Decree No. 125/2004/ND-CP dated May 19, 2004 of the Government amending and supplementing a number of articles of Decree No. 03/2000/ND-CP dated February 3, 2000 which guides the implementation of a number of articles of the Enterprise Law

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO. 03/2000/ND-CP OF FEBRUARY 3, 2000 WHICH GUIDES THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE ENTERPRISE LAW

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 12, 1999 Enterprise Law;

At the proposal of the Minister of Planning and Investment,

DECREES:

Article 1.- To amend and supplement a number of articles of the Government’s Decree No. 03/2000/ND-CP of February 3, 2000 guiding the implementation of a number of articles of the Enterprise Law as follows:

1. Article 2 is added with the following Point 9a:

“9a/ The Law on Insurance Business of December 9, 2000”.

2. Clause 1 of Article 3 is added with the following Point l:

“l/ Provision of service of brokerage for marriage involving foreign elements.”

3. The last paragraph of Clause 3 of Article 4 is amended and supplemented as follows:

“An enterprise’s founder and representative at law must be answerable for the strict observance of the prescribed business conditions. If the enterprise conducts business without fully satisfying the prescribed conditions, the company’s member, for limited liability companies with two or more members, the company’s chairman or the Managing Board’s member, for one-member limited liability companies, the Managing Board’s member, for joint-stock companies, the partner, for partnerships, the owner of the private enterprise and the representative at law of the enterprise must jointly be answerable to law for such business”.

4. Clause 2 of Article 5 is amended and supplemented as follows:

“2. The company’s member, for limited liability companies with two or more members, the company’s chairman or the Managing Board’s member, for one-member limited liability companies, the Managing Board’s member, for joint-stock companies, the partner, for partnerships, the owner of the private enterprise and the representative at law of the enterprise shall jointly be answerable for the truthfulness and accuracy of the capital amount certified upon the establishment of the enterprise and in the process of its business activities”.

5. Article 6 is supplemented as follows:

a/ Clause 2 is added with the following Points g, h and i as follows:

“g/ Production, processing, bottling, packing, purchase and sale of plant protection drugs.”

“h/ Provision of service of designing transport means.”

“i/ Purchase and sale of relics, antiques and national secrets.”

b/ To add Clauses 4 and 5 as follows:

“4. The Ministries of Justice; Health; Fisheries; Agriculture and Rural Development; Construction; Finance; Transport; and Culture and Information shall guide the order, procedures, conditions, time limit and competence for granting corresponding practice certificates prescribed in Clause 2 of this Article; perform the State management over the grant of such practice certificates.”

“5. Practice certificate holders shall be entitled to register in their business registration dossiers only one business establishment and must be answerable for the strict observance of the regulations on professional qualifications and ethics in business activities of such establishments.”

6. Article 8 is added with the following Clauses 3 and 4:

“3. An individual can only be the owner of one private enterprise or a partner of one partnership.”

“4. Foreign organizations and foreigners not permanently residing in Vietnam may contribute capital or purchase shares under the provisions of the Law on Domestic Investment Promotion.

The capital contribution and share purchase shall be agreed upon and decided by involved parties, and any changes in charter capital or in membership must be registered with the business registration agencies in the localities where the enterprises have made registration.

Foreign organizations and foreigners that contribute capital to, or purchase shares from, enterprises operating under the Enterprise Law may authorize Vietnamese citizens to act as members of the Members’ Councils in proportion to their contributed capital portions or nominate candidates to the Managing Boards according to law provisions or the companies’ charters.”

7. Article 9 is amended and supplemented as follows:

a/ To add the following paragraph to the end of Clause 1:

“ The Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with the concerned agencies in, making lists of subjects banned from setting up enterprises nationwide according to the provisions of Clauses 6 and 7, Article 9 of the Enterprise Law. Such lists must be regularly updated and notified to the business registration agencies.”

b/ To amend Clause 6 as follows:

“6. A leading official or a professional official in a State enterprise shall be entitled to act as manager of another enterprise in his/her capacity as authorized representative of a State enterprise or a competent State agency; if he/she contributes capital to another enterprise in his/her own name, he/she must not act as manager of such enterprise.”

8. Article 10 is amended and supplemented as follows:

a/ Point d of Clause 2 is amended and supplemented as follows:

“d/ Names, addresses, serial numbers of people’s identity cards, serial numbers of passports or serial numbers of business registration certificates or serial numbers of founding decisions of members, the contributed capital portion of each member to limited liability companies with two or more members; names, addresses, serial numbers of business registration certificates or serial numbers of founding decisions of owners of one-member limited liability companies.”

b/ Point n of Clause 3 is amended and supplemented as follows:

“n/ Names, addresses, serial numbers of people’s identity cards or serial numbers of passports, serial numbers of business registration certificates or serial numbers of founding decisions, signatures of all founding shareholders and the representative at law of the company.

The shareholders may agree to inscribe in the company’s charter other contents not contrary to law provisions.”

c/ To add the following paragraph to the end of Clause 4:

“Partnership members may agree to inscribe in the company’s charter other contents not contrary to law provisions.”

9. Article 11 is amended and supplemented as follows:

a/ Point a of Clause 2 is amended and supplemented as follows:

“a/ Name, address, serial number of people’s identity card or serial number of passport, serial number of business registration certificate or serial number of founding decision, of each member.”

b/ Point a of Clause 3 is amended and supplemented as follows:

“a/ Name, address, serial number of people’s identity card or serial number of passport, serial number of business registration certificate or serial number of founding decision, of each founding shareholder.”

10. To add the following Articles 11a and 11b:

“Article 11a.- Specific guidance on a number of rights and obligations of members of limited liability companies

1. For two-member limited liability companies, if the member being the representative at law is examined for penal liability, is detained, flees from his/her place of residence, suffers from mental or other diseases, which render them unable to perceive or control his/her acts, or has his/her practicing right stripped of by court for smuggling, producing fake goods, conducting illegal business, evading taxes or deceiving customers, or committing other offenses prescribed by law, the other member shall naturally be the representative at law of the company pending a new decision.

2. In cases where an individual member of a limited liability company is examined for penal liability, detained, sentenced to imprisonment, or has his/her practicing right stripped off by court for smuggling, producing fake goods, conducting illegal business, evading taxes or deceiving customers, or committing other offenses prescribed by law, such member shall authorize another person to participate in the Members’ Council for management of the company.

3. In cases where the company refuses to redeem the contributed capital portions, fails to pay the redeemed contributed capital portions, or fails to reach agreement on the redeeming price of the contributed capital portions as prescribed in Article 31 of the Enterprise Law, the member requesting the company to redeem may transfer his/her contributed capital portion to another person. In this case, such transfer shall not be compulsorily effected under the provisions of Article 32 of the Enterprise Law.

4. In cases where one or a number of members who die(s) or is(are) declared dead by court own at least 65% of the company’s charter capital, the other members may request the convention of a Members’ Council meeting to decide that the heirs of the member(s) who die(s) or is(are) declared dead by the court shall become the company member(s), or the company shall redeem or transfer the contributed capital portion(s) of the dead member(s) according to law provisions.

5. Those members who have not yet paid the committed capital amounts fully or on time shall have to pay interests on capital amounts not yet contributed to the company at the highest lending interest rate set by commercial banks until they fully pay the capital amounts they have committed to contribute”.

“Article 11b.- Convention of the Members’ Council meeting

1. For a limited liability company where one member owns more than 65% of the company’s charter capital, the company charter must set another percentage lower than 35% of the charter capital which minority member or group of members must hold in order to be entitled to request the convention of a Members’ Council meeting to settle matters falling under their competence.

2. In cases where the member or group of members prescribed in Clause 2, Article 29 of the Enterprise Law request the convention of a Members’ Council meeting, such request must be made in writing and comprise the following principal contents:

a/ Name and address of head-office, or name and place of registration of permanent residence, of the requesting member or group of members; contributed capital portion of the member or each member of the group;

b/ Reasons for requesting the convention of the Members’ Council meeting and matters to be settled;

c/ Tentative meeting agenda;

d/ Signature of each member, or competent representative, for member being organization.

3. The chairman of the Members’ Council shall prepare contents, convene and preside over the Members’ Council meeting. The chairman of the Members’ Council shall convene a Members’ Council meeting any time if he/she deems it necessary for the management and administration of the company’s business activities.

Where a request is filed by a member or a group of members prescribed in Clause 2, Article 29 of the Enterprise Law, the chairman of the Members’ Council must convene a Members’ Council meeting within 15 days after receiving such written request, provided that such request fully contains the prescribed contents and the matters proposed for settlement fall under the competence of the Members’ Council.

If the request fails to fully satisfy the above-said conditions, the chairman of the Members’ Council must notify in writing the requesting member or group of members as well as other members thereof within 7 days after receiving such request.

If the request fully satisfies the prescribed conditions, but the chairman of the Members’ Council fails to convene a Members’ Council meeting as prescribed, the requesting member or group of members may convene such meeting.

All reasonable expenses for the convention and organization of Members’ Council meetings shall be refunded by the company.

4. Invitation to the meeting may be made by mail, fax, e-mail or phone; the invitation must clearly state the meeting agenda, time and place.

5. Each member may propose additions to the meeting agenda if such additions are approved by the number of members representing at least 51% of the votes of all attending members.”

11. Clause 4 of Article 14 is amended as follows:

“4. Vietnam Labor Confederation, the branch trade union organizations and the Labor Federations of the provinces and centrally-run cities”;

12. To add Article 18a as follows:

“Article 18a.- Publicization of related interests of members and managers in limited liability companies and joint-stock companies

1. Members of limited liability companies with two or more members, representatives of members being organizations in the Members’ Councils, the companies’ chairmen, members of the Managing Boards and directors (general directors) must declare about:

a/ Enterprises, including names, head-offices, serial numbers of business registration certificates, where they own their contributed capital portions or shares; ratio and time of ownership over such contributed capital portions or shares;

b/ Enterprises, including names, head-offices, serial numbers of business registration certificates, production/business lines, which are owned by their spouses, offspring or adopted children;

c/ Enterprises, including names, head-offices, serial numbers of business registration certificates, production/business lines, where their spouses, offsprings or adopted children own more than 40% of the charter capital;

Those who must make declarations prescribed in this Clause must declare the supplements or changes, if any, within 7 days as from the date the supplementation or change of the declared information becomes effective.

2. The declarations prescribed in Clause 1 of this Article shall be kept at the enterprises’ head-offices. All members, representatives of members being organizations of limited liability companies, members of the Managing Boards, the Control Boards, general directors and directors shall be entitled to see the declared contents any time if they deem it necessary.”

13. To add the following Articles 21a and 21b:

“Article 21a.- The stock capital of the founding shareholders must be fully contributed right after the business registration certificates are granted. The founding shareholders shall be liable for the companies’ debts and other financial obligations within the value of the shares contributed to the companies already inscribed in the lists of founding shareholders registered at the business registration agencies.”

“Article 21b.- To exercise the rights of a shareholder or a group of shareholders prescribed in Clause 2, Article 53 of the Enterprise Law.

1. Shareholders who voluntarily gather in groups, satisfying the conditions prescribed in Clause 2, Article 53 of the Enterprises Law (hereinafter called a shareholder or a group of shareholders under Clause 2 of Article 53) for nomination of candidates to the Managing Board must notify all attending shareholders thereof right after the General Assembly of Shareholders is opened.

2. The General Assembly of Shareholders shall decide on the number of candidates which a shareholder or group of shareholders under Clause 2 of Article 53 is entitled to nominate to the Managing Board and Control Board. In cases where the number of candidates nominated by groups of shareholders is smaller than the number of candidates they are entitled to nominate under the decision of the General Assembly of Shareholders, the remaining candidates shall be nominated by the Managing Board, the Control Board and other shareholders.

3. A shareholder or a group of shareholders under Clause 2 of Article 53 may request the convention of a meeting of the General Assembly of Shareholders if the Managing Board seriously violates the obligations of the managers prescribed in Article 86 of the Enterprise Law; issues decisions ultra vires or other cases prescribed in the company’s charter.

Such request must be made in writing and comprise the following principal contents:

a/ Names and head-offices or names and places of registration of permanent residence of the shareholders;

b/ The number of shares and time of registration of shares of each shareholder, the total number of shares of the whole group of shareholders and the ownership ratio to the total shares of the company;

c/ Violation acts committed, and specific obligations infringed upon, by the Managing Board, the seriousness of violations or decisions made ultra vires by the Managing Board;

d/ Recommendation of to be-settled matters.

The request must be accompanied by documents and evidences on the violations committed by the Managing Board, the seriousness of violations or decisions made ultra vires.

4. A shareholder or a group of shareholders under Clause 2 of Article 53 may recommend matters to be included into the agenda of the meeting of the General Assembly of Shareholders. The convenors of the meeting of the General Assembly of Shareholders shall include these recommended matters into the proposed meeting agenda and contents if such recommendations satisfy the conditions prescribed in Clauses 2 and 3, Article 73 of the Enterprise Law; the recommendations shall be officially added to the meeting agenda and contents if they are approved by the General Assembly of Shareholders.

5. A shareholder or a group of shareholders under Clause 2 of Article 53 may request the Control Board to examine each matter related to management and administration of the companies’ activities if they deem it necessary. Such request must be made in writing and comprise the following principal contents:

a/ Names and head-offices or names and places of registration of permanent residence of the shareholders;

b/ The number of shares and time of registration of shares of each shareholder, the total number of shares of the whole group of shareholders and proportion of ownership in the total number of shares of the company;

c/ Matters to be examined, purposes of examination.

The Control Board must conduct examination at the request of a shareholder or a group of shareholders under Clause 2 of Article 53 within 7 days after receiving the request, if the requesting shareholder or group of shareholders own shares prescribed in Clause 2 of Article 53 and the request fully comprises the contents prescribed in this Clause.

At the end of the examination, the Control Board must notify in writing the Managing Board and the requesting shareholder or group of shareholders of the examination results; such notifications must clearly state the legality, rationality as well as errors and proposed solutions thereto, if any, in the examined matters; and report thereon to all shareholders at the earliest meeting of the General Assembly of Shareholders.”

14. To add the following Article 36a:

“Article 36a.- Performance of State management over enterprises

1. The ministries, ministerial-level agencies and Government-attached agencies shall, within the ambit of their respective tasks and powers, have the responsibilities:

a/ To promulgate according to their respective competence documents guiding the implementation of decrees which prescribe the business conditions for production/business lines subject to conditional business, the legal capital and practice certificates; manage the observance of business conditions for production/business lines subject to conditional business which fall under the State management by ministries or agencies.

b/ To propagate and disseminate legal documents prescribing production/business lines subject to conditional business and business conditions for such lines; legal documents prescribing practice certificates and legal documents prescribing the legal capital.

c/ To elaborate and guide modes of organizing management of production/business lines subject to conditional business, production/business lines requiring practice certificates, and production/business lines requiring legal capital; supervise and examine the management of business conditions for production/business lines subject to conditional business by the provincial-level People’s Committees and agencies under the provincial-level People’s Committees.

d/ To elaborate and guide modes of environmental protection, control and handling of environmental pollution.

e/ To build the system of Vietnamese standards, quality standards of products, goods and services; supervise and examine the management of the system of Vietnamese standards and quality standards of products, goods and services.

f/ To build and guide modes of organizing the management of food hygiene and safety as well as labor safety and sanitation.

2. The People’s Committees of the provinces and centrally-run cities shall have the responsibilities:

a/ To organize coordination among the provincial/municipal Services and their attached professional agencies as well as the district-level People’s Committees in providing information on enterprises, in removing difficulties and obstacles to investment and enterprise development according their respective competence; in examining and inspecting enterprises according to law provisions.

b/ To organize business registration and direct the management of enterprises and individual business households according to the business registration contents.

c/ To direct the provincial/municipal Services and their attached professional agencies as well as the district-level People’s Committees to observe law provisions and guiding documents on taxes, management of business conditions, product and service quality, food hygiene and safety, labor sanitation and safety, and environmental pollution control, which are issued by ministries, ministerial-level agencies and Government-attached agencies; directly handle or propose competent agencies to handle violations of regulations on State management over the above-said domains.

d/ To organize business registration agencies, decide on payrolls of the provincial-level business registration agencies, organize business registration strictly according to law provisions and guidance of the Ministry of Planning and Investment; direct and guide the direct-level and commune-level People’s Committees in handling administrative violations in business registration.”

Article 2.- Implementation effect

This Decree takes implementation effect 15 days after its publication in the Official Gazette.

All the previous regulations contrary to this Decree are hereby annulled.

The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal People’s Committees shall have to implement this Decree.