BUSINESS REGISTRATION HANDBOOK LIMITED LIABILITY WITH TWO OR MORE MEMBERS

Transcription

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

2 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 two or more members (LLC2), 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 two or more members (LLC2) 5 Organizational structure of more members Limited Liability Company with two or 6 Distinction between Limited Liability Company with two or more members and Shareholding Company 9 Decision Select enterprise name 11 Select business activities 13 Implementation Registration procedure of Limited Liability Company with two or more members 16 Operation registration of Subordinate Units 18 Obligations Enterprise s obligations 20 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 two or more members (LLC2) 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 LLC2 What is a Limited Liability Company with two and more members? LLC2 shall have a legal entity status from the issuance date of the Business Registration Certificate, is established and operate under Enterprise Law of which: A member may be an organization or an individual and the number of members shall not exceed fifty (50); Members shall be liable for the debts and other property obligations within the amount of capital to the members contributed to the enterprise; The share of capital contribution of each member may only be assigned in accordance with Article 43, Article 44 and Article 45 of the Enterprise Law 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. Members only hold limited liability corresponding to their contributed capital; 4. Members may hire other persons to manage the company; 5. Be protected by the law and operate under Enterprise Law Leadership model: 1. Members Council 2. Chairman of Members Council; 3. Director or General Director 4. Inspection Committee (mandatory in case the number of members is more than 11) Who is the legal representative of the company? 5

6 Chairman of Members Council or Director or General Director could be legal representative of company stipulated in the Company s Charter. ORGANIZATIONAL STRUCTURE OF LLC2 Members Council: comprising all members is the highest decision-making authority of the company. Fundamental rights and duties: To make decisions on annual business plan and development strategy of the company; To make decisions on the increase or reduction of the charter capital and on the timing and method of raising additional capital; To make decisions on the form of investment and investment projects with value of more than 50% of the total asset value recorded in the latest financial statements of the company, or a smaller percentage as stipulated in the Company Charter; To make decisions on the solutions for market development, marketing and technology; to approve loan/borrowing agreements and other contracts as stipulated in the Company Charter with the value of 50% or more than that of the total asset value recorded in the latest financial statements of the company, or a smaller percentage as stipulated in the Company Charter; To elect, remove or dismiss the Chairman of the Members Council; to make decisions on the appointment, removal, dismissal, signing and termination of contracts of the Director or General Director, Chief Accountant and other managers; To make decisions on salary, bonus and other benefits for the Chairman of the Members Council, the Director or General Director, chief accountant and other managers; To propose the use of profits or dealing with losses in business; To make decisions on organizational and management structure of company; 6

7 To make decisions on the establishment of subsidiaries, branches and representative offices; To make amendments, supplementation to the Company Charter; To make decisions on re-organization of the company; To make decisions on dissolution and to request bankruptcy of the company; Chairman of Members Council: The Members Council shall select a member to be its Chairman. Chairman of Members Council may concurrently be the Director or General Director of the company. Fundamental rights and duties: 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 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 Enterprise Law and Company Charter. Director or 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 ; 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; 7

8 To promulgate the regulations on internal management of the company; To elect, remove or dismiss management positions in the company, except for 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; To propose the use of profits or dealing with losses in business; To recruit employees; Other rights and duties as stipulated in the Company Charter and in labor contract which the Director or General Director entered into with the company accompanied by the decision of Members Council. 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; To be an individual owning at least ten (10) per cent of the charter capital of the company, or a non-member, who has 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; In the case of a subsidiary company where the State share of capital contribution or State owned capital accounts for over fifty (50) per cent of the charter capital, in addition to the above criteria and conditions, the Director or General Director may not be the spouse, father, adopted father, mother, adopted mother, son, daughter, adopted son, adopted daughter or sibling of the manager and the person authorized to appoint the manager of the parent company. Inspection Committee: A limited liability company of more than eleven (11) members must have an Inspection Committee. The powers, obligations, criteria, 8

9 conditions and working regulations of the Inspection Committee and the head of the Inspection Committee shall be stipulated in the Company Charter. DISTINCTION BETWEEN LLC2 AND SHAREHOLDING ENTERPRISE Similarities Members and shareholders may be organizations or individuals; Having legal entity status since the date of the issuance of the Business Registration Certificate; Company assets are distinguished from those of shareholders and members; Operation time is unlimited. Differences LLC2 Shareholding company A member shall be liable for all A shareholder shall be liable for debts and other property all debts and other property obligations of the company to the obligations of the company to the extent of the committed extent of the committed contribution capital to the contribution capital to the company; company; The number of members does not exceed fifty (50); Resale, transfer and dealing with the member s capital contribution in other cases as regulated at Articles 43, 44, 45 of the The minimum number of shareholders is three and the maximum one is unlimited. Shareholders are entitled to freely assign their shares to others, except for voting preference shares and in the cases stipulated 9

10 Enterprise Law LLC is not entitled to issue securities. in Clause 5 Article 84 of the Enterprise Law; clause 10 Article 23 Government Decree No.102/2010/ND-CP Shareholding companies have the right to issue all types of securities to raise funds. 10

11 DECISION SELECTING ENTERPRISE NAME (Regulated at Artile 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 Or COMPANY NAME = LLC + 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. 11

12 For example: An enterprise can be named as follow: Phuong Dong Limited Liability Company ; Fastfood 123 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: Quoc Thai Tourism Limited Liability Company if this company registers for the business activity Travel agency services and tour operator business in the Vietnam Standard Industrial Classification. 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: Cong ty TNHH Dau tu và Phat trien thuong mai EQ can use the English name as: EQ Investment and Trade promotion 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: EQ Investment and Trade promotion Limited Liability Company can be named EQ Investment & Trade Promotion 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 12

13 enterprise name, unless by permission of those agencies and organizations. For example: Do not name as follow: Vietnam Farmers' Association LLC which is the same as the Vietnam Farmers' Association without the Association s approval. 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/QD-CP dated 25 April 2010 and from Article 7 to Article 10, Decree No. 102/ND-CP dated 01 October 2010) Basic principles in the selection of business activities: Enterprises can select business activities and write the code according tolevel 4 in 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; For example: Followings are conditions for enterprises to conduct labourexporting service (as stated in Decree No. 126/2007/ND-CP): Enterprises shall be considered for granting License of service operation in sending laborers to work abroad provided that it is established and operated in accordance with the Enterprise Law, having 100% of charter capital of Vietnamese organizations or individuals. 13

14 Having a scheme on sending workers abroad in accordance with the template provided by Ministry of Labor Invalids and Social Affairs; Having charter capital from 5 (five) billions VND; Bank endorsement: 1 billion VND. 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 for an enterprise to conduct real estate business is 6 billion VND (Decree No. 153/2007/ND -CP), an enterprise must submit a document verifying its legal ownership of funds or assets equivalent to 6 billion VND. 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 enterprise specializing in auditing services should have at least 3 members having auditor certificates, including its director or director general (according to Decree No. 30/2009/ND-CP) 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

15 IMPLEMENTATION REGISTRATION PROCEDURE OF NEW ESTABLISHMENT OF LLC2 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 two or more members; - Draft of the Company Charter; - List of company s members; - Valid copy of personal identification documents; - Copy of establishment decision, Business Registration Certificate or other equivalent documents of organizations; power of attorney, valid copy of ID card, passport or equivalent lawful personal identification papers of authorized representative (in case members are organizations); - Verification documents of legal capital (in case of registering for business activities where legal capital is required by law); - Valid copy of practice certificate (in case of registering for business activities where practice certificate is required by law). Next step, you or your legal representative submits the full dossier of business registration as regulated to the provincial Business Registration Office (BRO) where your enterprise head office will be registered. BRO will check your dossier and grant Business Registration Certificate within 05 working days if the dossier is valid. Note: 15

16 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 r 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, members; Name, permanent address, nationality, number of ID card, passport or other valid personal identification paper of legal representative of enterprise; Location of business registration. 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: 16

17 Registration of branches, representative offices: The dossier includes: Notification of establishment of a branch or representative office; Decision of Member s Council on the establishment of a new branch/representative office; Meeting minutes of Member s Council on the establishment of a new branch/representative office; Decision appointing the head of the branch/representative office; One of personal identification papers of head of the branch/ representative office; A practice certificate of the head of the branch, representative office or another individual (in case business activity requiring practice certificate). 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. 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 17

18 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. 18

19 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. Issue capital contributions certificates to contributing members. 3. Provide the business registration agency with timely, sufficient and accurate information on the progress of members contributing capital within 15 days from the date of commitment to capital contribution. 4. 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. 5. Put up a company s signboard at its head office. 6. 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. 7. Arrange the accounting work, to prepare and submit truthful and accurate financial statements in time in accordance with the Accounting Laws. 8. Register for declaration of tax, pay taxes and perform other financial 19

20 obligations as regulated by laws. 9. 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. 10. Ensure and be responsible for the quality of goods or services in accordance with the registered or published standards. 11. 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. 12. 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. 13. 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. 20

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