolution or decision will be ratified when it
is voted for by a number of members that hold at least 65% of charter capital
(a specific ratio shall be specified in the company’s charter).
Article 60. Minutes of meetings of the Board of Members
1.
Minutes of every meeting the Board of Members shall be taken. Audio recording
or electronic forms are optional.
2. The
minutes shall be ratified right before the meeting ends and contain the
following information:
a) Time,
location, purposes and agenda of the meeting;
b) Full
names, holdings, numbers and dates of issues of capital contribution
certificates of participating members and their authorized representatives;
full name, stakes, numbers and dates of issues of capital contribution
certificates of non-participating members and their authorized representatives;
c) The
issues that are discussed and voted on; summaries of the members’ comments on
each issue;
d)
Quantities of valid votes, invalid votes, affirmative votes, negative votes and
abstentions on each issue;
dd)
Ratified decisions and corresponding ratio of affirmative votes;
e) Full
names, signatures and comments of participants who disagree with the
ratification of the minutes (if any);
g) Full
names, signatures of the minute taker and the chair of the meeting, except the
case in Clause 3 of this Article.
3. In
case the chair and the minute taker refuse to sign the minutes, they will be
effective if they are signed by the other members of the Board of Members and
contain all information prescribed in Points a, b, c, d, dd and e Clause 2 of
this Article. The minutes shall clearly state the reasons why the chair and the
minute taker refuse to sign them. The persons who sign the minutes are jointly
responsible for the accuracy and truthfulness of the minutes.
Article 61. Procedures for ratification of resolutions and
decisions of the Board of Members by questionnaire survey
Unless
otherwise prescribed by the company’s charter, a questionnaire survey on
ratification of resolutions or decisions of the Board of Members shall be
carried out as follows:
1. The
President of the Board of Members shall decide to carry out a questionnaire
survey on ratification of resolutions and decisions within its jurisdiction;
2. The
President of the Board of Members organize the drafting and sending of reports
on the issues, the resolution or decision and questionnaires to members of the
Board of Members;
3. A
questionnaire shall contain:
a) The
company’s name, EID number, headquarter address;
b) Full
name, signature, mailing address, nationality and legal document numbers of
individuals; the members’ holdings;
c) The
issue that needs voting, options including affirmative, negative and
abstentions;
d) The
deadline for submission of the answered questionnaire;
dd) Full
name and signature of the President of the Board of Members;
4. An
answered questionnaire that contains adequate information, bears the member’s
signature and sent to the company by the deadline is considered valid. The
President of the Board of Members organize the vote counting, preparation of a
report and notification of the vote counting result to the members within 07
working days from the deadline for submission of answered questionnaires. The
report on vote counting result has the same value as the minutes the meeting of
the Board of Members and shall contain the following information:
a) The
survey issue and purposes;
b) Full
names, holdings, numbers and dates of issue of capital contribution
certificates of members that submitted their answered questionnaires; and their
authorized representatives; Full names, holdings, numbers and dates of issue of
capital contribution certificates of members whose questionnaires are not
submitted or invalid;
c) The
issues that are voted on; summaries of the members’ comments on each issue (if
any);
d) The
numbers of valid, invalid, unsubmitted questionnaires; numbers of valid
questionnaires that contain affirmative votes negative votes and abstentions on
each issue;
dd) The
ratified resolutions and/or decisions and corresponding ratio of affirmative
votes;
e) Full
names and signatures of the vote counters and the President of the Board of
Members, who are jointly responsible for the legitimacy, accuracy and
truthfulness of the vote counting report.
Article 62. Effect of resolutions and decisions of the
Board of Members
1. Unless
otherwise prescribed by the company’s charter, a resolution or decision of the
Board of Members shall take effect from the day on which it is ratified on one
the effective date specified therein.
2. A
resolution or decision that is ratified with 100% of total charter capital
shall be lawful and effective even if the procedures for ratification of such
resolution or decision are not followed.
3. In
case a member or group of members requests the court or an arbitral tribunal to
invalidate a ratified resolution or decision, it will remain effective as
prescribed in Clause 1 of this Article until the court or an arbitral tribunal
issues a decision to invalidate it, except for the cases in which temporary
emergency measures have to be implemented under decision of a competent
authority.
Article 63. The Director/General Director
1. The
Director/General Director is the person who manages the company’s everyday
busines operation and is responsible to the Board of Members for his/her
performance.
2. The
Director/General Director has the following rights and obligations:
a)
Organize the implementation of resolutions and decisions of the Board of
Members;
b) Decide
everyday operating issues of the company;
c)
Organize implementation of the company’s busines plans and investment plans;
d) Issue
the company’s rules and regulations unless otherwise prescribed by the
company’s charter;
dd)
Designate, dismiss the company’s executives, except those within jurisdiction
of the Board of Members;
e) Enter
into contracts on behalf of the company, except those within jurisdiction of
the President of the Board of Members;
g)
Propose the company’s organizational structure;
g) Submit
annual financial statements to the Board of Members;
i)
Propose plans for use and distribution of profits or settlement of business
losses;
k)
Recruit employees;
l) Other
rights and obligations specified in the company’s charter, resolution and
decisions of the Board of Members, and his/her employment contract.
Article 64. Requirements for holding the position of
Director/General Director
A person
may hold the position of Director/General Director if he/she:
1. Is not
in one of the persons specified in Clause 2 Article 17 of this Law.
2. Has
professional qualifications and experience of busines administration and
satisfies other conditions specified in the company’s charter.
3. If the
company is a state-owned enterprise prescribed in Point b Clause 1 Article 88
of this Law or a subsidiary company of a state-owned enterprise prescribed in
Clause 1 Article 88 of this Law, is not a relative of the executives and
controllers of the company and the parent company, of the representative of
enterprise’s investment or state investment in the company and the parent
company.
Article 65. Controllers and the Board of Controllers
1. The
Board of Controllers shall have 1 – 5 Controllers. The term of office of a
controller shall not exceed 05 years and without term limit. In case the Board
of Controllers only has 01 controller, he/she shall be the Chief Controller and
shall satisfy corresponding conditions.
2. The
Chief Controller and Controllers shall satisfy the requirements specified in
Clause 2 Article 168 and Article 169 of this Law.
3.
Rights, obligations, responsibilities, dismissal and works of Controllers and
the Board of Controllers are specified in Articles 106, 170, 171, 172, 173 and
174 of this Law.
4. The
Government shall elaborate this Article.
Article 66. Salaries, remunerations, bonuses and other
benefits of the President of the Board of Members, Director/General Director
and other executives
1. The
company shall pay salaries, remunerations, bonuses and provide other benefits
for the President of the Board of Members, the Director/General Director and
other executives according to the company’s business performance.
2.
Salaries, remunerations, bonuses and other benefits for the President of the
Board of Members, the Director/General Director and other executives shall be
recorded as operating costs in accordance with regulations of law on corporate
income tax and relevant laws and placed in a separate section in the company’s
annual financial statements.
Article 67. Contracts and transactions subject to approval
by the Board of Members
1.
Contracts and transactions between the company and the following entities are
subject to approval by the Board of Members:
a)
Members and their authorized representatives, the Director/General Director,
the company’s legal representative;
b)
Related persons of the persons mentioned in Point a of this Clause;
c)
Executives of the parent company and the person having the power to designate
them;
d)
Related persons of the persons mentioned in Point c of this Clause.
2. The
person who concludes a contract or carries on a transaction on behalf of the
company shall send a notification to members of the Board of Members and the
Controllers of the related entities and interests of such contract or
transaction together with the draft contract or description of the transaction.
Unless otherwise prescribed by company’s charter, the Board of Members shall
decide whether to approve or disapprove the contract or transaction within 15
days from the day on which the notification is received and follow the
instructions in Clause 3 Article 59 of this Law. Members of the Board of
Members who are related to the parties to the contract or transaction must not
vote.
3. A
contract or transaction shall be invalidated under a court decision and handled
as prescribed by law when it is concluded or carried out against regulations of
Clause 1 and Clause 2 of this Article. The person who concludes the contract or
carries out the transaction, related members and their related persons shall
pay compensation for any damage caused and return the benefits generated by
such contract or transaction to the company.
Article 68. Increasing, decreasing charter capital
1. A
company may increase its charter capital in the following cases:
a)
Increase in the members’ capital contribution;
b)
Receipt of capital contribution from new members.
2. In
case of increase in the members’ capital contribution, the increase will be
distributed among the members in proportion to their holdings in the company.
Members may transfer their right to contribute capital to other persons in
accordance with Article 52 of this Law. In case a member does not contribute or
fully contribute that member’s share of additional capital as distributed, the
remainder shall be divided among other members in proportion to their holdings
in the company unless otherwise agreed by the members.
3. A company
may decrease its charter capital in the following cases:
a) The
company returns part of the contributed capital to the members in proportion to
their holdings in the company after the company has operated for at least 02
consecutive years from the enterprise registration date and the company is able
to fully pay its debts and other liabilities after the return of capital;
b) The
company repurchases the members’ stakes as prescribed in Article 51 of this
Law;
c)
Charter capital is not fully and punctually contributed by the members as
prescribed in Article 47 of this Law.
4. In the
case specified in Point c Clause 3 of this Article, within 10 days from the day
on which the increase or decrease in charter capital is complete, the company
shall send a written notification to the business registration authority. Such
a notification shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b) The
charter capital, the increase or decrease;
c) Time
and method of increase or decrease;
d) Full
names and signatures of the company’s legal representatives.
5. The
notification mentioned in Clause 4 of this Article shall be enclosed with the
resolution or decision and the minutes of the meeting of the Board of Members
and, in case of charter capital decrease specified in Point a and Point b
Clause 3 of this Article, the latest financial statement.
6. The
business registration authority shall update information about the increase or
decrease in charter capital within 03 working days from the day on which the
notification is received.
Article 69. Conditions for profit distribution
A
company’s profit may only be distributed to its members after its tax
liabilities and other financial obligations have been fulfilled as prescribed
by law and it is able to fully pay its due debts and other liabilities after
profit is distributed.
Article 70. Recovery of returned capital or distributed
profit
In case
part of contributed capital is returned against the regulations of Clause 3
Article 68 of this Law or profit is distributed to members against regulations
of Article 69 of this Law, the members shall return the money or assets they
received from the company and are jointly responsible for the company’s debts
and liabilities in proportion to the amount or assets that have not been
returned until they are fully returned.
Article 71. Responsibilities of the President of the Board
of Members, the Director/General Director, other executives, legal
representatives and Controllers
1. The
President of the Board of Members, the Director/General Director, other
executives, legal representatives and Controllers have the following
responsibilities:
a)
Exercise and perform their rights and obligations in an honest and prudent
manner to protect the enterprise’s lawful interests;
b) Be
loyal to the enterprise’s interests; do not abuse their power and position or
use the enterprise’s information, secrets, business opportunities and assets
for personal gain or serve any other organization’s or individual’s interests;
c)
Promptly and fully notify the company of the enterprises that they own or have
shares/stakes or that their related persons own, jointly own or have separate
controlling shares/stakes.
d) Other
responsibilities prescribed by law.
2. The
Director/General Director shall not have a pay rise or bonus when the company
is not able to pay its due debts.
3. The
notification mentioned in Point c Clause 1 of this Article shall be made in
writing and contain the following information:
a) Names,
EID numbers, headquarters addresses of the enterprises they own or have
shares/stakes in; the holdings and time of owning or holding the shares/stakes;
b) Names,
EID numbers, headquarters addresses of the enterprises their related persons
own, jointly own or have separate controlling shares/stakes.
4. The
notification mentioned in Clause 3 of this Article shall be sent within 05
working days from the day on which the event or change occurs. The company
shall compile a list of the entities mentioned in Clause 3 of this Article,
their contracts and transactions with the company. This list shall be kept at
the company’s headquarters. Members, executives, Controllers and their
authorized representatives are entitled to see, copy part or all of the
information specified in Clause 3 of this Article during office hours following
the procedures specified in the company’s charter.
Article 72. Filing lawsuits against executives
1.
Members may, in their own names or in the company’s name, file lawsuits against
the President of the Board of Members, Director/General Director, legal
representatives and other executives in the following cases:
a) They
violate regulations of Article 71 of this Law;
b) They
fail to comply with or fully and punctually perform their rights and
obligations as prescribed by law, the company’s charter, resolution or decision
of the Board of Members;
c) Other
cases prescribed by law and the company’s charter.
2.
Lawsuits shall be filed in accordance with civil proceedings laws.
3.
Proceedings costs in case the lawsuit is filed on behalf of the company shall
be recorded as the company’s expense unless the lawsuit is rejected.
Article 73. Disclosure of information
State-owned
multiple-member limited liability companies prescribed in Point b Clause 1
Article 88 of this Law shall disclose information in accordance with Points a,
d, dd, g Clause 1 Article 109 and Article 110 of this Law.
Section 2. SINGLE -MEMBER LIMITED LIABILITY COMPANIES
Article 74. SINGLE -MEMBER LIMITED LIABILITY COMPANIES
1. A
single-member limited liability company is an enterprise owned by a single
organization or individual ((hereinafter referred to as “owner”). The owner’s
liability for the company’s debts and other liabilities shall be equal to the
company’s charter capital.
2. A
single-member limited liability company has the status of a juridical person
from the day on which the Certificate of Enterprise Registration is issued.
3. A
single-member limited liability company must not issue shares except for
equitization.
4.
Single-member limited liability companies may issue bonds in accordance with
this Law and relevant laws; private placement of bonds shall comply with
Article 128 and Article 129 of this Law.
Article 75. Contributing capital to establish the company
1. The
initially registered charter capital of a single-member limited liability
company is the total assets promised by the owner and shall be written in
company’s charter.
2. The
owner shall contribute adequate and correct assets as promised when applying
for enterprise registration within 90 days from the issuance date of the
Certificate of Enterprise Registration. The time needed to transport or import
the contributed assets and for completing ownership transfer procedures will be
added to this 90-day period. During this period, the owner shall have
rights and obligations that are proportional to the promised capital.
3. In the
charter capital is not fully contributed by the deadline specified in Clause 2
of this Article, the owner shall register the contributed capital as charter
capital within 30 days from the deadline, in which case the owner shall be
responsible for the financial obligations incurred by the company during the
period before the change in charter capital is registered in proportion to the
promised capital.
4. The
owner’s liability for the company’s financial obligations and the damage caused
by the failure to contribute or to fully and punctually contribute charter
capital prescribed by this Article shall be equal to all of the owner’s assets.
Article 76. Rights of the owner
1. The
owner that is an organization has the rights to:
a) Draw
up and revise the company’s charter;
b) Decide
the company’s annual business plan and development strategy;
c) Decide
the company’s organizational structure; designate, dismiss the company’s
executives and controllers;
d) Decide
the company’s investment projects?
dd)
Decide solutions for market development, marketing and technology;
e)
Approve contracts for borrowing, lending, sale of assets and other contracts
prescribed by the company’s charter whose value are at least 50% of the total
assets written in the latest financial statement (or a smaller ratio or value
specified in the company’s charter);
g) Ratify
the company’s annual financial statements;
h) Decide
increase or decrease in the company’s charter capital, transfer part or all of
the company’s charter capital to another organization or individual; decide
issuance of bonds;
i) Decide
establishment of subsidiary companies and contribution of capital to other
companies;
k) Organize
the supervision and assessment of the company’s performance;
l) Decide
the use of profits after the company’s tax liabilities and other financial
obligations have been fulfilled;
m) Decide
the company’s reorganization, dissolution or file bankruptcy;
n)
Recover all assets of the company after the dissolution or bankruptcy process
is complete;
o) Other
rights prescribed by this Law and the company’s charter.
2. The
owner that is an individual has the rights specified in Points a, h, l, m, n
and o Clause 1 of this Article; the right to decide investment, business
operation and the company’s administration, unless otherwise prescribed by the
company’s charter.
Article 77. Obligations of the owner
1.
Contribute charter capital fully and punctually.
2. Comply
with the company’s charter.
3.
Separate the company’s assets and the owner’s assets. The owner that is an
individual shall separate expenses of himself/herself and his/her family and
those of the company’s President, or General Director.
4. Comply
with regulations of law on contracts and relevant laws while making purchases,
sales, borrowing, lending, leasing, entering into contracts and conducting
other transactions between the company and the company’s owner.
5. The
company’s owner may only withdraw capital by transfer part or all of the
charter capital to another organization or individual. If the capital is
withdrawn otherwise, the owner and relevant organizations and individuals shall
be jointly responsible for the company’s debts and other liabilities.
6. The
owner must not withdraw profit when the company is unable to fully pay its
debts and liabilities when they are due.
7. Other
obligations prescribed by Law and the company’s charter.
Article 78. Exercising the owner’s rights in special cases
1. In
case the owner transfers or gives away part of the charter capital to one or
some organizations and individuals or the company admits a new member, the
company shall be converted accordingly and register the change in enterprise
registration information within 10 days from the date of completion of the
transfer or giveaway or admission of the new member.
2. In
case the owner that is an individual is being kept in temporary detention,
serving an imprisonment sentence, serving an administrative penalty in a
correctional institution or rehabilitation center, he/she shall authorize
another person to perform some or all of the owner’s rights and obligations.
3. In
case the owner dies, his/her legal heir or designated heir shall be the owner
or member of the company. The company shall be converted accordingly and
register the change of enterprise registration information within 10 days from
the day on which the inheritance is settled. In case there is no heir or the
heir rejects the inheritance or is disinherited, the owner’s stake shall be
handled in accordance with civil laws.
4. In
case the owner is missing, his/her stake shall be handled in accordance with
civil laws.
5. In
case owner is incapacitated, has limited legal capacity or has difficulty
controlling his/her behaviors, his/her rights and obligations shall be
performed through his/her representative.
6. In
case the owner is an organization and is dissolved or goes bankrupt, the person
that receives the owner’s stake shall become the owner or member of the
company. The company shall be converted accordingly and apply for change in
enterprise registration information within 10 days from the day on which the
transfer is complete.
7. In
case the owner is an individual and is banned by the court to do certain jobs,
or the owner is a commercial juridical person and is banned by the court to do
business in the same business lines as those of the enterprise, the owner must
stop doing the job or suspend business in these business lines under the court
decision.
Article 79. Organizational structure of a single-member
limited liability company owned by an organization
1. A
single-member limited liability company owned by an organization shall apply
one of the two models below:
a) A
company with a President and the Director/General Director;
b) A
company with a Board of Members and the Director/General Director.
2. In
case the company’s owner is a state-owned enterprise prescribed in Clause 1
Article 88 of this Law, a Board of Controllers shall be established. The establishment
of a Board of Controllers in other cases shall be decided by the company. The
organizational structure, working regulations, standards, requirements,
dismissal, rights, duties and responsibilities of the Board of Controllers and
Controllers are specified in Article 65 of this Article.
3. The
company shall have at least one legal representative who holds the title of
President of the Board of Members, the company’s President or Director/General
Director. Unless otherwise prescribed by the company’s charter, the President
of the company or President of the Board of Members shall be the company’s
legal representative.
4. Unless
otherwise prescribed by the company’s charter, organizational structure,
functions, rights and duties of the Board of Members, the company’s President,
the Director/General Director shall comply with this Law.
Article 80. The Board of Members
1. The
Board of Members shall have 03 – 07 members. The members shall be designated
and dismissed by the owner with a 5-year term of office. The Board of Members
shall perform the owner’s rights and obligations in the owner’s name; perform
the company’s rights and obligations in the company’s name, except the rights
and obligations of the Director/General Director; take responsibility to the
law and the owner for their performance as prescribed by the company’s charter,
this Law and relevant laws.
2.
Rights, obligations and working regulations of the Board of Members shall
comply with the company’s charter, this Law and relevant laws.
3. The
President of the Board of Members shall be designated by the owner or elected
by members of the Board of Members under the majority rule following the
procedures specified in the company’s charter. Unless otherwise prescribed by
the company’s charter, the term of office, rights and obligations of the
President of the Board of Members shall comply with Article 56 and relevant
regulations of this Law.
4.
Meetings of the Board of Members shall be convened in accordance with Article
57 of this Law.
5. A
meeting of the Board of Members shall be conducted when it is participated in
by at least two thirds of the members. Unless otherwise prescribed by the
company’s charter, each member shall have one vote with equal value. The Board
of Members may ratify its resolutions and decisions by questionnaire survey.
6. A
resolution or decision of the Board of Members will be ratified when it is
voted for by more than 50% of the participating members or by a number of
participating members that hold more than 50% of the total votes. Revisions to
the company’s charter, reorganization of the company, transfer of all or part
of the company’s charter capital must be voted for by than 75% of the
participating members or by a number of participating members that hold more
than 75% of the total votes. A resolution or decision of the Board of Members
takes effect from the day on which it is ratified or on the effective date
written therein unless otherwise prescribed by the company’s charter.
7.
Minutes of every meeting the Board of Members shall be taken in accordance with
Clause 2 Article 60 of this Law. Audio recording and other electronic forms are
optional.
Article 81. The company’s President
1. The
company’s President shall be designated by the company’s owner, perform the owner’s
rights and obligations in the owner’s name; perform the company’s rights and
obligations in the company’s name, except the rights and obligations of the
Director/General Director; take responsibility to the law and the owner for
his/her performance as prescribed by the company’s charter, this Law and
relevant laws.
2.
Rights, obligations and working regulations of the company’s President shall
comply with the company’s charter, this Law and relevant laws.
3. A
decision of the company’s President on performance of his/her rights and
obligations shall be effective from the day on which it is approved by the
owner unless otherwise prescribed by the company’s charter.
Article 82. The Director/General Director
1. The
Board of Members or the company’s President shall designate or hire the
Director/General Director within a term of office not exceeding 05 years to
manage the company’s everyday business. The Director/General Director shall be
responsible for the law and the Board of Members or the company’s President for
his/her performance. The President of the Board of Members, another member of
the Board of Members or the company’s President may concurrently hold the
position of Director/General Director unless otherwise prescribed by law or the
company’s charter.
2. The
Director/General Director has the following rights and obligations:
a)
Organize the implementation of resolutions and decisions of the Board of
Members or the company’s President;
b) Decide
everyday operating issues of the company;
c)
Organize implementation of the company’s busines plans and investment plans;
d) Issue
the company’s rules and regulations;
dd)
Designate, dismiss the company’s executives, except those within jurisdiction
of the Board of Members;
e) Enter
into contracts in the company’s name, except those within jurisdiction of the
President of the Board of Members or the company’s President;
g)
Propose the company’s organizational structure;
h) Submit
annual financial statements to the Board of Members or the company’s President;
i)
Propose plans for use of profits or settlement of business losses;
k)
Recruit employees;
l) Other
rights and obligations specified in the company’s charter and the employment
contract.
3. To
hold the position of Director/General Director, a person shall satisfy the
following requirements:
a) He/she
is not one of the persons specified in Clause 2 Article 17 of this Law;
b) He/she
has professional qualifications and experience of busines administration and
satisfies other conditions specified in the company’s charter.
Article 83. Responsibilities of members of the Board of
Members, the company’s President, the Director/General Director, other
executives and Controllers
1. Comply
with regulations of law, the company’s charter, decisions of the company’s owner
in performance of their rights and obligations.
2.
Perform their rights and obligations in an honest and prudent manner to serve
the best and lawful interests of the company and its owner.
3. Be
loyal to the interests of the company and its owner; do not abuse their power
and position or use the enterprise’s information, secrets, business
opportunities and assets for personal gain or serve any other organization’s or
individual’s interests.
4.
Promptly and fully notify the company of the enterprises that they own or have
shares/stakes or that their related persons own, jointly own or have separate
controlling shares/stakes. The notifications shall be retained at the company’s
headquarters.
5. Other
responsibilities prescribed by this Law and the company’s charter.
Article 84. Salaries, bonuses and other benefits of the
company’s executives and Controllers
1. The
company’s executives and Controllers shall receive salaries, bonuses and other
benefits according to the company’s business performance.
2. The company’s
owner shall decide the salaries, bonuses and other benefits of members of the
Board of Members, the company’s President and Controllers. Salaries , bonuses
and other benefits of the company’s executives and Controllers shall be
recorded as the company’s expenses in accordance with regulations of law on
corporate income tax and relevant laws and shall be placed in a separate
section in the company’s annual financial statements.
3. The
Controllers’ the salaries, bonuses and other benefits may be directly paid by
the company’s owner as prescribed by the company’s charter.
Article 85. Organizational structure of a single-member
limited liability company owned by an individual
1. A
single-member limited liability company owned by an individual shall have a
President and a Director/General Director.
2. A
company’s owner shall be the President who may concurrently hold the position
of Director/General Director or hire another person as the Director/General
Director.
3. Rights
and obligations of the Director/General Director shall be specified in the
company’s charter and the employment contract.
Article 86. Contracts and transactions between the company
and related persons
1. Unless
otherwise prescribed by the company’s charter, contracts and transactions between
a single-member limited liability company owned by an organization and the
following persons are subject to approval by the Board of Members or the
company’s President, Director/General Director and Controllers:
a) The
owner of the company and the owner’s related persons;
b)
Members of the Board of Members, the company’s President, Director/General
Director and Controllers;
c)
Related persons of the persons mentioned in Point b of this Clause;
d)
Executives of the company’s owner, the person having the power to designate
these executives;
dd)
Related persons of the persons mentioned in Point d of this Clause.
2. The
person who concludes a contract or carries on a transaction in the company’s
name shall send a notification to the Board of Members or the company’s
President, Director/General Director and Controllers of the related persons and
interests; the notification shall be enclosed with the draft contract or
summary of the transaction.
3. Unless
otherwise prescribed by the company’s charter, members of the Board of Members
or the company’s President, Director/General Director and Controllers shall
decide whether to approve the contract or transaction within 10 days from the
receipt of the notification under majority rule. Each person shall have one vote;
related persons of the parties shall not vote.
4. A
contract or transaction mentioned in Clause 1 of this Article shall only be
approved if the following conditions are fully satisfied:
a) The
parties to the contract or transaction are independent legal entities with
separate rights, obligations, assets and interests;
b) The
prices applied to the contract or transactions are market prices at the time
the contract is concluded or the time the transaction is conducted;
c) The
company’s owner fulfills the obligations specified in Clause 4 Article 77 of
this Law.
5. A
contract or transaction shall be invalidated under a court decision and handled
as prescribed by law if it is concluded or carried out against regulations of
Clauses 1, 2, 3 and 4 of this Article. The person who concludes the contract or
carries out the transaction and related persons of the parties shall jointly
pay compensation for any damage caused and return the benefits generated by
such contract or transaction to the company.
6. Every
contract and transaction between a single-member limited liability company
owned by an individual and the company’s owner or related persons of the owner
shall be recorded in separate documents of the company.
Article 87. Increasing, decreasing charter capital
1. A
single-member limited liability company may increase its charter capital when
its owner contributes capital or raises capital from other persons. The owner
shall decide on the specific increase and the method.
2. In
case of raising capital from other persons, the company shall be converted into
a multiple-member limited liability company or joint stock company. To be
specific:
a) In
case of conversion into a multiple-member limited liability company, a
notification of change in enterprise registration information shall be
submitted within 10 days from the day on which the change in charter capital is
complete;
b) In
case of conversion into a joint stock company, follow the instructions in
Article 202 of this Law;
3. A
single-member limited liability company may decrease its charter capital in the
following cases:
a) Part
of the contributed capital is returned to the company’s owner after the company
has operated for at least 02 consecutive years from the enterprise registration
date and the company is able to fully pay its debts and other liabilities after
the return of capital;
b)
Charter capital is not fully and punctually contributed by the owner as
prescribed in Article 75 of this Law.
Chapter IV
STATE-OWNED ENTERPRISES
Article 88. State-owned enterprises
1.
State-owned enterprises shall be limited liability companies or joint stock
companies, including:
a) Wholly
state-owned enterprises (100% of charter capital of which is held by the State)
b)
Partially state-owned enterprises (over 50% of charter capital or voting shares
is held by the State, except the enterprises specified in Point a Clause 1 of
this Article).
2. Wholly
state-owned enterprises specified in Point a Clause 1 of this Article include:
a)
Single-member limited liability companies 100% of charter capital of which is
held by the State that are parent companies of state-owned corporations or
parent companies in groups of parent company – subsidiary companies;
b)
Independent single-member limited liability companies 100% of charter capital
of which is held by the State.
3.
Partially state-owned specified in Point b Clause 1 of this Article include:
a)
Multiple-member limited liability companies and joint stock companies over 50%
of charter capital or voting shares of which is held by the State that are
parent companies of state-owned corporations or parent companies in groups of
parent company – subsidiary companies;
b)
Independent multiple-member limited liability companies and joint stock
companies over 50% of charter capital or voting shares of which is held by the
State.
4. The
Government shall elaborate this Article.
Article 89. Application of regulations on state-owned
enterprises
1. Wholly
state-owned enterprises specified in Point a Clause 1 Article 88 of this
Article shall be organized as single-member limited liability companies in
accordance with this Chapter and relevant regulations of this Law. In case of
discrepancies between regulations of this Law, the regulations of this Chapter
shall prevail.
2.
Partially state-owned enterprises specified in Point b Clause 1 Article 88 of
this Article shall be organized as multiple-member limited liability companies
in accordance with Section 1 of Chapter III or as joint stock companies in
accordance with Chapter V of this Law.
Article 90. Organizational structure
The state
ownership representative body shall decide whether to apply one of the two
models below to organize the state-owned enterprise as a single-member limited
liability company:
1. A
company with a President, Director/General Director and Board of Controllers;
2. A
company with a Board of Members, Director/General Director and Board of
Controllers.
Article 91. The Board of Members
1. The
Board of Members shall perform the company’s rights and obligations in the
company’s name as prescribed by this Law and relevant laws.
2. The
Board of Members shall consist of up to 07 members including a President.
Members of the Board of Members shall be designated, dismissed, rewarded and
disciplined by the state ownership representative body.
3. The
term of office of the President and other members of the Board of Members shall
not exceed 05 years. A member of Board of Members may be designated again for
not more than 02 terms in the same company unless he/she has worked for the
company for more than 15 consecutive years before the first designation.
Article 92. Rights and obligations of the Board of Members
1. The
Board of Members shall, in the name of the company, perform the rights and
obligations of the owner, shareholders/members of other companies owned by the
company or whose shares/stakes are owned by the company.
2. The
Board of Members has the following rights and obligations:
a) Decide
the matters prescribed in the Law on Management and use of State Investment in
Enterprises;
b) Decide
establishment, reorganization, dissolution of the company’s branches,
representative offices and dependent units;
c) Decide
the company’s annual business plan, policies on market development, marketing
and technology;
d)
Organize internal audits and decide establishment of the company’s internal
audit unit;
dd) Other
rights and obligations prescribed by the company’s charter, this Law and
relevant laws.
Article 93. Requirements to be satisfied by members of the
Board of Members
To become
a member of the Board of Members, a person shall satisfy the following
requirements:
1. He/she
is not one of the persons specified in Clause 2 Article 17 of this Law.
2. He/she
has professional qualifications and experience of busines administration or
experience of the company’s business lines.
3. He/she
is not a relative of the head or deputies of the state ownership representative
body; any of the members of the Board of members, the Director/General
Director, the Deputy Director/General Director, the chief accountant or
Controllers of the company.
4. He/she
is not an executive of the member enterprise.
5. A
member of the Board of Members other than the President may concurrently hold
the position of Director/General Director of the company or another company
that is not a member enterprise under a decision of the state ownership
representative body.
6. He/she
has never been discharged from the position of President of the Board of
Members, member of Board of Members, the company’s President, Director/General
Director, Deputy Director/General Director of a state-owned enterprise.
7. He/she
satisfies other requirements specified in the company’s charter.
Article 94. Dismissal, discharge of members of the Board of
Members
1. The
President or another member of the Board of Members shall be dismissed in the
following cases:
a) He/she
does not fully satisfy the requirements specified in Article 93 of this Law;
b) He/she
hands in the resignation and is accepted in writing by the state ownership
representative body;
c) A
reassignment or retirement decision is issued;
d) He/she
is not capable of or qualified for the given tasks;
dd)
He/she is not healthy or reputable enough to hold the position.
2. The
President or another member of the Board of Members shall be discharge from duty
in the following cases:
a) The
company fails to achieve the annual targets; fails to conserve and develop
investment capital as required by the state ownership representative body
without an excuse that is objective or accepted by the state ownership representative
body;
b) He/she
is convicted by the Court under an effective judgment or decision;
c) He/she
fails to perform her duties in an honest manner or abuses his/her power and
position or uses the company’s assets for personal gain or serve any other
organization’s or individual’s interests; fails to truthfully report the
company’s finance and business performance.
3. Within
60 days from the issuance date of the decision to dismiss or discharge the
President or member of the Board of Members, the state ownership representative
body shall designate another person as President or member.
Article 95. President of the Board of Members
1. The
President of the Board of Members shall be designated by the state ownership
representative body as prescribed by law and must not concurrently hold the
position of Director/General Director of the company or another enterprise.
2. The
President of the Board of Members has the following rights and obligations:
a) Plan
quarterly and annual activities of the Board of Members;
b) Draw
up agenda and prepare documents for meetings or surveys of the Board of
Members;
c)
Convene and chair meetings of the Board of Members or organize surveys of the
Board of Members;
d)
Organize the implementation of decisions of the state ownership representative
body and resolutions of the Board of Members;
dd)
Supervise, organize the supervision and evaluation of the achievement of
strategic targets and the company’s business performance, performance of the
Director/General Director;
e) Organize
the disclosure of the company’s information as prescribed by law; take
responsibility for the adequacy, punctuality, accuracy and systematic
organization of the disclosed information.
3. In
addition to the cases specified in Article 94 of this Law, the President of the
Board of Members may be dismissed or discharged if he/she fails to perform the
rights and obligations specified in Clause 2 of this Article.
Article 96. Rights and obligations of members of the Board
of Members
1.
Participate in meetings of the Board of Members; discuss, propose, vote on the
issues within the jurisdiction of the Board of Members;
2.
Inspect, access, extract logbooks; monitor contracts, transactions, accounting
books, financial statements, minutes of meetings of the Board of Members and
other documents of the company;
3. Other
rights and obligations prescribed by the company’s charter, this Law and
relevant laws.
Article 97. Responsibilities of President and other members
of the Board of Members
1. Comply
with the company’s charter, decisions of the company’s owner and regulations of
law.
2.
Exercise and perform their rights and obligations in an honest and prudent
manner to protect the lawful interests of the company and the State.
3. b) Be
loyal to the interests of the company and the State; do not abuse their power
and position or use the enterprise’s information, secrets, business
opportunities and assets for personal gain or serve any other organization’s or
individual’s interests;
4. c)
Promptly and fully notify the company of the enterprises that they own or have
shares/stakes or that their related persons own, jointly own or have separate
controlling shares/stakes. These notifications shall be retained at the
company’s headquarters.
5.
Implement resolutions of the Board of Members.
6. Take
personal responsibility when performing the following actions:
a) Take
advantage of the company’s name to violate the law;
b) Do
business or conduct transactions that do not serve the company’s interests and
cause damage to other organizations and individuals;
c) Pay
debts before they are due while the company is facing financial risks.
7. The
member who discovers another member’s violation shall send a written
notification to the state ownership representative body, request the violator
to stop the violation and implement remedial measures.
Article 98. Working regulations, conditions and procedures
for conducting meetings of the Board of Members
1. The
Board of Members shall work as a collective. At least one meeting shall be held
in a quarter to consider and decide the matters within its jurisdiction. For
matters that do not require discussion, the Board of Members may carry out a
questionnaire survey as prescribed by the company’s charter. Ad hoc meetings
may be convened to resolve urgent issues at the request of the state ownership
representative body, the President of the Board of Members, more than 50% of
the members of the Board of Members or the Director/General Director.
2. The
President of the Board of Members or the person authorized by the President of
the Board of Members shall draw up the meeting agenda and prepare meeting
document; convene and chair the meeting. Members of the Board of Members are
entitled to propose additional contents to the meeting agenda in writing. The
meeting documents and agenda shall be sent to the members of the Board of
Members and invited participants at least 03 working days before the meeting
date. Meeting documents relevant to proposed revisions to the company’s
charter, orientation for development of the company, ratification of the annual
financial statement, reorganization or dissolution of the company shall be sent
to the members at least 05 working days before the meeting date.
3.
Invitations to the meeting can be sent physically, by phone, fax,
electronically or by other methods prescribed by the company’s charter to each
member of the Board of Members and invited participants. The invitation shall
specify the time, location and agenda of the meeting. Online meetings may be
carried out where necessary.
4. A
meeting of the Board of Members shall be conducted when it is participated in
by at least two thirds of the members. A resolution of the Board of Members
shall be ratified when it is voted for by more than half of the participating
members. In case of equality of votes, the option that is voted for by the
President of the Board of Members or the person authorized by the President to
chair the meeting shall prevail. Members of Board of Members who have
dissenting opinions may submit their proposals to the state ownership
representative body.
5. In
case of questionnaire survey, a resolution of the Board of Members shall be
ratified when it is voted for by more than half of the members. A resolution
may be ratified by using multiple copies of the same document if each copy
bears at least one signature of the members of Board of Members.
6. The
Board of Members may invite representatives of relevant organizations to
participate in the meeting to discuss specific matters in the agenda. The invited
participants may comment but must not vote. Their comments shall be fully
written in the minutes.
7. The
discussion, comments, voting result and resolutions ratified by the Board of
Members shall be written in the minutes. The chair and the secretary of the
meeting shall be jointly responsible for the accuracy of the minutes. The
minutes shall be ratified before the meeting comes to an end and contain the
following information:
a) The
meeting time, location, purposes and agenda; list of participating members;
discussed and voted matters; summaries of comments made by the members and
invited participants on each matter;
b) The
number of affirmative votes, negative votes and abstentions (if permitted);
c)
Ratified decisions;
d) Full
names and signatures of the participating members.
8.
Members of the Board of Directors are entitled to request the Director/General
Director, Deputy Director/Deputy General Director, chief accountant, executives
of the company and subsidiary companies 100% of charter capital of which is
held by the company, representatives of the company’s investment in other
enterprises to provide information and documents about the company’s finance
and business performance in accordance with regulations of the Board of Members
or resolution of the Board of Members. The requested person shall provide
accurate information and documents, unless otherwise decided by the Board of
Members.
9. The
Board of Members may employ the company’s management and assistance apparatus
in performance of their duties.
10.
Operating costs of the Board of Members, their salaries and allowances shall be
recorded as the company’s administrative expenses.
11. Where
necessary, the Board of Members may discuss with domestic and foreign counsels
before making important decisions under its jurisdiction. The counseling cost
shall be specified in the company’s financial management regulations.
12. A
resolution of the Board of Members shall take effect on the ratification date
or the effective date written therein, unless it is subject to approval by the
state ownership representative body.
Article 99. The company’s President
1. The
company’s President shall be designated by the state ownership representative
body as prescribed by law and has up to 02 terms of office of up to 05 years
each, unless he/she has worked for the company for more than 15 consecutive
years before the first designation. The requirements, dismissal of the
company’s President shall comply with Article 93 and Article 94 of this Law.
2. The
company’s President shall perform the rights and obligations of the state
ownership representative at the company in accordance with the Law on
Management and use of State Investment in Enterprises; other rights,
obligations and responsibilities prescribed in Article 92 and Article 97 of
this Law.
3. The
Presidents’ salaries and allowances shall be recorded as the company’s
administrative expenses.
4. The
company’s President shall employ the company’s administration and assistance
apparatus to perform his/her rights and obligations. Where necessary, the
company’s President may discuss with domestic and foreign counsels before
making important decisions under his/her jurisdiction. The counseling costs
shall be specified in the company’s financial management regulations.
5. The
decisions within the President’s jurisdiction mentioned in Clause 2 of this
Article shall be made in writing and bear the President’s signature, even if
the President concurrently holds the position of Director/General Director.
6. A
President’s decision takes effect from the day on which it is signed or on the
effective date written therein, unless it is subject to approval by the state
ownership representative body.
7. In
case the President is not present in Vietnam for more than 30 days, he/she
shall authorize another person in writing to perform some of his/her rights and
obligations. A written notification of the authorization shall be sent to the
state ownership representative body. Other cases of authorization shall comply
with the company’s rules and regulations.
Article 100. The Director/General Director and Deputy
Directors/General Directors
1. The
Director/General Director shall be designated or hired by the Board of Members
or the company’s President under a personnel plan approved by the state ownership
representative body.
2. The
Director/General Director shall manage the company’s everyday business and has
the following rights and obligations:
a)
Organize the implementation of the company’s busines plans and investment plans
and evaluation thereof;
b)
Organize the implementation of resolutions and decisions of the Board of
Members, company’s President and state ownership representative body and
evaluation thereof;
c) Decide
everyday matters of the company;
d) Issue
the company’s rules and regulations after they are approved by the Board of
Members or company’s President;
dd)
Designate, hire, dismiss, terminate employment contracts with the company’s
executives, except those within jurisdiction of the Board of Members or the
company’s President;
e) Enter
into contracts and carry out transactions in the company’s name, except those
within jurisdiction of the President of the Board of Members or the company’s
President;
g)
Prepare and submit quarterly and annual reports on achievement of business targets
and financial statements to the Board of Members or the company’s President;
h)
Propose the distribution and use of post-tax profits and other financial
obligations of the company;
i)
Recruit employees;
k)
Propose the plan for the company’s reorganization;
l) Other
rights and obligations prescribed by law and the company’s charter.
3. The
company may have one or several Deputy Directors/General Directors. The
designation and quantity of Deputy Directors/General Directors shall be
specified in the company’s charter. Rights and obligations of Deputy
Directors/General Directors shall be specified in the company’s charter and
their employment contracts.
Article 101. Requirements to be satisfied by the
Director/General Director
1. He/she
is not one of the persons specified in Clause 2 Article 17 of this Law.
2. He/she
has professional qualifications and experience of busines administration or in
the company’s business lines.
3. He/she
is not a relative of the head or deputies of the state ownership representative
body; any of the members of the Board of members, the company’s President; any
of the Deputy Directors/General Directors, the chief accountant or Controllers
of the company.
4. He/she
has never been dismissed from the position of President of the Board of
Members, member of the Board of Members, the company’s President,
Director/General Director, Deputy Director/General Director of the company or
another state-owned enterprise.
5. He/she
is not holding the position of Director/General Director of another enterprise.
6. He/she
satisfies other requirements specified in the company’s charter.
Article 102. Dismissal, discharge of the Director/General
Director, other executives and the chief accountant
1. The
Director/General Director shall be dismissed from office in the following
cases:
a) He/she
no longer fully satisfies the requirements specified in Article 101 of this
Law;
b) He/she
hands in the resignation.
2. The
Director/General Director shall be discharged from duty in the following cases:
a) The
enterprise’s capital is not conserved as prescribed by law;
b) The
enterprise fails to achieve its annual targets;
c) The
enterprise violates the law;
d) The
Director/General Director is not qualified for or capable of developing the
enterprise’s new busines plan and development strategy;
dd) The
Director/General Director fails to perform his/her rights and obligations
prescribed in Article 97 and Article 100 of this Law;
e) Other
cases prescribed by the company’s charter.
3. Within
60 days from the issuance date of the decision on dismissal or discharge, the
Board of Members or the company shall recruit or designate a person to hold the
position.
4. The
company’s charter shall provide for cases of dismissal and discharge of Deputy
Directors/General Directors, other executives and the chief accountant.
Article 103. Controllers and the Board of Controllers
1. The
state ownership representative body shall decide the establishment of a Board
of Controllers, which has 01 – 05 Controllers including a Chief Controller. The
term of office of a Controller shall not exceed 05 years. A Controller must not
be designated more than 02 consecutive terms. In case the Board of Controllers
has only 01 Controller, he/she shall be the Chief Controller and has to satisfy
corresponding requirements.
2. An
individual may concurrently hold the position of Chief Controller or Controller
of up to 04 state-owned enterprises.
3. A
Controller or Chief Controller shall satisfy the following requirements:
a) He/she
has a bachelor’s degree or higher in economics, finance, accounting, audit,
law, business administration or a major that is relevant to the enterprise’s
business operation and at least 03 years’ experience (05 years for Chief
Controller);
b) He/she
is not executive of the company or any other enterprise; not a Controller of
enterprises other than state-owned enterprises; not a company’s employee.
c) He/she
is not a relative of the head or deputies of the state ownership representative
body; any of the members of the Board of members, the Director/General
Director, any of the Deputy Directors/General Directors, the chief accountant
or any other Controllers of the company;
d) He/she
satisfies other requirements specified in the company’s charter.
4. The
Government shall elaborate this Article.
Article 104. Obligations of the Board of Controllers
1. The
Board of Controllers has the following obligations:
a)
Supervise the implementation of the company’s business plans and development
strategy;
b)
Supervise and evaluate the company’s business performance and finance;
c)
Supervise and evaluate the performance of the Board of Members and its members,
the company’s President and Director/General Director;
d)
Supervise and evaluate the compliance to the company’s internal audit, risk
management, reporting regulations and other rules and regulations;
dd)
Supervise the legitimacy, systematic organization and honesty of accounting
tasks, accounting records, financial statements, their annexes and relevant
documents;
e)
Supervise the company’s contracts and transactions with relevant parties;
g)
Supervise execution of major projects; sales and purchases; other large-scale
contracts and transactions; unusual contracts and transactions of the company;
h)
Prepare and send evaluation reports and proposals of the matters specified in
Points a, b, c, d, dd, e and g of this Clause to the state ownership
representative body and the Board of Members;
i)
Perform other obligations demanded by the state ownership representative body,
prescribed by the company’s charter.
2. The
state ownership representative body shall decide and pay the Controllers’
salaries, bonuses and other benefits.
3. The
Government shall elaborate this Article.
Article 105. Rights the Board of Controllers
The Board
of Controllers has the rights to:
1.
Participate in meetings of the Board of Members, official and unofficial
discussions between the state ownership representative body with the Board of
Members; question the Board of Members, its members, the company’s President
and the Director/General Director about the plans, projects, development
programs and other decisions in management and administration of the company.
2.
Examine accounting books, reports, contracts, transactions and other documents
of the company; inspect the management and administration by the Board of
Members and its members, the company’s President and Director/General Director
where necessary or at the request of the state ownership representative body.
3.
Request the Board of Members and its members, the company’s President and
Director/General Director, Deputy Directors/Deputy General Directors, chief
accountant and other executives to submit reports or provide information about
the company’s management, investment and business operation.
4.
Request the company’s executives to submit reports on the subsidiary companies’
finance and business performance if they are necessary for performance of their
duties prescribed by law and the company’s charter.
5.
Request the state ownership representative body to establish an audit unit
which will advise and assist the Board of Controllers in performance of its
rights and obligations.
6. Other
rights and obligations prescribed by the company’s charter.
Article 106. Working regulations of the Board of
Controllers
1. The
Chief Controller shall prepare monthly, quarterly and annual working plans of
the Board of Controllers; assign specific tasks to each Controller.
2.
Controllers shall perform their assign tasks independently; propose other tasks
where necessary.
3. The
Board of Controllers shall hold a meeting at least once a month to evaluate and
approve the monthly operation reports before they are submitted to the state
ownership representative body; discuss and approve operation plans of the next
month.
4. A
decision of the Board of Controllers will be ratified when it is voted for by
the majority of the participating members. Dissenting opinions shall be fully
and accurately recorded and reported to the state ownership representative
body.
Article 107. Responsibilities of Controllers
1. Comply
with regulations of law, the company’s charter, decisions of the state
ownership representative body and the code of ethics in performance of their
rights and obligations.
2.
Exercise and perform their rights and obligations in an honest and prudent
manner to protect the lawful interests of the State, the company the parties.
3. Be
loyal to the interests of the company and the State; do not abuse their power
and position or use the enterprise’s information, secrets, business opportunities
and assets for personal gain or serve any other organization’s or individual’s
interests;
4. The
Controller that violates the regulations of this Article and causes damage to
the company shall be personally or jointly pay compensation, be held liable to
disciplinary actions, administrative penalties or criminal prosecution
depending on the nature and severity of the violation and have to return the
incomes and benefits earned from the violation.
5. Send a
notification to the state ownership representative body of violations committed
by another Controller and request the violator to stop the violation and
implement remedial measures.
6.
Request the violator to stop the violation and implement remedial measures, and
notify to the state ownership representative body, other Controllers and
relevant individuals in the following cases:
a) A
member of the Board of Members, the company’s President, the Director/General
Director or another executive violates or is going to violate regulations on
their rights and obligations
b)
Violations against the law, the company’s charter or the company’s rules and
violations are discovered.
7. Other
responsibilities prescribed by this Law and the company’s charter.
Article 108. Dismissal and discharge of Controllers and the
Chief Controller
1. The
Chief Controller or a Controller shall be dismissed in the following cases:
a) He/she
no longer fully satisfies the requirements specified in Article 103 of this
Law;
b) He/she
hands in the resignation and is accepted by the state ownership representative
body;
c) He/she
is reassigned by the state ownership representative body or another competent
authority;
d) Other
cases prescribed by the company’s charter.
2. The
Chief Controller or a Controller shall be discharged from duty in the following
cases:
a) He/she
fails to perform his/her duties for 03 consecutive months, except in force
majeure events;
b) He/she
fails to perform his/her duties for 01 year;
c) He/she
commits multiple, serious violations against the rights and obligations of a
Controller or the Chief Controller prescribed by this Law and the company’s
charter;
d) Other
cases prescribed by the company’s charter.
Article 109. Periodic disclosure of information
1. The
information shall be periodically posted on the websites of the company and the
state ownership representative body:
a) Basic
information about the company and the company’s charter;
b)
Overall targets and specific targets in the annual business plan;
c) The
annual financial statement audited by an independent audit organization within
150 days after the end of the fiscal year and its summary (including the
financial statement of the parent company and the consolidated financial
statement (if any);
d) The
mid-year financial statement audited by an independent audit organization and
its summary (including the financial statement of the parent company and the
consolidated financial statement (if any); these documents must be disclosed
before July 31;
dd)
Reports on implementation of annual business plans;
e) Reports
on performance of public duties that are assigned or bid for (if any) and other
social responsibilities;
g) The
report on the company’s management and organizational structure.
2. g) The
report on the company’s management and organizational structure shall contain
the following information:
a)
Information about the state ownership representative body, its head and
deputies;
b)
Information about the company’s executives, their qualifications and
experience, managerial position previously held, how they are designated, their
managerial tasks; their salaries, bonuses, benefits and payment method, their
related persons and interests;
c)
Relevant decisions of the state ownership representative body; resolutions and
decisions of the Board of Members of the company’s President;
d)
Information about the Board of Controllers, Controllers and their activities;
dd)
Verdicts of inspecting authorities (if any) and reports of the Controllers and
the Board of Controllers;
e)
Information about the company’s related persons; contracts and transactions
between the company and its related persons;
g) Other
information prescribed by the company’s charter.
3.
Information shall be fully, accurately and punctually disclosed as prescribed
by law.
4.
Information shall be disclosed by the legal representative or the person
authorized to disclose information. The legal representative shall be
responsible for the adequacy, punctuality and accuracy of the information
disclosed.
5. The
Government shall elaborate this Article.
Article 110. Irregular disclosure of information
1.
Information shall be posted the company’s website and printed matters (if any)
and displayed at the company’s headquarters and business locations within 36
hours from the occurrence of any of the following events:
a) The
company’s account is frozen or unfrozen;
b) All or
part of the company’s business activities are suspended; the certificate of
enterprise registration, establishment license, establishment and operation
license, operation license or another license relevant to the company’s
operation is revoked;
c) The
certificate of enterprise registration, establishment license, establishment
and operation license, operation license or another license relevant to the
company’s operation is revised;
d) There
is a change of members of the Board of Members, the company’s President,
Director/General Director, Deputy Directors/General Directors, chief
accountant, accounting – finance department manager, Controllers or Chief
Controller;
dd) An
executive of the company is disciplined or charged under a decision; the court
issues a decision that involves an executive of the company;
e) An
inspecting authority or tax authority announces a verdict on the enterprise’s
violations of law;
g) There
is a decision that the independent audit organization is changed or not
permitted to audit the financial statement;
h) There
is a decision on establishment, dissolution, consolidation, acquisition or
conversion of a subsidiary company, branch or representative office; investment
in, decrease or withdrawal of investment in other companies.
2. The
Government shall elaborate this Article.
Chapter V
JOINT STOCK COMPANIES
Article 111. Joint stock companies
1. A
joint stock company is an enterprise in which:
a) The
charter capital is divided into units of equal value called shares;
b)
Shareholders can be organizations and individuals; the minimum number of
shareholders is 03; there is no limit on the maximum number of shareholders;
a) A
shareholder’s liability for the company’s debts and liabilities is equal to the
amount of capital contributed to the company by the shareholder;
d)
Shareholders may transfer their shares to other persons except for the cases
specified in Clause 3 Article 120 and Clause 1 Article 127 of this Law.
2. A
joint stock company has the status of a juridical person from the day on which
the Certificate of Enterprise Registration is issued.
3. A
joint stock company may issue shares, bonds and other kinds of securities.
Article 112. Capital of a joint stock company
1. A
joint stock company’s charter capital is the total face value of the shares
sold. The initially registered charter capital of a joint stock company is the
total face value of subscribed shares and shall be written in the company’s
charter.
2. Sold
shares are authorized shares that have been fully paid for the shareholders.
Upon registration of a joint stock company, sold shares are the total number of
subscribed shares.
3.
Authorized shares are the total number of shares that are offered by the
General Meeting of Shareholders (GMS) to raise capital. The number of
authorized shares of a joint stock company upon its registration is the total
number of shares that will be offered by the company to raise capital,
including subscribed shares and unsubscribed shares.
4. Unsold
shares are authorized shares that have not been paid for. Upon registration of
a joint stock company, unsold shares are the total number of unsubscribed
shares.
5. A
joint stock company may decrease its charter capital in the following cases:
a) The
decrease is decided by the GMS, in which case the company will return part of
the contributed capital to the shareholders in proportion to their holdings if
the company has operated for at least 02 consecutive years from the enterprise
registration date and is able to fully pay its debts and other liabilities
after the return of capital;
b) The
company repurchases the sold shares in accordance with Article 132 and Article
133 of this Law;
c)
Charter capital is not fully and punctually contributed by the shareholders as
prescribed in Article 113 of this Law.
Article 113. Paying for subscribed shares upon enterprise
registration
1.
Shareholders shall fully pay for the subscribed shares within 90 days from
issuance date of the Certificate of Enterprise Registration unless shorter time
limit is specified by the company’s charter or the shares registration
contract. In case of capital contribution by assets, the time needed to
transport or import the contributed assets and for completing ownership
transfer procedures shall be added to this time limit. The Board of Directors
shall supervise the shareholders fully and punctually paying for the subscribed
shares.
2. During
the period from the issuance date of the Certificate of Enterprise Registration
to the deadline for paying for the subscribed shares mentioned in Clause 1 of
this Article, the number votes of shareholders shall be proportional to their
subscribed shares unless otherwise prescribed by the company’s charter.
3. In
case a shareholder fails to pay or to fully pay for the subscribed shares by
the deadline specified in Clause of this Article:
a) The
shareholder that fails to pay for the subscribed shares is no longer a
shareholder of the company and must not transfer the right to purchase the
shares to another person;
b) The
shareholder that only pays for part of the subscribed shares will be entitled
to a number of votes, dividends and benefits that are proportional to the paid
shares and must not transfer the right to purchase the unpaid shares to another
person;
c) The
shares that are not paid for shall be considered unsold shares and may be sold
by the Board of Directors;
d) Within
30 days from the deadline for paying for the subscribed shares mentioned in
Clause 1 of this Article, the company shall register the change in charter
capital, which shall be equal to the total face values of paid shares unless
the unpaid shares are sold out during this period; and register the change of
founding shareholders.
4. The
shareholders that do not pay or fully pay for their subscribed shares shall be
held liable for the company’s financial obligations that incur before the day
on which the company register the change in charter capital as prescribed in
Point d Clause 3 of this Article in proportion to the amount of their
subscribed shares. Members of the Board of Directors and the legal
representative shall be jointly responsible for the damage caused by the
failure to comply with or fully comply with regulations of Clause 1 and Point d
Clause 3 of this Article.
5. Except
for the cases in Clause 2 of this Article, a capital contributor will become
the company’s shareholder from the day on which the shareholder’s shares are
fully paid for and the shareholder’s information specified in Points b, c, d
and dd Clause 2 Article 122 of this Law is recorded in the shareholder
register.
Article 114. Types of shares
1. A
joint stock company shall have ordinary shares, which are held by ordinary
shareholders.
2. In
addition to ordinary shares, a joint stock company may have preference shares,
which are held by preference shareholders. Preference shares include:
a)
Participating preference shares;
b)
Redeemable preference shares;
c)
Super-voting shares;
d) Other
types of preference shares prescribed by the company’s charter and securities
laws.
3. The
persons that may purchase participating preference shares, redeemable
preference shares and other preference shares shall be specified in the
company’s charter or decided by the GMS.
4. Every
share of the same type will confer upon the holder equal rights, obligations
and interest.
5.
Ordinary shares cannot not be converted into preference shares. preference
shares may be converted into ordinary shares under a resolution of the GMS.
6.
Ordinary shares used as underlying assets to issue non-voting depository
receipts are called underlying ordinary shares. Non-voting depository receipts
have interest and obligations proportional to the underlying ordinary shares,
except voting rights.
7. The
Government shall provide for non-voting depository receipts.
Article 115. Rights of ordinary shareholders
1.
Ordinary shareholders have the right to:
a)
Participate in and make comments at the General Meeting of Shareholders;
exercise the right to vote directly or through authorized representatives or
another method prescribed by law or the company’s charter. Each ordinary share
equals one vote;
b)
Receives dividends at the rate decided by the GMS;
c) Be
given priority to buy additional shares in proportion to their holding of
ordinary shares in the company;
d)
Transfer their shares to other persons except for the cases specified in Clause
3 Article 120 and Clause 1 Article 127 of this Law and relevant laws;
dd)
Access names and addresses on the list of voting shareholders; request
rectification of incorrect information about themselves;
e)
Access, extract, make copies of the company’s charter, minutes and resolutions
of the GMS;
g)
Receive part of the remaining assets in proportion to their holdings in the
company when the company is dissolved or goes bankrupt.
2. The
shareholder or group of shareholders that holds at least 5% of the ordinary
shares (or a smaller ratio specified in the company’s charter) shall have the
rights to:
a)
Access, extract the minutes of meetings, resolutions and decisions of the Board
of Directors, mid-year and annual financial statements, reports of the Board of
Controllers, contracts and transactions subject to approval by the Board of
Directors and other documents except those that involve the company’s business
secrets;
b) Demand
that a GMS be convened in the cases specified in Clause 3 of this Article;
c)
Request the Board of Controllers to investigate into specific matters relevant
to the company’s administration where necessary. The request shall be made in
writing and contain the full names, mailing addresses, nationalities, legal
document numbers of shareholders that are individuals; names, EID numbers or
legal document numbers, headquarters addresses of shareholders that are
organizations; quantities of shares and time of shares registration of each
shareholder, total quantity of shares of the group and their holdings in the
company; the matter that needs investigating and the purposes of investigation;
dd) Other
rights prescribed by this Law and the company’s charter.
3. The
shareholder or group of shareholders specified in Clause 2 of this Article is
entitled to demand a GMS be convened in the following cases:
a) The
Board of Directors seriously violates the shareholders’ rights, obligations of
executives or issues decisions ultra vires;
b) Other
cases prescribed by the company’s charter.
4. A
request mentioned in Clause 3 of this Article shall be made in writing and
contain the full names, mailing addresses, nationalities, legal document
numbers of shareholders that are individuals; names, EID numbers or legal
document numbers, headquarters addresses of shareholders that are
organizations; quantities of shares and time of shares registration of each
shareholder, total quantity of shares of the group and their holdings in the
company; the reasons for convening the GMS. The request shall be enclosed with
documentary evidence of the violations committed by the Board of Directors or
the decision issued ultra vires.
5. Unless
otherwise prescribed by the company’s charter, the shareholder or group of
shareholders that holds at least 10% of the ordinary shares (or a smaller ratio
specified in the company’s charter) is entitled to nominate candidates for the
Board of Directors and the Board of Controllers as follows:
a) The
ordinary shareholders shall hold a meeting to nominate candidates for the Board
of Directors and the Board of Controllers and inform the participating
shareholders before the opening of the GMS;
b) The
number of candidates depends on the quantity of members of the Board of
Directors and the Board of Controllers and shall be decided by the GMS. In case
the number of candidates nominated is smaller than the permissible number, the
remaining candidates shall be nominated by the Board of Directors, the Board of
Controllers and other shareholders.
6. Other
rights prescribed by this Law and the company’s charter.
Article 116. Super-voting shares and rights of their
holders
1.
Super-voting shares are ordinary shares that have more votes than other
ordinary shares. The number of votes of a preferred voting share shall be
specified in the company’s charter. Only organizations authorized by the
Government and founding shareholders may hold super-voting shares. The
super-voting powers of founding shareholders shall be effective for 03 years
from the issuance date of the Certificate of Enterprise Registration. The right
to vote and voting preference period of super-voting shares held by
organizations authorized by the Government shall be specified in the company’s
charter. After this period expires, super-voting shares shall become ordinary
shares.
2.
Holders of super-voting shares have the rights to:
a) Vote
on the matters under the jurisdiction of the GMS with the number of votes
specified in Clause 1 of this Article;
b) Other
rights of ordinary shareholders, except the cases specified in Clause 3 of this
Article.
3.
Holders of super-voting shares must not transfer these shares to other persons
unless it is demanded by an effective court judgment or decision or transferred
in accordance with inheritance laws.
4. The
Government shall elaborate this Article.
Article 117. Participating preference shares and rights of
their holders
1.
Participating preference shares are shares that provide their holders with
higher dividends than those of ordinary shares or with stable annual dividend.
Annual dividend includes fixed dividend and extra dividend. Fix dividends do
not depend on the company’s business performance. Fix dividend and method for
determination of extra dividend shall be written on the certificates of
participating preference shares.
2.
Holders of participating preference shares have the rights to:
a)
Receive the dividend prescribed in Clause 1 of this Article;
b)
Receive part of the company’s remaining assets in proportion to their holdings
in case the company is dissolved or goes bankrupt after the company’s debts and
redeemable preference shares are fully paid;
c) Other
rights of ordinary shareholders, except the cases specified in Clause 3 of this
Article;
3.
Holders of participating preference shares do not have the right to vote,
participate in the GMS, nominate candidates for the Board of Directors and the
Board of Controllers, except the cases specified in Clause 6 Article 148 of
this Law.
Article 118. Redeemable preference shares and rights of
their holders
1.
Redeemable preference shares are shares that will be redeemed by the company at
the request of their holders or under the conditions written in the
certificates of redeemable preference shares and the company’s charter.
2.
Holders of redeemable preference shares have all of the rights of ordinary
shareholders, except the cases specified in Clause 3 of this Article.
3.
Holders of redeemable preference shares do not have the right to vote,
participate in the GMS, nominate candidates for the Board of Directors and the
Board of Controllers, except the cases specified in Clause 5 Article 114 and
Clause 6 Article 148 of this Law.
Article 119. Obligations of shareholders
1. Fully
and punctually pay for their subscribed shares.
2. Do not
withdraw contributed capital in the form of ordinary shares in any shape or
form, unless the shares are purchased by the company or other persons. The
shareholder that withdraws all or part of the share capital against regulations
of this Clause and persons with related interests in the company shall have a
liability for the company’s debts and other liabilities which is equal to the
value of the shares withdrawn and the damage caused by this action.
3. Comply
with the company’s charter, rules and regulations.
4. Comply
with resolutions and decisions of the Board of Directors and the GMS.
5.
Protect the confidentiality of information provided by the company in
accordance with the company’s charter and the law; only use the provided
information to perform and protect their lawful rights and interests; do not
spread or share information provided by the company to any other organization
or individual.
6. Other
obligations prescribed by Law and the company’s charter.
Article 120. Ordinary shares of founding shareholders
1. A new
joint stock company shall have at least 03 founding shareholders. A joint stock
company converted from a state-owned enterprise or limited liability company or
after division, consolidation, acquisition of another joint stock company is
not required to have founding shareholders. Instead, the company’s charter in
the enterprise registration application shall contain signatures of the
company’s legal representatives or ordinary shareholders.
2. The
founding shareholders shall subscribe for at least 20% of the total authorized
ordinary shares upon enterprise registration.
3. Within
03 years from the issuance date of the Certificate of Enterprise Registration,
the ordinary shares of founding shareholders may be transferred to other
founding shareholders and may only be transferred to a person that is not a
founding shareholder if the transfer is accepted by the GMS. In this case, the
transferor does not have the right to vote on this transfer.
4. The
limitations specified in Clause 3 of this Article do not apply to the following
ordinary shares:
a)
Additional shares acquired by founding shareholders after the enterprise is
registered;
b) Shares
that have been transferred to other persons that are not founding shareholders.
Article 121. Share certificate
1. A
share certificate is a certificate issued by a joint stock company, a book
entry or electronic data that certifies the ownership of one or a number of
shares of the company. A share certificate shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b)
Quantity and type of shares;
c) The
face value of each share and total face value of the number of shares written
therein;
d) Full
name, signature, mailing address, nationality and legal document number if the
shareholder is an individual; names, EID numbers or legal document number and
headquarters address if the shareholder is an organization;
dd)
Signatures of the company’s legal representatives;
e)
Registration number on the company’s shareholder register and issuance date of
the share certificate;
g) Other
information specified in Articles 116, 117 and 118 of this Law for certificates
of preference shares.
2. Errors
in a share certificate do not affect rights and interests of its holder. The
company’s legal representative shall be responsible for the damage caused by
such errors.
3. In
case a share certificate is lost or damaged, it will be reissued at the request
of its holder. The request shall contain:
a)
Information about the lost or damaged certificate;
b) The
commitment to take responsibility for disputes caused by its reissuance.
Article 122. Shareholder register
1. A
joint stock company shall make and retain the shareholder register from the
issuance date of the Certificate of Enterprise Registration. The shareholder
register can be physical or electronic documents and contain information about
the shareholders’ ownership of shares.
2. A
shareholder register shall contain the following information:
a) The
company’s name and headquarters address;
b) Total
number of authorized shares, types of authorized shares and quantity of each
type;
c) Total
number of sold shares of each type and value of share capital contributed;
d) Full
names, signatures, mailing addresses, nationalities and legal document numbers
of shareholders that are individuals; names, EID numbers or legal document
numbers and headquarters addresses of shareholders that are organizations;
dd)
Quantity of each type of shares of each shareholder, date of share
registration.
3. The
shareholder register shall be retained at the company’s headquarters or another
organization that is licensed to retain shareholder registers. Shareholders are
entitled to inspect, access, extract names and addresses of the company’s
shareholders from the shareholder register.
4. In
case a shareholder’s mailing address is changed, a notification shall be
promptly sent to the company in order to update the shareholder register. The
company is not responsible if a shareholder cannot be contacted due to the
failure to notify the change of that shareholder’s mailing address.
5. The
company shall update changes of shareholders in the shareholder register as
requested by relevant shareholders in accordance with company’s charter.
Article 123. Offering shares
1.
Offering shares means the company’s increase in charter capital by increasing
the quantity of shares, types of authorized shares.
2. Shares
may be offered as follows:
a)
Offering shares to existing shareholders;
b)
Private placement of shares;
c) Public
offering of shares.
3. Public
offering of shares, offering of shares of public companies and other
organization shall be carried out in accordance with securities laws.
4. The
company shall register the change in charter capital within 10 days from the
day on which the shares offering is complete.
Article 124. Offering of shares to existing shareholders
1.
Offering of shares to existing shareholders is an event in which the company
increases the quantity and types of authorized and sell all of these shares to
all shareholders in proportion to their holdings in the company.
2. The
offering of shares to existing shareholders by a non-public joint stock company
shall be carried out as follows:
a) The
company shall send a written notification by express mail to the shareholders’
mailing addresses written in the shareholder register at least 15 days before
the deadline for subscribing for shares;
b) The
notification shall contain the full name, signature, mailing address,
nationality and legal document number if the shareholder is an individual;
names, EID numbers or legal document number and headquarters address if the
shareholder is an organization; the shareholder’s current shares and holding;
the total quantity of shares offered and the number of shareholders having the
right to buy them; the offered price; deadline for subscribing; full name and
signature of the company’s legal representative. The notification shall be
enclosed with the share subscription form issued by the company. If the share
subscription form is not sent to the company by the deadline, it will be
considered that the shareholder has renounced the right to buy shares;
c)
Shareholders may transfer their right to buy shares to other persons.
3. If the
offered shares are undersubscribed, the Board of Directors is entitled to sell
the remaining number of authorized shares to the company’s shareholders and
other persons under conditions that are not more favorable than those offered
to the shareholders, unless otherwise accepted by the GMS or prescribed by
securities laws.
4. Shares
are considered soled when they are fully paid for and information about the
buyer specified in Clause 2 Article 122 of this Law is fully recorded in the
shareholder register. From that time, the buyer is a shareholder of the
company.
5. After
the shares are fully paid for, the company shall issue and deliver the share
certificate to the buyer. In case a share certificate is not delivered,
information about the shareholder specified in Clause 2 Article 122 of this law
shall be recorded in the shareholder register to certify the shareholder’s
owner of shares.
Article 125. Private placement of shares
1. The
private placement of shares of a non-public joint stock company shall satisfy
the following conditions:
a) The
offering is not made through mass media;
b) Shares
are offered to fewer than 100 investors, not including professional securities
investors or only offered to professional securities investors.
2. The
private placement of shares of a non-public joint stock company shall be
carried out as follows:
a) The
company shall issue a decision on private placement of shares in accordance
with this Law;
b) The
company’s shareholders exercise their rights to buy shares in accordance with
Clause 2 Article 124 of this Law, except consolidation and acquisition of
companies;
c) In
case the shares are not completely bought by the shareholders and the persons
that receive the rights to buy shares, the remaining number of shares shall be
offered by private placement under conditions that are not more favorable than
those offered to the shareholders, unless otherwise accepted by the GMS.
3.
Foreign investors that buy shares offered in accordance with this Article shall
complete the procedures for purchasing shares specified in the Law on
Investment.
Article 126. Selling shares
The Board
of Directors shall decide the time, method and prices for selling shares. The
selling prices must not be lower than their market values or latest book
values, except:
1. Shares
that are sold for the first time to persons other than founding shareholders;
2.
Shareholders that are sold to all shareholders according to their holdings in
the company;
3. Shares
that are sold to brokers or guarantors, in which case the discount or discount
rate must be approved by the GMS unless otherwise prescribed by the company’s
charter;
4. Other
cases in which the discount rates are specified in the company’s charter or
resolution of the GMS.
Article 127. Transfer of shares
1. Shares
may be transferred freely except the cases specified in Clause 3 Article 120 of
this Law and other cases of restriction specified in the company’s charter. The
restrictions on transfer of shares specified in the company’s charter are only
applicable if they are written in the certificates of the shares subject to
restriction.
2. The
transfer shall be made into a contract or carried out on the securities market.
In case of transfer under a contract, the documents shall bear the signatures
of the transferor and the transferee or their authorized representatives. In
case shares are transferred on the securities market, the transfer procedures
prescribed by securities laws shall apply.
3. In
case of the death of a shareholder that is an individual, his/her heir at law
or designated by a will shall become a shareholder of the company.
4. In
case a shareholder that is an individual dies without an heir or the heir
refuses the inheritance or is disinherited, his/her shares shall be settled in
accordance with civil laws.
5. A
shareholder may donate all or part of their shares to other organizations and
individuals; use the shares to pay debts. The organization or individual that
receives the donation or debt payment will become a shareholder of the company.
6. The
organizations and individuals that receive shares in the cases specified in
this Article will only become shareholders when the information specified in
Clause 2 Article 122 of this Law is fully recorded in the shareholder register.
7. The
company shall register the changes of shareholders in the shareholder register
as requested by relevant shareholders within 24 hours after the request is
received.
Article 128. Private placement of bonds
1. The
joint stock company that is not a public company may make sell bonds using
private placement in accordance with this Law and relevant laws. Private
placement of bonds by public companies and other organizations, and public
offering of bonds shall comply with securities laws.
2.
Private placement of bonds by a joint stock company that is not a public company
means the offering of bonds without mass media to fewer than 100 investors,
excluding professional securities investors, that satisfy the following
conditions:
a)
Strategic investors for privately placed convertible bonds and bonds attached
to warrants;
b)
Professional securities investors for privately placed convertible bonds,
warrant-linked bonds and other kinds of privately placed bonds.
3. A
joint stock company that is not a public company must satisfy the following
conditions to make private placement of bonds:
a) The
company’s has fully paid the principal and interest of the bonds that are
offered and due or fully paid due debts over the last 03 years before the
offering (if any), except offering of bonds to creditors that are pre-selected
finance organizations;
b) The
company has the audited financial statement of the year preceding the year of
offering;
c) The
liquidity ratios and prudential ratios are maintained;
d) Other
conditions prescribed by relevant laws.
Article 129. Procedures for making private placement of
bonds and transfer of privately placed bonds
1. The
company shall decide the plan for private placement of bonds in accordance with
this Law;
2. The
company shall disclose information to the investors before each placement and
send a notification to the stock exchange at least 01 day before the intended
date of offering.
3. The
company shall disclose information about the result of the offering to the
investors before each placement and send a notification to the stock exchange
within 10 days from the completion date of the offering.
4.
Privately placed bonds may be transferred among eligible investors specified in
Clause 2 Article 128 of this Law, except transfer under an effective court
decision or arbitration award or inheritance as prescribed by law.
5.
Pursuant to this Law and the Law on Securities, the Government shall provide
for the types of bonds, procedures for private placement of bonds; information
disclosure; international issuance of bonds.
Article 130. Deciding private placement of bonds
1. The
company shall decide the private placement of bonds as follows:
a) The
GMS shall decide the types and total value of bonds and time of offering of
convertible bonds and warrant-linked bonds. A voting shall be carried out in
accordance with Article 148 of this Law;
b) Unless
otherwise prescribed by the company’s charter and except the cases specified in
Point a of this Clause, the Board of Directors is entitled to decide the types
and total value of bonds and time of offering and shall submit a report to the
nearest GMS. The report shall be enclosed with documents about the offering.
2. The
company shall register the change in charter capital within 10 days from the
day on which the bonds are converted into shares.
Article 131. Buying shares and bonds
Shares
and bonds of a joint stock company may be bought in VND, convertible foreign
currencies, gold, land use right (LUR), intellectual property rights,
technologies, technical secrets, other assets specified in the company’s
charter and shall be paid in a lump sum.
Article 132. Share repurchase at shareholders’ request
1. The
shareholders that have voted against the resolution on reorganization of the
company or change of shareholders’ rights and obligations in the company’s
charter are entitled to request the company to repurchase their shares. The
request shall be made in writing and specify the shareholder’s name and
address, quantity of shares of each type, offered prices, reasons for
requesting the repurchase. The request shall be sent to the company within 10
days from the day on which the previously mentioned resolution is ratified by
the GMS.
2. The
company shall repurchase shares at the request of its shareholders in
accordance with Clause 1 of this Article at market prices or at the prices
calculated in accordance with the rules in the company’s charter within 90 days
from the receipt of the request. In case an agreement on the prices cannot be
reached, the parties may hire a valuation organization to determine the price.
The company shall introduce at least 03 valuation organizations for the
shareholders to make the final decision.
Article 133. Share repurchase under the company’s decision
The
company is entitled to repurchase up to 30% the total ordinary shares, all or
part of the participating preference shares that have been sold. To be
specific:
1. The
Board of Directors is entitled to decide repurchase of up to 10% of the total
shares of each type which are sold within 12 months. Other cases of share
repurchase shall be decided by the GMS;
2. The
Board of Directors is entitled to impose the repurchase price. The repurchase
price for ordinary shares must not exceed their market price at the time,
except the cases specified in Clause 3 of this Article. Repurchase prices of
other types of shares must not be lower than their market prices unless
otherwise prescribed by the company’s charter or agreed upon by the company and
relevant shareholders;
3. The
company may repurchase shares of each shareholder in proportion to their
holding in the company as follows:
a) The
notification on the company’s decision to repurchase shares shall be sent by
express mail to all shareholders within 30 days from its ratification date. The
notification shall contain the company’s name and headquarters address, total
number and types of shares repurchased, repurchase prices or pricing rules;
procedures and deadline for paying, procedures and deadline for shareholders to
sell their shares to the company;
b) The
shareholders that agree to sell back their shares to the company shall send a
written agreement to the company by express mail within 30 days from the
notification date. The agreement shall contain the full name, mailing address,
nationality, legal document number if the shareholder is an individual; name,
EID number or legal document number, headquarters address if the shareholder is
an organization; the quantity of shares being held, quantity of shares to be
sold; method of payment, signature of the shareholder or the shareholder’s
legal representative. The company only buys back the shares within this time
limit.
Article 134. Conditions for payment and settlement of
repurchased shares
1. The
company may only make the payment for the shares repurchased in accordance with
Article 132 and Article 133 of this Law if it is still able to fully pay its
debts and other liabilities after the shares are fully paid for.
2. The
shares repurchased in accordance with Article 132 and Article 133 of this Law
shall be considered unsold shares according to Clause 4 Article 112 of this
Law. The company shall register the charter capital decreases, which is equal
to the total face value of repurchased shares, within 10 days from the date of
completion of payment for the shares unless otherwise prescribed by securities
laws.
3. The
share certificates of the repurchased shares shall be destroyed right after the
shares are fully paid for. The President of the Board of Directors and the
Director/General Director shall be jointly responsible for the damage caused by
the failure to or delay in destroying the share certificates.
4. After
all of the repurchased shares are fully paid for, if the total assets in the
company’s accounting books is reduced by more than 10%, the company shall send
a notification to all of its creditors within 15 days from the payment date.
Article 135. Paying dividends
1.
Dividends of preference shares shall be paid under the conditions applied
thereto.
2.
Dividends of ordinary shares shall be determined according to the realized net
profit and the dividend payment from the company’s retained earnings. The joint
stock company may only pay dividend of ordinary shares when the following
conditions are fully satisfied:
a) The
company has fully its tax liabilities and other liabilities as prescribed by
law;
b) The
company’s funds are contributed to and the previous losses are made up for as
prescribed by law and the company’s charter;
c) After
dividends are fully paid, the company is still able to fully pay its debts and
other liabilities when they are due.
3.
Dividends can be paid in cash, the company’s shares or other assets specified
in the company’s charter. If dividends are paid in cash, it shall be VND and
using the methods of payment prescribed by law.
4.
Dividends shall be fully paid within 06 months form the ending date of the
annual GMS. The Board of Directors shall compile a list of shareholders that
receive dividends, dividend of each share, time and method of payment at least
30 days before each payment of dividends. The notification of dividend payment
shall be sent by express mail to the shareholders’ registered addresses at
least 15 days before the dividend payment date. Such a notification shall
contain the following information:
a) The
company’s name and headquarters address;
b) Full
name, mailing address, nationality and legal document number if the shareholder
is an individual;
c) Name,
EID number or legal document number and headquarters address if the shareholder
is an organization;
d)
Quantity of each type of shares; dividend of each share and the total dividends
receivable by the shareholder;
dd) Time
and method of dividend payment;
e) Full
names and signatures of the company’s legal representatives and the President
of the Board of Directors.
5. In
case a shareholder transfers their shares during the period from the date of
compilation of the list of shareholders to the dividend payment date, the
transferor will receive the dividend.
6. In
case dividends are paid in shares, the company is not required to follow the
procedures for offering shares prescribed in Articles 123, 124 and 125 of this
Law and is only required to register the charter capital increase, which is
equal to the total face value of shares paid as dividends, within 10 days from
the completion date of dividend payment.
Article 136. Return of payments for repurchased shares or
dividends
In case
repurchased shares are paid for against the regulations of Clause 1 Article 134
of this Law or dividends are paid against regulations of Article 135 of this
Law, the shareholder shall return the money or assets received. Otherwise, all
members of the Board of Directors shall have a joint liability for the
company’s debts and liabilities which is equal to the value of unrecovered
money or assets.
Article 137. Organizational structure of a joint stock
company
1. Unless
otherwise prescribed by securities laws, a joint stock company may choose one
of the following models:
a) A
joint stock company with the GMS, Board of Directors, Board of Controllers and
Director/General Director. If the joint stock company has fewer than 11
shareholders and the shareholders that are organizations hold less than 50% of
the company’s total shares, a Board of Controllers is not mandatory;
b) A
joint stock company with the GMS, Board of Directors and Director/General
Director. In this case, at least 20% of the members of the Board of Directors
shall be independent members and there has to be an audit committee affiliated
to the Board of Directors. The organizational structure, functions and duties
of the audit committee shall be specified in the company’s charter or the audit
committee’s operating regulations promulgated by the Board of Directors.
2. If the
company has only one legal representative, the President of the Board of
Directors or the Director/General Director shall be the legal representative.
The President of the Board of Directors shall be the company’s legal
representative unless otherwise prescribed by the company’s charter. If the
company has more than one legal representative, the President of the Board of
Directors and the Director/General Director shall be the company’s legal
representatives.
Article 138. Rights and obligations of the GMS
1. The
GMS shall consist of all voting shareholders and is the supreme body of a joint
stock company.
2. The GMS
has the following rights and obligations:
a) Ratify
the orientation for development of the company;
b) Decide
the types of authorized shares and quantity of each type; decide the annual
dividends of each type of shares;
c) Elect,
dismiss members of the Board of Directors and Controllers;
d) Decide
investment in or sale of assets that are worth at least 35% of the total assets
written in the latest financial statement, unless another ratio or value is
specified in the company’s charter;
dd)
Decide revisions to the company’s charter;
e) Ratify
annual financial statements;
g) Decide
repurchase of more than 10% of total sold shares of each type;
h) Take
actions against violations committed by members of the Board of Directors and
Controllers that cause damage the company and its shareholders;
i) Decide
reorganization or dissolution of the company;
k) Decide
the budget or total salaries, bonuses and other benefits of the Board of
Directors and the Board of Controllers;
l)
Approve the rules and regulations of the company, the Board of Directors and
the Board of Controllers;
m)
Approve the list of independent audit companies; choose independent audit
companies carry out audit of the company; dismiss independent audits where
necessary;
n) Other
rights and obligations prescribed by Law and the company’s charter.
Article 139. General Meetings of Shareholders
1.
General Meetings of Shareholders (GMS) shall be convened annually and whenever
necessary. The meeting location is the place where the chair attends and shall
be within Vietnam’s territory.
2. The
annual GMS shall be convened within 04 months from the end of the fiscal year.
Unless otherwise prescribed by the company’s charter, the Board of Directors
shall decide deferral of the annual GMS where necessary by up to 06 months from
the end of the fiscal year.
3. The
following issues shall be discussed and ratified at the annual GMS:
a) The
company’s annual business plan;
b) The
annual financial statement;
c) The
report of the Board of Directors on its performance and that of its members;
d) The
report of the Board of Controllers on the company’s business performance,
performance of the Board of Directors, the Director/General Director;
dd) The
report of the Board of Controllers on its performance and that of the controllers;
e)
Dividend of each type of shares;
g) Other
issues within its jurisdiction.
Article 140. Convening GMS
1. Board
of Directors shall convene annual and ad hoc GMS. An ad hoc GMS shall be
convened in the following cases:
a) The
meeting is necessary for the company’s interests;
b) The
quantity of remaining members of the Board of Directors and Board of
Controllers is smaller than the minimum quantity prescribed by law;
c) The
meeting is requested by the shareholder or group of shareholders mentioned in
Clause 2 Article 115 of this Law;
d) The
meeting is requested by the Board of Controllers;
dd) Other
cases prescribed by law and the company’s charter.
2. Unless
otherwise prescribed by the company’s charter, the Board of Directors shall
convene the GMS within 30 days from the date of occurrence of the event
mentioned in Point b Clause 1 of this Article or the day on which the request
for holding the meeting mentioned in Point c and Point d Clause 1 of this
Article is received. If the Board of Directors fails to convene such GMS, the
President and members of the Board of Directors shall pay compensation for the
damage incurred by the company.
3. In
case the Board of Directors fails to convene a GMS as prescribed in Clause 2 of
this Article, the Board of Controllers shall convene a GMS within the next 30
days in accordance with regulations of this Law. If the Board of Controllers
fails to convene the GMS, it shall pay compensation for the damage incurred by
the company
4. In
case the Board of Controllers fails to convene a GMS as prescribed in Clause 3
of this Article, the shareholder or group of shareholders prescribed in Clause
2 Article 115 of this Law may convene the GMS on behalf of the company in
accordance with this Law.
5. The
person who convenes the GMS shall:
a)
Prepare a list of shareholders entitled to participate in the GMS;
b)
Provide information and settle complaints relevant to the aforementioned list;
c) Draw
up the meeting agenda;
d)
Prepare documents for the meeting;
dd) Draft
the resolution of the GMS according to the meeting agenda; prepare a list and
detailed information about the candidates for members of the Board of Directors
and Controllers (in case of election);
e)
Determine the meeting time and location;
g) Send
the invitation to each and every shareholder on the list mentioned in (a);
h)
Perform other tasks serving the meeting.
6. The
cost of convening and conduct the GMS as prescribed in Clauses 2, 3 and 4 of
this Article shall be reimbursed by the company.
Article 141. List of shareholders entitled to participate
in the GMS
1. The
list of shareholders entitled to participate in the GMS shall be compiled
according to the company’s shareholder register numbers. The list shall be
compiled not more than 10 days before dan on which the invitations to
participate in the GMS are sent if a shorter period is not specified in the
company’s charter.
2. The
list shall contain full names, mailing addresses, nationalities, legal document
numbers of shareholders that are individuals; names, EID numbers or legal
document numbers, headquarters addresses of shareholders that are
organizations; quantities of shares of each type and each shareholder
registration date and number of each shareholder.
3.
Shareholders are entitled to access and make copies of names and mailing
addresses of shareholders on the list; request correction of errors or addition
of information about themselves on the list. The company’s executives shall
promptly provide information in the shareholder register, revise and add information
as requested by the shareholders; pay compensation for damage caused by the
failure to provide or to accurately and promptly provide shareholder
registration numbers as requested. The procedures for requesting provision of
information in the shareholder register shall be specified in the company’s
charter.
Article 142. Agenda of the GMS
1. The
person who convenes the GMS shall prepare the agenda.
2. The
shareholder or group of shareholders specified in Clause 2 Article 115 of this
Law is entitled to propose additional issues to the GMS agenda. The proposal
shall be made in writing and sent to the company at least 03 working days
before the opening date unless another period is specified in the company’s
charter. The proposal shall contain the names of shareholders and the proposed
issues.
3. In
case the proposal mentioned in Clause 2 of this Article is rejected by the
person who convenes the GMS, a written response and explanation must be
provided at least 02 days before the opening day. A proposal may only be
rejected in the following cases:
a) The
proposal is sent against the regulations of Clause 2 of this Article;
b) The
issue exceeds the jurisdiction of the GMS;
c) Other
cases prescribed by the company’s charter.
4. The
person who convenes the GMS shall include the issues proposed in accordance
with Clause 2 of this Article in the draft agenda, except in the cases
specified in Clause 3 of this Article. The issues will be included in the
official agenda if their inclusion is accepted by the GMS.
Article 143. Invitations to the GMS
1. The
person who convenes the GMS shall send invitations to all shareholders on the
list of shareholders entitled to participate in the GMS at least 21 days before
the opening day unless an earlier time is specified in the company’s charter.
The invitation shall contain the participant’s name, headquarters/mailing
address, EID number, time and location of the meeting and other requirements.
2.
Invitations shall be sent to mailing addresses of the shareholders and posted
on the company’s website. If necessary, the invitation may be published on a
local or central daily newspaper as prescribed by the company’s charter.
3. An
invitation shall be sent together with:
a) The
meeting agenda, meeting documents and the draft resolution on each issue in the
agenda;
b) The
votes.
4. The
invitation and meeting documents mentioned in Clause 3 of this Article may be
uploaded on the company’s website (if any) instead of sending physical
invitations and documents. In this case, the invitation shall contain
instructions on how to download the documents.
Article 144. Exercising the right to attend the GMS
1.
Shareholders and representatives of shareholders that are organizations may
directly participate in the GMS or authorize one or some other organizations
and individuals to participate the GMS, or participate in the GMS in one of the
forms specified in Clause 3 of this Article.
2. The
authorization of participants in the GMS shall be made in writing. The
authorization letter shall be made in accordance with civil laws and specify
the name of the authorized participant, the quantity of shares authorized. The
authorized participant shall present the authorization letter before entering
the meeting room.
3. It
will be considered that a shareholder attends and votes at the GMS in the
following cases:
a) The
shareholder directly participates in and votes at the GMS;
b) The
shareholder authorizes another organization or individual to participate in and
vote at the meeting;
c) The
shareholder participates and votes online or through other electronic methods;
d) The
shareholder sends the votes to the GMS by post, fax or email;
dd) The
shareholder sends the votes by other means specified in the company’s charter.
Article 145. Conditions for conducting the GMS
1. The
GMS shall be conducted when it is participated by a number of shareholders that
represent more than 50% of the votes; the specific ratio shall be specified in
the company’s charter.
2. In
case the conditions for conducting the meeting prescribed in Clause 1 of this
Article are not fulfilled, the second invitation shall be sent within 30 days
from the first meeting date unless otherwise prescribed by the company’s
charter. The second GMS shall be conducted when it is participated by a number of
shareholders that represent at least 33% of the votes; the specific ratio shall
be specified in the company’s charter.
3. In
case the conditions for conducting the second meeting prescribed in Clause 2 of
this Article are not fulfilled, the third invitation shall be sent within 20
days from the second meeting date unless otherwise prescribed by the company’s
charter. The third GMS shall be conducted regardless of the number of votes
represented by the participants.
4. Only
the GMS has the right to change the agenda enclosed with the invitation
prescribed in Article 142 of this Law.
Article 146. Meeting and voting protocols
Unless
otherwise prescribed by the company’s charter, the following meeting and voting
protocol shall be followed:
1. The
shareholders that participate in the GMS shall be registered before the meeting
is declared open;
2.
Election of the chair, secretary and election board:
a) The
President of the Board of Directors shall assume the role or the chair or
authorize a member of Board of Directors to chair the GMS if it is convened by
the Board of Directors. In case the chair is not present or is temporarily
unable to work, the remaining members of the Board of Directors shall elect one
of them as the chair under the majority rule. In case a chair cannot be
elected, the chief of the Board of Controllers shall preside over the election
of the GMS chair, in which case the person that receives the most votes will be
the chair;
b) Except
for the cases specified in Point a of this Clause, the person that signs the
decision to convene the GMS shall preside over the election of the chair by the
GMS, in which case the person that receives the most votes will be the chair;
c) The
chair shall designate one or some persons as the secretary(ies) of the GMS;
d) The
GMS shall elect one or some people as the election board as requested by the
chair;
3. The
meeting agenda shall be ratified by the GMS during the opening session. The
agenda shall specify the duration of each issue therein;
4. The
chair is entitled to implement necessary and reasonable measures to maintain
order during the meeting and adhere to the ratified agenda and serve the
majority of the participants;
5. The
GMS shall discuss and vote on each issue on the agenda. Votes include
affirmative votes, negative votes and abstentions. The voting result shall be
announced by the chair before the meeting ends unless otherwise prescribed by
the company’s charter;
6.
Shareholders and authorized participants that arrive at the meeting after it is
declared open will be registered and has the right to vote after registration.
In this case, previous voting result shall remain unchanged;
7. The
person who convenes or chair the GMS has the rights to:
a)
Request all participants to facilitate inspection and other lawful and
reasonable security measures;
b)
Request a competent authority to maintain order during the meeting; expel those
who do not comply with the chair’s instructions, deliberately disrupt order,
obstruct the meeting progress or disobey security requirements;
8. The
chair is entitled to postpone the GMS that has a sufficient number of
participants for up to 03 working days from the initial opening day or change
the meeting location in the following cases:
a) The
current meeting location does not have enough seats for all participants;
b)
Communication devices at the current meeting location are not adequate for all
participant to discuss and vote;
c) One or
some participants disrupt the meeting and thus threaten the fairness and
legality of the meeting;
9. In
case the chair postpones or suspends the GMS against Clause 8 of this Article,
the GMS shall elect another participant to chair the meeting until the end; all
resolutions ratified at the meeting shall be effective.
Article 147. Methods for ratifying resolutions of the GMS
1. The
GMS shall decide ratification of resolutions by voting or questionnaire survey.
2. Unless
otherwise prescribed by the company’s charter, resolutions of the GMS on the
following issues shall be voted on at the meeting:
a) Revisions
to the company’s charter;
b)
Orientation for development of the company;
c) Types
of shares and quantity of each type;
d)
Election and dismissal or members of the Board of Directors and the Board of
Controllers;
dd)
Investment or sale of assets that are worth at least 35% of the total assets
written in the latest financial statement, unless another ratio or value is
specified in the company’s charter;
e)
Ratification of the annual financial statement;
g)
Reorganization or dissolution of the company.
Article 148. Conditions for ratification of resolutions of
the GMS
1. A
resolution on one of the following issues will be ratified if it is voted for
by a number of shareholders that represent at least 65% (a specific ratio shall
be specified in the company’s charter) of votes of all participants, except for
the cases specified in Clauses 3, 4 and 6 of this Article:
a) Types
of shares and quantity of each type;
b) Change
of the company’s business lines;
c) Change
of the company’s organizational structure;
d)
Investment or sale of assets that are worth at least 35% of the total assets
written in the latest financial statement, unless another ratio or value is
specified in the company’s charter;
dd)
Reorganization or dissolution of the company.
e) Other
issues specified in the company’s charter.
2. A
resolution will be ratified when it is voted for by a number of shareholders
that hold more than 50% (a specific ratio shall be specified in the company’s
charter) of the votes of all participants, except for the cases specified in
Clauses 1, 3 , 4 and 6 of this Article.
3. Unless
otherwise prescribed by the company’s charter, the election of members of the
Board of Directors and the Board of Controllers shall be cumulative voting,
which means a shareholder will a number of votes that is proportional to that
shareholder’s holding multiplied by (x) the number of members of the Board of
Directors or the Board of Controllers and a shareholder may use all or part of
the votes for one or some candidates. Successful candidates shall be chosen
according to the votes they receive in descending order until the number of
members of the Board of Directors or the Board of Controllers reaches the
minimum number specified in the company’s charter. In case 02 or more
candidates receive the same number of votes for the last member of the Board of
Directors or the Board of Controllers, these candidates will undergo an
additional election or be chosen according to the criteria specified in the
election regulations or company’s charter.
4. In
case of questionnaire survey, a resolution will be ratified when it is voted
for by a number of shareholders that hold more than 50% (a specific ratio shall
be specified in the company’s charter) of the votes of all voting shareholders.
5. A
resolution of the GMS shall be notified to the shareholders having the right to
participate in the GMS within 15 days from the day on which it is ratified or
uploaded onto the company’s website (if any).
6. A
resolution on adverse changes to rights and obligations of preference
shareholders may only be ratified if it is voted for by a number of preference
shareholders that participate in the meeting and hold at least 75% of the same
kind of preference shares. In case of questionnaire survey, it needs to be
approved by a number of preference shareholders that holding at least 75% of
the same kind of preference shares.
Article 149. Power and method for ratifying resolutions of
the GMS by questionnaire survey
Unless
otherwise prescribed by the company’s charter, a questionnaire survey on
ratification of resolution of the GMS shall be carried out as follows:
1. The
Board of Directors is entitled to carry out questionnaire survey to ratify a
resolution of the GMS when it is considered necessary for the company’s
interests, except for the cases specified in Clause 2 Article 147 of this Law;
2. The
Board of Directors shall prepare the questionnaires, the draft resolution and
explaining documents; send it to all voting shareholders at least 10 days
before the deadline for submission of the questionnaires unless a longer period
is specified in the company’s charter. The list of shareholders to receive the
questionnaires shall be compiled in accordance with Clause 1 and Clause 2
Article 141 of this Law. Questionnaires and documents shall be sent in
accordance with Article 143 of this Law;
3. A
questionnaire shall contain:
a) The
company’s name, EID number, headquarter address;
b)
Purposes of the survey;
c) If the
shareholder is an individual: full name, mailing address, nationality, legal
document number; If the shareholder is an organization: name, EID number or
legal document number of the organization or full name, mailing address,
nationality, legal document number of the organization’s representative;
quantity of each type of shares and number of votes of the shareholder;
d) The
issues that need voting;
dd) The
options including affirmative, negative, abstention;
e)
Deadline for submission of the answered questionnaire;
g) Full
name and signature of the President of the Board of Directors;
4.
Shareholders may send answered questionnaires to the company by post, fax or
email as follows:
a) An
answered questionnaire sent by post shall bear the signature of the shareholder
(if the shareholder is an individual) or the shareholder’s authorized
representative or legal representative (if the shareholder is an organization),
be placed in a closed envelope which must not be opened before vote counting
time;
b) An
answered questionnaire sent by fax or email shall be kept confidential until
the vote counting time;
c)
Answered questionnaires that are submitted after the deadline or opened before
vote counting time (for those sent by post) or revealed (for those sent by fax
or email) shall be considered invalid. Questionnaires that are not submitted
shall not be counted as votes;
5. The
Board of Directors shall organize vote counting and issue a vote counting
record in the presence of the Board of Controllers or the shareholders that are
not holding any managerial position in the company. The vote counting record
shall have the following information:
a) The
company’s name, EID number, headquarter address;
b)
Purposes and the issue that needs voting;
c)
Quantities of voters, votes casted, valid votes and invalid votes, voting
method and a list of voters;
d)
Quantities of affirmative votes, negative votes and abstentions on each issue;
dd)
Ratified decisions and corresponding ratio of affirmative votes;
e) Full
names and signatures of the President of the Board of Directors, vote counting
supervisors and vote counters.
The
members of the Board of Directors, vote counters and vote counting supervisor
are jointly responsible for the accuracy and honesty of the vote counting
record; for the damage caused the decisions that are ratified due to inaccurate
or dishonest vote counting;
6. The
vote counting record and the resolution shall be sent to all shareholders
within 15 days from the date of vote counting completion or uploaded on the
company’s website (if any);
7.
Answered questionnaires, the vote counting record, the ratified resolution and
relevant documents enclosed with the answered questionnaires shall be retained
at the company’s headquarters;
8. An
resolution that is ratified through questionnaire survey has the same value as
those ratified at the GMS.
Article 150. Minutes of the GMS
1. The
minutes of the GMS shall be in Vietnamese language (audio recordings and
electronic files are optional), may be translated into foreign languages, and
shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b) Time
and location of the GMS;
c) The
meeting agenda;
d) Full
names of the chair and secretary;
dd)
Summary of developments of the meeting, comments at the GMS on each issue on
the agenda.
e)
Quantities of shareholders and votes casted by shareholders that participated
in the meeting, the list of subscribed shareholders and shareholders’
representatives that participated in the meeting and their votes;
g) Number
of affirmative votes on each issue, voting method, numbers of valid votes,
invalid votes, affirmative votes, negative votes and abstentions, their ratios
to total number of votes of all participants;
h)
Ratified decisions and corresponding ratio of affirmative votes;
i) Full
names of the chair and secretary.
In case
the chair and the secretary refuse to sign the minutes, they will be effective
if they are signed by the other members of the Board of Directors and contain
all information prescribed in this Clause. The minutes shall clearly state the
reasons why the chair and the secretary refuse to sign them.
2. The
minutes of the GMS shall be completed and ratified before the meeting ends.
3. The
chair and secretary or other persons who sign the minutes are joint responsible
for its accuracy and truthfulness.
4. The
Vietnamese and foreign language copies of the minutes have the same legal
value. In case of any discrepancy between them, the Vietnamese copy shall
prevail.
5. The
minutes of the GMS shall be sent to all shareholders within 15 days from the
ending date of the meeting; the vote counting record may be uploaded to the
company’s website.
6. The
minutes of the GMS, the list of registered participants, the ratified
resolutions and documents enclosed with the invitations shall be retained at
the company’s headquarters.
Article 151. Requesting invalidation of a resolution of the
GMS
Within 90
days from the receipt of the resolution or minutes of the GMS or the vote
counting record, the shareholder or group of shareholders mentioned in Clause 2
Article 115 of this Law is entitled to request the court or an arbitral
tribunal to consider invalidating the resolution in part or in full in the
following cases:
1. The
procedures for convening the GMS and issuing decisions prescribed in this Law
and the company’s charter are not followed, except for the cases specified in
Clause 2 Article 152 of this Law;
2. The
contents of the resolution violations the law or the company’s charter.
Article 152. Effect of the resolution of the GMS
1. The
resolution of the GMS takes effect from the day on which it is ratified or on
the effective date specified therein.
2. A
resolution that is ratified by 100% of the voting shares shall be lawful and
effective even if the procedures for convening the meeting and issuing such
resolution prescribed in this Law and the company’s charter are not followed;
3. In
case a shareholder or group of shareholders requests the court or an arbitral
tribunal to consider invalidating the resolution as prescribed in Article 151
of this Law, the resolution shall remain effective until the effective date of
the decision on invalidation of such resolution, except for the cases in which
temporary emergency measures are implemented under a decision of a competent
authority.
Article 153. The Board of Directors
1. The
Board of Directors is the managerial body of the company and has the right to
make decisions on behalf of the company, perform rights and obligations of the
company, except the rights and obligations of the GMS.
2. The
Board of Directors has the following rights and obligations:
a) Decide
the company’s medium-term development strategies and annual business plans;
b)
Propose the types of authorized shares and quantity of each type;
c) Decide
sale of certain types of unsold authorized shares; decide other methods of
raising capital;
d) Decide
selling prices for the company’s shares and bonds;
dd)
Decide repurchase of shares as prescribed in Clause 1 and Clause 2 Article 133
of this Law;
e) Decide
the investment plan and investment projects within its jurisdictions and
limitations prescribed by law;
g) Decide
solutions for market development, marketing and technology;
h)
Approve sale contracts, purchase contracts, borrowing contracts, lending
contracts, other contracts and transactions that are worth at least 35% of the
total assets written in the latest financial statement, unless another ratio or
value is specified in the company’s charter; contracts and transactions within
the jurisdiction of the GMS as prescribed in Point d Clause 2 Article 138,
Clause 1 and Clause 3 Article 167 of this Law.
i) Elect,
dismiss the President of the Board of Directors; designate, dismiss, enter into
and terminate contracts with the Director/General Director and other key
executives specified in the company’s charter; decide salaries, remunerations,
bonuses and other benefits of these executives; designate authorized
representatives to participate in the Board of Members or GMS of another
company; decide their remunerations and other benefits;
k)
Supervise the Director/General Director and other executives managing the
company’s everyday business;
l) Decide
the company’s organizational structure, rules and regulations; establishment of
subsidiary companies, branches and representative offices; contribution of
capital to and purchase of shares of other enterprises;
m)
Approve the agenda and documents of the GMS; convene the GMS or carry out
surveys for the GMS to ratify its resolutions;
n) Submit
annual financial statements to the GMS;
o)
Propose the dividends; decide the time and procedures for paying dividends or
settling business losses;
p)
Propose reorganization or dissolution of the bankruptcy; file bankruptcy of the
company;
q) Other
rights and obligations prescribed by Law and the company’s charter.
3. The
Board of Directors shall ratify its resolution and decisions by voting at the
meeting, questionnaire survey or another method specified in the company’s
charter. Each member of the Board of Directors shall have one vote.
4. In
case a resolution or decision is ratified by the Board of Directors against
regulations of law or a resolution of the GMS or the company’s charter and
causes damage to the company, the members that vote for the ratification of
such resolution or decision shall be jointly responsible for it and pay compensation
for the company; the members that vote against such resolution or decision
shall not be held responsible. In this case, the company’s shareholders are
entitled to request the court to suspend or invalidate the resolution or
decision.
Article 154. Term of office and quantity of members of the
Board of Directors
1. The
Board of Directors shall have 03 – 11 members. The specific quantity of members
shall be prescribed by the company’s charter.
2. The
term of office of a member of the Board of Directors shall not exceed 05 years
without term limit. An individual may only be elected independent member of the
Board of Directors of a company for up to 02 continuous terms.
3. In
case the term of office of all members of the Board of Directors ends at the same
time, they shall remain members of the Board of Directors until new members are
elected and take over their jobs unless otherwise prescribed by company’s
charter.
4. The
company’s charter shall specify the quantity, rights, obligations of
independent members of the Board of Directors; method for organizing and
coordinating their activities.
Article 155. Organizational structure and requirements to
be fulfilled by members of the Board of Directors
1. To be
a member of the Board of Directors, a person shall satisfy the following
requirements:
a) He/she
is not one of the persons specified in Clause 2 Article 17 of this Law;
b) He/she
has professional qualifications and experience of busines administration in the
company’s busines lines; a member is not necessarily a shareholder of the
company, unless otherwise prescribed by the company’s charter;
c) A
person may hold the position of member of the Board of Directors of more than
one company;
d) A
member of the Board of Directors of a state-owned enterprise prescribed in
Point b Clause 1 Article 88 of this Law and subsidiary companies of a
state-owned enterprise prescribed in Clause 1 Article 88 of this Law must not
be a relative of the Director/General Director or any other executive of the
company, of the executive or the person having the power to designate the
executive of the parent company.
2. Unless
otherwise prescribed by securities laws, an independent member of the Board of
Directors prescribed in Point b Clause 1 Article 137 of this Law shall satisfy
the following requirements:
a) He/she
is not working for the company or its parent company or subsidiary company; did
not worked for the company or its parent company or subsidiary company within
the last 03 years or longer;
b) He/she
is not receiving a salary from the company, except the allowances to which
members of the Board of Directors are entitled as per regulations;
C)
His/her spouse, biological parents, adoptive parents, biological children,
adopted children and siblings are not major shareholders of the company,
executives of the company or its subsidiary companies;
d) He/she
is not directly or indirectly holding 1% of the company’s voting shares or
more;
dd)
He/she did not hold the position of member of the Board of Directors or the
Board of Controllers of the company within the last 05 years or longer unless
he/she was designated in 02 consecutive terms.
3. An
independent member of the Board of Directors shall notify the Board of
Directors if he/she no longer satisfies the requirements specified in Clause 2
of this Article and is obviously no longer an independent member from the day
on which a condition is not satisfied. The Board of Directors shall the
disqualification if this member at the nearest GMS or convene the GMS to elect
a new independent member within 06 months from the day on which the
notification is received from the member.
Article 156. The President of the Board of Directors
1. The
Board of Directors shall elect one of its members President of the Board of
Directors; dismiss its President.
2. The
President of the Board of Directors of a public company or a joint stock
company prescribed in Point b Clause 1 Article 88 of this Law must not
concurrently hold the position of Director/General Director.
3. The
President of the Board of Directors has the following rights and obligations:
a) Plan
the activities of the Board of Directors;
b) Draw
up agenda and prepare documents for meetings of the Board of Directors; convene
and chair the meetings;
c)
Organize the ratification of resolutions and decisions of the Board of
Directors;
d)
Supervise the implementation of resolutions and decisions of the Board of
Directors;
dd) Chair
the GMS;
e) Other
rights and obligations prescribed by Law and the company’s charter.
4. In
case the President of the Board of Directors is not present or not able to
perform his tasks, he/she shall authorize another member in writing to perform
the rights and obligations of the President of the Board of Directors in
accordance with the company’s charter. In case no member is authorized or the
President is dead, missing, detained, serving an imprisonment sentence, serving
an administrative penalty in a correctional institution or rehabilitation
center, making a getaway; has limited legal capacity or is incapacitated, has
difficulty controlling his/her behavior, is prohibited by the court from
holding certain positions or doing certain works, one of the Board of Directors
shall convene a meeting with the remaining members to elect one of them as the
interim President under the majority rule until a new decision is issued by the
Board of Directors.
5. Where
necessary, the Board of Directors may designate the company’s secretary, who
will have the following rights and obligations:
a) Assist
in convening the GMS and meetings of the Board of Directors; takes minutes of
the meetings;
b)
Assists members of the Board of Directors in performing their rights and
obligations;
c)
Assists the Board of Directors in applying and implementing the business
administration rules;
d) Assist
the company in development of shareholder relationship, protection of lawful
rights and interests of shareholders; fulfillment of the obligation to provide
and disclose information and administrative procedures;
dd) Other
rights and obligations prescribed by the company’s charter.
Article 157. Meetings of the Board of Directors
1. The
President of the Board of Directors shall be elected during the first meeting
of the Board of Directors within 07 working days from the election of that
Board of Directors. This meeting shall be convened and chaired by the member
that received the highest number of votes. In case more than one member
received the same highest number of votes, one of them will be elected by the
members under majority rule to convene the meeting of the Board of Directors.
2.
Meetings of the Board of Directors shall be held at least quarterly and on an
ad hoc basis.
3. The
President of Board of Directors shall convene a meeting of the Board of
Directors in the following cases:
a) It is
requested by the Board of Controllers or independent members of the Board of
Directors;
b) It is
requested by the Director or General Director and at least 05 other executives;
c) It is
requested by at least 02 members of the Board of Directors;
d) Other
cases specified in the charter.
4. The
request mentioned in Clause 3 of this Article shall be made in writing and
specify the issues that need discussing and deciding within the jurisdiction of
the Board of Directors.
5. The
President of the Board of Directors shall convene the meeting within 07 working
days from the day on which the request mentioned in Clause 3 of this Article is
received. Otherwise, he/she shall be responsible for the damage to the company
and the requesting person is entitled to convene the meeting of the Board of
Directors.
6. The
President of the Board of Directors or the person that convenes the meeting
shall send the invitations at least 03 working days before the meeting day
unless otherwise prescribed by the company’s charter. The invitation shall
specify the meeting time, location, agenda, issues to be discussed. The
invitation shall be enclosed with meeting documents and votes.
The
invitations can be sent physically, by phone, fax, electronically or by other
methods prescribed by the company’s charter to the registered mailing address
of each member of the Board of Directors.
7. The
President of the Board of Directors or the person that convenes the meeting
shall send the same invitations and documents to the Controllers.
The
Controllers are entitled to participate in meetings of the Board of Directors
and discuss but must not vote.
8. A
meeting of the Board of Directors shall be conducted when it is participated in
by at least three fourths (3/4) of the members. In case a meeting cannot be
conducted due to inadequate number of participants, the second meeting shall be
convened within 07 days from the first meeting date unless a shorter period is
prescribed by the company’s charter. The second meeting shall be conducted when
it is participated in by more than 50% of the members.
9. It
will be considered that a member participates in and votes at the meeting of
the Board of Directors in the following cases:
a) He/she
directly participates in and votes at the meeting;
b) He/she
authorizes another person to participate in and vote at the meeting as
prescribed in Clause 11 of this Article;
c) He/she
participates in the meeting and votes online or through other electronic
methods;
d) He/she
sends his/her vote to the meeting by post, fax or email;
dd) He/she
sends the votes by other means specified in the company’s charter.
10. A
vote is sent by post shall be put in a closed envelope and be delivered to the
President of the Board of Directors at least 01 hour before the opening time.
Votes shall only be open in the presence of all participants.
11. The
members shall participate in all meetings of the Board of Directors and may
authorize other persons to participate in and vote at the meeting if accepted
by the majority of the Board of Directors.
12. Unless
a higher ratio is prescribed by the company’s charter, a resolution or decision
of the Board of Directors shall be ratified if it is voted for by the majority
of the participants. In case of equality of votes, the option that is voted for
by the President of the Board of Directors shall prevail.
Article 158. Minutes of meetings of the Board of Directors
1. The
minutes of all meetings of the Board of Directors shall be taken. Audio
recordings and other electronic forms are optional. The minutes shall be written
in Vietnamese language, may be translated into foreign languages, and shall
contain the following information:
a) The
company’s name, EID number, headquarter address;
b) Time
and location of the meeting;
c)
Purposes and agenda of the meeting;
d) Full
names of participating members and the persons authorized to participate in the
meeting and how they participate; full names of non-participating members and
their excuses;
dd) The
issues to be discussed and voted on at the meeting;
e)
Summary of comments of each participating member in chronological order;
g) Voting
result, the members that cast affirmative votes, negative votes and
abstentions;
h)
Ratified decisions and corresponding ratio of affirmative votes;
i) Full
names, signatures of the chair and the minute taker, except the case in Clause
2 of this Article.
2. In
case the chair and the minute take refuse to sign the minutes, they will be
effective if they are signed by all of the other members of the Board of
Directors and contain all the information prescribed in Points a, b, c, d, đ,
e, g and h Clause 1 of this Article.
3. The
chair, the minute take and the persons who sign the minutes shall be
responsible for its accuracy and truthfulness.
4. The
minutes and meeting documents shall be retained at the company’s headquarters.
5. The
Vietnamese and foreign language copies of the minutes have the same legal
value. In case of any discrepancy between them, the Vietnamese copy shall
prevail.
Article 159. Rights to information of members of the Board of
Members
1.
Members of the Board of Directors are entitled to request the Director/General
Director, Deputy Director/Deputy General Director and other executives of the
company to provide information and documents about the finance and business
performance of the company and its units.
2. The
requested executives shall provide information and documents fully and
accurately as requested by the members. The procedures for requesting and
providing information shall be specified in the company’s charter.
Article 160. Dismissal, replacement and addition of members
of the Board of Directors
1. The
GMS shall dismiss a member of the Board of Directors from office in the
following cases:
a) He/she
does not fully satisfy the requirements specified in Article 155 of this Law;
b) He/she
hands in a resignation and is accepted;
c) Other
cases prescribed by the company’s charter.
2. The
GMS shall dismiss a member of the Board of Directors in the following cases:
a) He/she
fails to participate in activities of the Board of Directors for 06 consecutive
months, except in force majeure events;
b) Other
cases prescribed by the company’s charter.
3. Where
necessary, the GMS shall replace members of the Board of Directors; dismiss
members of the Board of Directors in cases other than those specified in Clause
1 and Clause 2 of this Article.
4. The
Board of Directors shall convene the GMS to elect additional members of Board
of Directors in the following cases:
a) The
number of members of the Board of Directors decreases by more than one third of
the number specified in the company’s charter. The Board of Directors shall
convene the GMS within 60 days from that day;
b) The
number of independent members of the Board of Directors falls below the minimum
number specified in Point b Clause 1 Article 137 of this Law;
c) Except
the cases specified in Point a and Point b of this Clause, the nearest GMS
shall elect new members to replace the dismissed members.
Article 161. Audit committee
1. The
audit committee is a specialized body of the Board of Directors and has at
least 02 members. The Chairperson of the audit committee shall be an
independent member of the Board of Directors. Other members of the audit
committee shall be non-executive members of the Board of Directors.
2. The
audit committee shall ratify its decisions by voting at meetings, questionnaire
survey or another method specified in the company’s charter or the audit
committee’s operating regulations. Each member of the audit committee has one
vote. Unless a higher ratio is prescribed by the company’s charter or the audit
committee’s operating regulations, a decision of the audit committee shall be
ratified if it is voted for by the majority of the participating members. In
case of equality of votes, the option that is voted for by the Chairperson
shall prevail.
3. The
audit committee has the following rights and obligations:
a)
Inspect the accuracy of the company’s financial statements and make official
announcements about the company’s finance;
b) review
the internal control and risk management system;
c) Review
transactions with related persons subject to approval by the Board of Directors
or the GMS; offer recommendations on these transactions;
d)
Supervise the company’s internal audit unit;
dd)
Propose independent audit company, payment, terms and conditions in the
contract with the audit company to the Board of Directors before it is
submitted to the annual GMS.
e)
Monitor and evaluate the independence and objectivity of the audit company and
effectiveness of the audit, especially when the company uses non-audit services
of the audit company;
g)
Supervise the company’s compliance with law, requests of the authorities and
the company’s rules and regulations.
Article 162. The Director/General Director
1. The
Board of Directors shall designate one of its members or hire a person as the
Director/General Director.
2. The
Director/General Director shall manage the company’s everyday busines
operation, is supervised by and responsible to the Board of Directors Members
and the law for his/her performance.
The term
of office of the Director/General Director shall not exceed 05 years without
term limit.
3. The
Director/General Director has the following rights and obligations:
a) Decide
everyday operating issues of the company that are outside the jurisdiction of
the Board of Directors;
b)
Organize the implementation of resolutions and decisions of the Board of
Directors;
c)
Organize implementation of the company’s busines plans and investment plans;
d)
Propose the company’s organizational structure, rules and regulations;
dd)
Designate, dismiss the company’s executives, except those under jurisdiction of
the Board of Directors;
e) Decide
salaries and other benefits of the company’s employees, including the
executives designated by the Director/General Director;
g)
Recruit employees;
h)
Propose plans distribution of dividends or settlement of business losses;
i) Other
rights and obligations specified by law, the company’s charter, resolutions and
decisions of the Board of Directors.
4. The Director/General
Director shall manage the company’s everyday business in accordance with law,
the company’s charter, his/her employment contract with the company,
resolutions and decisions of the Board of Directors. Otherwise, the
Director/General Director shall be legally responsible for and pay damages to
the company.
5. The
Director/General Director of a public company or state-owned enterprise
prescribed in Point b Clause 1 Article 88 of this Law or a subsidiary company
of a state-owned enterprise prescribed in Clause 1 Article 88 of this Law shall
satisfy the following requirements:
a) He/she
is not one of the persons specified in Clause 2 Article 17 of this Law;
b) He/she
is not a relative of any of the executives, controllers of the company and the
parent company; the representatives of state investments and the enterprise’
investment in the company and the parent company;
c) He/she
has professional qualifications and experience of busines administration.
Article 163. Salaries, remunerations, bonuses and other
benefits of members of the Board of Directors and the Director/General Director
1. The
company is entitled to pay salaries and bonuses to members of the Board of
Directors, the Director/General Director and other executives according to the
company’s business performance.
2. Unless
otherwise prescribed by the company’s charter, the salaries, bonuses and other
benefits of the members of the Board of Directors and the Director/General
Director shall be paid as follows:
a)
Members of the Board of Directors shall receive salaries and bonuses. The
salary is based on the number of days necessary to fulfill the member’s duties
and the daily pay. The Board of Directors shall estimate the salary of each
member by consensus. The total salaries and bonuses of the Board of Directors
shall be decided by the annual GMS;
b)
Members of the Board of Directors shall have the costs of food, stay, travel
and other reasonable costs reimbursed if their duties are fulfilled;
c) The
Director/General Director’s salary and bonuses shall be decided by the Board of
Directors.
3.
Salaries of members of the Board of Directors, the Director/General Director
and other executives shall be recorded as the company’s expenses in accordance
with regulations of law on corporate income tax in a separate section of the
company’s consolidated financial statement and shall be reported at the annual
GMS.
Article 164. Disclosure of related interests
Unless
more stringent requirements are prescribed by the company’s charter, the
company’s benefits and related persons shall be disclosed as follows:
1. The
company shall compile a list of its related persons in accordance with Clause
23 Article 4 of this Law, their contracts and transactions with the company;
2.
Members of the Board of Directors, Controllers, Director/General Director and
other executives of the company shall declare their related interests,
including the following information:
a) Names,
enterprise ID numbers, headquarters addresses and business lines of the
enterprises they own or have shares/stakes in; the holdings and time of owning
or holding the shares/stakes;
b) Names,
EID numbers, headquarters addresses, business lines of the enterprises their
related persons own, jointly own or have separate controlling shares/stakes
that are worth more than 10% of charter capital;.
3. The
information specified in Clause 2 of this Article shall be declared within 07
working days from the day on which the related interests are brought about; any
revision shall be notified to the company within 07 working days from its date
of occurrence;
4. The
list mentioned in Clause 1 an declaration 2 of this Article shall be retained,
disclosed, accessed, extracted and copied as follows:
a) The
company shall announce the list of related persons and interests at the annual
GMS;
b) The
list shall be retained at the company’s headquarters; part or all of the list
may be retained at the company’s branches where necessary;
c)
Shareholders and their authorized representative, members of the Board of
Directors, the Board of Controllers, Director/General Director and other
executives are entitled to access, extract and make copies of the list;
d) The
company shall enable the persons specified in Point c of this Clause to access,
extract and make copies of the list and must not obstruct them in the process.
Procedures for accessing, extracting and copying the list shall be specified in
the company’s charter;
5. When
members of the Board of Directors and the Director/General Director do business
within the company’s business lines in their own names or others’ names, they
shall explain the nature and contents of such business to the Board of
Directors and the Board of Controllers, and may only proceed if it is accepted
by the majority of the remaining members of the Board of Directors. Otherwise,
all incomes from such business will belong to the company.
Article 165. Responsibilities of the company’s executives
1.
Members of the Board of Directors, the Director/General Director and other
executives have the following responsibilities:
a)
Perform their rights and obligations in accordance with this Law, relevant
laws, the company’s charter and resolution of the GMS;
b)
Perform their rights and obligations in an honest and prudent manner to serve
the best and lawful interests of the company;
c) Be
loyal to the company’s interests; do not abuse their power and position or use
the enterprise’s information, secrets, business opportunities and assets for
personal gain or serve any other organization’s or individual’s interests;
d) Promptly
and fully provide the company with the information specified in Clause 2
Article 164 of this Law;
dd) Other
responsibilities prescribed by this Law and the company’s charter.
2. The
member of the Board of Directors, Director/General Director or executive that
violates Clause 1 of this Article shall be personally or jointly responsible
for the loss, return the benefits received and pay damages to the company and
the third parties.
Article 166. Rights to file lawsuits against the Board of
Directors and the Director/General Director
1. A
shareholder or group of shareholders that holds at least 01% of the total
ordinary shares may, in their own names or in the company’s name, file lawsuit
against a member of the Board of Members or the Director/General Director if
the member or Director/General Director to claim the interest or damages:
a) fails
to fulfill the executive’s duties prescribed in Article 165 of this Law;
b) fails
to comply with or fully and punctually perform their rights and obligations as
prescribed by law, the company’s charter, resolution or decision of the Board
of Directors;
c) abuses
his/her power and position or uses the enterprise’s information, secrets,
business opportunities and assets for personal gain or serve any other
organization’s or individual’s interests;
d) Other
cases prescribed by law and the company’s charter.
2.
Lawsuits shall be filed in accordance with civil proceedings laws. Proceedings
costs in case the lawsuit is filed on behalf of the company shall be recorded
as the company’s expense unless the lawsuit is rejected.
3. The
shareholder or group of shareholders mentioned in this Article is entitled to
access and extract necessary information under decision of the court or
arbitral tribunal before or during the proceedings.
Article 167. Approving contracts and transactions between
the company and related persons
1. The
GMS or Board of Directors shall approve contracts and transactions between the
company and the following related persons:
a)
Shareholders and authorized representatives of shareholders that are
organizations holding more than 10% of the company’s total ordinary shares and
their related persons;
b)
Members of the Board of Directors, the Director/General Director and their
related persons;
c)
Enterprises that must be declared by members of the Board of Directors,
Controllers, Director/General Director and other executives as prescribed in
Clause 2 Article 164 of this Law.
2. The
Board of Directors shall approve the contracts and transactions that are
mentioned in Clause 1 of this Article and are worth less than 35% of the
company’s total assets according to the latest financial statement (or a
smaller ratio or value specified in the company’s charter). In this case, the
person that signs the contract or conducts the transaction on behalf of the
company shall send a notification to the members of the Board of Directors and
Controllers of the related persons together with the draft contract or
transaction summary. The Board of Directors shall decide whether to approve the
contract or transaction within 15 days from the day on which the notification
is received unless a different deadline is specified in the company’s charter.
Members of the Board of Directors that are related to the parties to the
contract or transaction must not vote.
3. The
GMS shall approve the following contracts and transactions:
a)
Contracts and transactions other than those specified in Clause 2 of this
Article;
b)
Contracts and transactions that involve borrowing, lending, selling assets that
are worth more than 10% of the company’s total assets according to the latest
financial statement between the company and shareholders that hold at least 51%
of the total voting shares or their related persons.
4. If a
contract or transaction specified in Clause 3 of this Article is approved, the
person who concludes the contract or conducts the transaction on behalf of the
company shall send a notification to the Board of Directors and Controllers of
the entities related to such contract or transaction together with the draft
contract or summary of the transaction. The Board of Directors shall submit the
draft contract or explain the contract or transaction at the GMS or carry out a
questionnaire survey. In this case, shareholders that are related to the parties
to the contract or transaction must not vote. The contract or transaction shall
be approved in accordance with Clause 1 and Clause 4 Article 148 of this Law,
unless otherwise prescribed by the company’s charter.
5. A
contract or transaction shall be invalidated under a court decision and handled
as prescribed by law when it is concluded or carried out against regulations of
this Article. The person who concludes the contract or carries out the
transaction, the related shareholders, members of the Board of Directors,
Director/General shall pay compensation for any damage caused and return the
benefits generated by such contract or transaction to the company.
6. The
company shall disclose related contracts and transactions in accordance with
relevant laws.
Article 168. Board of Controllers
1. The
Board of Controllers shall have 3 – 5 Controllers. The term of office of a
Controller shall not exceed 05 years without term limit.
2. The
Chief Controller shall be elected by the Board of Controllers among the
Controllers. The Chief Controller shall be elected and dismissed under the
majority rule. Rights and obligations of the Chief Controller shall be
specified in the company’s charter. More than half of the Controllers shall
have permanent residences in Vietnam. The Chief Controller shall have a
bachelor’s degree in economics, finance, accounting, audit, law, business
administration or a major that is relevant to the enterprise’s business
operation, unless higher standards are prescribed in the company’s charter.
3. In
case the term of office of all Controllers expires before an election can be
carried out, the existing Controllers shall keep performing until Controllers
are elected and take over the job.
Article 169. Requirements to be satisfied by Controllers
1. A
Controller shall satisfy the following standards and requirements:
a) He/she
is not in one of the persons specified in Clause 2 Article 17 of this Law;
b)
His/her major is economics, finance, accounting, audit, law, business
administration or a major that is relevant to the enterprise’s business
operation;
c) He/she
is not a relative of any of the members of the Board of Directors,
Director/General Director and other executives;
d) He/she
is not the company’s executive, is not necessarily a shareholder or employee of
the company unless otherwise prescribed by the company’s charter;
dd) Other
standards and requirements are satisfied as prescribed by law and the company’s
charter.
2. In
addition to the standards and requirements specified in Clause 1 of this
Article, Controllers of a public company or state-owned enterprise prescribed
in Point b Clause 1 Article 88 of this Law must not be relatives of the
executives of the company and the parent company; of the representative of
enterprise’s investment or state investment in the company and the parent
company.
Article 170. Rights and obligations of the Board of
Controllers
1.
Supervise the Board of Directors and the Director/General Director managing the
company.
2.
Inspect the rationality, legitimacy, truthfulness and prudency in business
administration; systematic organization, uniformity and appropriateness of
accounting works, statistics and preparation of financial statements.
3.
Validate the adequacy, legitimacy and truthfulness of the income statements,
annual and biannual financial statements, reports on performance of the Board
of Directors; submit validation reports at the annual GMS. Review contracts and
transactions with related persons subject to approval by the Board of Directors
or the GMS and offer recommendations.
4.
Review, inspect and evaluate the effectiveness of the internal control,
internal audit, risk management and early warning systems of the company.
5.
Inspect accounting books, accounting records, other documents of the company,
the company’s administration where necessary, under resolutions of the GMS or
at the request of the shareholder or group of shareholders specified in Clause
2 Article 115 of this Law.
6. When
requested by the shareholder or group of shareholders specified in Clause 2
Article 115 of this Law, the Board of Controllers shall carry out an inspection
within 07 working days from the day on which the request is received. Within 15
days after the end of the inspection, the Board of Controllers shall submit a
report to the Board of Directors or the requesting shareholder or group of
shareholders. The inspection must not obstruct normal operation of the Board of
Directors or interrupt the company’s business operation.
7.
Propose changes or improvements to the company’s organizational structure and
administration to the Board of Directors or the GMS.
8.
Promptly submit a written notification to the Board of Directors whenever a
member of the Board of Directors, the Director/General Director is found to be
violating Article 165 of this law, request the violator to stop the violations
and implement remedial measures.
9.
Participate in and discuss at the GMS, meetings of the Board of Directors and
other meetings of the company.
10.
Employ independent counsels and internal audit unit of the company to perform
their tasks.
11. The
Board of Controllers may discuss with the Board of Directors before submitting
reports and proposals to the GMS.
12. Other
rights and obligations prescribed by this Law, the company’s charter and resolution
of the GMS.
Article 171. Rights to information of the Board of
Controllers
1.
Documents and information shall be sent to Controllers in the same manner as
those being sent to members of the Board of Directors, including:
a)
Meeting invitations, questionnaires and enclosed documents;
b)
Resolutions, decisions and minutes of meetings of the Board of Directors and
the GMS;
c)
Reports of the Director/General Director to the Board of Directors or other
documents issued by the company.
2.
Controllers are entitled to access the company’s documents at the headquarters,
branches and other locations; enter the executives’ and employees’ workplace
during working hours.
3. The
Board of Directors, members of the Board of Directors, the Director/General
Director and other executives shall fully and promptly provide information and
documents about the company’s administration as requested by Controllers or the
Board of Controllers.
Article 172. Salaries, bonuses and other benefits of
Controllers
Unless
otherwise prescribed by the company’s charter, the salaries, bonuses and other
benefits of Controllers shall be paid as follows:
1.
Controllers’ salaries, bonuses, other benefits and operating budget shall be
decided by the GMS;
2.
Reasonable costs of food, stay, travel, independent counseling services of
Controllers shall be reimbursed. The total salaries and costs must not exceed
the annual operating budget of the Board of Controllers which has been approved
by the GMS, unless otherwise prescribed by the GMS;
3. Salaries
and operating costs of the Board of Controllers shall be recorded as the
company’s expenses in accordance with regulations of law on corporate income
tax and relevant laws and placed in a separate section in the company’s annual
financial statements.
Article 173. Responsibilities of Controllers
1. Comply
with regulations of law, the company’s charter, resolutions of the GMS and code
of ethics in performance of their rights and obligations.
2.
Perform their rights and obligations in an honest and prudent manner to serve
the best and lawful interests of the company.
3. Be
loyal to the company’s interests; do not abuse their power and position or use
the enterprise’s information, secrets, business opportunities and assets for
personal gain or serve any other organization’s or individual’s interests.
4. Other
obligations prescribed by Law and the company’s charter.
5. The
Controller that violates Clauses 1, 2, 3 or 4 of this Article and causes damage
to the company or another person shall be personally or jointly responsible for
the damage and return the benefits earned from the violation to the company
6. Send a
written notification to the Board of Controllers of violations committed by
another Controller and request the violator to stop the violation and implement
remedial measures.
Article 174. Dismissal of Controllers
1. The
GMS shall dismiss a Controller from office in the following cases:
a) He/she
does not fully satisfy the standards and requirements specified in Article 169
of this Law;
b) He/she
hands in a resignation and is accepted;
c) Other
cases specified in the charter.
2. The
GMS shall dismiss a Controller in the following cases:
a) He/she
fails to perform his/her duties;
b) He/she
fails to perform his/her rights and obligations for 06 consecutive months,
except in force majeure events;
c) He/she
commits multiple, serious violations of Controller’s duties prescribed by this
Law and the charter;
d) Other
cases specified in resolutions of the GMS.
Article 175. Submission of annual reports
1. At the
end of the fiscal year, the Board of Directors shall submit the following
documents to the GMS:
a) The
company’s income statement;
b) The
financial statement;
c) The
report on the company’s administration and management;
d) The
validation report of the Board of Controllers.
2. If the
annual financial statement of a joint stock company has to be audited as
prescribed by law, it shall be audited before submission to the GMS for
ratification.
3. The
documents specified in Points a, b and c Clause 1 of this Article shall be
submitted to the Board of Controllers for validation at least 30 days before
the opening date of the GMS unless otherwise prescribed by company’s charter.
4. The
documents specified in Clauses 1, 2 and 3 of this Article, the validation report
of the Board of Controllers and the audit report shall be retained at the
company’s headquarters at least 10 days before the opening date of the GMS
unless a longer period is prescribed by company’s charter. Shareholders who
have been holding the company’s shares continuously for at least 01 may examine
the documents mentioned in this Article themselves or with their lawyers,
accountants or auditors.
Article 176. Disclosure of information
1. A
joint stock company shall send its ratified annual financial statements to
competent authorities prescribed by accounting laws and relevant laws.
2. The
following information of a joint stock company shall be published on its
website:
a) The
company’s charter;
b)
Curriculum vitae (CV), qualifications, professional experience of members of
the Board of Directors, Controllers, Director/General Director of the company;
d) Annual
financial statements ratified by the GMS;
d) Annual
reports on performance of the Board of Directors and the Board of Controllers.
3. An
unlisted joint stock company shall send a notification to the business
registration authority in charge of the area where the company’s headquarters
is situated within 03 working days from the occurrence of the change in full
name, nationality, passport number, mailing address, quantity and types of
shares of a foreign shareholder; name, EID number, headquarters address,
quantity and types of shares of a shareholder that is a foreign organization
and full name, nationality, passport number, mailing address of that
organization’s authorized representative.
4. Public
companies shall disclose information in accordance with securities laws. Joint
stock companies specified in Point b Clause 1 Article 88 shall disclose
information in accordance with Points a, c, dd and g Clause 1 Article 109 and
Article 110 of this Law.
Chapter VI
PARTNERSHIPS
Article 177. Partnerships
1. A
partnership is an enterprise in which:
a) There
are least 02 partners that are joint owners of the company and do business
under the same name ((hereinafter referred to as “general partner”). There can
be limited partners in addition to general partners;
b) A
general partner shall be an individual whose liability for the company’s
obligations is equal to all of his/her assets;
c) A
limited partner can be an organization or an individual whose liability for the
company’s debts is equal to the promised capital contribution.
2. A
partnership has the status of a juridical person from the day on which the
Certificate of Enterprise Registration is issued.
3. A
partnership must not issue any kind of securities.
Article 178. Capital contribution and issuance of the
capital contribution certificate
1.
General partners and limited partners shall contribute capital fully and
punctually as promised.
2. A
general partner who fails to contribute capital fully and punctually as
promised and thus causes damage to the company shall pay compensation.
3. In
case a limited partner fails to contribute capital fully and punctually as
promised, the uncontributed capital shall be considered that partner’s debt to
the company, in which case the limited partner can be excluded from the company
under a decision of the Board of Partners.
4. When
capital is fully contributed, the partner shall be granted the capital
contribution certificate, which shall contain the following information:
a) The
company’s name, EID number, headquarter address;
b) The
company’s charter capital;
c) Full
name, signature, mailing address, nationality and legal document number if the
partner is an individual; EID number or legal document number, headquarters
address if the partner is an organization; type of partner;
d) The
value of capital contributed and types of contributed assets;
dd) The
number and date of issuance of the certificate of capital contribution;
e) Rights
and obligations of the certificate holder;
g) Full
names and signatures of the certificate holder and the company’s general
partners.
5. In
case the capital contribution certificate is lost or damaged, the partner will
be reissued with another certificate by the company.
Article 179. A partnership’s assets
A
partnership’s assets include:
1. Assets
that are contributed by the partners and have been transferred to the company;
2. Assets
created under the partnership’s name;
3. Assets
obtained from business activities performed by general partners on behalf of
the company and from business activities of the partnership performed by
general partners in their own names;
4. Other
assets prescribed by law.
Article 180. Limitations of general partners
1. A
general partner must not be the owner of a sole proprietorship; must not be a
general partner of another partnership unless it is accepted by the other
general partners.
2. A
general partner must not, in their own names or others’ names, do business in
the same busines lines as those of the partnership for personal gain or to
serve the interests of another organization or individual.
3. A
general partner must not transfer part or all of his/her stake in the company
to another organization or individual unless it is accepted by the other
general partners.
Article 181. Rights and obligations of general partners
1. A
general partner has the rights to:
a)
Participate in meetings, discuss and vote on the partnership’s issues; each
general partner shall have one vote or a specific number of votes specified in
the partnership’s charter;
b) Do
business in the partnership’s business lines on its behalf; negotiate and enter
into contracts, transactions or agreements under conditions that the partner
believes to be most beneficial to the partnership;
c) Use
the partnership’s assets to do business in its business lines. In case a
general partner advances money to do business on behalf of the partnership,
he/she is entitled to request the partnership to reimburse the principal and
interest thereon at market rate;
d)
Request the partnership to pay compensation for damage that is not on account
of that partner.
dd)
Request the partnership and other general partners to provide information about
the partnership’s business performance; inspect the partnership’s assets,
account records and other documents where necessary;
e)
Receive distributed profits in proportion to his/her stake or as agreed;
g)
Receive the remaining assets in proportion to his/her stake upon the partnership’s
dissolution or bankruptcy unless another ratio is specified in the charter;
h) When a
general partner dies, his/her hair shall receive a value of assets minus the
partner’s debts and other liabilities. The heir may become a general partner if
accepted by the Board of Partners;
i) Other
rights prescribed by this Law and the company’s charter.
2. A
general partner has the following obligations:
a) Manage
and do business in an honest and prudent manner to ensure the partnership’s
lawful and best interests;
b) Manage
and do business in accordance with law, the charter, resolutions and decisions
of the Board of Partners; pay compensation for the damage caused by his/her
violations of these;
c) Do not
use the partnership’s assets for personal gain or to serve the interests of any
other organization or individual;
d) Return
to the partnership the money or assets that he/she received when doing business
in his/her own name, in the partnership’s or another person’s name and has not
returned to the partnership and pay for any damage caused by this action;
dd)
Jointly pay the partnership’s remaining debts (if any) after all of the
partnership’s assets are used to pay them;
e) Incur
the loss that is proportional to his/her stake or as agreed in the charter in
case the partnership makes a loss;
g) Submit
monthly written reports on his/her performance to the partnership; provide
information on his/her performance for other partners on request;
h) Other
obligations prescribed by Law and the charter.
Article 182. The Board of Partners
1. The
Board of Partners consists of all partners and shall elect a partner as the
President of the Board of Partners, who may concurrently hold the position of
Director/General Director of the partnership unless otherwise prescribed by the
charter.
2. A
general partner is entitled to request a meeting of the Board of Partners to
discuss and decide its business. The requesting partner shall prepare the
meeting documents and agenda.
3. The
Board of Partners is entitled to decide all business activities of the
partnership. Unless otherwise prescribed by the charter, the following issues
are subject to approval by at least three fourths (3/4) of the general
partners:
a)
Orientation for development of the partnership;
b)
Revisions to the charter;
c)
Admission of new partners;
d)
Permission for withdrawal or exclusion of a partner;
dd)
Investment in projects;
e) Taking
of loans and other methods for raising capital; granting a loan that is worth
at least 50% of the partnership’s charter capital, unless a higher rate is
prescribed by the charter;
g)
Purchase or sale of assets that whose value is equal to or greater than the
partnership’s charter capital, unless a higher value is prescribed by the
charter;
h)
Ratification of the annual financial statement, total distributable profit and
distributed profit of each partner;
i)
Dissolution or bankruptcy of the company.
4. Other
issues that are not mentioned in Clause 3 of this will be ratified if approved
by at least two thirds (2/3) of the general partners; a specific ratio shall be
specified in the charter.
5. The
rights to vote of limited partners shall comply with this Law and the charter.
Article 183. Convening meetings of the Board of Partners
1. The
President of the Board of Partners may convene a meeting whenever it is
necessary or at the request of a general partner. In case the President does
not convene a meeting as requested by a general partner, that general partner
may convene the meeting himself/herself.
2.
Invitations to a meeting of the Board of Partner can be sent physically, by
phone, fax, electronically or by other methods prescribed by the charter. The
invitation shall specify the time, location and agenda and purposes of the
meeting, and the name of the partner that requests the meeting.
Documents
serving the process of deciding the issues specified in Clause 3 Article 182 of
this Law shall be sent to all partners before the opening of the meeting. The
deadline shall be specified in the charter.
3. The
President of the Board of Partners or the partner that requests the meeting
shall chair the meeting. Minutes of the meeting shall be taken and contain the
following information:
a) The
partnership’s name, EID number, headquarter address;
b) Time
and location of the meeting;
c) Purposes
and agenda of the meeting;
d) Full
names of the chair and participants;
dd)
Comments of the participants;
e)
Ratified resolutions and decisions, quantity of partners that cast affirmative
votes, negative votes and abstentions; summaries of such resolutions and
decisions;
g) Full
names and signatures of the participants.
Article 184. Business administration of partnerships
1.
General partners are the partnership’s legal representative and shall
administer its everyday business. A limitation to general partners is only
applied to a third party when it is known by the third party.
2.
General partners shall assume different managerial positions in the partnership
under agreement.
When some
or all general partners perform certain business activities together, it will
be decided under the majority rule.
A general
partner’s activities beyond the scope of operation of the partnership are not
responsibility of the partnership unless they are accepted by the other
partners.
3. A
partnership may open one or some bank accounts. The Board of Partners authorize
certain partners to deposit and withdraw money from such account.
4. The
President of the Board of Partners, the Director/General Director has the
following rights and obligations:
a)
Manager the partnership’s everyday business as general partners;
b)
Convene and organize meetings of the Board of Partners; sign resolutions and
decisions of the Board of Partners;
c) Assign
tasks and coordinate operation of general partners;
d)
Organize and fully retain accounting records, invoices and other documents of
the partnership as prescribed by law;
d)
Represent the company in civil proceedings, as the plaintiff, defendant, person
with relevant interests and duties in front of the court or arbitral tribunal;
represent the company in performance of other rights and obligations prescribed
by law;
e) Other
obligations specified in the charter.
Article 185. Termination of general partners
1. A
general partner status will be terminated if he/she:
a)
voluntarily withdraws capital from the partnership;
b) is
dead, missing or incapacitated; has limited legal capacity; has difficulty
controlling his/her own behaviors;
c) is
excluded from the partnership;
d) is
serving an imprisonment sentence or banned by the court from doing certain
jobs;
dd) In
other cases specified in the charter.
2. A
general partner is entitled to withdraw capital from the partnership if it is
accepted by the Board of Partners. In this case, the withdrawing partner shall
make a written notification at least 06 months before the withdrawal date and
may only withdraw capital at the end of the fiscal year after the financial
statement of the same year has been ratified.
3. A
general partner will be excluded from the partnership if he/she:
a) is not
able to contribute capital or fails to contribute capital as promised after a
second notice is made by the company;
b)
violates the regulations of Article 180 of this Law;
c) fails
to do business in an honest and prudent manner or has inappropriate actions
causing serious damage to the interest of the partnership and other partners;
or
d) fails
to fulfill a general partner’s obligations.
4. In
case of termination due to a partner’s being incapacitated or having limited
legal capacity or having difficulty controlling his/her behaviors, his/her
stake shall be fairly returned.
5. For 02
years from the date of termination in the cases specified in Points a, c, d and
dd Clause 1 of this Article, the partner still jointly has a liability for the
company’s debts that occur before the termination date which is equal to
his/her total assets.
6. After
termination of a general partner whose name is used as part of or the whole
partnership’s name, that general partner or his/her hair or legal
representative is entitled to request the partnership to stop using that name.
Article 186. Admission of new partners
1. A
partnership may admit new general partners and limited partners; the admission
of a new partner is subject to approval by the Board of Partners.
2. The
new general partner or limited partner shall fully contribute capital as
promised within 15 days from the day on which the admission is approved unless
a different time limit is decided by the Board of Partners.
3. The
new general partner has a joint liability for the company’s debts and
liabilities which is equal to his/her total assets, unless otherwise agreed
upon by the new partner and the other partners.
Article 187. Rights and obligations of limited partners
1.
Limited partners have the rights to:
a)
Participate in meetings, discuss and vote at the meetings of the Board of
Partners on revisions to the charter, changes in rights and obligations of
limited partners, reorganization and dissolution of the company and other
contents of the charter directly affecting their rights and obligations;
b)
Receive distributed profits in proportion to their holdings;
c) Be
provided with the partnership’s annual financial statements; request the
President of the Board of Partners and general partners to fully and accurately
provide information about the partnership’s business performance; examine
accounting books, records, transactions and other documents of the company;
d)
Transfer their stakes to other persons;
dd) Do
business within the partnership’s business lines in their own names in other
persons’ names;
e) Leave
as inheritance, give away, pledge or otherwise dispose of their stakes in
accordance with regulations of law and the charter. In case a limited partner
dies, his/her heir shall be a new limited partner;
g)
Receive part of the partnership’s remaining assets in proportion to their
holdings in case the partnership is dissolved or goes bankrupt;
h) Other
rights prescribed by Law and the company’s charter.
2.
Limited partners have the obligations to:
a) Take
on a liability for the partnership’s debts and other liabilities which is equal
to their promised capital contribution;
b) Do not
participate in administration of the partnership; do not do business in the
partnership’s name;
c) Comply
with the partnership’s charter, resolutions and decisions of the Board of
Partners;
d) Other
obligations prescribed by Law and the partnership’s charter.
Chapter VII
SOLE PROPRIETORSHIPS
Article 188. Sole proprietorships
1. A sole
proprietorship is an enterprise owned by a single individual whose liability
for its entire operation is equal to his/her total assets.
2. A sole
proprietorship must not issue any kind of securities.
3. An
individual may only establish one sole proprietorship. The owner of a sole
proprietorship must not concurrently own a household business or hold the
position of general partner of a partnership.
4. A sole
proprietorship must not contribute capital upon establishment or purchase
shares or stakes of partnerships, limited liability companies or joint stock
companies.
Article 189. Capital of sole proprietorships
1. The
capital of a sole proprietorship shall be registered by its owner. The sole
proprietorship’s owner shall register the accurate amounts of capital in VND,
convertible currencies, gold and other assets, types and quantities of assets.
2. All
the capital, including loans and leased assets serving the sole
proprietorship’s operation, shall be fully recorded in its accounting books and
financial statements as prescribed by law.
3. During
its operation, the sole proprietorship’s owner is entitled to increase or
decrease its capital. The increases and decreases in capital shall be fully
recorded in accounting books. In case the capital is decreased below the
registered capital, the decrease may only be made after it has been registered
with the business registration authority.
Article 190. Administration of sole proprietorships
1. The
sole proprietorship’s owner has total authority to decide all of its business
activities, use of post-tax profit and fulfillment of other financial
obligations as prescribed by law.
2. The
owner may directly or hire another person to hold the position of
Director/General Director. In case of an hired Director/General Director, the
owner is still responsible for every business activity of the enterprise.
3. The
sole proprietorship’s owner is its legal representative who will represent it
during civil proceedings, as the plaintiff, defendant or person with relevant
interests and duties before the court and arbitral tribunals, and in performance
of other rights and obligations prescribed by law.
Article 191. Leasing out a sole proprietorship
The sole
proprietorship’s owner is entitled to lease out the entire sole proprietorship,
provided a written notification and certified true copies of the lease contract
are submitted to the business registration authority and tax authority within
03 working days from the effective date of the contract. During the lease term,
the sole proprietorship’s owner is still legally responsible as its owner. The
rights and obligations of the owner and the lessee to the sole proprietorship’s
business operation shall be specified in the lease contract.
Article 192. Selling a sole proprietorship
1. The
sole proprietorship’s owner is entitled to sell it to another organization or
individual.
2. After
selling the sole proprietorship, the owner is still responsible for its debts
and liabilities that occur before the date of transfer, unless otherwise agreed
upon by the owner, the buyer and the creditors.
3. The
sole proprietorship’s owner and the buyer shall comply with labor laws.
4. The
buyer of the sole proprietorship shall register the change of owner in
accordance with this Law.
Article 193. Exercising the owner’s rights in special cases
1. In
case the sole proprietorship’s owner is detained, serving an imprisonment
sentence, serving an administrative penalty in a correctional institution or
rehabilitation center, he/she shall authorize another person to perform his/her
rights and obligations.
2. In
case the owner dies, this/her hair or one of the legal heirs or designated
heirs shall be the owner under an agreement among the heirs. In case such an
agreement cannot be reached, the sole proprietorship shall be converted into a
company or dissolved.
3. In
case of the owner dies without an heir or the heir refuses the inheritance or
is disinherited, the owner’s assets shall be handled in accordance with civil
laws.
4. In
case owner is incapacitated, has limited legal capacity or has difficulty
controlling his/her behaviors, his/her rights and obligations shall be
performed through his/her representative.
5. In
case the sole proprietorship’s owner is banned by the court to do certain jobs
in the enterprise’s business lines, the owner shall suspend or stop doing
business in the relevant business lines shall be suspended or stopped or
transfer the sole proprietorship to another organization or individual.
Chapter VIII
GROUP OF COMPANIES
Article 194. Business groups and corporations
1. A
business group or corporation is a group of companies that are interrelated by
ownership of shares/stakes or otherwise associated. A business group or
corporation is not an enterprise, is not a juridical person and registration of
its establishment under this Law is not required.
2. A
business group or corporation has a parent company, subsidiary companies and
other member companies. They have the same rights and obligations of as those
of independent enterprises as prescribed by law.
Article 195. Parent company and subsidiary companies
1. A
company is considered parent company of another company if:
a) It
holds more than 50% of charter capital or total ordinary shares of the latter;
b) It has
the right to directly or indirectly designate most or all of the members of the
Board of Directors and Director/General Director of the latter; or
c) It has
the right to decide revisions to the latter’s charter.
2. A
subsidiary company must not contribute capital to or purchase shares of the
parent company. Subsidiary companies of the same parent company must not contribute
capital to or purchase shares of each other to establish cross ownership.
3.
Subsidiary companies of the same parent company with at least 65% state capital
must not contribute capital to or purchase shares of other enterprises or to
establish new enterprises as prescribed by this Law.
4. The
Government shall elaborate Clause 2 and Clause 3 of this Article.
Article 196. Rights, obligations and responsibilities of
the parent company to its subsidiary companies
1.
Depending on the type of the subsidiary company, the parent company shall
perform its rights and obligations as its member, owner or shareholder in
accordance with corresponding regulations of this Law and relevant laws.
2. All
contracts, transactions and relationships between the parent company and the
subsidiary company shall be established and executed independently and equally
under conditions applied to independent legal entities.
3. In
case the parent company makes intervention beyond the power of the owner,
member or shareholder and forces the subsidiary company to operate against its
ordinary business practice or do non-profit activities without paying
compensation in the relevant fiscal year and thus causes damage to the
subsidiary company, the parent company shall be responsible for such damage.
4. The
executive of the parent company shall be responsible for its intervention
mentioned in Clause 3 of this Article and shall be jointly responsible for the
damage caused together with the parent company.
5. In
case the parent company fails to pay damages as prescribed in Clause 3 of this
Article, the creditor, member or shareholder that holds at least 01% of the
subsidiary company’s charter capital is entitled to, in their own names or in
the subsidiary company’s name, request the parent company to pay damages.
6. In
case the intervention mentioned in Clause 3 of this Article is beneficial to
another subsidiary company of the same parent company, that subsidiary company
and the parent company shall jointly provide the benefit for the subsidiary
company that suffers damage.
Article 197. Financial statements of the parent company and
subsidiary companies
1. At the
end of the fiscal year, in addition to the reports and documents prescribed by
law, the parent company shall prepare the following reports:
a) The
consolidated financial statement of the parent company prescribed by accounting
laws.
b) The
consolidated annual income statement of the parent company and subsidiary
companies;
c) The
consolidated report on administration of the parent company and subsidiary
companies.
2.
Whenever requested by the parent company’s legal representative, the subsidiary
company’s legal representative shall provide reports, documents and information
that are necessary for preparation of the consolidated financial statements and
other consolidated reports of the parent company and subsidiary companies.
3. The
person responsible for preparing the parent company’s reports shall use the
reports mentioned in Clause 2 of this Article to prepare the consolidated financial
statements and other consolidated reports if the reports prepared and submitted
by the subsidiary companies are not suspected to contain incorrect or
fraudulent information.
4. The
person responsible for preparing the report mentioned in Clause 1 of this
Article must not prepare and submit the report if the subsidiary companies’
financial statements are not fully received. In case the parent company’s
executive is not able to obtain necessary reports, documents and information
after all necessary measures within his/her power have been taken, he/she shall
prepare and submit the consolidated financial statement and other consolidated
reports with or without information from the subsidiary company. Explanation
shall be provided to avoid confusion or misunderstanding.
5. Annual
financial statements, reports, consolidated financial statements and
consolidated reports of the parent company and subsidiary companies shall be
retained at the parent company’s headquarters. Their copies shall be retained
at the parent company’s branches in Vietnam.
6. In
addition to the reports and documents prescribed by law, the subsidiary
companies shall prepare reports on purchases, sales and other transactions with
the parent company.
Chapter IX
REORGANIZATION, DISSOLUTION AND BANKRUPTCY
OF ENTERPRISES
Article 198. Full division
1. Full
division is the situation in which a limited liability company or joint stock
company (the divided company) divides its assets, rights, obligations,
members/shareholders to establish two new companies or more.
2. Full
division procedures:
a) The
Board of Members, the owner or General Meeting of Shareholders of the divided
company shall ratify the resolution or decision on fully division of the
company in accordance with this Law and the company’s charter. The resolution
or decision shall contain the name and headquarters address of the divided
company; names of the new companies; rules and procedures for division of the
company’s assets; employment plan; method for division; time limit and procedures
for transfer of shares/stakes to the divided company to the new companies;
rules for settlement of the divided company’s obligations; division time. This
resolution or decision shall be sent to all creditors and employees within 15
days from its issuance date or ratification date;
b) The
members, owner or shareholders of each new company shall ratify its charter,
elect or designate the President of the Board of Members, President of the
company, Board of Directors, the Director/General Director and apply for
enterprise registration in accordance with this Law. The enterprise
registration application of the new company shall be enclosed with the full
division resolution/decision mentioned in Point a of this Clause.
3. The
quantity of members or shareholders, their holdings of shares/stakes and
charter capital of the new company shall be written according to the full
division resolution/decision.
4. The
divided company shall cease to exist after the new companies are granted the
Certificate of Enterprise Registration. The new companies shall be jointly
responsible for unpaid debts, unfulfilled liabilities, employment contracts and
other obligations of the divided company or reach an agreement with the divided
company’s creditors, clients and employees that one of the new companies will
fulfill these obligations. The new companies obviously inherit all rights,
obligations and lawful interests of the divided company under the full division
resolution/decision.
5. The
business registration authority shall update the status of the divided company
in the national enterprise registration database when issuing the Certificate
of Enterprise Registration to the new companies. In case a new company is
headquartered outside the province in which the divided company is headquartered,
the business registration authority of the province in which the divided
company is headquartered shall make the update.
Article 199. Partial division
1. A
limited liability company or joint stock company may be partially divided by
transfer part of the divided company’s assets, rights, obligations,
members/shareholders to one or some new limited liability companies or joint
stock companies without ceasing the existence of the divided company.
2. The
divided company shall register the change in charter capital, quantity of
members/shareholders in proportion to the decrease in the stakes/shares and
quantity of members/shareholders and apply for registration of the new
companies.
3.
Partial division procedures:
a) The
Board of Members, the owner or General Meeting of Shareholders of the divided
company shall ratify the resolution or decision on partial division of the
company in accordance with this Law and the company’s charter. The resolution
or decision on partial division of the company shall contain the name and
headquarters address of the divided company; name of each new company;
employment plan; method for division; values of assets, rights and obligations
transferred from the divided company to the new company/companies; division
time. This resolution or decision shall be sent to all creditors and employees
within 15 days from its issuance date or ratification date;
b) The
members, owner or shareholders of each new company shall ratify its charter,
elect or designate the President of the Board of Members, President of the
company, Board of Directors, the Director/General Director and apply for
enterprise registration in accordance with this Law.
4. After
applying for registration, the divided company and the new company/companies
shall be jointly responsible for unpaid debts, employment contracts and other
obligations of the divided company or unless otherwise agreed upon by the
divided company, the new company/companies, the divided company’s creditors,
clients and employees. The new company/companies obviously inherit all rights,
obligations and lawful interests that are transferred under the partial
division resolution/decision.
Article 200. Consolidation of companies
1. Two or
more companies (consolidating companies) may be consolidated into a new company
(consolidated company), after which the consolidating companies shall cease to
exist.
2.
Consolidation procedures:
a) The
consolidating companies shall prepare the consolidation contract and charter of
the consolidated company. The contract shall contain the names and addresses of
the consolidating companies; name and address of the consolidated company;
procedures and conditions for consolidation; employment plan; deadline and
conditions for transfer of assets, shares/stakes, bonds of the consolidating
companies to the consolidated company; consolidation time;
b) The
members, owners or shareholders of the consolidating companies shall ratify the
consolidation contract, the consolidated company’s charter, elect or designate
the President of the Board of Members, President of the company, Board of
Directors, the Director/General Director of the consolidated company and apply
for registration of the consolidated company in accordance with this Law. The
consolidation contract shall be sent to the creditors and employees within 15
days from the day on which it is ratified.
3. The
consolidating companies shall comply with regulations Competition Law on
consolidation of companies.
4. After
the consolidated company is registered, the consolidating companies shall cease
to exist. The consolidated company shall inherit the lawful rights and
interests, liabilities, unpaid debts, employment contracts and other
obligations of the consolidating companies under the consolidation contract.
5. The
business registration authority shall update the status of the consolidating
companies to the national enterprise registration database when issuing the
Certificate of Enterprise Registration to the consolidated company. In case the
consolidating companies are headquartered outside the province in which the
consolidated company is headquartered, the business registration authority of
the province in which the consolidated company is headquartered shall make the
update.
Article 201. Acquisition of companies
1. One or
some companies (acquired companies) may be acquired by another company
(acquiring company) by transfer all of the acquired company’s assets, rights,
obligations and lawful interests to the acquiring company, after which the
acquired company shall cease to exist.
2.
Acquisition procedures:
a) The
acquiring company and acquired company shall prepare the acquisition contract
and draft the charter of the acquiring company. The contract shall contain the
name and address of the acquiring company; name and address of the acquired
company; procedures and conditions for acquisition; employment plan; method,
procedures, deadline and conditions for transfer of assets, shares/stakes,
bonds of the acquired company to the acquiring company; acquisition time;
b) The
members, owners or shareholders of the companies shall ratify the acquisition
contract and the acquiring company’s charter and apply for registration of the
acquiring company in accordance with this Law. The acquisition contract shall
be sent to the creditors and employees within 15 days from the day on which it
is ratified;
c) After
the acquiring company is registered, the acquired companies shall cease to
exist. The acquiring company shall inherit the lawful rights and interests,
liabilities, unpaid debts, employment contracts and other obligations of the
acquired company under the acquisition contract.
3. The
companies shall comply with regulations Competition Law on consolidation of
companies during the acquisition process.
4. The
business registration authority shall update the status of the acquired company
to the national enterprise registration database and revise the Certificate of
Enterprise Registration of the acquiring company. In case the acquired company
is headquartered outside the province in which the acquiring company is
headquartered, the business registration authority of the province in which the
acquiring company is headquartered shall request the business registration
authority of the province in which the acquired company is headquartered to make
the update.
Article 202. Conversion of a limited liability company into
a joint stock company
1. The
conversion of a state-owned enterprise into a joint stock company shall comply
with relevant laws.
2. A
limited liability company can be converted into a joint stock company:
a)
without raising additional capital from other organizations and individuals or
selling stakes;
b) by
raising additional capital from other organizations and individuals;
c) by
selling all or part of the stakes to one or some organizations and individuals;
or
d)
combining the methods specified in Points a, b and c of this Clause and other
methods.
3. The
conversion shall be registered with the business registration authority within
10 days from the day on which the conversion is complete. Within 03 working
days from the receipt of the application for conversion, the business
registration authority shall reissue the Certificate of Enterprise Registration
and update the company’s status to the national enterprise registration database.
4. The
joint stock company obviously inherits all lawful rights and interests, debts
including tax debts, employment contract and other obligations of the limited
liability company.
Article 203. Conversion of a joint stock company into a
single-member limited liability company
1. A
joint stock company can be converted into a single-member limited liability
company as follows:
a) A
shareholder receives all shares of the other shareholders;
b) A
organization or individual other than a shareholder receives all shares of all
shareholders;
c) Only
01 shareholder remains in the company.
2. The
transfer or receipt of shares specified in Clause 1 of this Article shall be
made at market value or a value determined by asset-based method or discounted
cash flow method or another method.
3. Within
15 days from the occurrence of any of the events specified in Clause 1 of this
Article, an application for conversion shall be submitted to the business
registration authority where the enterprise is registered. Within 03 working
days from the receipt of the application, the business registration authority
shall issue the Certificate of Enterprise Registration and update the company’s
status to the national enterprise registration database.
4. The
limited liability company obviously inherits all lawful rights and interests,
debts including tax debts, employment contract and other obligations of the
joint stock company.
Article 204. Conversion of a joint stock company into a
multiple-member limited liability company
1. A
joint stock company can be converted into a multiple-member limited liability:
a)
without raising additional capital or selling stakes;
b) by
raising additional capital from other organizations and individuals;
c) by
transfer all or part of the shares to other organizations and individuals;
d) when
only 02 shareholders remain in the company; or
dd)
combining the methods specified in Points a, b and c of this Clause and other
methods.
2. The
conversion shall be registered with the business registration authority within
10 days from the day on which the conversion is complete. Within 03 working
days from the receipt of the application for conversion, the business
registration authority shall issue the Certificate of Enterprise Registration
and update the company’s status to the national enterprise registration
database.
3. The
limited liability company obviously inherits all lawful rights and interests,
debts including tax debts, employment contract and other obligations of the
joint stock company.
Article 205. Conversion of a sole proprietorship into a
limited liability company, joint stock company or partnership
1. The
owner of a sole proprietorship may convert it into a limited liability company,
joint stock company or partnership if the following conditions are fully
satisfied:
a) The
sole proprietorship satisfies the conditions specified in Clause 1 Article 27
of this Law;
b) The
owner makes a written commitment to take personal responsibility for all unpaid
debts and pay them when they are due with all of his/her assets;
c) The
owner has a written agreement with the parties of ongoing contracts that the
new company will take over and continue executing these contracts.
d) The
owner shas a written commitment or agreement with other limited partners to
continue hiring the existing employees of the sole proprietorship.
2. Within
03 working days from the receipt of the application, the business registration
authority shall consider issuing the Certificate of Enterprise Registration if
the conditions specified in Clause 1 of this Article are fully satisfied and
update the enterprise’s status to the national enterprise registration
database.
3. The
new company obviously inherits all rights and obligations of the sole
proprietorship from the issuance date of the Certificate of Enterprise
Registration. The owner of the sole proprietorship shall be personally
responsible for all debts that are incurred before this day with all of his/her
assets.
Article 206. Business suspension and termination
1. An
enterprise shall send a written notification to the business registration
authority at least 03 working days before the suspension or resumption date.
2. The
business registration authority and competent authorities are entitled to
request an enterprise to suspend or terminate its business operation in the
following cases:
a) The
enterprise does not fully satisfy the conditions for doing business in
restricted business lines must suspend or terminate business operation in the
corresponding business lines.
b)
Relevant authorities request the suspension in accordance with regulations of
law on tax administration, environment and relevant laws;
c)
Operation in one or some business lines have to be suspended or terminated
under a court decision.
3. During
the suspension period, the enterprise shall fully pay the unpaid taxes, social
insurance, health insurance, unemployment insurance premiums and fulfill
contracts with its clients and employees, unless otherwise agreed by the
enterprise, creditors, clients and employees.
4. The
Government shall elaborate the procedures for cooperation between the business
registration authority and other competent authorities mentioned in Clause 2 of
this Article.
Article 207. Cases of and conditions for dissolution of
enterprises
1. An
enterprise shall be dissolved in the following cases:
a) The
operating period specified in the company’s charter expires without an
extension decision;
b) The
enterprise is dissolved under a resolution or decision of the owner (for sole
proprietorships), the Board of Partners (for partnerships), the Board of
Members and the owner (for limited liability companies) or the GMS (for joint
stock companies);
c) The
enterprise fails to maintain the adequate number of members prescribed in this
Law for 06 consecutive months without converting into another type of business;
d) The
Certificate of Enterprise Registration is revoked, unless otherwise prescribed
by the Law on Tax administration.
2. An
enterprise may only be dissolved after all of its debts and liabilities are
fully paid and it is not involved in any dispute at the court or arbitration.
Relevant executives and the enterprise mentioned in Point d Clause 1 of this
Article are jointly responsible for the enterprise’s debts.
Article 208. Dissolution procedures
Enterprise
dissolution in the cases specified in Points a, b and c Clause 1 Article 207 of
this Law shall be carried out as follows:
1. A
resolution or decision on the dissolution is issued. Such a resolution or
decision shall contain the following information:
a) The enterprise’s
name and headquarters address;
b)
Reasons for dissolution;
c) Time
limit and procedures for finalization of contracts and payment of the
enterprise’s debts;
d) Plan
for settlement of obligations under employment contracts;
dd) Full
name and signature of the owner of the sole proprietorship, the company’s
owner, the President of the Board of Members, the President of the Board of
Directors;
2. The
owner of the sole proprietorship, the Board of Members or the owner, the Board
of Directors directly organizes the liquidation of the enterprise’s assets,
unless the company’s charter requires establishment of a separate liquidation
organization;
3. Within
07 working days from the ratification date, the resolution or decision on
dissolution and the minutes of the meeting shall be sent to the business
registration authority, tax authority and the enterprise’s employees. The
resolution or decision shall be posted on the National Enterprise Registration
Portal, displayed at the enterprise’s headquarters, branches and representative
offices.
In case
the enterprise still has unpaid debts, the resolution or decision and the debt
payment plan shall be sent to the creditors and persons with related
rights, obligations and interest. The debt payment plan shall contain the
creditors’ names, debts, repayment time, location and method; method and time
limit for settling creditors’ complaints;
4. The
business registration authority shall post a notification that an enterprise is
undergoing dissolution, the dissolution resolution or decision and debt payment
plan (if any) on the National Enterprise Registration Portal right after
the resolution or decision is received (if any);
5. An
enterprise’s debts shall be paid in the following order of priority:
a) Unpaid
salaries, severance pay, social insurance, health insurance, unemployment
insurance premiums and other benefits of employees under the collective
bargaining agreement and concluded employment contracts;
b) Tax
debts;
c) Other
debts;
6. After
the dissolution costs and debts have been fully paid, the remainder shall be
divided among the owner, members/partners, shareholders in proportion to their
stakes/shares;
7. The
enterprise’s legal representative shall submit the application for dissolution
to the business registration authority within 05 working days from the day on
which the enterprise’s debts are fully paid;
8. After
180 days from the receipt of the dissolution resolution or decision mentioned
in Clause 3 of this Article without further comments from the enterprise or
written objections from relevant parties, or within 05 working days from the
receipt of the application for dissolution, the business registration authority
shall update the enterprise’s status on the national enterprise registration
database;
9. The
Government shall elaborate the procedures for enterprise dissolution.
Article 209. Dissolution upon revocation of the Certificate
of Enterprise Registration or under
court decision
Procedures
for dissolution of an enterprise upon revocation of the Certificate of
Enterprise Registration or under court decision:
1. The
business registration authority shall post on the National Enterprise
Registration Portal a notification that an enterprise is undergoing dissolution
on the same day on which the decision to revoke the Certificate of Enterprise
Registration is issued or right after the court decision on the enterprise’s
dissolution is received. The notification shall be enclosed with the effective
revocation decision or the court decision.
2. Within
10 days from the receipt of the effective decision, the enterprise shall
convene a meeting to dissolve the enterprise. The dissolution resolution or
decision and copies of the effective decision shall be sent to the business
registration authority, tax authority and the enterprise’s employees and
displayed at the enterprise’s headquarters, branches and representative
offices. The dissolution resolution or decision, if required by law, shall be
published in at least 03 issues of 01 printed newspaper or electronic newspaper.
In case
the enterprise still has unpaid debts, the resolution or decision and the debt
payment plan shall be sent to the creditors and persons with related
rights, obligations and interest. The debt payment plan shall contain the
creditors’ names, debts, repayment time, location and method; method and time
limit for settling creditors’ complaints;
3. The
enterprise’s debts shall be paid in accordance with Clause 5 Article 208 of
this Law;
4. The
enterprise’s legal representative shall submit the application for dissolution
to the business registration authority within 05 working days from the day on
which the enterprise’s debts are fully paid;
5. After
180 days from the notification date mentioned in Clause 1 of this Article
without further comments from the enterprise or written objections from
relevant parties, or within 05 working days from the receipt of the application
for dissolution, the business registration authority shall update the
enterprise’s status on the national enterprise registration database;
6.
Relevant executives of company shall be personal responsible for any damage
caused by their failure to comply with this Article.
Article 210. Application for dissolution
1. An
application for dissolution of an enterprise shall consist of:
a) The
notification of the enterprise’s dissolution;
b) The
report on liquidation of the enterprise’s assets; list of creditors and paid
debts, including tax debts, social insurance, health insurance, unemployment
insurance of employees after the dissolution decision is issued (if any).
2.
Members of the Board of Directors (for joint stock companies), members of the
Board of Members (for limited liability companies), the owner (for sole
proprietorships), the Director/General Director, general partners and legal
representatives shall be responsible for the accuracy and truthfulness of the
application.
3. In
case the application contains inaccurate or false information, the persons
specified in Clause 2 of this Article shall jointly provide the outstanding employees’
benefits, taxes and other debts and bear personal responsibility for the
consequences that occur within 05 years from the day on which the application
is submitted to the business registration authority.
Article 211. Actions prohibited from the issuance date of
the dissolution decision
1. From
the issuance date of the dissolution decision, the enterprise and its
executives are prohibited from the following actions:
a)
Concealing, disguising assets;
b)
Denying or reducing the creditors’ claims to the debts;
c)
Convert unsecured debts into debts secured with the enterprise’s assets;
d)
Concluding new contracts, except for dissolving the enterprise;
dd)
Pledging, donating, leasing out assets;
e)
Terminating effective contracts;
g)
Raising capital in any shape or form.
2. The
persons who commit the violations mentioned in Clause 1of this Article,
depending on their nature and seriousness, will be held liable to
administrative penalties or criminal prosecution and pay damages.
Article 212. Revocation of the Certificate of Enterprise Registration
1. An
enterprise’s Certificate of Enterprise Registration shall be revoked in the
following cases:
a) The
enterprise registration application contains fraudulent information;
b) The
enterprise is established by persons banned from establishing enterprises
specified in Clause 2 Article 17 of this Law;
c) The
enterprise is suspended for 01 year without notifying the business registration
authority and the tax authority;
d) The
enterprise fails to send reports in accordance with Point c Clause 1 Article
216 of this Law to the business registration authority within 06 months from
the deadline or from the receipt of a written request;
dd) Other
cases under decision of the court or request of competent authorities as prescribed
by law.
2. The
Government shall elaborate the procedures for revoking the Certificate of
Enterprise Registration.
Article 213. Shutting down branches, representative offices
and business locations
1.
Shutdown of branches, representative offices, business locations of an
enterprise shall be decided by the enterprise or under a decision to revoke the
certificate of branch/representative office registration issued by a competent
authority.
2. The
enterprise’s legal representative and the head of the branch/representative
office that is shut down shall be jointly responsible for the accuracy and
truthfulness of the application for shutdown of the branch/representative
office/business location.
3. The
enterprise whose branch is shut down shall execute the contracts and pay the
debts, including tax debts, of the branch and continue employing or fully
provide lawful benefits for the branch’s employees as prescribed by law.
4. The
Government shall elaborate this Article.
Article 214. Bankruptcy of enterprises
Bankruptcy
laws shall apply to bankruptcy of enterprises.
Chapter X
IMPLEMENTATION CLAUSES
Article 215. Responsibilities
of various authorities
1. The
Government shall ensure uniform state management of enterprises.
2.
Ministries and ministerial agencies shall be responsible to the Government for
performance of their tasks relevant to state management of enterprises.
3. The
People’s Committees of provinces shall perform state management of enterprises
in their provinces.
4.
Ministries, ministerial agencies, relevant agencies and the People’s Committees
of provinces, within the scope of their duties and entitlements, shall
establish connection and share the following information with the national
enterprise registration database:
a)
Information about business licenses, certificates of eligibility, practicing
certificates, certificates or written approval for business conditions and
administrative penalty imposition decisions;
b)
information about enterprises’ operation and tax payment from tax reports;
enterprises’ financial statements;
c)
Cooperate and share information about enterprises’ operation to improve
effectiveness of state management.
5. The
Government shall elaborate this Article.
Article 216. Business registration authorities
1.
Business registration authorities have the following duties and entitlements:
a)
Process enterprise registration apps and issue the Certificate of Enterprise
Registration as prescribed by law;
c)
Participate in development and management of the National Enterprise
Registration Information System; disclose and provide information for state
agencies and other organizations and individuals on request as prescribed by
law;
c)
Request enterprises to submit reports on their compliance to this Law where
necessary; supervise enterprises submitting reports;
d) Carry
out inspection and supervision of enterprises according to their enterprise
registration applications or request competent authorities to do so;
dd) Take
responsibility for validity of enterprise registration applications; deny
responsibility for enterprises’ violations committed before and after applying
for enterprise registration;
e) Deal
with violations against regulations of law on enterprise registration; revoke
the Certificate of Enterprise Registration and request enterprises to file for
dissolution in accordance with this Law;
g) Other
duties and entitlements by this Law and relevant laws.
2. The
Government shall provide for organization of the systems of business
registration authorities.
Article 217. Implementation clauses
1. This
Law comes into force from January 01, 2021.
2. The
Law on Enterprises No. 68/2014/QH13 ceases to have effect from the effective
date of this Law.
3. The
phrase “doanh nghiệp nhà nước” (“state-owned enterprises”) shall be replaced
with “doanh nghiệp do Nhà nước nắm giữ 100% vốn điều lệ” (“wholly state-owned
enterprises”) in Point m Clause 1 Article 35 and Point k Clause 1 Article 37 of
the Law on State Budget No. 83/2015/QH13; Point a Clause 3 Article 23 of the
Law on Irrigation No. 08/2017/QH14, amended by the Law No. 35/2018/QH14; Point
b Clause 2 Article 74 of the Civil Proceedings Code No. 92/2015/QH13, amended
by the Law No. 45/2019/QH14; Point a Clause 2 Article 43 of the Law on
Management and Use of Weapons, Explosives and Combat Gears No. 14/2017/QH14,
amended by the Law No. 50/2019/QH14; Article 19 of the Law on Denunciation No.
25/2018/QH14; Articles 3, 20, 30, 34, 39 and 61 of the Anti-corruption Law No.
36/2018/QH14.
4. The
Government shall provide for registration and operation of household
businesses.
5.
Pursuant to this Law, the Government shall provide for management and operation
of state-owned enterprises that operates in the field of defense or both
defense and business.
Article 218. Transition clauses
1.
Companies whose shares or stakes are not obtained by the State before July 01,
2015 are not required to implement the regulations of Clause 2 Article 195 of
this Law but must not increase their cross-ownership ratios.
2.
Enterprises’ executives, Controllers and authorized representatives who do not
fully satisfy the requirements specified in Point b Clause 5 Article 14, Clause
3 Article 64, Clause 3 Article 93, Clause 3 Article 101, Points a, b, and c
Clause 3 Article 103, Point d Clause 1 Article 155, Point b Clause 5 Article 162
or Clause 2 Article 169 of this Law may continue working until the end of their
terms of office.
This Law
is ratified by the 14th National Assembly of the Socialist Republic
of Vietnam during its 9th session on June 17, 2020.
PRESIDENT OF THE NATIONAL ASSEMBLY
Nguyen Thi Kim Ngan
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