Decree No. 108/2018/ND-CP dated October 10, 2018 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 78/2015/ND-CP of September 14, 2015, on enterprise registration

DECREE

Amending and supplementing a number of articles of the Government’s Decree No. 78/2015/ND-CP of September 14, 2015, on enterprise registration^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the November 26, 2014 Law on Enterprises;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the June 12, 2017 Law on Support for Small- and Medium-Sized Enterprises;

Pursuant to the November 29, 2006 Law on Tax Administration;

Pursuant to the November 20, 2012 Law Amending and Supplementing a Number of Articles of the Law on Tax Administration;

At the proposal of the Minister of Planning and Investment;

The Government promulgates the Decree amending and supplementing a number of articles of the Government’s Decree No. 78/2015/ND-CP of September 14, 2015, on enterprise registration.

Article 1.To amend and supplement a number of articles of the Government’s Decree No. 78/2015/ND-CP of September 14, 2015, on enterprise registration

1. To add the following Clause 4 to Article 4:

“4. Enterprises are not required to append their seals to written requests for enterprise registration, notices of change in enterprise registration contents, resolutions, decisions, or minutes of meetings in enterprise registration dossiers.”

2. To amend Article 11 as follows:

“Article 11.Authorization for carrying out enterprise registration procedures

In case the person competent to sign a written request for enterprise registration authorizes an organization or another individual to carry out enterprise registration procedures, the authorized organization or individual shall submit a valid copy of one of the personal identification papers prescribed in Article 10 of this Decree, together with:

1. A valid copy of the service provision contract signed with the organization providing the service of carrying out enterprise registration procedures, and such organization’s letter of introduction for the person directly carrying out enterprise registration procedures; or,

2. A power of attorney for the person carrying out enterprise registration procedures, which is not required to be notarized or certified.”

3. To amend Point d, Clause 1, and annul Clause 3, Article 16 as follows:

“d/ Guide business registration divisions in digitalizing enterprise registration dossiers, standardizing enterprise registration data, and updating enterprise registration data in localities to the national enterprise registration database.”

4. To amend Clause 4, Article 23 as follows:

“4. Valid copies of the following papers:

a/ Any of the personal identification papers prescribed in Article 10 of this Decree, of the company owner being an individual;

b/ The enterprise establishment decision or enterprise registration certificate or an another paper of equivalent validity, of the company owner being an organization (unless the company owner is the State);

c/ The investment registration certificate, for enterprises established by foreign investors or foreign-invested economic organizations under the Law on Investment and guiding documents.”

5. To add the following Clause 6 to Article 25:

“6. An enterprise may register for transformation together with registering for change in enterprise registration contents and notification of changes in other contents of enterprise registration, except the case of registration for replacement of its at-law representative.

In this case, a dossier for enterprise transformation registration must comply with Clause 1, 2, 3 or 4 of this Article.”

6. To add the following Article 25a to below Article 25:

“Article 25a. Registration for establishment of enterprises transformed from business households

1. The registration for establishment of an enterprise transformed from a business household shall be carried out at the business registration division of the place where the enterprise’s head office is expected to be located.

2. A dossier of registration for the establishment of an enterprise transformed from a business household must comprise the original of the business household registration certificate, a valid copy of the tax registration certificate, and the papers specified in Article 21, 22 or 23 of this Decree, depending on the type of the enterprise.

3. Within 2 working days after granting an enterprise registration certificate, the business registration division shall send a copy of this certificate and the original of the business household registration certificate to the district-level business registration agency of the place where the business household’s office is located for terminating the business household’s operation.”

7. To amend Clause 3, Article 28 as follows:

“3. Past the above-said time limit, if obtaining no enterprise registration certificate or written certification of change in enterprise registration contents, or no permission for changing enterprise registration contents in the national enterprise registration database, or receiving no request for modification of the enterprise registration dossier, the enterprise founder or the enterprise may lodge a complaint or denunciation in accordance with the law on complaints and denunciations.”

8. To amend Clause 2, Article 29 as follows:

“2. An enterprise may either submit an enterprise registration dossier, receive the enterprise registration certificate or written certification of change in enterprise registration contents directly at the business registration division, or register for submitting the dossier and receiving the dossier processing result by post.”

9. To amend Clause 2, Article 33 as follows:

“2. Notification of establishment of business locations:

An enterprise may establish its business locations outside the registered place of its head office. Within 10 working days after issuing a decision to establish such a business location, an enterprise shall send a notice of the establishment of the business location to the business registration division of the place where such business location is located. This notice must have the following details:

a/ Enterprise identification number;

b/ Name and address of the head office of the enterprise, or name and address of the branch of the enterprise (in case the business location is located in the province or centrally run city where the branch is located);

c/ Name and address of the business location;

d/ Field of operation of the business location;

dd/ Full name, place of residence, and serial number of identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, of the head of the business location;

e/ Full name and signature of the at-law representative of the enterprise, in case the business location is affiliated to the enterprise, or full name and signature of the head of the branch, in case the business location is affiliated to a branch.”

10. To amend Clause 5 of, and add Clause 6 to, Article 34 as follows:

“5. In case the notice of the use of the specimen seal of an enterprise or its branch or representative office has been uploaded on the National Business Registration Portal, the previous notices of the uploading of information about such specimen seal will become invalidated.

6. In case of online notification of specimen seals, enterprises are not required to submit paper dossiers for notification of specimen seals to business registration divisions.”

11. To amend Clause 3, and add Clause 4 to, Article 36 as follows:

“3. An online dossier for enterprise registration shall be authenticated with the public digital signature or business registration account of:

a/ The individual competent to sign written requests for enterprise registration under regulations;

b/ The individual authorized by the person defined at Point a, Clause 3 of this Article to carry out enterprise registration procedures. In this case, the online dossier for enterprise registration shall be accompanied by the papers and documents specified in Article 11 of this Decree.

4. The time limit for an enterprise to modify an online dossier for enterprise registration is 60 days counting from the date the business registration division issues a request for modification of the dossier. Past this time limit, if receiving no modified dossier from the enterprise, the business registration division shall cancel the enterprise registration dossier according to the prescribed procedures in the national information system on enterprise registration.”

12. To amend Article 37 as follows:

“Article 37. Order and procedures for online enterprise registration using public digital signatures

1. The persons defined in Clause 3, Article 36 of this Decree shall declare information, upload e-documents and put digital signatures in online registration dossiers according to the prescribed procedures on the National Business Registration Portal.

2. After sending registration dossiers, the persons defined in Clause 3, Article 36 of this Decree will be given a receipt online.

3. In case the dossier is valid for grant of an enterprise registration certificate, the business registration division shall send information to the tax agency for automatic creation of an enterprise identification number. After receiving the enterprise identification number from the tax agency, the business registration division shall grant an enterprise registration certificate and notify the enterprise of such grant. In case the dossier is invalid, the business registration division shall send an online request to the enterprise for modification of the dossier.

4. The procedures for online enterprise registration prescribed in this Article are also applicable to the registration for operation of branches and representative offices and notification of the establishment of business locations of enterprises.”

13. To amend Article 38 as follows:

“Article 38. Order and procedures for enterprise registration using business registration accounts

1. The persons defined in Clause 3, Article 36 of this Decree shall declare information on the National Business Registration Portal in order to be granted business registration accounts.

2. The persons defined in Clause 3, Article 36 of this Decree shall use business registration accounts in declaring information, uploading e-documents and authenticating online dossiers for enterprise registration according to the prescribed procedures on the National Business Registration Portal.

3. After sending registration dossiers, the persons defined in Clause 3, Article 36 of this Decree will be given a receipt online.

4. The business registration division shall check the dossier and, in case the dossier is invalid, send an online request to the enterprise for modification of the dossier. When the dossier is valid for grant of an enterprise registration certificate, the business registration division shall send information to the tax agency for automatic creation of an enterprise identification number. After receiving the enterprise identification number from the tax agency, the business registration division shall send an online notice of the grant of the enterprise registration certificate to the enterprise.

5. After receiving the notice of the grant of the enterprise registration certificate, the persons defined in Clause 3, Article 36 of this Decree shall submit one paper dossier set for enterprise registration together with the receipt of the online dossier for enterprise registration to the business registration division. The persons defined in Clause 3, Article 36 of this Decree may submit the paper dossier for enterprise registration and the receipt of the online-sent dossier for enterprise registration directly or by post to the business registration division.

6. After receiving the paper dossier, the business registration division shall check the documents in the paper dossier against those of the dossier sent online and hand over the enterprise registration certificate to the enterprise if the checked documents are consistent.

In case the paper dossier and dossier sent online are inconsistent, the business registration division shall send a request to the enterprise for modification of the dossier.

Past 30 days from the date of sending a notice of the grant of the enterprise registration certificate, if the business registration division receives no paper registration dossier, the enterprise’s online registration dossier will become invalidated.

7. The person competent to sign a written request for enterprise registration shall bear responsibility for the completeness and consistency of the paper dossier against the dossier sent online. In case the paper dossier is inconsistent with the dossier sent online and the dossier submitter fails to notify such to the business registration division at the time of submission of the paper dossier, he/she shall be regarded as having forged the dossier and be handled under Clause 1, Article 63 of this Decree.

8. The procedures for online enterprise registration prescribed in this Article are also applicable to the registration of operation of branches and representative offices and notification of the establishment of business locations of enterprises.”

14. To amend and supplement Article 44 as follows:

“Article 44.Registration of change of charter capital or capital contribution ratio

1. In case of registering for change of capital contribution ratios of the members of a limited liability company with two or more members, or of general partners of a partnership, the company or partnership shall send a notice to the business registration division with which it has made registration. The notice must contain the following details:

a/ Name, and enterprise identification number, tax identification number or serial number of the business registration certificate (in case the enterprise has no enterprise identification number or tax identification number);

b/ Full name, address, citizenship, serial number of identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, or serial number of the enterprise establishment decision or enterprise identification number of each member or general partner;

c/ The capital contribution ratio of each member or general partner;

d/ The registered charter capital and increased/reduced charter capital; time and method of increasing or reducing capital;

dd/ Full name, citizenship, serial number of identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, permanent residence address and signature of the company’s at-law representative or the partnership’s authorized general partner.

2. In case of registering for change of charter capital, the notice prescribed in Clause 1 of this Article shall be accompanied by the decision and a valid copy of the minutes of the meeting of the Members’ Council, for a limited liability company with two or more members, or of the Shareholders’ General Meeting, for a joint stock company; decision of the company owner, for a single-member limited liability company, on change of charter capital; and a written approval issued by the provincial-level Department of Planning and Investment, of foreign investors’ capital contribution or purchase of shares or capital contributions in the case referred to in Clause 1, Article 26 of the Law on Investment.

The above decision and minutes must indicate the changes in the company charter.

3. If the Shareholders’ General Meeting approves the offering of shares to increase charter capital and concurrently assigns the Board of Directors to carry out procedures for registration of charter capital increase after each offering finishes, in addition to the notice prescribed in Clause 1 of this Article, the dossier of registration of charter capital increase must comprise:

a/ The decision and a valid copy of the minutes of the meeting of the Shareholders’ General Meeting, on the offering of shares to increase charter capital, which specifies the quantity of shares to be offered and assigns the Board of Directors to carry out procedures for registration of charter capital increase after each offering finishes;

b/ The decision and a valid copy of the minutes of the meeting of the Board of Directors of the joint-stock company, on registration of charter capital increase after each offering finishes.

4. In case of reduction of charter capital, the enterprise shall commit to fully pay debts and perform other asset-related liabilities after the reduction.

5. In case the resolution or decision on change of charter capital has lawfully been adopted under the Law on Enterprises but a member or shareholder dies, is missing or is absent from the place of residence, is put in temporary detention, is sentenced to imprisonment, has lost civil act capacity or has civil act capacity restricted, or refuses to sign the list of members or list of founding shareholders or list of shareholders being foreign investors, the signature of this member or shareholder is not required in such list.

6. When receiving the notice, the business registration division shall give a receipt, check the validity of the dossier, and grant an enterprise registration certificate to the enterprise.”

15. To amend Clause 1, Article 45 as follows:

“1. In case of admission of a new member, leading to an increase in the charter capital, the company shall send a notice to the business registration division with which it has made registration. The notice must contain the following details:

a/ Name, and enterprise identification number, tax identification number or serial number of the business registration certificate (in case the enterprise has no identification number or tax identification number);

b/ Name, enterprise identification number, and head office address of the institutional member; full name, citizenship, and serial number of the identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, of the individual member; value and time of capital contribution, type of assets contributed as capital, and quantity and value of each type of assets contributed as capital by the new member;

c/ Members’ capital contributions which are changed after admission of the new member;

d/ Charter capital of the company after admission of the new member;

dd/ Full name and signature of the at-law representative of the company.

The notice shall be accompanied by:

- Decision and a valid copy of the minutes of the meeting of the Members’ Council on admission of the new member and increase of charter capital, which must indicate the changes in the company charter;

- Written certification of the new member’s capital contribution;

- A valid copy of the enterprise establishment decision or enterprise registration certificate or another paper of equivalent validity, a valid copy of one of the personal identification papers prescribed in Article 10 of this Decree, of the authorized representative and power of attorney of the institutional member, or a valid copy of one of the personal identification papers prescribed in Article 10 of this Decree, of the individual member;

- The written approval issued by the provincial-level Department of Planning and Investment, of foreign investors’ capital contribution or purchase of shares or capital contributions, for the case specified in Clause 1, Article 26 of the Law on Investment.

When receiving the notice, the business registration division shall give a receipt, check the validity of the dossier, and grant an enterprise registration certificate to the enterprise.”

16. To amend Article 51 as follows:

“Article 51.Notification of change of information about founding shareholders of joint-stock companies

1. Founding shareholders referred to in Clause 2, Article 4 of the Law on Enterprises are those named on the list of founding shareholders which is submitted to the business registration division at the time of registration of the enterprise establishment.

2. The change of information about founding shareholders shall be notified to the business registration division only if founding shareholders have made no payment or have made payment only for part of the shares they have registered to purchase as prescribed in Clause 1, Article 112 of the Law on Enterprises. Founding shareholders that have not made payment for the shares they have registered to purchase will naturally be no longer shareholders of the company under Point a, Clause 3, Article 112 of the Law on Enterprises, and will be removed from the list of founding shareholders of the company.

3. The enterprise shall notify the change of information about its founding shareholders within 30 days from the deadline for full payment for the shares they have registered to purchase as prescribed in Clause 1, Article 112 of the Law on Enterprises. If failing to notify the change, the enterprise shall be sanctioned in accordance with the law on sanctioning of administrative violations in the field of planning and investment.

4. In case of change of information about founding shareholders, the company shall send a notice to the business registration division with which it has made registration. The notice must contain the following details:

a/ Name, and enterprise identification number, tax identification number or serial number of the business registration certificate (in case the enterprise has no enterprise identification number or tax identification number);

b/ Name, head office address, and enterprise identification number or serial number of the enterprise establishment decision, for founding shareholders being organizations; or full name, and serial number of identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, for founding shareholders being individuals;

c/ Full name, serial number of identity card or passport or another lawful personal identification paper prescribed in Article 10 of this Decree, and signature of the company’s at-law representative.

When receiving the notice, the business registration division shall give a receipt, check the validity of the dossier, and change information about the company’s founding shareholders in the national enterprise registration database. The business registration division shall grant a written certification of change in enterprise registration contents to the enterprise at the latter’s request.

5. In case the dossier of notification of change of information about founding shareholders is invalid, the business registration division shall issue a notice requesting the enterprise to modify the dossier within 3 working days.”

17. To amend Article 55 as follows:

“Article 55.Announcement of enterprise registration contents

1. A request for announcement of enterprise registration contents shall be made at the time an enterprise submits the enterprise registration dossier.

2. Enterprise registration contents shall be posted on the National Business Registration Portal.”

18. To amend Clause 3, Article 58 as follows:

“3. In case information declared in the enterprise registration dossier is untruthful or inaccurate, the business registration division shall notify such to a competent state agency for handling in accordance with law, and request the enterprise to modify the dossier for re-grant of an enterprise registration certificate. The enterprise registration certificate shall be re-granted within 3 working days after the receipt of a valid dossier.”

19. To amend Article 62 as follows:

“Article 62.Determination of whether declarations in enterprise registration dossiers are forged

1. If having grounds to believe that the contents declared in the enterprise registration dossier are forged, an organization or individual may request the business registration division to revoke the enterprise registration certificate, and shall provide one of the documents specified in Clause 2 of this Article to the business registration division.

2. Documents proving whether the contents declared in the enterprise registration dossier are forged include:

a/ A valid copy of the written affirmation given by a competent state agency stating that the document issued by this agency is forged; or,

b/ A valid copy of the public security office’s written conclusion stating that the contents declared in the enterprise registration dossier are forged.

3. When it is necessary to verify whether the contents declared in an enterprise registration dossier are forged as a basis for revocation of an enterprise registration certificate under Point a, Clause 1, Article 211 of the Law on Enterprises, the business registration division shall send a written request for verification, together with the enterprise registration dossier, to the agency specified at Point a or b, Clause 2 of this Article. The competent agency shall issue a written reply on the verification result at the request of the business registration division within 30 days after receiving the request. If the contents declared in the enterprise registration dossier are forged as concluded by the competent agency, the business registration division shall revoke the enterprise registration certificate according to the order and procedures prescribed in Clause 1, Article 63 of this Decree.”

20. To amend and supplement Article 63 as follows:

“Article 63.Order and procedures for revocation of enterprise registration certificates

1. In case the contents declared in enterprise registration dossiers are forged:

In case the contents declared in a dossier of registration for establishment of a new enterprise are forged, the business registration division shall issue a notice of the enterprise’s violation and issue a decision to revoke the enterprise registration certificate.

In case the contents declared in a dossier of registration of change in enterprise registration contents or in a notice of change in enterprise registration contents are forged, the business registration division shall issue a notice of the enterprise’s violation and cancel the change that has been made based on the forged information, restore the enterprise registration certificate granted based on the latest valid dossier, and concurrently notify the violation to a competent agency for handling in accordance with law.

2. For a registered enterprise founded by an individual or organization that is banned from establishing enterprises under Clause 2, Article 18 of the Law on Enterprises:

a/ For a private enterprise or single-member limited liability company owned by an individual: The business registration division with which the enterprise or company has made registration shall issue a notice of the latter’s violation and issue a decision to revoke the enterprise registration certificate;

b/ For a limited liability company with two or more members, single-member limited liability company owned by an organization, joint stock company or partnership: The business registration division with which the company or partnership has made registration shall issue a written request for the company or partnership to replace the member or shareholder banned from establishing enterprises within 30 days from the date of receiving the request. Past this time limit, if the company or partnership fails to register the replacement of such member or shareholder, the business registration division shall issue a notice of the former’s violation and issue a decision to revoke the enterprise registration certificate.

3. In case an enterprise violates Point c, Clause 1, Article 211 of the Law on Enterprises, the business registration division shall issue a written notice of the enterprise’s violation and request the at-law representative of the enterprise to give explanations at the office of the business registration division. After 10 working days from the deadline written in the notice, if such at-law representative fails to come to give explanations or his/her explanations are not accepted, the business registration division shall issue a decision to revoke the enterprise registration certificate.

4. In case an enterprise fails to send a report under Point c, Clause 1, Article 209 of the Law on Enterprises, within 10 working days from the deadline prescribed at Point d, Clause 1, Article 211 of the Law on Enterprises, the business registration division shall issue a written notice of the enterprise’s violation and request the enterprise’s at-law representative to give explanations at the office of the business registration division. After 10 working days from the deadline written in the notice, if such at-law representative does not come to give explanations or his/her explanations are not accepted, the business registration division shall issue a decision to revoke the enterprise registration certificate.

5. In case an enterprise has to implement a tax-related administrative decision under Clause 26, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Tax Administration, within 10 working days after receiving a written request for revocation of the enterprise registration certificate from the head of the tax administration agency under Clause 31, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Tax Administration, the business registration division shall revoke the enterprise registration certificate according to the order and procedures prescribed in Clause 4 of this Article.

6. The business registration division shall coordinate with related state management agencies in considering the explanations specified in Clause 3, 4 and 5 of this Article.

7. After receiving the decision revoking its enterprise registration certificate, an enterprise shall carry out dissolution procedures prescribed in Article 203 of the Law on Enterprises.

8. Information about the revocation of an enterprise registration certificate shall be updated into the national information system on enterprise registration and sent to the tax agency.

9. In case the court decides on revocation of the enterprise registration certificate, the business registration division shall issue a decision to revoke the enterprise registration certificate.”

21. To amend and supplement Article 65 as follows:

“Article 65.Enterprise registration procedures under decisions of courts or commercial arbitrations

1. Within 15 working days from the effective date of a court’s or commercial arbitration’s judgment or decision, a requester for registration of change in enterprise registration contents or other related contents under such judgment or decision shall send a request to a competent business registration division.

2. Requesters for registration of change in enterprise registration contents or other related contents specified in Clause 1 of this Article include:

a/ Individuals and organizations assigned to implement the court’s or commercial arbitration’s decisions;

b/ Enterprises;

c/ Judgment enforcement agencies.

3. A dossier of registration or notification of change in enterprise registration contents must comprise:

a/ A written request for change in enterprise registration contents;

b/ A valid copy of the court’s or commercial arbitration’s judgment or decision which has taken legal effect.”

Article 2.Implementation provision

This Decree takes effect on October 10, 2018.

Article 3.Responsibility for implementation

1. The Ministry of Planning and Investment shall guide the implementation of this Decree.

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

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC