Regulations of the Enterprise Law 2020 on determining the title of Chairman of the Board of Directors and the legal representative of the Company

Regulations of the Enterprise Law 2020 on determining the title of Chairman of the Board of Directors and the legal representative of the Company

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.

 

CHANGING OF HEAD OFFICE OF A FOREIGN-INVESTED COMPANY IN VIETNAM

CHANGING OF HEAD OFFICE OF A FOREIGN-INVESTED COMPANY IN VIETNAM

The head office of a foreign-invested company can also be the location of the company’s project. When a foreign-invested company wishes to change its headquarters, one of the following two cases should be noted.

  • Only change the head office of the company without changing the location of the project. In this case, the company only needs to change the Certificate of Business Registration (in case the foreign-invested company has separated the Investment Registration Certificate and the Enterprise Registration Certificate).

 

  • Changing the address of the company’s head office and at the same time changing the location of the company’s project as recorded on the Investment Registration Certificate.

Note:

  • Unlike companies with Vietnamese capital, foreign-invested companies are managed by the Tax Department (for companies that have both an Investment Registration Certificate and an Enterprise Registration Certificate). Therefore, when the company needs to change the head office to another district, it does not have to confirm the tax obligation like a domestic company.

 

  • The head office of a foreign-invested company must not be an apartment building or a group house.

 

  • The location of the project implementation for companies with production activities must be a factory and must meet the regulations on environment, fire prevention. The lessor must have enough conditions to lease the factory including: the function of real estate business and redundant factory lease as shown on the Certificate of Business Registration and the Certificate of Land Use Right.

 

Documentary Editorial Board, DBRC, Dong Du International Accounting & Legal Consulting Group Vietnam, A member of OneSMP Singapore, Southeast Asia Business Consulting Network (www.japanvietnam.com.vn

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DISSOLUTION OF FDI ENTERPRISES

DISSOLUTION OF FDI ENTERPRISES

Conditions for enterprise dissolution:

  • The term of operation stated in the company’s charter expires without a decision on extension;
  • According to the decision of the business owner, for a private enterprise, of all general partners, for a partnership, of the Members’ Council, of the company owner, for a limited liability company, of General Meeting of Shareholders for joint-stock companies;
  • The company no longer meets the minimum number of members as prescribed by this Law for a period of 06 consecutive months without carrying out procedures for transformation of enterprise type;
  • The enterprise registration certificate has been revoked.

The enterprise only dissolves when ensuring payment of all debts and other property obligations and the enterprise is not in the process of settling disputes at court or arbitration.

………………………………………………………………………………

Order and procedures for dissolution of FDI enterprises:

Step 1: Terminate the investment project

  • The company sends the decision to terminate the operation of the investment project (enclosed with the Investment Registration Certificate) to the Investment Registration Authority within 15 days from the date of the decision.
  • The expected time to complete the termination of investment projects is 15 working days from the date of submission of valid dossiers.

Step 2: Approving the decision to dissolve the enterprise:

The decision includes:

  • Name and address of the head office of the enterprise;
  • Reason for dissolution;
  • Time limit and procedures for contract liquidation and payment of debts of the enterprise; the time limit for debt payment and contract liquidation must not exceed 06 months from the date of approval of the dissolution decision;
  • The plan to handle obligations arising from the labor contract;
  • Full name, signature of the legal representative of the Enterprise

Step 3: Within 07 working days from the date of approval of the dissolution decision, the enterprise must:

  • Send Notices, Decisions and valid copies of Meeting Minutes of the Members’ Council to the Business Registration Office;
  • Send the dissolution decision and meeting minutes to the tax authorities and employees in the enterprise;
  • Post the dissolution decision on the National Enterprise Registration Portal and must be publicly posted at the head office, branch, representative office (if any) of the enterprise.
  • In case the enterprise has unpaid financial obligations, it must enclose the decision on dissolution of the debt settlement plan to its creditors, persons with related interests and obligations.

Step 4: The enterprise proceeds to liquidate its assets

Step 5: Proceed with the procedure to close the company tax code

  • The enterprise sends an official letter to the tax office (with a notarized copy of the Business Registration Certificate and the Tax Registration Certificate) to request tax finalization and tax identification.

Step 6: Procedures at the business registration office

  • Within 7 days from the date of payment of all debts of the company, the legal representative of the company must send the dissolution registration dossier to the provincial business registration office where the company’s head office is located or through the National Business Registration Portal at dangkytinhdoanh.gov.vn.
  • Note: In case the customer uses the seal issued by the police agency, the customer is responsible for returning the seal, the certificate of seal sample registration to the police agency for issuance of a certificate seal has been revoked.
  • Implementation time: after 180 days from the date of sending the dissolution decision to the Department of Planning and Investment, if there is no objection from the parties, within 5 working days the Business Registration Authority shall update the legal status of enterprises on the National Business Registration Database.

 Documentary Editorial Board, DBRC, Dong Du International Accounting & Legal Consulting Group Vietnam, A member of OneSMP Singapore, Southeast Asia Business Consulting Network (www.japanvietnam.com.vn

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NEW POINTS IN LABOR DISPUTES FROM 01/01/2021

NEW POINTS IN LABOR DISPUTES FROM 01/01/2021

According to the provisions of Clause 2, Article 185 of the Labor Code 2019, the number of labor arbitrators of the Labor Arbitration Council is decided by the Chairman of the provincial People’s Committee, at least 15 people, while the old law stipulates that the number of members of the Labor Arbitration Council is odd and must not exceed 07.

According to Article 187 of the Labor Code 2019, agencies, organizations and individuals competent to settle individual labor disputes include:

  • Labor mediators;
  • Labor Arbitration Council (new regulations);
  • The People’s Court.

The old law stipulates that agencies and individuals competent to settle individual labor disputes include labor mediators and the people’s courts.

Individual labor disputes are not required to be resolved through the mediation procedure of the labor conciliator before being referred to the Labor Arbitration Council or Court for resolution (Article 188) as in the previous law.

Pursuant to the provisions of Clause 2, Article 190 of the Labor Code 2019, the statute of limitations for requesting the Labor Arbitration Council to settle an individual labor dispute is 09 months from the date of discovering the behavior that the disputing party believes that the rights and interests their legitimate interests are violated (new regulations). By the old law, the statute of limitations is one year.

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Documentary Editorial Board, DBRC, Dong Du International Accounting & Legal Consulting Group Vietnam, A member of OneSMP Singapore, Southeast Asia Business Consulting Network (www.japanvietnam.com.vn

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DOES THE COMPANY CHARTER MUST BE MODIFIED WHEN THE CORPORATE LAW 2020 TAKES EFFECT?

DOES THE COMPANY CHARTER MUST BE MODIFIED WHEN THE CORPORATE LAW 2020 TAKES EFFECT?

The Enterprise Law 2020 takes effect from January 1, 2021 with many new points, amendments, supplements and annulments compared to the 2014 Enterprise Law.

Currently, because the company’s charter is issued based on the 2014 Enterprise Law, there will be many different contents from the Enterprise Law 2020, leading to the conflict of not knowing which document to apply when problems arise.

Because the company’s charter is not included in the enterprise registration certificate, when amending or supplementing, the enterprise does not need to carry out notification procedures to the business registration agency.

Thus, enterprises need to amend the company’s charter when the Enterprise Law 2020 takes effect. The change procedure will be carried out within the company without having to notify the business registration agency.

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Documentary Editorial Board, DBRC, Dong Du International Accounting & Legal Consulting Group Vietnam, A member of OneSMP Singapore, Southeast Asia Business Consulting Network (www.japanvietnam.com.vn

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LIST OF EXTRA INVESTMENT INCENTIVE ITEMS BY 2020 INVESTMENT LAW

LIST OF EXTRA INVESTMENT INCENTIVE ITEMS BY 2020 INVESTMENT LAW

This is the content of Decree 31/2021/ND-CP detailing and guiding the implementation of the Investment Law 2020. Specifically, promulgated together with the Decree is the list of industries and professions eligible for investment incentives in the Appendix. II, in which, adding a number of industries, for example, in the field of Agriculture in the group of investment incentives, additional things:

  • Invest in the production of biological plant protection drugs;
  • Production of organic fertilizers;
  • Scientific research activities and technology transfer to develop organic distribution;
  • Cultivation and processing of agricultural, forestry and fishery products in the form of linkages in the product chain or in the form of organic agricultural production;
  • Producing handicrafts, bamboo and rattan products, ceramics, glass, textiles, yarns, embroidery, knitting;
  • Scientific research and technological development in the field of science and technology;
  • Breeding original livestock breeds, conserving genetic resources of precious and rare livestock breeds and indigenous breeds.

Decree 31/2020/ND-CP takes effect from March 26, 2021.

Documentary Editorial Board, DBRC,

Dong Du International Accounting & Legal Consulting Group Vietnam, A member of OneSMP Singapore, Southeast Asia Business Consulting Network

(www.japanvietnam.com.vn)                                                                 #setting up company in Vietnam#Outsourcing accounting & tax #legalconsulting #coaching#humanresources#investigating market and goods.