Nghị định 108/2018/NĐ-CP sửa đổi Nghị định 78/2015/NĐ-CP về đăng ký doanh nghiệp
THE GOVERNMENT
——-
THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
—————
No. 108/2018/ND-CP
Hanoi, August 23, 2018
DECREE
ON AMENDMENTS TO SOME ARTICLES OF THE GOVERNMENT’S DECREE
NO. 78/2015/ND-CP DATED SEPTEMBER 14, 2015 ON ENTERPRISE REGISTRATION
Pursuant to the Law on
Government Organization dated June 19, 2015;
Pursuant to the Law on
Enterprises dated November 26, 2014;
Pursuant to the Law on
Investment dated November 26, 2014;
Pursuant to the Law on
Provision of Assistance for Small and Medium-Sized Enterprises dated June 12,
2017;
Pursuant to the Law on
Tax Administration dated November 29, 2006;
Pursuant to the Law on
Amendments to some Articles of the Law on Tax Administration dated November 20,
2012;
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The Government hereby
promulgates a Decree to amend some Articles of the Government’s Decree No.
78/2015/ND-CP dated September 14, 2015 on enterprise registration.
Article
1. Amendments to some Articles of the Government’s Decree No. 78/2015/ND-CP
dated September 14, 2015 on enterprise registration
1.
Clause 4 is added to Article 4 as follows:
“4. The enterprise is not
required to append a seal on the application form for enterprise registration,
notification of changes of enterprise registration, resolutions, decisions and
minutes of meeting in the application for enterprise registration”.
2.
Article 11 is amended as follows:
“Article 11.
Authorization of enterprise registration
In case the person that
has the power to sign the application form for enterprise registration
authorizes another organization or individual to follow enterprise registration
procedures, the authorized person must submit one of the personal identification
papers prescribed in Article 10 of this Decree (hereinafter referred to as “ID
papers”) together with:
1. A legitimate copy of
the service contract between the enterprise registration agent, and a letter of
introduction; or
2. The letter of attorney
as prescribed by law. The letter is not required to be notarized or certified”.
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“d) Instruct Business
Registration Offices to digitize applications, standardize data and update
local enterprise registration data on National Enterprise Registration
Database”.
4.
Clause 4 of Article 23 is amended as follows:
“4. Legitimate copies of:
a) One of the ID papers
of the company’s owner if the company is owned by is an individual;
b) The decision on
establishment or certificate of enterprise registration or an equivalent
document of the company’s owner if the company’s owner is an organization
(except for the State);
c) The certificate of
investment registration if the enterprise is founded by foreign investors or
foreign-invested business organizations according to the Law on Investment and
its instructional documents.”.
5.
Clause 6 is added to Article 25 as follows:
“6. The enterprise may
register conversion of an enterprise and register changes of enterprise
registration information or notification of other enterprise registration
information, except registration of change of the legal representative.
In this case, the
application for registration of conversion shall comply with Clauses 1, 2, 3
and 4 of this Article”.
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“Article 25a.
Registering establishment of an enterprise on the basis of conversion from a
business household
1. The establishment of an
enterprise on the basis of conversion from a business household shall be
registered at Business Registration Office of the area where the enterprise’s
headquarters is located.
2. The application for
registration of enterprise establishment on the basis of conversion from a
business household includes an original of the certificate of business
household registration, legitimate copy of the tax registration certificate and
documents specified in Articles 21, 22 and 23 of this Decree that vary
according to the type of business.
3. Within 02 working days
from the issuance date of the certificate of enterprise registration, Business
Registration Office shall send a copy of the certificate of enterprise
registration and original certificate of business household registration to the
business registration authority of the district where the business household is
located to shut down the business household’s operation”.
7.
Clause 3 of Article 28 is amended as follows:
“3. After the
aforementioned deadline, if the certificate of enterprise registration or
certificate of change of enterprise registration information is not issued or
enterprise registration information on National Enterprise Registration
Database is not changed, or no notification of necessary revisions and
supplementation to the application for enterprise registration is received, the
enterprise or its founder is entitled to lodge a complaint or denunciation as
prescribed by regulations of law on complaints and denunciation”.
8.
Clause 2 of Article 29 is amended as follows:
“2. Every enterprise may
submit the application for enterprise registration and receive the certificate
of enterprise registration or certificate of change of enterprise registration
information directly at Business Registration Office or pay a charge to receive
it by post”.
9.
Clause 2 of Article 33 is amended as follows:
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The business location of
an enterprise may be located outside its headquarters. Within 10 working days
from the date of establishment of business location, the enterprise shall send
a notification to Business Registration Office of the area where the business
location is located. The notification shall contain:
a) The enterprise ID
number;
b) Name and address of
the enterprise’s headquarters or branch (if the business location is located in
a province where the enterprise’s branch is located);
c) Name and address of
the business location;
d) Business lines of the
business location;
dd) Full name, residence,
ID number/passport number or number of another ID paper of the head of the
business location;
e) Full name and
signature of the legal representative of the enterprise if the business
location is affiliated to the enterprise; full name, signature of the head of
the branch if the business location is affiliated to the branch”.
10.
Clause 5 is amended and Clause 6 is added to Article 34 as follows:
“5. When an enterprise or
its branch/representative office receives a notification that its seal design
has been posted on the National Business Registration Portal, the previous
notifications are no longer valid.
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11.
Clause 3 is amended and Clause 4 is added to Article 36 as follows:
“3. Online applications
for enterprise registration must be authenticated with public digital
signatures or business registration accounts of one of the following entities:
a) An individual that has
the power to sign the application form for enterprise registration as
prescribed;
b) A person authorized by
the individual specified in Point a Clause 3 of this Article to follow
enterprise registration procedures. In this case, the online application for
enterprise registration must be submitted together with the documents specified
in Article 11 of this Decree.
4. The revision and
supplementation to the online application for enterprise registration shall be
made within 60 days from the date on which Business Registration Office gives a
notification of necessary revisions and supplementation to the application.
After the aforementioned deadline, if Business Registration Office does not
receive the supplemented application, it will cancel the application for
enterprise registration in accordance with the procedures on the National
Enterprise Registration Information System”.
12.
Article 37 is amended as follows:
“Article 37.
Procedures for online enterprise registration using public digital signatures
1. The individual
specified in Clause 3 Article 36 of this Decree shall enter information,
download electronic documents, append the digital signature on the electronic
registration application, and pay fees online according to the procedures on
National Business Registration Portal.
2. After the application
is sent, the individual specified in Clause 3 Article 36 of this Decree will
receive a confirmation slip.
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4. Procedures for online
enterprise registration are also applied to registration of the enterprise’s
branches, representative offices, and business locations”.
13.
Article 38 is amended as follows:
“Article 38.
Procedures for online enterprise registration using business registration
account
1. The individual
specified in Clause 3 Article 36 of this Decree shall enter information on
National Business Registration Portal in order to be issued with a business
registration account.
2. The individual
specified in Clause 3 Article 36 of this Decree shall use the business
registration account to enter information, download electronic documents, and
authenticate the online application for enterprise registration according to
the procedures on National Business Registration Portal.
3. After the application
is sent, the individual specified in Clause 3 Article 36 of this Decree will
receive a confirmation slip.
4. Business Registration
Office shall examine the application and send an electronic notification to the
applicant for revision or supplementation of the application if it is not
satisfactory. If the application is satisfactory, Business Registration Office
shall send information to the tax authority to generate an enterprise ID
number. After receiving the enterprise ID number from the tax authority,
Business Registration Office shall notify the applicant of the issuance of the
certificate of enterprise registration.
5. After receiving the
notification of issuance of the certificate of enterprise registration, the
individual specified in Clause 3 Article 36 of this Decree shall submit a
physical application for enterprise registration enclosed with the confirmation
slip to Business Registration Office. The individual specified in Clause 3
Article 36 of this Decree may submit a physical application for enterprise
registration enclosed with the confirmation slip to Business Registration
Office, whether directly or by post.
6. After receiving the
physical application, Business Registration Office shall compare documents
therein with the documents submitted online and issue the certificate of
enterprise registration if they are consistent.
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If Business Registration
Office does not receive the physical application within 30 days from the date
on which the notification of issuance of the certificate of enterprise
registration is sent, the online application is no longer valid.
7. The person that has
the power to sign the application form for enterprise registration is
responsible for the completeness and accuracy of the physical application
compared to the online application. In case the physical application is not
consistent with the online application but the applicant fails to notify
Business Registration Office, it will be considered fraudulent and dealt with
as prescribed in Clause 1 Article 63 of this Decree.
8. Procedures for online
enterprise registration are also applied to registration of the enterprise’s
branches, representative offices, and business locations”.
14.
Article 44 is amended as follows:
“Article 44.
Registration of change of charter capital or capital contribution (stake) ratio
1. In case of change of
ratio of capital contributions by members of a multi-member limited liability
company, of general partners of a partnership, the enterprise shall send a
notification to Business Registration Office where the enterprise was
registered.
The notification shall
contain:
a) Name, enterprise ID
number, TIN, or number of certificate of business registration (in case the
enterprise has not had an enterprise ID number or TIN);
b) Full name, address,
nationality, ID number/passport number or number of another ID paper, or number
of decision on establishment, enterprise ID number of each member/general
partner.
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d) Registered charter
capital and new level of charter capital; time and method of
increasing/decreasing capital;
dd) Full name, nationality,
ID number/passport number or number of another ID paper, permanent residence,
and signature of the enterprise’s legal representative or authorized general
partner.
2. In case of change of
charter capital, the notification prescribed in Clause 1 of this Article must
be enclosed with the decision and legitimate copy of the minutes of meeting of
the Board of Members (if the enterprise is a multi-member limited liability
company), the General Meeting of Shareholders (if the enterprise is a joint-stock
company), or decision of the company’s owner (if the enterprise is a
single-member limited liability company) on change of charter capital; a
written approval for capital contribution, purchase of shares/stakes by foreign
investors given by the Department of Planning and Investment of the province in
the case mentioned in Clause 1 Article 26 of the Law on Investment.
The decision and minutes
of meeting must specify the changes in the company’s charter.
3. If the General Meeting
of Shareholders ratifies offering of shares to increase charter capital and
assigns the Board of Directors to complete procedures for registration of
charter capital after the end of each offering, the notification prescribed in
Clause 1 of this Article and application for permission to increase charter
capital must be enclosed with:
a) A decision and
legitimate copy of the minutes of meeting of the General Meeting of
Shareholders on offering of shares to increase charter capital, which specifies
the quantity of shares offered and that the Board of Directors will complete
procedures for registration of charter capital after each offering;
b) A decision and
legitimate copy of minutes of meeting of the Board of Directors of the
joint-stock company on registration of increase of charter capital after each
offering.
4. In case charter
capital is decreased, the company must promise to settle all debts and other
liabilities after capital decrease.
5. In case the resolution
or decision on change of charter capital has been legally approved as
prescribed by the Law on Enterprise but a member or shareholder is dead, lost
or absent in residence, kept in temporary detention, sentenced to imprisonment,
incapacitated or has limited legal capacity or refuses to sign the list of
members, list of founding shareholders and list of foreign shareholders, the
aforementioned lists are not required to bear the signature of such member or
shareholder.
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15.
Clause 1 of Article 45 is amended as follows:
“1. In case the admission
of new members results in increase of charter capital, the company shall send a
notification to Business Registration Office where the company was registered.
The notification shall contain:
a) Name, enterprise ID
number, TIN, or number of certificate of business registration (in case the
enterprise has not had an enterprise ID number or TIN);
b) Names, enterprise ID
numbers, addresses of headquarters of members being organizations; full names,
nationalities, ID numbers/passport numbers or numbers of other ID papers of
members being individuals; value of capital contribution, time of capital contribution,
type of assets contributed as capital, quantity and value of each type of
assets contributed as capital by the new members;
c) Capital contributions
that are changed after admission of new members;
d) Charter capital of the
company after admission of new members;
dd) Full name and
signature of the legal representative of the company.
The notification must be
enclosed with:
– A decision and
legitimate copy of minutes of meeting of the Board of Members on admission of
new members and increase of charter capital. The decision and minutes of
meeting must specify the changes in the company’s charter.
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– A legitimate copy of
the decision on establishment or certificate of enterprise registration or an
equivalent document, a legitimate copy of one of the ID papers of the
authorized representative and letter of attorney of each member being an
organization, legitimate copy of one of the ID papers of each member being an
individual;
– A written approval for
capital contribution, purchase of shares/stakes by foreign investors given by
Department of Planning and Investment of the province in the case mentioned in
Clause 1 Article 26 of the Law on Investment.
When receiving the
notification, Business Registration Office shall give a confirmation slip,
examine the validity of documents, and issue the certificate of enterprise
registration”.
16.
Article 51 is amended as follows:
“Article 51.
Notification of change of information about founding shareholders of joint-stock
companies
1. The founding
shareholders prescribed in Clause 2 Article 4 of the Law on Enterprises shall
be enumerated on the list of founding shareholders which is submitted to
Business Registration Office upon registration of the enterprise establishment.
2. A notification of
changes of information about founding shareholders shall be only sent to
Business Registration Office in case the founding shareholders have not paid or
have partly paid for the shares they register according to Clause 1 Article 112
of the Law on Enterprises. Founding shareholders who have not paid for the
shares they register are indisputably no longer shareholders of the company
according to Point a Clause 3 Article 112 of the Law on Enterprises and shall
be removed from the list of founding shareholders of the company.
3. The company has the
responsibility to notify the change of its foreign shareholders within 30 days
from the deadline for sufficiently paying for the shares they register
according to Clause 1 Article 112 of the Law on Enterprises. Otherwise, it will
incur penalties in accordance with penalties for administrative violations
against regulations on planning and investment.
4. In case of change of
information about founding shareholders, the company shall send a notification
to Business Registration Office where the company was registered. The
notification shall contain:
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b) Name, address of the
headquarters, number of decision on establishment of each founding shareholder
being an organization or full name, ID number/passport number or number of
another ID paper of each founding shareholder being an individual;
dd) Full name, ID
number/passport number or number of another ID paper of the company’s and
signature of the company’s legal representative.
When receiving the
notification, Business Registration Office shall give a confirmation slip,
examine the validity of documents, change information about the company’s
founding shareholders on National Enterprise Registration Database. Business
Registration Office shall provide confirmation of change of enterprise
registration information at the request of the enterprise.
5. If documents about
change of information about founding shareholders of a joint-stock company are
not satisfactory, Business Registration Office shall request the company to
complete the documents within 03 working days”.
17.
Article 55 is amended as follows:
“Article 55.
Publishing of enterprise registration information
1. The request for
publishing of enterprise registration information shall be made at the time the
enterprise submits the application for enterprise registration.
2. Enterprise registration
information shall be published on National Business Registration Portal”.
18.
Clause 3 of Article 58 is amended as follows:
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19.
Article 62 is amended as follows:
“Article 62. Detecting
false information in application for enterprise registration
1. If there are grounds to
detect that information in the application for enterprise registration is
false, the organization or individual has the right to request Business
Registration Office to revoke the certificate of business registration and has
the responsibility to provide one of the necessary documents specified in
Clause 2 of this Article to Business Registration Office.
2. Documents certifying
information in application for enterprise registration is false include:
a) A legitimate copy of
document provided by a competent authority that the documents granted by the
applicant are forged; or
b) A legitimate copy of
the conclusion given by a police authority that the information in the
application for enterprise registration is false;
3. In case the act of
falsifying information in the application for enterprise registration needs to
be investigated as the basis for revocation of the certificate of enterprise
registration as prescribed in Point a Clause 1 Article 211 of the Law on
Enterprises, Business Registration Office shall send a written request for
investigation enclosed with the application for enterprise registration to the
authorities specified in Points a and b Clause 2 of this Article. Such
authorities shall give a written response to Business Registration Office within
30 working days from receipt of the written request. If documents in the
application for enterprise registration are forged according to the conclusion
given by the aforementioned authorities, Business Registration Office shall
revoke the certificate of enterprise registration under the procedures in
Clause 1 Article 63 of this Decree.
20.
Article 63 is amended as follows:
“Article 63.
Procedures for revocation of certificate of enterprise registration
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If the application for
registration of a new enterprise is found fraudulent, Business Registration
Office shall issue a notice of violations and a decision to revoke the
certificate of enterprise registration.
In case information in
the application for change of enterprise registration information or
notification of enterprise registration information is found fraudulent,
Business Registration Office shall issue a notice of violations and cancel the
changes that are made according to fraudulent information, restore the
certificate of enterprise registration according to the latest valid documents,
and notify a competent authority.
2. In case an enterprise
is established by an individual or organization banned from establishing
enterprises as prescribed in Clause 2 Article 18 of the Law on Enterprises:
a) If the enterprise is a
private enterprise or single-member limited liability company owned by an
individual: Business Registration Office where the enterprise was registered
shall issue a notice of violations and a decision to revoke the certificate of
enterprise registration.
b) If the enterprise is a
multi-member limited liability company, single-member limited liability company
owned by an organization, joint-stock company, or partnership: Business
Registration Office where the enterprise was registered shall request the
enterprise in writing to replace the member(s) or shareholder(s) banned from
establishing enterprises within 30 days from the date of request impossible
failure alike. If such member(s) or shareholder(s) is/are not replaced by the
aforementioned deadline, Business Registration Office shall issue a notice of
violations and a decision to revoke the certificate of enterprise registration.
3. In case an enterprise
violates Point c Clause 1 Article 211 of the Law on Enterprises, Business
Registration Office shall issue a notice of violations and request the legal
representative of the enterprise to explain at Business Registration Office. If
the legal representative of the enterprise does not explain within 10 working
days from the date written in the notice or the explanation is not approved,
Business Registration Office shall issue a decision to revoke the certificate
of enterprise registration.
4. In case an enterprise
fails to send reports as prescribed in Point c Clause 1 Article 209 of the Law
on Enterprises, within 10 working days from the deadline prescribed in Point d
Clause 1 Article 211 of the Law on Enterprises, Business Registration Office
shall issue a notice of violations and request the legal representative of the
enterprise to explain at Business Registration Office. If the legal
representative of the enterprise does not explain or the explanation is not
approved within 10 working days from the date written in the notice, impossible
failure revoke Business Registration Office shall issue a decision to revoke
the certificate of enterprise registration.
5. In case of enforcement
of a tax decision as prescribed in Clause 26 Article 1 of the Law on the
amendments to the Law on Tax administration, within 10 working days from the
receipt of the request for revocation of the certificate of enterprise
registration issued by the head of the tax authority as prescribed in Clause 31
Article 1 of the Law on the amendments to the Law on Tax administration,
Business Registration Office shall revoke the certificate of enterprise
registration in accordance with the procedures in Clause 4 of this Article.
6. Business Registration
Office shall cooperate with relevant regulatory authorities in considering the
explanation as prescribed Clauses 3, 4 and 5 of this Article.
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DĐ:
0906 22 99 66
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8. Information about
revocation of the certificate of enterprise registration shall be entered into
National Enterprise Registration Information System and sent to the tax
authority.
9. If a court issues a
decision to revoke the certificate of enterprise registration, Business
Registration Office shall issue a decision to revoke the certificate of
enterprise registration under the court’s decision”.
21.
Article 65 is amended as follows:
“Article 65. Following
procedures for registering enterprise dissolution under a decision issued by a
court or commercial arbitration center
1. The application for
change of enterprise registration information or other information related to
enterprise registration under a court’s decision shall be sent to Business
Registration Office within 15 working days from the effective date of a
decision issued by a court or commercial arbitration center.
2. The applicants for
registration of change of enterprise registration information or other
information related to enterprise registration prescribed in Clause 1 of this
Article are:
a) Individuals or
organizations appointed to apply for registration under a decision issued by a
court or commercial arbitration center;
b) Enterprises;
c) Judgment enforcement
authorities.
…
…
…
TVPL
Pro
để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ: ĐT:
(028) 3930 3279
DĐ:
0906 22 99 66
Bạn phải đăng nhập hoặc đăng ký Thành Viênđể sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.Mọi chi tiết xin liên hệ:
a) An application form
for change of enterprise registration information;
b) A legitimate copy of
the effective decision or judgment issued by a court or commercial arbitration
center”.
Article
2. Implementation clause
This Decree comes into
force from October 10, 2018.
Article
3. Responsibility for implementation
1. The Ministry of
Planning and Investment shall provide guidelines for the implementation of this
Decree.
2. Ministers, heads of
ministerial agencies, heads of Governmental agencies and Presidents of People’s
Committees of provinces and central-affiliated cities are responsible for the
implementation of this Decree./.
…
…
…
TVPL
Pro
để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ: ĐT:
(028) 3930 3279
DĐ:
0906 22 99 66
Bạn phải đăng nhập hoặc đăng ký Thành Viênđể sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.Mọi chi tiết xin liên hệ:
