BUSINESS REGISTRATION HANDBOOK LIMITED LIABILITY WITH ONE MEMBERS

Transcription

1 STATE SECRETARIAT FOR ECONOMIC AFFAIRS AGENCY FOR BUSINESS REGISTRATION UNITED NATIONS INDUSTRIAL DEVELOPMENT ORGANIZATION BUSINESS REGISTRATION HANDBOOK LIMITED LIABILITY WITH ONE MEMBERS PROJECT TECHNICAL ASSISTANCE TO BUSINESS REGISTRATION REFORM IN VIETNAM TF/VIE/08/001, XP/VIE/08/002, FB/VIE/09/00 HANOI, 2012

2 INTRODUCTION Establishment of enterprises in accordance with the law is the right of individuals and organizations, which is protected by the State. To facilitate individuals and organizations in completing valid registration dossiers in conformity with the law, the Agency for Business Registration prepared the Business registration handbook for each type of enterprise. This Handbook provides detailed guidance in terms of dossier, order and procedure of registration for Limited Liability Company with one member (LLC1), one of four types of enterprise regulated under the Enterprise Law. The Handbook is not a legal document but a reference material. We hope this Handbook will provide useful information for potential entrepreneurs in starting up a business and for general public while looking for a quick reference on business registration. For first edition, mistakes cannot be avoided; therefore, constructive comments from readers for further improvement are highly appreciated. Thank you very much! 2

3 TABLE OF CONTENTS Understanding Overview of Limited Liability Company with one member (LLC1) 5 Organizational structure of Limited Liability Company with one member 8 Distinction between Limited Liability Company with one member and Private Enterprise 11 Decision Select enterprise name 13 Select business activities 15 Implementation Registration procedure of Company with one member new establishment of Limited Liability 17 Operation registration of Subordinate Units 19 Obligations Enterprise s obligations 21 3

4 Do you intend to start a business? Are you choosing a management structure for the enterprise? Do you have a new business idea? Do you intend to establish your own enterprise? Before establishing an enterprise, some points should be noticed. They seem to be simple among your long-term business plans; however, they are the foundation for enterprise s success and help avoid potential risks. You should consider: Which management structure? Which enterprise type? What enterprise name? What registration procedure? The handbook will give a brief description about Limited Liability Company with one member (LLC1) as well as the registration procedure of this enterprise type. You can also refer to and for more useful information. 4

5 UNDERSTANDING OVERVIEW OF LLC1 What is a Limited Liability Company with one member? LLC1 shall have legal entity status from the issuance date of the Business Registration Certificate, is established and operate under Enterprise Law, of which: Owner may be an organization or an individual; Owner shall be liable for the debts and other property obligations within the amount of capital the members contributed to the enterprise; A Limited Liability Company has no right to issue shares. Why should you choose this enterprise type? 1. Limited Liability Company has legal entity status; 2. Clearly distinguish between owner s property and company s property; 3. Owner only holds limited liability corresponding to their contributed capital; 4. Owner has the right to decide the use of profit after tax and other financial obligations; 5. Owner has the right to transfer a part or the whole charter capital of the company to other organization, individual; 6. Owner has the right to revoke all property value of company after finishing dissolution or bankruptcy ; 7. Be protected by the law and operate under Enterprise Law Management structure of an LCC1 includes: If owner is an individual: 1. Company Chairman (who is Company Owner) 2. Director or General Director If owner is an organization 5

6 1. Company Chairman (in case an individual is appointed to be an authorized representative) or Members Council ( in case at least 2 individuals are appointed to be authorized representatives) 2. Director or General Director 3. Inspector Company owner has the following rights: If company owner is an organization To make decision on the contents of the Company Charter, amend and supplement the Charter; To make decision on the annual business plan and development strategy of the Company ; To make decisions on the organizational and management structure of the company, to appoint, remove or dismiss management positions of the company; To make decisions on investment projects with the value at 50% or more than that of the total properties value recorded in the latest financial statement of the company, or a smaller percentage as stipulated in the Company Charter; To make decisions on solutions for market development, marketing and technology; To approve loan/borrow agreements and other contracts as stipulated in the Company Charter with the value at 50 % or more than that of the total properties value recorded in the latest financial statement of the company, or a smaller percentage as stipulated in the Company Charter; To make decision on selling properties with the value at 50% or more than that of the total properties value recorded in the latest financial statement of the company, or a smaller percentage as stipulated in the Company Charter. To make decisions on increases in charter capital of the company; to transfer a part or the whole charter capital of the company to other organization, individual; To make decisions on establishment of subsidiary companies, capital contribution to other companies; 6

7 To organize supervision and assessment of the business operations of the company; To make decisions on the use of profits after fulfillment of tax obligation and other financial obligations of the company; To make decision on re-organization, dissolution and petition for bankruptcy of the company; To recover all properties value of the company after the company completes dissolution or bankruptcy; Other rights in accordance with the Enterprise Law and the Company Charter. If owner is an individual To make decision on the contents of Company Charter, to amend and supplement the Charter; To make decisions on investment, business and internal management, except for other issues stipulated in the Company Charter; To transfer a part or the whole charter capital of the company to other organization, individual; To make decision on the use of profits after fulfillment of tax obligation and other financial obligations of the company; To make decisions on re-organization or dissolution and petition for bankruptcy of the company; To recover all of the value of assets of the company after the company completes dissolution or bankruptcy; Other rights in accordance with the Enterprise Law and the Company Charter. Who is the legal representative of the company? Chairman of Members Council/ Chairman of Company or Director or General Director could be legal representative of company as stipulated in the Company Charter. ORGANIZATIONAL STRUCTURE OF LLC1 Chairman of company: Chairman of the company shall, in the name of the company owner, organize the implementation of rights and obligations of the company owner; has the right to 7

8 implement rights and obligations of the company in the name of the company; be responsible to the law and to the company owner for the implementation of delegated rights and obligations in accordance with the Enterprise Law and in relevant laws. Members Council: The Members Council shall, in the name of the company owner, organize the implementation of rights and obligations of the company owner; has the right to implement rights and obligations of the company in the name of the company; be responsible before the law and to the company owner for the implementation of delegated rights and obligations in accordance with the Enterprise Law and relevant laws. Chairman of Members Council: The company owner shall appoint the Chairman of the Members Council. Chairman of Members Council may be Director/ General Director. Fundamental rights and duties of Chairman of Members Council: To prepare or organize the preparation of programs, and agenda of the Members Council; To prepare or organize preparation of agenda, content, and documents for the meetings of the Members Council or collect the members opinions; To convene and preside the meetings of the Members Council or to organize the collection of members opinions; To supervise or organize supervision of the implementation of the Members Council decisions; On behalf of Members Council, to sign on its Decision; Other rights and duties as stipulated in the Enterprise Law and Company Charter. Director/General Director: manages the daily business operation of the company, and be responsible to the Members Council for the conduct of his/her rights and duties. Fundamental rights and duties: To organize the implementation of decisions of Members Council or the Chairman of the company; To make decisions on all matters related to day-to-day operation of the company; To implement business plan and investment plan of the company; To promulgate the regulations on internal management of the company; 8

9 To elect, remove or dismiss management positions in the company, except the positions under the control of the Members Council; To sign contracts on behalf of the company, except for cases which fall under authority of the Chairman of Members Council ; To give recommendations on company s structure; To submit the annual financial statements to the Members Council or Chairman of the company; To propose the use of profits or dealing with losses in business; To recruit employees: labor contracts with the company which are signed by the Director/General Director accompanied by the decisions of Members Council; Other rights and duties as stipulated in the Company Charter. Requirements, conditions to Director or General Director: To have full capacity for civil acts and not being prohibited from management of enterprises with the Enterprise Law ; Not to be a related person of a member of the Members Council or of the Chairman of the company, of a person authorized to directly appoint the authorized representative or of the Chairman of the company; To have relevant professional qualifications and experience in business administration or in the main business activities of the company, or other criteria and conditions as stipulated in the Company Charter. Inspector: The company owner shall appoint one to three inspectors for a term not exceeding three years. An Inspector shall be responsible to the law and to the company owner for the execution of his or her rights and duties. Inspectors have the following duties: To check the legality, honesty and prudence of Members Council, the Company Chairman and Director/General Director in organizing the implementation of the ownership, management and administration in the business; 9

10 To evaluate financial reports, business reports, evaluation reports of the management and other reports prior to submission to the company owner or relevant State agencies; to submit evaluation reports to the company owner; To make recommendations to the company owner on the solutions for the amendment, supplementation, organization and management structure and business administration of the company; Other duties as stipulated in the Company Charter or as requested or decided by the company owner; An inspector has the right to review any records, documents head office or branch or representative office; of the company at the An inspector has the right to request Members Council, the Chairman of the company, the Director or General Director and other managers to provide in full and on time any information on the implementation of ownership, on management, administration and the business operation of the company. Requirements, conditions to inspectors: To have full capacity for civil acts and not being prohibited from management of enterprises in accordance with the Enterprise Law; Not to be a related person of a member of the members Council, of the Chairman of the company, of the Director or General Director or of the person authorized to appoint directly an Inspector; To have professional qualifications or work experience in accounting and auditing or professional qualifications and practical experience in the main business activities of the company or other criteria or conditions as stipulated in the Company Charter. DISTINCTION BETWEEN LLC1 AND PRIVATE ENTERPRISE Differences LCC1 - Owned by an organization or an individual. Private Enterprise - Owned by an individual 10

11 - LLC1 shall have legal entity status from the date of issuance of the Business Registration Certificate - Private Enterprise shall not have legal entity status - The company owner shall be liable for all debts and other property obligations of the company to the extent of the committed contribution capital to the company. - Separation between the company's assets and property of the company owner. - Chairman of Members Council/Company or Director or General Director is legal representative of the company - Company owner has the right to assign all or part of charter capital of the company to other organizations or individuals - Charter capital may be increased but not decreased. - Enterprise owner is liable for all activities of the enterprise with his entire property - There is no separation between the company's assets and property of the owner of private enterprises; - Owner of private enterprise is, at the same time, legal representative of the company - Owner of private enterprise is entitled to lease or sell his business - During operation, owner of private enterprise has the right to increase or reduce investment capital to business operation of enterprise. 11

12 DECISION SELECTING ENTERPRISE NAME (Regulated at Article 31, 32, 33, 34, the Enterprise Law) ENTERPRISE NAME is the image and the asset which creates the company brand, helps partners find out easily and correctly, promotes business development. Therefore, the selection of enterprise name is crucial for a start-up in order to avoid any false conducts and other disputes between enterprises which may emerge later on. Before deciding the name of your enterprise, it is advised to check whether the tentative enterprise name is duplicated or easily causes misunderstanding with another enterprise name? Naming Rules: COMPANY NAME = Limited liability company + Enterprise name Note: Business registration agency may accept or reject tentative enterprise names in compliance with law and decision of business registration agency is final decision. (Clause 3, Article 16 Decree No. 43/2010/ND-CP) And your enterprise name: Must be in letters in the Vietnamese alphabet, and may include letters F, J, Z, W, numbers and signs, must be pronounceable and comprised by at least two components: enterprise type and enterprise name. For example: An enterprise can be named as follow: Ban Mai Trade and Service Limited Liability Company ; Tuyet Nga ABC LLC Can only use business activities and investment method to form the enterprise name if your enterprise registers that business activity or implement that investment method. For example: The enterprise name can be: An Hoa Phat Car Hiring Limited Liability Company if this company registers for the business activity as Car hiring service. 12

13 Must be printed or written in the transaction documents, records and other printed materials issued by the enterprise. Name written in foreign language or abbreviation: The enterprise name in foreign language shall be translated correspondingly from its name in Vietnamese. When translated into a foreign language, the proper name of an enterprise may be retained or only the meaning of the name is translated. For example: Cong ty TNHH Thuong mai va Dich vu Hong Ha can use the English name as: Hong Ha Trading and Services Limited Liability Company Enterprise foreign name should be printed or written in a smaller size than its Vietnamese name at enterprise premise or in the transaction documents, records and other printed materials issued by the enterprise. The abbreviated name of an enterprise may be an abbreviation of its Vietnamese name or its name in a foreign language For example: Hong Ha Trading and Services Limited Liability Company can be named HHTS. LLC or HH Trading and Services. LLC for short Note: Do not use name of State bodies, People's armed forces, political organizations, socio-political organizations, socio-political-professional organizations, social organization, socio-professional organization to create partly or entirely an enterprise name, unless by permission of those agencies and organizations. Do not use words, signs which are against the nation s historical and cultural traditions, morals, Vietnamese customs and names of Great People to form an enterprise name. SELECTING BUSINESS ACTIVITIES While selecting BUSINESS ACTIVITIES for your enterprise, please be noticed that your enterprise could only register and conduct those which are not prohibited by laws. (Stated in Article 7, Enterprise Law, Article 7, Decree No 43/2010/ND-CP dated 15 April 2010 and from Article 7 to Article 10, Decree No. 102/ND-CP dated 01 October 2010) 13

14 Basic principles in the selection of business activities: Enterprises can select business activities and write the code according to Level 4 in Vietnam Standard Industrial Classification (VSIC), except for prohibited business activities; Enterprises can only conduct business activities registered; To conditional business activities: enterprises can only conduct conditional business activities if all conditions of specialized laws are met; Where the registered business activities require legal capital, enterprises must provide a verification document of legal capital granted by competent authorities. For example: As legal capital requirement to conduct a debt collection service business is 2 billions (Decree No. 104/2007/ND-CP), thus your company must receive certificate of commercial bank allowed to operate in Vietnam on its deposit amount (contribution capital in money) of founding members or deed of evaluation organization in Vietnam on the contribution assets which is equivalent to 2 billions. During the operation of the debt collection service company, its charter capital must be maintain so as to be not lower than the legal capital. Where registered business activities require practice certificates, enterprises must provide practice certificates of one or several members as regulated by the specialized laws. For example, the professional task managers of a pharmaceutical trading enterprises must have a pharmacy practice certificate and meet the conditions specified in Clause 1 of Article 13 of the Pharmacy Law and the provisions of Decree No. 76/2006 / ND- CP detailing the implementation of some articles of the Pharmacy Law. Decision on business activities must be stated clearly in the Company Charter: Note: Should only select the business activities which your enterprise will operate. Should not register so many business activities without actually operating making it difficult for enterprises to specify a main activity for investment, and for State administration bodies to manage and classify economic indicators. 14

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16 IMPLEMENTATION REGISTRATION PROCEDURE OF NEW ESTABLISHMENT OF LLC1 After choosing business activities, enterprise type, management structure and enterprise name that are suitable to your business strategy, it is the right time to register your enterprise to set the gear up for your business. So how to prepare valid dossiers and what are the orders and procedures of business registration? First of all, a complete dossier should be prepared, including: - Business Registration Form for Limited Liability Company with one member; - Draft of the Company Charter; - Valid copy of one of the personal identification documents stipulated in Article 24, Decree 43/2010/ND-CP of company owner (in case of company owner being an individual); Valid copy of establishment decision, Business Registration Certificate of the company or other equivalent documents, Charter or other equivalent documents of company s owner (in case of company owner being an organization); - List of authorized representative of LLC1 which is organized as stipulated in Clause 3 Article 67 of Enterprise Law will be made according to the form of Ministry of Planning and Investment. Attached to this list, there must have valid copies of one of personal identification papers of each authorized representative as stipulated in Article 24, Decree 43/2010/QD-CP. - Valid copy of one of the personal identification papers as stipulated in Article 24 Decree 43/2010/QD-CP of authorized representative for LLC1 is organized as stipulated in Clause 4 Article 67 of Enterprise Law. - Power of attorney of owner for authorized person in case company owner being an organization; - Legal capital verification paper (in case business activites require legal capital); - Copy of practice certificate (in case business activities require practice certificate). Next step, you or your legal representative submits the full dossier of business registration as regulated to the provincial Business Registration Office (B RO) where your enterprise head office will be registered. 16

17 BRO will check your dossier and grant Business Registration Certificate within 05 working days if the dossier is valid. Note: Enterprise founder declares business registration dossier and hold all responsibilities before the law for the legality, completeness and preciseness of registered information. After being granted Business Registration Certificate, to operate your company officially, you should perform the following procedures: Seal engraving: you have to engrave seal and then register for the seal at the Police s Office where your head office is located: Tax registration: After receiving enterprise code (which is tax code), you have to perform some tax registration procedures at tax agencies such as the procedures to create and issue the invoice; the procedures to buy and grant the invoice; the procedures for tax declaration, etc. Announcement of business registration: Within 30 days after the day of receipt of Business Registration Certificate, enterprise must publish its establishment information in NBRS Portal with the following contents: Enterprise name; Address of head office, branches, representative offices; Business activities; Legal capital in case business activity requiring legal capital; Full name, address, nationality, number of ID card, passport or other valid personal identification papers, number of establishment decision or number of business registration of owner; Name, permanent address, nationality, number of ID card, passport or other valid personal identification paper of legal representative of enterprise; Location of business registration. 17

18 OPERATION REGISTRATION OF SUBORDINATE UNITS In addition, to continuously develop your enterprise s business, you could also register for the operation of branches, representative offices, business locations. Procedures are similar to new registration as follows: Registration of branches, representative offices The dossier includes of: - Notification of establishment of a branch or representative office; - Decision in writing of company s owner on the establishment of a new branch/representative office in case of owner being an individual; Or Decision in writing and copy of meeting minutes of Members Council or Chairman of the company in case of company owner being an organization; - Valid copy of appointment decision of head of branch, representative office; - Valid copy of one of personal identification papers of the head of branch, representative office stipulated on Article 24 Decree In case branch operates business activities requiring practice certificate, a valid copy of this paper of head of branch or another individual is requested according to the specified law. Registration of business location The dossier includes: - Notification of business location: Once completely prepared, a dossier shall be submitted in-person by enterprise owner or authorized representative at the provincial BRO where enterprise s head office is located, within 10 working days since the decision date of establishing the branch, representative office, business location; Then, within 05 working days upon the receipt of a valid dossier, the provincial BRO shall grant an operation registration certificate of branch, representative office, business location to enterprise. 18

19 Note: The enterprise is entitled to establish its business location in the provinces/ cities where the head quarter or branch is located. In case a new branch, representative office or business location is established in another province, city (different from the head office): within 07 working days upon the receipt of its Operation Registration Certificate, the enterprise shall send a written notification to the provincial BRO (where the head office is located) to supplement the enterprise registration dossier and be re-granted the Business Registration Certificate. 19

20 OBLIGATIONS OBLIGATIONS OF ENTERPRISES During your enterprise s lifecycle, to comply with corporate social responsibilities as well as legal regulations, it is essential to fully fulfill the following obligations: 1. Conduct business activities strictly in compliance with the business activities written in the Business Registration Certificate; always maintain the business conditions to meet legal requirements in case of conducting conditional business activities. 2. In case of detecting any inaccuracy in the Business Registration Certificate in comparison with the information provided in the business registration dossier, it is necessary to send the business registration agency a request for revising. The act of self-modifcation any contents in the Business Registration Certificate is considered breach of laws and shall be administratively sanctioned. 3. Put up a company s signboard at its head office. 4. In the case of any change to the contents of Business Registration Certificate, the enterprise must register with the business registration agency within 10 working days from the date of the decision made on the change. 5. Arrange the accounting work, to prepare and submit truthful and accurate financial statements in time in accordance with the Accounting Laws. 6. Register for declaration of tax, pay taxes and perform other financial obligations as regulated by laws. 7. Ensure rights and interests of employees in accordance with labour law; perform the regime of social insurance, medical insurance and other insurance for employees in accordance with the legal regulations on insurance. 8. Ensure and be responsible for the quality of goods or services in accordance 20

21 with the registered or published standards. 9. Perform the regime of statistics in accordance with the legal regulations on statistics; periodically report to the competent State body sufficient information relating to the enterprise and its financial status as regulated; timely amend and supplement the information upon discovery of any inaccurate or incomplete declaration or report. 10. Comply with legal regulations on national defense, security, social order and safety, protection of natural resources and environment, protection of historical and cultural sites and places of interests. 11. Your enterprise is liable for submitting the financial statements to business authorities, tax authorities, statistics authorities within 90 days from the ending date of a fiscal year. 12. Enterprise must store all enterprise s documents at head office of the company as stipulated in Article 12 of the Enterprise Law. 21

22 TECHNICAL ASSISTANCE TO BUSINESS REGISTRATION REFORM IN VIETNAM Add: 5 th Floor, 8 Cat Linh Street, Hanoi, Vietnam Tel: /10 Fax: