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Clause 2, Article 137 of the Enterprise Law 2020 stipulates: “2. In case a company has only one legal representative, the Chairman of the Board of Directors or the Director or General Director shall be the legal representative of the company. Unless otherwise provided for in the Charter, the Chairman of the Board of Directors is the legal representative of the company. In case a company has more than one legal representative, the Chairman of the Board of Directors and the Director or General Director are automatically the legal representative of the company.
Clauses 1 and 8, Article 157 of the Law on Enterprises in 2020 stipulates: “1. The Chairman of the Board of Directors is elected at the first meeting of that Board of Directors. This meeting is held by the member with the highest and equal number of votes or votes, the members elect according to the majority rule to choose one of them to convene a meeting of the Board of Directors. Meeting of the Board of Directors Board of Directors is conducted when three-quarters of the total number of members attend the meeting. In case a meeting convened as prescribed in this Clause does not have enough members to attend the meeting as prescribed, it shall be convened for a second time within 07 days from the intended date of the first meeting, unless otherwise specified in the company’s charter. The company stipulates another shorter period. In this case, the meeting will be conducted if more than half of the members of the Board of Directors attend the meeting.
Based on the above provisions, the identification of the Chairman of the Board of Directors and the General Director whose term of office has expired as the current legal representative of the Company is not consistent with the provisions of the Enterprise Law 2020.
Regarding the ability of the Board of Directors to act as the legal representative of the Company on behalf of the Chairman of the Board of Directors, Article 12 of the Enterprise Law 2020 stipulates: “1. The legal representative of an enterprise is an individual who represents the enterprise to exercise rights and obligations arising from transactions of the enterprise, represents the enterprise in the capacity of a requester for settlement of civil matters, plaintiffs, defendants, persons with related interests and obligations before arbitration, courts and other rights and obligations as prescribed by law. 2. Limited liability companies and joint stock companies may have one or more legal representatives. The company’s charter specifies the number and management titles and rights and obligations of each legal representative. 3. Enterprises must ensure that there is always at least one legal representative residing in Vietnam”.
Based on the above provisions, the Board of Directors cannot perform the role of the legal representative in accordance with the provisions of the Enterprise Law 2020.