| THE GOVERNMENT ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------- |
| No. 88/2006/ND-CP | Hanoi, August 29, 2006 |
DECREE
ON BUSINESS REGISTRATION
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Government Organization;
Pursuant to the November 29, 2005 Enterprise Law;
At the proposal of the Minister of Planning and Investment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of regulation
This Decree provides in detail for business registries and dossiers, order of and procedures for business registration, and registration of changes in the contents of business registration for enterprises operating under the Enterprise Law and business households.
Article 2.- Subjects of application
This Decree shall apply to the following subjects:
1. Domestic organizations and individuals; foreign organizations and individuals registering their business under the Enterprise Law;
2. Other organizations and individuals that are related to business registration
Article 3.- Theright to establish enterprises and the obligation of enterprise founders to register their business
1. Establishing enterprises in accordance with the provisions of law is the right of individuals and organizations, which is protected by the State.
2. Enterprise founders shall be obliged to register their business in accordance with the provisions of this Decree and relevant legal documents
3. Business registries and other agencies shall be strictly prohibited from causing troubles to organizations and individuals when receiving dossiers and dealing with business registration or registration of changes in business registration contents.
4. Ministries, ministerial-level agencies, People’s Councils and People’s Committees at all levels shall not be allowed to promulgate regulations on business registration to be applied to their own branches or localities.
5. Enterprise founders themselves shall be responsible before law for the lawfulness, truthfulness and accuracy of information declared in the business registration dossiers.
Article 4.- Business registration certificates
1. Business registration certificates are issued to enterprises operating under the Enterprise Law and business households.
2. Contents of business registration certificates are stipulated in Article 25 of the Enterprise Law, and written on the basis of the information in the business registration application dossiers which the enterprise founders themselves declare and are responsible therefor before law. The form of business registration certificate shall be stipulated by the Ministry of Planning and Investment and applied uniformly nationwide.
3. Enterprises which have been issued business registration certificates before the effective date of this Decree shall not have to change their business registration certificates and shall be issued new business registration certificates when they register changes in business registration contents.
4. Business registration certificates issued by business registries shall be valid nationwide.
Article 5.- Business lines
1. Business lines shall be written in business registration certificates according to the system of national economic sectors, except for banned business lines.
2. For business lines that are not included in the system of national economic sectors but are stipulated in other legal documents, business lines shall be written in business registration certificates according to the business lines stipulated in those legal documents.
3. For business lines that are not included in the system of national economic sectors and not yet stipulated in other legal documents, business registries shall consider and write them in business registration certificates and at the same time notify the Ministry of Planning and Investment and the General Statistics Office to add new codes.
4. For business lines that are stipulated to require a practice certificate, one individual can use his/her practice certificate for business registration of one enterprise only.
5. Conditional business lines shall be stipulated in laws, ordinances or decrees of the Government. It is strictly forbidden to promulgate or stipulate conditional business lines ultra vires.
Chapter II
TASKS AND POWERS OF BUSINESS REGISTRIES AND STATE MANAGEMENT OF BUSINESS REGISTRATION
Article 6.- Business registries
1. Business registries shall be organized in provinces and centrally run cities (hereinafter referred to as provincial level) and in urban districts, rural districts, towns, provincial cities (hereinafter referred to as district level), including:
a/ At the provincial level: Business registration offices under the provincial/municipal Planning and Investment Services (hereinafter referred to as provincial-level business registration offices).
As for Ho Chi Minh City and Hanoi, one or two more provincial-level business registration offices may be set up and numbered in a numerical order. The establishment of additional provincial-level business registration offices shall be decided by the municipal People’s Committees.
b/ At the district level: Business registration offices shall be set up in all urban districts, rural districts, towns and provincial cities where the number of newly registeredbusiness households and cooperatives is 500 or more on average in the latest two years;
For localities which do not have district-level business registration offices, the Finance and Planning Sections shall perform the task of business registration stipulated in Article 8 of this Decree (hereinafter referred to as district-level business registries) and they shall have a seal for this task.
2. Provincial-level and district-level business registration offices shall have their own bank accounts and seals.
3. Provincial-level People’s Committees shall reach agreement with the Management Boards of Economic Zones that are set up by decisions of the Prime Minister (hereinafter referred to as economic zones) on the establishment of business registration offices there.
Article 7.- Tasks, powers and responsibilities of provincial-level business registration offices
1. To directly receive business registration dossiers; check the validity of business registration dossiers, and issue or refuse to issue business registration certificates to enterprises.
2. To coordinate in the development, management and operation of the local business registration information system; to provide local business registration information to provincial-level People’s Committees, local Tax Departments, relevant agencies and the Agency for Small- and Medium-Sized Enterprises Development under the Ministry of Planning and Investment on a periodical basis, and to, upon request, organizations and individuals.
3. To request enterprises to report on business performance as provided for at Point c, Clause 1, Article 163 of the Enterprise Law; urge enterprises to implement the annual report regime.
4. To directly inspect or propose competent state agencies to inspect enterprises against the contents in their business registration dossiers; give guidance on the order of and procedures for business registration to enterprises and enterprise founders.
5. To request enterprises to temporarily cease conditional business lines when finding out that they do not meet all conditions as required by law.
6. To revoke business registration certificates of enterprises in the cases specified in Clause 2, Article 165 of the Enterprise Law.
7. To register business for enterprises of other forms as provided for by law.
Article 8.- Tasks, powers and responsibilities of district-level business registration offices
1. To directly receive business registration dossiers of business households; check the validity of business registration dossiers, and issue or refuse to issue business registration certificates to business households.
2. To coordinate with one another in the development, management and operation of the local household business information system; to periodically report to district-level People’s Committees, provincial-level business registration offices, and district-level tax authorities on business households, enterprises, branches, representative offices and business locations of enterprises within the districts.
3. To directly inspect business households within the districts against the contents in business registration dossiers; to coordinate with competent state agencies to inspect enterprises; to verify the contents of business registration of enterprises, branches and representative offices within the districts at the request of provincial-level business registration offices.
4. To request business households to report on their business performance when necessary.
5. To request business households to cease temporarily conditional business lines when finding out that they do not meet all the conditions as required by law.
6. To revoke business registration certificates of business households in the cases specified in Article 47 of this Decree.
7. To make business registration for other forms as provided for by law.
Article 9.- State management of business registration:
1. Tasks, powers and responsibilities of the Ministry of Planning and Investment:
a/ To promulgate according to its competence or submit to competent authorities for promulgation legal documents on business registration; guiding documents on professional knowledge and tasks, forms and reporting tasks in service of business registration work.
b/ To provide professional guidance, training and retraining on business registration for staffs involved in business registration work.
c/ To organize the development and management of the business registration information system nationwide; to develop a national database on business registration to support business registration professional tasks, collect, store and process information on business registration nationwide; to provide business registration information to relevant government agencies, and to, upon request, organizations and individuals.
d/ To assume the prime responsibility for, and coordinate with the Ministry of Home Affairs in, stipulating the criteria for staffs engaged in business registration work and management positions in the system of business registration;
e/ To publish the Enterprise Information Newsletter which contains establishment proclamation, amendments of business registration, establishment of branches and representative offices, dissolution, bankruptcy and violations made by enterprise throughout the country.
f/ International cooperation in business registration.
2. The Ministry of Home Affairs shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, guiding the organization and personnel of provincial-level and district-level business registries and business registration offices in economic zones.
3. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, guiding the regime of collection and use of fees for business registration, registration of changes in business registration contents, and registration of setting up of branches, representative offices or business locations.
4. The Ministry of Public Security shall, within the scope of its functions and tasks, coordinate with concerned ministries and agencies in guiding the certification of personal identities of enterprise founders and managers.
5. Ministries, ministerial-level agencies and government-attached agencies shall, within the scope of their functions and tasks, have to give instructions about conditional business lines and conditions for doing these business lines.
6. Provincial/municipal People’s Committees shall perform the state management of business registration as provided for at Points b and d, Clause 3, Article162 of the Enterprise Law.
Chapter III
NAME OF ENTERPRISE
Article 10.- Name of enterprise
1. An enterprise name must be written in Vietnamese, pronounceable and may include numbers and signs and comprises the following two elements:
a/ First element: Type of enterprise, including: limited liability company, in which the phrase limited liability (trach nhiem huu han) can be abbreviated to ‘TNHH’; joint-stock company, in which the word joint-stock (co phan) can be abbreviated to ‘CP’; partnership company, in which the word partnership (hop danh) can be abbreviated to ‘HD’; private enterprise, in which the word private (tu nhan) can be abbreviated to ‘TN’.
b/ Second element: Name of enterprise;
Particularly for foreign-invested enterprises, they can use their registered foreign name as part or the whole of the name of enterprise.
2. An enterprise can use its business line, investment form and other auxiliary elements to form its name, provided that the enterprise has registered that business line or invested in that form. When no longer having the business line or making investment in the form that is used in its name, the enterprise shall have to register a change in its name.
3. If the name of an enterprise comprises elements describing the origin of quality of goods or services, it must be certified by a state management agency.
Article 11.- Prohibitions in enterprise naming
1. An enterprise shall not be allowed to have a name which is identical or confusingly similar to that of another enterprise which has been registered within the same province or centrally run city. This provision shall not cover enterprises whose business registration certificates have been revoked.
2. Names of state agencies, people’s armed force units, political or socio-political organizations cannot be used to form part or the whole of the name of an enterprise, unless it is permitted by such agencies, units or organizations.
3. Words and signs in violation of historical and cultural traditions, morality, and fine customs of the nation and great people’s names cannot be used to form the name of an enterprise.
4. An enterprise shall not be allowed to use the trade name already registered for protection by another organization and an individual to form part or the whole of its name unless it is approved by the owner of this trade name. Enterprises themselves shall bear responsibility before law if they violate this provision. In case the name of an enterprise is against legal provisions on intellectual property rights protection for trade names, this violating enterprise shall have to register for changing the name.
Article 12.- Identical names and confusingly similar names
1. Having an identical name is the case where the name of the enterprise applying for registration is written and read in exactly the same way as the name of a registered enterprise.
2. In the following cases, an enterprise name shall be considered confusingly similar to that of another enterprise.
a/ The name in Vietnamese of the enterprise applying for registration is read in the same way as the name of a registered enterprise;
b/ The name in Vietnamese of the enterprise applying for registration differs from the name of a registered enterprise only in the symbol ‘&’; the dash ‘-‘ and the word ‘and’;
c/ The abbreviated name of the enterprise applying for registration is identical to that of a registered enterprise;
d/ The name in a foreign language of the enterprise applying for registration is identical to the name in that foreign language of a registered enterprise;
e/ The name of the enterprise applying for registration differs from the name of a registered enterprise in one or several cardinal number(s), ordinal number(s), or one or several Vietnamese letter(s) (A, B, C,...) which stand(s) right after the enterprise name, unless the enterprise applying for registration is a subsidiary of the registered enterprise;
f/ The name of the enterprise applying for registration differs from the name of a registered enterprise in the word “tan” (new) standing in front of or “moi” (new) after the name of a registered enterprise;
g/ The name of the enterprise applying for registration differs from the name of a registered enterprise only in the words meaning Northern, Southern, Central, Western, Eastern or equivalent words, unless the enterprise applying for registration is a subsidiary of the registered enterprise;
h/ The name of the enterprise is identical to that of a registered enterprise.
Article 13.- Other issues related to enterprise naming
1. Enterprises with identical or confusingly similar names as stipulated Article 12 of this Decree which were registered before this Decree takes effect shall not be required to change their names. Enterprises with identical and confusingly similar names shall be encouraged and facilitated to negotiate with one another and register to change their names.
2. Pursuant to the provisions of Articles 31, 32, 33 and 34 of the Enterprise Law and the provisions of this Chapter, business registries shall have the right to reject proposed enterprise names and their decisions shall be the final ones.
3. Before registering a name, enterprises should refer to the names of all companies currently in operation in the archive of the business registration offices in the provinces where they intend to base their headquarters.
Chapter IV
DOSSIERS, ORDER OF AND PROCEDURES FOR BUSINESS REGISTRATION OF ENTERPRISES, REGISTRATION OF OPERATION OF BRANCHES AND REPRESENTATIVE OFFICES
Article 14.- Business registration dossiers for private enterprises
1. An application for business registration, made according to the form stipulated by the Ministry of Planning and Investment.
2. A valid copy of one of lawful personal identification papers of the private enterprise owner stipulated in Article 18 of this Decree.
3. Written certification of legal capital, issued by a competent agency or organization, for enterprises conducting business lines for which legal capital is requiredby law.
4. Valid copies of the practice certificates of the enterprise director (director general) and other individuals prescribed in Clause 13, Article 4 of the Enterprise Law, for enterprises operating in business lines for which practice certificates are required by law
Article 15.- Business registration dossiers for limited liability companies with two or more members, joint-stock companies and partnerships
1. An application for business registration, made according to the form stipulated by the Ministry of Planning and Investment.
2. The draft company charter. The draft company charter should have all signatures of general partners, for partnerships; of the representative at law, of members or their authorized representatives; for limited liability companies with two or more members; of the representative at law, of founding shareholders or their authorized representatives, for joint-stock companies.
3. The list of members, for limited liability companies with two or more members and partnerships; or list of founding shareholders, for joint-stock companies, made according to the form stipulated by the Ministry of Planning and Investment. The list of members or list of founding members shall be enclosed with the following:
a/ A valid copy of one of the lawful personal identification papers stated in Article 18 of this Decree, of founding members or founding shareholders who are individuals;
b/ A copy of the establishment decision; business registration certificate or an equivalent document; the company charter or an equivalent document; a valid copy of one of the personal identification papers stated in Article 18 of this Decree of the authorized representative and the relevant authorization decision for founding members or founding shareholders that are legal persons.
4. Written certification of legal capital, issued by a competent agency or organization, for companies conducting business lines for which legal capital is required by law.
5. Valid copies of the practice certificates of general partners, for partnerships, of the director (general director) and other individuals specified in Clause 13, Article 4 of the Enterprise Law, for limited liability companies with two or more members and joint-stock companies, in case the companies conduct business lines for which practice certificates are required by law.
Article 16.- Business registration dossiers for one-member limited liability companies
1. An application for business registration, made according to the form stipulated by the Ministry of Planning and Investment.
2. The draft company charter, which should have all signatures of the owner or the representative at law of the company.
3. A valid copy of one of the personal identification papers stated in Article 18 of this Decree of the company owner who is an individual; or the establishment decision, business registration certificate or an equivalent document, the charter or an equivalent document of the company owner that is an organization (except for the company owner that is the State).
4. The list of authorized representatives, for one-member limited liability companies that are organized and managed under the provisions of Clause 3, Article 67 of the Enterprise Law, made according to the form stipulated by the Ministry of Planning and Investment. This list shall be attached with valid copies of one of the personal identification papers of each authorized representative.
A valid copy of one of the personal identification papers stated in Article 18 of this Decree of the authorized representative for one-member limited liability companies that are organized and managed under the provisions of Clause 4 Article 67 of the Enterprise Law.
5. Authorization document issued by the company owner for the authorized representative, for cases where the company owner is an organization.
6. Written certification of legal capital, issued by a competent agency or organization, for companies conducting business lines for which legal capital is required by law.
7. Valid copies of the practice certificates of the director (director general) and other individuals specified in Clause 13, Article 4 of the Enterprise Law, for companies conducting business lines for which practice certificates are required by law.
Article 17.- Business registration dossiers for companies established on the basis of division, separation, consolidation, transformation, and for merging companies
1. In case a limited liability company or joint-stock company is divided into several companies of the same type, apart from the papers stated in Article 15 and Article 16 of this Decree, the business registration dossier must comprise the division decision as stated in Article 150 of the Enterprise Law, the minutes of the Members’ Council meeting, for limited liability companies with two or more members, the minutes of the general shareholder meeting, for joint stock companies, on the division of the company, and a valid copy of the business registration certificate of the company.
2. In case one or several new companies of the same type is or are formed by separation from an existing limited liability company or joint-stock company, apart from the papers stated in Article 15 and Article 16 of this Decree, the business registration dossier of the separated company must comprise the separation decision as stated in Article 151 of the Enterprise Law, the minutes of the Members’ Council meeting, for limited liability companies with two or more members, the minutes of the general shareholder meeting, for joint-stock companies, on the separation of the company, and a valid copy of the business registration certificate of the company.
3. In case several companies of the same type are consolidated into a new company, apart from the papers stated in Article 15 and Article 16 of this Decree, the business registration dossier must comprise the consolidation contract as stated in Article 152 of the Enterprise Law, the minutes of the Members’ Council meeting, for limited liability companies with two or more members, the minutes of the general shareholder meeting, for joint-stock companies, and valid copies of the business registration certificates of all consolidated companies.
4. In case one or several companies of the same type are merged into another company, apart from the papers stated in Chapter V of this Decree, the business registration dossier of the merging company must additionally comprise the merger contract as stated in Article 153 of the Enterprise Law, the minutes of the Members’ Council meeting, for limited liability companies with two or more members, the minutes of the general shareholder meeting, for joint-stock companies, and valid copies of business registration certificates of the merging company and all merged companies.
5. In case a limited liability company is transformed into a joint-stock company or vice versa, apart from the papers stated in Article 15 of this Decree, the business registration dossier of the transformed company must comprise the transformation decision as stated in Article 154 of the Enterprise Law, the minutes of the Members’ Council meeting, for limited liability companies with two or more members, the minutes of the general shareholder meeting, for joint stock companies, on the transformation of the company, and a valid copy of the business registration certificate of the company.
Upon receipt of the new business registration certificate, enterprises shall have to hand in their old original business registration certificate.
The announcement of the establishment of the new enterprise, the announcement of termination of the former enterprise’s activities and the settlement of relevant rights and obligations shall be effected simultaneously.
Article 18.- Personal identification papers in business registration dossiers
1. Valid people’s identity cards or passports, for Vietnamese citizens at home.
2. One of the following papers that are still valid, for overseas Vietnamese:
a/ Vietnamese passport;
b/ Foreign passport (or a paper that can substitute the foreign passport) and one of the following papers that still are valid:
- Certificate of Vietnamese nationality;
- Certificate of loss of Vietnamese nationality;
- Certificate of citizen registration;
- Certificate of Vietnamese origin;
- Certificate of having Vietnamese origin;
- Certificate of having Vietnamese blood relations;
- Other papers as prescribed by laws.
3. Valid residence card, issued by a competent Vietnamese agency, and valid passport, for foreigners residing in Vietnam:
4. Valid passport, for foreigners not residing in Vietnam.
Article 19.- Receipt of business registration dossiers
1. Enterprise founders or authorized representatives shall submit complete dossiers as stipulated in this Decree to the provincial-level business registration offices in the localities where their enterprises are headquartered.
2. Founding members, founding shareholders, company owners, private enterprise owners, general partners, representative at law of the enterprises shall be jointly responsible for the accuracy, truthfulness and lawfulness of the contents of business registration dossiers.
3. Upon receipt of dossiers, business registration offices must hand over to the dossier submitters dossier receipt slips. Business registration offices shall be responsible for the validity of dossiers as provided for in Clause 3, Article 4 of the Enterprise Law, but not responsible for illegal acts committed by the enterprises after the registration.
Article 20.- Time limit for issuance of business registration certificates
1. Within 10 (ten) working days as from the date of receipt of valid dossiers,provincial-level business registration offices shall issue business registration certificates to applying enterprises.
2. If they receive neither a business registration certificate nor a notice requiring amendments or supplements to business registration dossiers after 10 (ten) working days, enterprise founders may lodge a complaint in accordance with the provisions of law on complaints and denunciations.
3. The representatives at law of the enterprises themselves shall have to sign the business registration certificates at the business registry.
Article 21.- Issuance of business registration certificates
1. Enterprises shall be issued business registration certificates if they meet all the conditions specified in Article 24 of the Enterprise Law.
2. In case of invalid dossiers or improperly chosen enterprise names, the business registration offices shall notify in writing enterprise founders of contents that should be amended and/or supplemented within 10 (ten) working days as from the date of receipt of the dossiers.
3. As from the date of issuance of business registration certificates, all enterprises can commence their business activities, except for those engaged in conditional business lines.
Article 22.- Provision of information on business registration contents:
1. Information in business registration dossiers archived at business registries shall have the same legal validity as original information.
2. Periodically in the second week every month, provincial-level business registration offices shall send the lists with detailed information about enterprises already registered and changes in business registration contents, dissolution and bankruptcy in the previous month to the Ministry of Planning and Investment, tax authorities, statistic bureaus, provincial-level agencies in charge of economic and technical branches, district-level business registries and People’s Committees of communes, wards or townships where the enterprises are headquartered.
Article 23.- Business registration fee
Business registration fee shall be charged according to the number of business lines registered.
The number of business lines used for determining business registration fees shall be based on the list of grade-four business lines in the system of national economic sectors.
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