Joint Circular No. 05/1998/TTLT-BKHĐT-BTP guiding procedures for establishing and registering business for private enterprises and companies.

JOINT CIRCULAR

Guidelines for the establishment and business registration procedures
for private enterprises and companies

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After consulting relevant agencies, the Ministry of Planning and Investment and the Ministry of Justice provide guidelines for the establishment and business registration procedures for private enterprises and companies as follows:

I. Documents for requesting establishment and business registration

1. For private enterprises, the documents include:

1.1. Application form for establishing a private enterprise (attached model), in cases where investment incentives are requested, the application form includes the content of requesting investment incentives;

1.2. Initial business plan or investment project for cases where investment incentives are requested;

1.3. Certificate from the Bank regarding the amount of Vietnamese currency, foreign currency, and gold of the private enterprise owner held in bank accounts;

1.4. Minutes of the Asset Valuation Council's meeting on initial investment assets in kind of the private enterprise owner, confirmed by state notarization;

The initial investment capital must not be lower than the statutory capital requirement of the industry or trade registered by the private enterprise owner according to the law. In cases where multiple industries or trades are registered, the initial investment capital must not be lower than the highest statutory capital requirement among those industries or trades;

1.5. Documents proving the business address of the private enterprise (certificate of ownership or lease agreement or other valid documents proving lawful use of the location as the business address of the enterprise);

1.6. Proof of professional qualifications of the private enterprise owner or of the person hired to manage and operate the private enterprise's business activities, in cases where the private enterprise registers to conduct businesses requiring managers with specific professional qualifications;

In cases where the private enterprise owner has not yet prepared the business registration documents but needs to request a Business Registration Permit beforehand, they need to submit the application form for establishment, initial business plan, or investment project. When registering for business, the private enterprise owner must supplement the missing documents required under point 1, Section I of this Circular;

2. For companies, the documents include:

2.1. Application form for establishing a company (attached model). In cases where investment incentives are requested, the application form includes the content of requesting investment incentives;

2.2. Initial business plan or investment project for cases where investment incentives are requested;

2.3. Company charter, including:

2.3.1. Minutes of the meeting electing the Board of Directors, General Director (Director), and Supervisory Board of the company for joint-stock companies and limited liability companies with twelve or more members, or minutes of the meeting assigning the person to serve as the Director of the company for limited liability companies with eleven or fewer members;

2.3.2. Minutes of the capital contribution approved by the Company's Board of Members, clearly stating the capital contribution in cash and the value of contributed assets;

The registered capital of the company must not be lower than the statutory capital requirement of the industry or trade registered by the company according to the law. In cases where multiple industries or trades are registered, the registered capital must not be lower than the highest statutory capital requirement among those industries or trades;

2.4. Documents proving the business address of the company (certificate of ownership or lease agreement or other valid documents proving lawful use of the location as the business address of the company);

2.5. Proof of professional qualifications of the person managing the company's business activities, in cases where the company registers to conduct businesses requiring managers with specific professional qualifications;

In cases where the company's shareholders have not yet prepared the business registration documents but need to request a Business Registration Permit beforehand, they need to submit the application form for establishment, initial business plan, or investment project. When registering for business, the company must supplement the missing documents required under point 2, Section I of this Circular;

3. The private enterprise owner and the founders of the company bear legal responsibility for the authenticity of the contents declared in the documents for requesting establishment and business registration;

II. Procedure for issuing business registration permits and business registration

1. The private enterprise owner, company founders, or their authorized representatives submit three (3) sets of documents for requesting establishment and business registration at the Provincial Department of Planning and Investment where the enterprise or company plans to establish its main office;

In cases where the private enterprise or company establishes its office within industrial zones, export processing zones, high-tech parks (hereinafter referred to as industrial zones), the documents for requesting establishment and business registration must be submitted to the Industrial Zone Management Board for the Board to submit to the People's Committee of the province or centrally governed city (hereinafter referred to as provincial-level People's Committee) for issuance of the Business Registration Permit and Investment Incentive Certificate (if applicable). The Industrial Zone Management Board will coordinate with the Provincial Department of Planning and Investment so that the Provincial Department of Planning and Investment issues the Business Registration Certificate after receiving the Business Registration Permit from the provincial-level People's Committee;

Within seven days from the date of receipt of the complete documents as stipulated in Section I of this Circular, the Provincial Department of Planning and Investment shall take the opinions of the relevant industry management departments. Within ten days from the date of receipt of the complete documents, the relevant industry management department must provide comments in writing for the Provincial Department of Planning and Investment to submit to the provincial-level People's Committee for issuance of the Business Registration Permit;

In cases eligible for investment incentives, the provincial-level People's Committee will issue the Investment Incentive Certificate simultaneously with the Business Registration Permit;

After the provincial-level People's Committee issues the Business Registration Permit, if the business registration documents are complete, the Provincial Department of Planning and Investment will immediately issue the Business Registration Certificate to the private enterprise or company.

2. The procedure for issuing Business Registration Certificates to private enterprises and companies operating in industries specified in Article 5 of the Law on Private Enterprises and Article 11 of the Law on Companies shall be as follows:

Within seven days from the date of receiving a complete application file in accordance with Section I of this Circular, the Department of Planning and Investment shall assist the People's Committee of the province in sending the file to relevant ministries for their comments. Within seven days from the date of receiving a complete application file, the Minister managing the industry must provide written comments to the Prime Minister.

In cases where the Prime Minister delegates the authority to the Minister managing the industry to provide comments, within ten days from the date of receiving a complete application file, the Minister managing the industry must provide written comments to the Chairman of the People's Committee of the province requesting the comments. If the People's Committee of the province does not receive the written comments from the ministry managing the industry beyond the above time limit, the Chairman of the People's Committee of the province has the right to consider and decide on issuing the Business Establishment Permit to the private enterprise or company.

Within ten days from the date of receiving the notification of the Prime Minister's or the Minister's comments, the People's Committee of the province shall issue the Business Establishment Permit to the private enterprise or company. In case of refusal to issue the Business Establishment Permit, the Chairman of the People's Committee of the province must provide a written explanation of the reasons.

In cases eligible for investment incentives, the provincial-level People's Committee will issue the Investment Incentive Certificate simultaneously with the Business Registration Permit;

After the People's Committee of the province issues the Business Establishment Permit, if there is a complete business registration file, the Department of Planning and Investment shall immediately issue the Business Registration Certificate to the private enterprise or company.

3. The procedure for issuing Business Registration Certificates to private enterprises and companies operating in industries that require a Professional Practice Certificate or a Business Condition Certificate as prescribed by law shall be as follows:

3.1. For industries that require a permit to be obtained before business registration according to the laws, the Department of Planning and Investment shall submit the application file to the competent authority to request issuance of the permit. The competent authority must issue the permit or provide a written response regarding non-issuance of the permit within the time limit stipulated by the law. The time for issuing the Business Registration Certificate starts from the date when the Department of Planning and Investment receives the permit or the written response from the competent authority issuing the permit.

3.2. For industries not covered under point 3.1 above, the Department of Planning and Investment shall issue the Business Registration Certificate for private enterprises and companies according to the provisions at point 1, Section II of this Circular.

Private enterprises and companies operating in industries requiring a professional practice permit or a business condition certificate have the obligation to follow the procedures to obtain such permits or certificates as prescribed by law.

III. Procedures for Establishing Branches and Representative Offices Outside the Province Where the Head Office Is Located

The representative of the private enterprise or company submits one set of application files for establishing branches or representative offices to the Department of Planning and Investment where the branch or representative office will be located; the files include:

1. Application form for establishing a branch or representative office;

2. Business Registration Certificate of the private enterprise or company (a certified copy);

3. Regulations of the authorized person of the private enterprise or company regarding the powers and scope of operation of the branch or representative office and the appointment of the head of the branch or representative office;

4. Documents proving the trading premises of the branch or representative office (certificate of ownership or lease agreement or other valid documents proving lawful use of the trading premises of the branch or representative office).

Within ten days from the date of receiving a complete application file, the Department of Planning and Investment shall submit the application to the People's Committee of the province for issuance of the Branch Establishment Permit or Representative Office Establishment Permit, and the Department of Planning and Investment shall issue the Business Registration Certificate for the branch or the Business Operation Certificate for the representative office.

IV. Registration of Changes During Business Operations

1. Registration of Change in Business Activities:

1.1. Private enterprises and companies wishing to change their business activities must submit a change application form for business activities to the Department of Planning and Investment where they have registered their business.

In cases where additional business activities are requested according to Article 5 of the Law on Private Enterprises and Article 11 of the Law on Companies, the private enterprise or company must provide a business plan explanation.

The initial investment capital of the private enterprise owner or the charter capital of the company must not be lower than the statutory capital requirement for the highest statutory capital required industry among those the private enterprise or company registers.

Present the issued Business Registration Certificate.

1.2. Procedure for registering changes in business activities:

Private enterprises and companies applying to add new business activities must submit the registration file to the Department of Planning and Investment as specified in point 1.1 of this section;

If the private enterprise or company applies to add new business activities falling under the industries specified in Article 5 of the Law on Private Enterprises and Article 11 of the Law on Companies, it shall comply with the provisions at point 2, Section II of this Circular;

If the private enterprise or company applies to add new business activities which, according to the laws, require a professional practice permit, it shall comply with the provisions at point 3.1, Section II of this Circular.

1.3. In cases where the private enterprise or company does not engage in business activities listed in the issued Business Registration Certificate, it must report to the Department of Planning and Investment to remove such business activities from the Business Registration Certificate.

2. Registration of Change in Business Address:

2.1. Change of address within the province or city.

The private enterprise or company submits the change application form along with documents proving the trading premises of the private enterprise or company (certificate of ownership or lease agreement or other valid documents proving lawful use of the intended new location) to the Department of Planning and Investment.

Within five days from the date of receipt, the Department of Planning and Investment shall register the change of business address in the Business Registration Certificate for private enterprises and companies.

2.2. Change of business address to another province or city.

Private enterprises and companies submit a request to move their business address to the People's Committee of the province where the new business address is located. The Department of Planning and Investment of the province where the new business address is located receives the application and submits it to the People's Committee of the province. Within ten days from the date of receipt of the application, the Department of Planning and Investment that received the application must notify the private enterprise or company whether the People's Committee of the province accepts or does not accept the establishment of the business address in the province or city. If accepted, the private enterprise or company shall submit the file to the Department of Planning and Investment that received the application to register the change of business address in the Business Registration Certificate.

The file for registering the change of business address to another province or city includes:

2.2.1. The approval letter of the People's Committee of the province for the private enterprise or company to establish a new business address;

2.2.2. Documents proving the business address of the private enterprise or company (certificate of ownership or lease agreement or other valid documents proving the lawful right to use the location as the business address of the private enterprise or company);

2.2.3. Original founding documents of the private enterprise or company to be withdrawn from the Department of Planning and Investment that issued the Business Registration Certificate;

The Department of Planning and Investment that issued the Business Registration Certificate will only approve the withdrawal of the documents when the following conditions are met:

a. The approval letter of the People's Committee of the province for the private enterprise or company to establish a new business address (a certified copy);

b. Confirmation from the tax authority that the private enterprise or company has fulfilled its tax obligations in the province or city where the old business address was located; c. Financial report of the last year of operation of the private enterprise or company in the old province or city and the commitment of the private enterprise or company to assume legal responsibilities when moving the business address to another province.

3. Registration of change of name of private enterprises and companies:

Private enterprises and companies wishing to change their name must submit a request to change the name to the Department of Planning and Investment of the province or city that issued the Business Registration Certificate and a commitment to assume all legal obligations of the private enterprise or company with the old name.

The Department of Planning and Investment will examine if the new name of the private enterprise or company complies with the provisions of the law, within the same business field and on the territory of the province or city without overlapping with the name of another private enterprise or company, then it will approve the name change and register the new name of the private enterprise or company in the part of the Business Registration Certificate for changes.

Within seven days, the Department of Planning and Investment of the province will register the new name for the private enterprise or company. The private enterprise or company must proceed with the procedures to carve a new seal, publish the time of registration of the new name and commit to assume all legal obligations of the private enterprise or company with the old name.

4. Registration of change of legal representative of private enterprises and companies:

When changing the owner of a private enterprise, the General Director of a private enterprise; changing the legal representative of a company, members of the Board of Directors, supervisors, management board of the company; the private enterprise or company must register at the Department of Planning and Investment of the province or city that issued the Business Registration Certificate.

5. Registration of change of initial investment capital, charter capital:

When changing the initial investment capital, changing the charter capital, the private enterprise or company must declare and register the change at the Department of Planning and Investment of the province that issued the Business Registration Certificate.

5.1. For private enterprises, the owner of the private enterprise declares the increase (decrease) in the initial investment capital.

When reducing the initial investment capital, it must ensure that the remaining capital is not lower than the highest statutory capital requirement for the industry in which the enterprise operates.

5.2. For limited liability companies:

5.2.1. The file for registering an increase in charter capital includes:

a. Minutes of the increase in charter capital and minutes of the amendment of the company's articles of association approved by the general meeting of shareholders;

b. Increase in capital through assets must have a valuation report approved by the company's shareholders.

5.2.2. The file for registering a decrease in charter capital includes:

a. Minutes of the decrease in charter capital and minutes of the amendment of the company's articles of association approved by the general meeting of shareholders;

b. Confirmation from the tax authority that the company has completed its tax obligations;

c. A balance sheet confirmed by an auditor at the time of requesting a reduction in charter capital;

d. Publish notice about the reduction in charter capital.

When reducing the charter capital, it must ensure that the remaining capital is not lower than the highest statutory capital requirement for the industry in which the company operates.

After thirty days from the date of publication, if there are no objections from creditors, the Department of Planning and Investment of the province or city will approve the registration of the reduction in charter capital for the company; the company must commit to assume legal responsibility for the reduction in charter capital of the company towards creditors before the date of requesting the reduction.

5.3. For joint-stock companies:

5.3.1. Increase in charter capital by issuing new shares:

a. Minutes of the amendment of the company's articles of association;

b. Permit for share issuance;

c. Bank confirmation regarding the actual capital after share issuance;

The Department of Planning and Investment will register the actual charter capital in the Business Registration Certificate after receiving the bank's confirmation of the increased actual capital.

In case of increasing the charter capital by increasing the par value of shares (without issuing new shares), it must be agreed upon by the Shareholders' Meeting in accordance with the Articles of Association and comply with the law. If the increase is made through assets, there must be a valuation report approved by the Shareholders' Meeting according to the company's Articles of Association.

5.3.2. In case of reducing the charter capital, the provisions set out in Point 5.2.2, Section IV of this Circular shall apply.

6. Replacement of the Business Registration Certificate:

When there is a request to replace the Business Registration Certificate due to damage, change of office address, private enterprises, companies shall submit a request for replacement of the Business Registration Certificate to the Provincial Department of Planning and Investment. The Provincial Department of Planning and Investment will issue a new Business Registration Certificate for the enterprise or company with the old business registration number while retrieving the old Business Registration Certificate.

7. Requesting issuance of a new Business Registration Certificate due to loss:

7.1. Private enterprises, companies that have lost their Business Registration Certificate must report to the police agency where the certificate was lost, the agency that issued the Business Registration Certificate, and publish a notice regarding the loss of the Business Registration Certificate.

7.2. Private enterprises, companies shall submit a request to the Provincial Department of Planning and Investment to issue a new Business Registration Certificate, accompanied by confirmation from the police agency.

7.3. After thirty days from the date of publication, if the enterprise cannot recover the Business Registration Certificate, the Provincial Department of Planning and Investment will issue a new Business Registration Certificate with the old business registration number and clearly indicate that it is the second issuance.

V. Implementation

Within seven days from the date of issuing the Business Registration Certificate or registering changes for private enterprises, companies, the Provincial Department of Planning and Investment must send copies of the Business Registration Certificate and the change declaration form to the Ministry of Planning and Investment, tax authorities, statistical agencies, and industry management agencies at the same level.

Private enterprises, companies must publish notices according to the provisions of the law.

This Circular takes effect fifteen days from the date of signature. The following Circulars become invalid:

2.1. Circular No. 141/PLDSKT dated March 3, 1992 of the Ministry of Justice guiding the implementation of Article 3 of Decree No. 221/HĐBT dated July 23, 1991 and Article 4 of Decree No. 222/HĐBT dated July 23, 1991 of the Council of Ministers (now the Government).

2.2. Circular No. 472-PLDS/KT dated May 20, 1993 of the Ministry of Justice guiding procedures and time limits for issuing licenses to establish private enterprises and companies.

2.3. Circular No. 07/TT-ĐKKD dated July 29, 1991 of the State Economic Arbitration guiding the implementation of business registration.

3. Private enterprises, companies that have already been granted establishment licenses and Business Registration Certificates do not need to reapply for establishment procedures and business registration as prescribed in this Circular.

4. The Provincial Department of Planning and Investment shall regularly report on the situation of business registration to the Ministry of Planning and Investment monthly. Reports are to be submitted by the fifth day of each month.

5. The Ministry of Justice and the Ministry of Planning and Investment shall conduct regular or spot checks on the implementation of procedures for issuing establishment licenses and business registration by provinces and cities.

6. People's Committees of provinces and cities shall not stipulate additional procedures or documents for establishing enterprises and business registration beyond those specified in this Circular. If there are difficulties during implementation, they should be reported in writing to the Ministry of Planning and Investment and the Ministry of Justice for resolution./.