GOVERNMENT ------------------------   No. 96-2015-ND-CP

NATIONAL ASSEMBL SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ------------------------------------------------ Ha Noi, 19 October 2015

 

DECREE

WITH DETAILED REGULATIONS FOR IMPLEMENTATION OF THE LAW ON ENTERPRISES

Pursuant to the Law on Organization of the Government dated 25 December 2001; Pursuant to Law 68 on Enterprises dated 26 November 2014;

On the proposal of the Minister of Planning and Investment;

The Government hereby issues a Decree with detailed regulations for implementation of a number of articles of the Law on Enterprises.
 

Article 1      Governing scope and applicable entities

1. This Decree provides detailed regulations for implementation of the following articles of the Law on Enterprises namely article 10 [setting out criteria defining a social enterprise]1, article 44 [enterprise seal], article 189 [definition of a parent company and provisions on subsidiary companies], and article 208 [responsibilities of State administrative agencies].

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

3. The provisions in this Decree on seals apply to shareholding companies, limited liability companies ["LLC"], partnerships and private enterprises with enterprise registration in accordance with the Law on Enterprises [and/or] the Law on Investment. The provisions in this Decree on seals do not apply to organizations and units established in accordance with the following laws, which organizations and units shall be subject to current regulations on management and use of seals:

(a) Law on Notarization [Law 53 dated 20 June 2014];

(b) Law on Lawyers [Law 65 dated 29 June 2006 as amended by Law 20 dated 20 November 2012];

(c) Law on Legal Evaluations [also referred to as Law on Judicial Expertise, Law 13 dated 20 June

2012];

(d) Law on Insurance Business [Law 24 dated 9 December 2000 as amended by Law 61 dated 24

November 2010];

(dd) Law on Securities [Law 70 dated 29 June 2006 as amended by Law 62 dated 24 November 2010];

(e) Law on Co-Operatives [Law 23 dated 20 November 2012].
 

Article 2      Policies for development of social enterprises

1. The  State  encourages  and  creates  favourable  conditions  for  organizations  and  individuals  to establish social enterprises whose operational objectives are aimed at resolving social [or] environmental issues in the community interest.

2. Social enterprises are entitled to investment incentives and assistance prescribed by law.

3. Social enterprises shall exercise rights and discharge all obligations corresponding to each type of enterprise and shall exercise other rights and discharge other obligations as prescribed in the Law on Enterprises and this Decree.

Article 3      Receiving aid and assistance

1. Social enterprises are entitled to receive foreign non-governmental aid in order to implement their objectives of resolving social [or] environmental issues in accordance with the law on receipt of foreign non-governmental aid.

2. Social enterprises are permitted to receive, apart from the aid prescribed in clause 1 above, aid and assistance in the form of assets, finance or technical assistance from domestic individuals, agencies and organizations and from foreign organizations registered for operation in Vietnam in order to implement their objectives of resolving social [or] environmental issues.

3. The sequence and procedures for receiving the aid prescribed in clause 2 above are as follows:

(a) Receipt of aid must be recorded in a written document containing information about the aid provider, the type of asset and its value or the value of monetary aid, the duration of providing aid, requirements applicable to the recipient enterprise, and the full names and signatures of authorized representatives of the parties;

(b) A recipient enterprise must notify receipt of aid to the Department of Planning and Investment ["DPI"] or  the agency managing aid under the people's committee of the central province or city (hereinafter abbreviated to provincial people's committee) in the locality where such enterprise has its headquarters, within five (5) business days after the date of signing the Aid Agreement and must enclose a copy of such Agreement.

4. If there are any changes to the contents of the Aid Agreement referred to clause 3(a) above, the social enterprise must notify such changes to the DPI or to the agency managing aid under the provincial people's committee in the locality where such enterprise has its headquarters, in accordance with the sequence and procedures prescribed in clause 3(b) of this article.

 

Article 4      Registration as a social enterprise

1. An enterprise shall register as a social enterprise in accordance with the sequence, procedures and application file applicable to each type of enterprise as prescribed in the Law on Enterprises.

2. A social enterprise must be named correctly in accordance with the provisions in articles 38, 39, 40 and 42 of the Law on Enterprises and the name may contain the added expression "social enterprise".
 

Article 5      Public announcement of Undertaking made by a social enterprise to conduct activities for social or environmental objectives

1. A social enterprise must notify its Undertaking to conduct activities for social or environmental objectives ["Undertaking"] to the business registration office ["BRO"] in order for it to be published on the national enterprise registration information portal when the enterprise is established or during the enterprise's operational process.

2. A social enterprise which changes any of the contents of its Undertaking must notify same to the BRO within five (5) business days after the date of the decision on the change, in order for such change to be published on the national enterprise registration information portal. The notice of change must enclose the amended Undertaking.

3. The BRO shall update information in the enterprise file and publish same on the national enterprise registration information portal within three (3) business days after receipt of the notice prescribed in clauses 1 or 2 above.

4. The Undertaking must be prepared on a standard form and contain the following:

(a) The social or environmental issues; the method by which the enterprise proposes to resolve such issues;

(b) Duration of the Undertaking;

(c) The percentage of profit to be retained annually for reinvestment for the purpose of implementing the social or environmental objectives2;

(d) Principles and methods for using aid and assistance received from organizations and individuals; principles and methods for dealing with any residual aid or assistance when the enterprise dissolves or converts (if it does so) to an ordinary enterprise;

(dd) Full name and signature of the enterprise owner in the case of a private enterprise; full names and signatures of partners in the case of a partnership; of members and shareholders being individuals and of the legal representative or authorized representative of any member or shareholder being an organization in the case of both an LLC or shareholding company.

5. The decision of the members' council or of the general meeting of shareholders on any change to the Undertaking must be passed by the voting majority prescribed in article 60.3(b) [in the case of a multiple member LLC] or by the voting majority prescribed in article 144.1 of the Law on Enterprises [in the case of a shareholding company].

 

Article 6      Termination of Undertaking

1. A social enterprise shall terminate its Undertaking in the following cases: (a)     On expiry of the duration of the Undertaking;

(b) The social or environmental issues specified in the Undertaking change or no longer exist;

(c) On failure [by the enterprise] to fully implement its Undertaking or to retain the [required] profit level for reinvestment;

(d) In other cases pursuant to a decision of the enterprise or of a competent State authority.

2. On termination of the Undertaking of a social enterprise, the entire residual assets or finance which were received in the form of aid or assistance must be returned to the aid provider, or transferred to another social enterprise or organization with similar social objectives. A social enterprise is only permitted to terminate its Undertaking when it continues to ensure it will be able to fully pay debts and other asset obligations after processing the residual aid or assistance which it received.

3. The decision of the members' council or of the general meeting of shareholders on termination of the Undertaking must be passed by the voting majority prescribed in article 60.3(b) [in the case of a multiple member LLC] or by the voting majority prescribed in article 144.1 of the Law on Enterprises [in the case of a shareholding company].

4. A social enterprise must notify termination of its Undertaking to the BRO within five (5) business days after the date of the decision on such termination in order for it to be published on the national enterprise registration information portal. The notice must enclose the following:

(a) Decision and copy minutes of meeting of the enterprise, or decision (if any) of the competent State agency, specifying the reason for termination;

(b) Agreements reached with the relevant individuals or organizations [aid providers] about processing the residual assets or finance (if any) received by the enterprise as aid or assistance.

5. The BRO shall update information in the enterprise file and publish same on the national enterprise registration information portal within three (3) business days after receipt of the notice.
 

Article 7      Conversion of a social sponsorship establishment, social fund or charitable fund into a social enterprise

1. A social sponsorship establishment, social fund or charitable fund is permitted to use all of its assets, rights and obligations in order to register as a social enterprise after there is a written decision permitting conversion into a social enterprise from the competent agency which issued the establishment licence for such establishment or fund.

2. A social enterprise shall, after registration, automatically succeed to the entire lawful rights and interests of, and shall be liable for all of the debts including tax debts, labour contracts and other obligations of the [former] social sponsorship establishment, social fund or charitable fund. The operation of such establishment or fund shall terminate as from the date on which the enterprise is issued with its enterprise registration certificate.
 

Article 8      Division, demerger, consolidation, merger or dissolution of a social enterprise

1. A social enterprise is permitted to divide, demerge, consolidate or merge in the following cases: (a)     The social enterprise divides or demerges to become [a number of] social enterprises;

(b) A number of [ordinary] enterprises and/or social enterprises consolidate to become one social enterprise;

(c) An [ordinary] enterprise or social enterprise merges into a social enterprise.

2. The sequence and procedures for a division, demerger, consolidation or merger of social enterprises shall be implemented in accordance with the corresponding provisions of the Law on Enterprises.

3. When a social enterprise dissolves, the residual assets or finance which it received must be returned to the aid provider, or transferred to another social enterprise or organization with similar social objectives.

The application file, sequence and procedures for dissolution of a social enterprise shall be implemented in accordance with the corresponding provisions on dissolution in the Law on Enterprises. If the enterprise which is dissolving has residual assets or finance received by it as aid or assistance, then it must have Agreements with the relevant aid providers about processing such residual assets or finance.
 

Article 9      Responsibilities of owner of a private [social] enterprise and of members and shareholders of a social enterprise

1. The owner of a private enterprise, and the members or shareholders of another type of social enterprise are only permitted to assign their shares or capital contribution portions to other organizations or individuals who undertake to continue to conduct the activities for social or environmental objectives.

2. Shareholders [of a social enterprise] who have signed the Undertaking are only permitted to assign their shares in accordance with article 119.3 of the Law on Enterprises within the duration of such Undertaking.

3. A  social  enterprise  must,  throughout  its  entire  operational  process,  maintain  its  social  or environmental objectives, the level of profit retained for reinvestment and other items recorded in its Undertaking. If the enterprise fails to implement or if it inadequately implements its Undertaking or fails to retain profit for reinvestment, then it must refund all the incentives, aid and assistance which were reserved for it. At the same time the owner in the case of a private enterprise, the partners in the case of a partnership, the members in the case of an LLC and the shareholders in the case of a shareholding company who signed the Undertaking, and the members of the board of management of the shareholding company shall be jointly liable for the refund of the incentives, aid and assistance received and to pay compensation for loss arising from breach by the social enterprise of the provisions in this clause.

 

Article 10    Public announcement of activities of a social enterprise

1. A social enterprise receiving aid, assistance or incentives [preferences] must, within ninety (90) days after the last day of the financial year, provide an annual report on the social impact of the activities it has undertaken to the Department of Planning and Investment ["DPI"] or to the agency managing aid under the provincial people's committee in the locality where such enterprise has its headquarters.

2. The report on the social impact of the activities [or operation] of the enterprise shall be prepared on a standard form and contain the following:

(a) Name of the enterprise and its code number;

(b) Items being incentives, aid and assistance received;

(c) Activities undertaken by the enterprise during the year, and the social or environmental issues which it resolved;

(d)     Social benefits and achievements of the enterprise, and the group of entities [or subjects] who enjoyed such achievements, including evidence of same.

3.       Any organization or individual has the right to request the DPI or the agency managing aid under the provincial people's committee in the locality where a social enterprise has its headquarters, to provide information including a copy of the report on the social impact of the activities of the social enterprise and any Aid Agreements retained at such DPI or agency. The DPI or agency managing aid under the provincial people's committee must promptly provide complete information at the request of the organization or individual.
 

Article 11    Monitoring and supervising activities of social enterprises

1.       Provincial people's committees are responsible to monitor and supervise social enterprises which have their headquarters within the province or city. The DPI or the agency managing aid under the provincial people's committee shall be the focal agency assisting such provincial people's committee to monitor and supervise social enterprises. Monitoring and supervisory activities shall comprise:

(a)     Requesting enterprises to report on their compliance with their Undertakings, where necessary;

(b)     Directly checking or requesting other State authorities to check social enterprises regarding items in their Undertakings.

2.       Monitoring and supervision prescribed in clause 2 above shall be conducted in accordance with the following sequence and procedures:

(a)     A request [to a social enterprise] to report on compliance with its Undertaking must be made in writing specifying the reasons for the request, the specific matters required, the time-limit and method for providing same;

(b)     A State authority may only directly conduct a check of an enterprise on expiry of fifteen (15) days' advance notice provided to the enterprise;

(c)     The agency conducting a check must, within five (5) business days after completion of the check, provide a  written  report  on  the  results  of  the  check  and  send  same  to  the  social  enterprise concerned, to the provincial people's committee and to any other relevant agencies under such provincial people's committee.
 

Article 12    Number, form and contents of enterprise sample seal

1. The owner in the case of a private enterprise, the members' council in the case of a partnership, the members' council or company chairman in the case of an LLC, and the board of management in the case of a shareholding company shall make a decision on the number [quantity], form and contents of, and on the sample seal and on management and use of the seal, unless the company charter contains some other provision. The provisions in the enterprise's decision on its seal or in the enterprise's charter must include the following:

(a) The sample seal including its form, size, contents and colours; (b)     The number [quantity] of seals;

(c) Provisions on management and use of the seal.

2. An enterprise sample seal must be expressed in one specific shape (round, triangular or some other shape). Each enterprise must have one sample seal which is uniform regarding its contents, form and measurements.

3. The name of the enterprise and the enterprise code number as prescribed in articles 38.1 and 30 respective of the Law on Enterprise must be included as contents of the sample seal, and in addition an enterprise may include other language or images in the contents of the sample seal except for those prescribed in Article 14 below.
 

Article 13    Number, form and contents of sample seal of a branch or representative office

1. The owner in the case of a private enterprise, the members' council3 in the case of a partnership, the members' council or company chairman in the case of an LLC, and the board of management in the case of a shareholding company shall make a decision on the number [quantity], form and contents of, and on the sample seal, and on management and use of the seal of a branch or representative office, unless the company charter contains some other provision.

2. The contents of the sample seal of a branch or representative office must include the name of such branch or representative office in accordance with the provisions in clauses 1 and 2 of article 41 of the Law on Enterprises; and an addition to the above-mentioned items, an enterprise may include

3 Query whether this should read "the partners in the case of a partnership".

other language or images as contents of the sample seal of its branch or representative office except for those prescribed in article 14 below.
 

Article 14    Images and language prohibited for use as contents of a sample seal

1. An enterprise must not use the following images, language or symbols as contents of or as part of the form of its sample seal:

(a) The national flag, national emblem or Party emblem of the Socialist Republic of Vietnam;

(b) Images, logos or names of the State, of State agencies, of units of the people's army, of political or socio-political organizations, of professional socio-political organizations, of social organizations or of socio-professional organizations;

(c) Any language [term], symbol or image contrary to historical traditions, culture, ethics or fine customs of the Vietnamese people.

2. An enterprise is responsible to ensure compliance with the provisions in clause 1 above and with the law on intellectual property and other relevant laws when it uses images, language or symbols as contents of or to form part its sample seal. Any dispute between an enterprise on the one hand and any other relevant organization or individual on the other hand regarding language, symbols and images used as contents of the sample seal of the enterprise shall be resolved by a court for by arbitration. An enterprise must stop using its seal if the language, symbols or images on the seal breach the provisions in this article, and such enterprise shall be liable to pay compensation for loss arising in accordance with the effective decision of the court or arbitrator.

3. The BRO is not responsible to evaluate the contents of the sample seal of an enterprise when resolving procedures regarding notification of the sample seal of the enterprise.
 

Article 15    Management and use of seals

1. Any enterprise established prior to 1 July 2015 is permitted to continue using its issued seal without notifying the BRO of its sample seal. If any such enterprise adds one or more seals or changes the colours of the seal, then it must conduct procedures to notify its sample seal in accordance with regulations on enterprise registration.

2. Any enterprise established prior to 1 July 2015 and wishing to have a new seal in accordance with the provisions of this Decree must return its old seal and certificate of registration of sample seal to the police office which issued it, and the police office shall issue a receipt for the seal at the time of receipt.

3. Any enterprise established prior to 1 July 2015 which loses its seal or certificate of registration of sample seal must conduct procedures for issuance of a seal in accordance with the provisions of this Decree, and at the same time must notify loss of the seal or certificate of registration of sample seal to the police office which issued same.

4. An enterprise is responsible to notify its sample seal to the BRO in the locality where the enterprise has its headquarters in order for publication of the sample seal on the national enterprise registration information portal in the following cases:

(a) Making the initial seal on enterprise registration;

(b) Any change to the number [quantity], contents and form of the seal; (c)     Cancelling the sample seal.

5. The provisions on enterprise registration shall apply to the sequence, procedures and file for notifying the sample seal.
 

Article 16    Restrictions on cross-ownership between companies

1. Contributing capital to establish an enterprise referred to in article 189.3 of the Law on Enterprises includes both contributing capital or purchasing shares to establish a new enterprise, and also purchasing a capital contribution portion or shares in an already established enterprise.

2. Cross-ownership means two (2) or more enterprises at the same time own each other's capital contribution portions or shares.

3. Jointly contributing capital to establish an enterprise referred to in article 189.3 of the Law on Enterprise means that the total shares or capital contribution portions owned by the [related companies] is equal to or greater than fifty one per cent (51%) of the charter capital or total number of ordinary shares of the [target] enterprise being established.

4. The company chairman, member's council and/or board of management of the relevant company are responsible to ensure compliance with article 189 of the Law on Enterprises when making a decision to contribute capital or purchase a capital contribution portion or shares in another company. In such case the company chairman, member's council and/or board of management of the relevant company shall be jointly liable to pay compensation for any loss arising to the relevant company on breach of the provisions in this article.

5. The BRO shall refuse to register any change of member or shareholder in a company if during the process of accepting jurisdiction over an application file it is discovered that the capital contribution or share purchase to establish the enterprise or the assignment of the relevant shares or capital contribution portion breached the  provisions of  clauses  2  or  3  of  article 189.2  of  the  Law  on Enterprises.

6. Companies without capital contribution portions or shareholding held by the State and which made capital contribution portions or purchased shares prior to 1 July 2015 have the right to purchase and sell, assign, and increase or reduce their capital contribution portions or shareholding but are not permitted to increase their current cross-ownership ratio.
 

Article 17    Principles for State administration of enterprises

1. State agencies are responsible to guide, assist, disseminate information to and facilitate enterprises to correctly comply with provisions of law.

2. State officials and employees are not permitted to request anyone establishing an enterprise to lodge additional documents, conduct additional procedures or satisfy additional conditions outside those stipulated in regulations, and must not cause difficulties for organizations and individuals when receiving application files and resolving procedures for enterprises.

3. There shall be stronger co-ordination between State agencies in sharing information about the operational status of enterprises, and in facilitating relevant entities to access information stored at such agencies except where regulations require that confidentiality of information be maintained.

4. Every State agency from the central to the local level and every agency acting as owner's representative is responsible, within the scope of the functions and duties assigned to it, to monitor and supervise operations of enterprises. Such monitoring, supervisory and inspection activities of State agencies must not adversely impact on or impede the normal activities of enterprises.
 

Article 18    Co-ordination between State agencies in sharing information about operations of enterprises

1. On a monthly basis, agencies under ministries, ministerial equivalent agencies and both provincial and  district people's committees shall  send the  BRO  in  any  province where  enterprises have headquarters the following information:

(a) All  types  of  business  licences,  certificates  of  satisfaction  of  business  conditions,  practising certificates, and certificates or letters of consent regarding business conditions issued to enterprises, branches, representative offices and enterprise managers;

(b) Decisions dealing with breaches during business operations committed by enterprises, branches, representative offices and enterprise managers;

(c) Decisions suspending any operation and decisions terminating such suspension of business operations;

(d) Information about breaches of the tax laws by enterprises.

2. The BRO shall update information in the relevant enterprise file within three (3) business days after receipt of any information prescribed in clause 1 above.
 

Article 19    Formulation of a risk management system regarding monitoring and supervision of operations of enterprises

1. Provincial people's committees shall take the initiative in formulating a database on the operational status of enterprises, and on plans and methods for exchanging information as between relevant agencies, and on announcing information; and shall, within the scope of their State administrative functions, also formulate a risk management system regarding monitoring and supervision of the operations of enterprises.

2. The above-mentioned risk management system shall contain the following items:

(a) The section responsible to act as focal agency or co-ordinator of the system;

(b) List of risks required to be monitored and supervised;

(c) Level of risks required to be controlled;

(d) Methods of giving warnings about, and of preventing and dealing with risks on discovery of same;

(dd) Methods of collating and exchanging information, and methods of risk assessment.

3. On a monthly basis, the DPI or other agency as decided by the provincial people's committee shall act  as  the  co-ordinator in  collating  information  about  operations  and  compliance  with  law  by enterprises, and shall report same to the provincial people's committee with copies to agencies under both the provincial and district people's committees.
 

Article 20    Effectiveness

This Decree is of full force and effect as from 8 December 2015 and replaces Decree 102-2010-ND-CP of the Government dated 1 October 2010 guiding implementation of the Law on Enterprises.
 

Article 21    Organization of implementation

1. Ministers, heads of ministerial equivalent and Government agencies, chairmen of provincial people's committees and applicable entities are responsible to implement this Decree.

2. The Ministry of Planning and Investment shall provide guidelines and issue sample forms for the conduct of administrative procedures prescribed in this Decree.

3. Provincial people's committees are responsible to formulate and issue regulations on co-ordination between their  subsidiary agencies and  agencies belonging to  lower  level  people's committees regarding exchange of information and formulation of a risk management system during monitoring and supervision of operations of enterprises.

 

On behalf of the Government Prime Minister

NGUYEN TAN DUNG