DECREE NO. 108/2018/ND-CP AMENDING AND COMPLEMENTING CERTAIN ARTICLES OF DECREE NO. 78/2015/NĐ-CP DATED SEPTEMBER 14, 2015 OF THE GOVERNMENT ON BUSINESS REGISTRATION

 

DECREE

Amending and supplementing certain Articles of Decree No. 78/2015/NĐ-CP
dated September 14, 2015 of the Government on business registration

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Enterprise Law dated November 26, 2014;

Pursuant to the Investment Law dated November 26, 2014;

Pursuant to the Law on Supporting Small and Medium Enterprises dated June 12, 2017;

Pursuant to the Law on Tax Administration dated November 29, 2006;

Pursuant to the Law Amending and Supplementing Certain Provisions of the Law on Tax Administration dated November 20, 2012;

At the proposal of the Minister of Planning and Investment;

The Government promulgates this Decree amending and supplementing certain Articles of Decree No. 78/2015/NĐ-CP dated September 14, 2015 of the Government on business registration.

Article 1. Amending and supplementing certain Articles of Decree No. 78/2015/NĐ-CP dated September 14, 2015 of the Government on business registration

1. Supplement Clause 4 of Article 4 as follows:

"4. Businesses are not required to affix seals on the application for business registration, notification of changes to business registration content, resolutions, decisions, minutes of meetings in the business registration dossier."

2. Amend Article 11 as follows:

"Article 11. Delegation to carry out business registration procedures

In cases where the person authorized to sign the business registration application delegates an organization or individual to perform procedures related to business registration, when carrying out such procedures, the delegate must submit a valid copy of one of the personal identification documents specified in Article 10 of this Decree, accompanied by:

1. A valid copy of the service provision contract with the organization providing services related to business registration procedures and an introduction letter from that organization for the individual directly performing the business registration-related procedures; or

2. A power of attorney for an individual to perform business registration-related procedures. This document does not necessarily need to be notarized or certified".

3. Amending Point d of Clause 1, abolishing Clause 3 of Article 16 as follows:

"d) Guide the Business Registration Department to implement the digitization of files, standardize data, and update local business registration data into the National Business Registration Database".

4. Amending Clause 4 of Article 23 as follows:

"4. Valid copies of the following documents:

a) One of the personal identification documents specified in Article 10 of this Decree of the company owner in case the company owner is an individual;

b) Decision on establishment or business registration certificate or equivalent document of the company owner in case the company owner is an organization (except in the case where the company owner is the State);

c) Investment registration certificate in case the enterprise is established by a foreign investor or an economic organization with foreign investment capital according to the Investment Law and guiding documents".

5. Supplementing Clause 6 of Article 25 as follows:

"6. An enterprise may simultaneously register to change its business form and register other changes to business registration content, except in the case of registering to change the legal representative. In this case, the enterprise registration dossier for changing the business form shall be implemented in accordance with the provisions of Clauses 1, 2, 3, and 4 of this Article".

6. Supplementing Article 25a after Article 25 as follows:

"Article 25a. Registration of establishment of enterprises based on conversion from individual households

1. The registration of establishment of enterprises based on conversion from individual households shall be carried out at the Business Registration Department where the enterprise intends to locate its main office.

2. The dossier for registration of establishment of enterprises based on conversion from individual households includes the original Certificate of Individual Household Registration, a valid copy of the Tax Registration Certificate, and other documents specified in Articles 21, 22, and 23 of this Decree corresponding to each type of enterprise.

3. Within two working days from the date of issuance of the Enterprise Registration Certificate, the Business Registration Department shall send a copy of the Enterprise Registration Certificate and the original Certificate of Individual Household Registration to the district-level business registration authority where the individual household is located to terminate the operation of the individual household".

7. Amending Clause 3 of Article 28 as follows:

"3. If the enterprise registration certificate, confirmation of changes to business registration content, or changes to business registration content in the National Business Registration Database are not issued within the prescribed time limit, or if the enterprise has not received a notice requesting amendments or supplements to the business registration dossier, then the enterprise founder or the enterprise has the right to lodge complaints or file charges in accordance with the laws on complaints and charges".

8. Amending Clause 2 of Article 29 as follows:

"2. Enterprises may submit business registration dossiers, receive business registration certificates, and confirmations of changes to business registration content directly at the Business Registration Department or register to submit dossiers and receive results through postal services".

9. Amending Clause 2 of Article 33 as follows:

"2. Notification of establishment of a place of business: The place of business of an enterprise may be outside the registered main office address. Within ten working days from the date of decision to establish a place of business, the enterprise shall notify the Business Registration Department where the place of business is located. The content of the notification includes:

a) Enterprise code;

b) Name and address of the main office of the enterprise or name and address of the branch (in case the place of business is located in a province or centrally-administered city where the branch is located);

c) Name and address of the place of business;

d) Field of activity of the place of business;

đ) Full name, place of residence, ID card number or passport number or other lawful personal identification document specified in Article 10 of this Decree of the head of the place of business;

e) Full name and signature of the legal representative of the enterprise for the case where the place of business belongs to the enterprise or full name and signature of the head of the branch for the case where the place of business belongs to the branch".

10. Amending Clause 5, supplementing Clause 6 of Article 34 as follows:

"5. In case the announcement regarding the use of the business seal model of the enterprise, branch, representative office has been published on the National Portal for Business Registration, then the announcements about publishing information on the business seal models of the enterprise, branch, representative office made previously shall no longer be effective.

6. In case the procedure for announcing the seal model through the electronic network is carried out, the enterprise does not need to submit the paper-based announcement dossier of the seal model to the Business Registration Department.

11. Amend Clause 3, and add Clause 4 to Article 36 as follows:

"3. The business registration dossier submitted electronically must be authenticated with a public digital signature or a Business Registration Account of one of the following subjects:

a) An individual authorized to sign the application document for business registration in accordance with the regulations;

b) A person authorized by the individual referred to in point a of Clause 3 of this Article to perform procedures related to business registration. In this case, the electronic business registration dossier must be accompanied by the documents and materials specified in Article 11 of this Decree.

4. The time limit for the enterprise to amend and supplement the business registration dossier submitted electronically is 60 days from the date the Business Registration Department issues the notification requesting amendment and supplementation of the dossier. After the aforementioned period, if the Business Registration Department does not receive the amended and supplemented dossier from the enterprise, it will cancel the business registration dossier according to the process on the National Portal for Business Registration.

12. Amend Article 37 as follows:

"Article 37. Procedures and formalities for electronic business registration using a public digital signature

1. The individual specified in Clause 3 of Article 36 of this Decree shall declare information, download electronic documents, and sign digitally into the electronic business registration dossier according to the process on the National Portal for Business Registration.

2. After completing the submission of the business registration dossier, the individual specified in Clause 3 of Article 36 of this Decree shall receive an electronic receipt for the business registration dossier.

3. If the dossier meets the conditions for issuing the Business Registration Certificate, the Business Registration Department will send information to the tax authority to automatically generate the business code. Upon receiving the business code from the tax authority, the Business Registration Department will issue the Business Registration Certificate and notify the enterprise of the issuance of the Business Registration Certificate. If the dossier is not valid, the Business Registration Department will send an electronic notification to the enterprise to request amendment and supplementation of the dossier.

4. The electronic business registration process prescribed in this Article also applies to the registration of branch operations, representative offices, and establishment notifications of business locations.

13. Amend Article 38 as follows:

"Article 38. Procedures and formalities for business registration using a Business Registration Account

1. The individual specified in Clause 3 of Article 36 of this Decree shall declare information on the National Portal for Business Registration to obtain a Business Registration Account.

2. The individual specified in Clause 3 of Article 36 of this Decree shall use the Business Registration Account to declare information, download electronic documents, and authenticate the electronic business registration dossier according to the process on the National Portal for Business Registration.

3. After completing the submission of the business registration dossier, the individual specified in Clause 3 of Article 36 of this Decree shall receive an electronic receipt for the business registration dossier.

4. The Business Registration Department shall be responsible for reviewing and sending an electronic notification to the enterprise to request amendment and supplementation of the dossier in case the dossier is not valid. When the dossier meets the conditions for issuing the Business Registration Certificate, the Business Registration Department will send information to the tax authority to automatically generate the business code. Upon receiving the business code from the tax authority, the Business Registration Department will notify the enterprise of the issuance of the Business Registration Certificate via the electronic network.

5. After receiving the notification of the issuance of the Business Registration Certificate, the individual specified in Clause 3 of Article 36 of this Decree shall submit a paper-based business registration dossier along with the electronic receipt for the business registration dossier to the Business Registration Department. The individual specified in Clause 3 of Article 36 of this Decree may submit the paper-based business registration dossier and the electronic receipt for the business registration dossier directly at the Business Registration Department or by mail.

6. After receiving the paper-based dossier, the Business Registration Department shall compare the contents of the dossier with the electronic dossier submitted by the enterprise and issue the Business Registration Certificate to the enterprise if the comparison is consistent.

If the paper-based dossier and the electronic dossier submitted by the enterprise are inconsistent, the Business Registration Department will notify the enterprise to amend and supplement the dossier.

If within thirty days from the date of the notification of the issuance of the Business Registration Certificate, the Business Registration Department does not receive the paper-based dossier, the electronic business registration dossier of the enterprise will no longer be effective.

7. The individual authorized to sign the application document for business registration shall be responsible for the completeness and accuracy of the paper-based dossier compared to the electronic dossier submitted. If the paper-based dossier is inaccurate compared to the electronic dossier submitted and the individual submitting the dossier does not inform the Business Registration Department at the time of submitting the paper-based dossier, it will be considered as falsifying the dossier and will be handled according to Clause 1 of Article 63 of this Decree.

8. The electronic business registration process prescribed in this Article also applies to the registration of branch operations, representative offices, and establishment notifications of business locations.

14. Amend and supplement Article 44 as follows:"

"Article 44. Registration of Changes to Charter Capital and Shareholding Ratios

1. In cases where a company registers changes in shareholding ratios among members of a limited liability company with two or more shareholders, or among general partners of a partnership, the company shall send a Notification to the Business Registration Office where the company has registered. The contents of the Notification include:

a) Name, business registration code, tax code, or business registration certificate number (in cases where the enterprise does not yet have a business registration code or tax code);

b) Full name, address, nationality, identification card number, passport number, or other legally recognized personal identification as stipulated in Article 10 of this Decree, or establishment decision number, business registration code for each member of a limited liability company with two or more shareholders, or each general partner of a partnership;

c) The shareholding ratio of each member in a limited liability company with two or more shareholders, or each general partner in a partnership;

d) Registered charter capital and changed charter capital; timing and form of capital increase or decrease;

đ) Full name, nationality, identification card number, passport number, or other legally recognized personal identification as stipulated in Article 10 of this Decree, permanent residence address, and signature of the legal representative of the company or authorized general partner of the partnership;

2. In cases where a company registers changes to its charter capital, along with the Notification specified in Clause 1 of this Article, there must be a Decision and a valid copy of the minutes of the meeting of the Board of Members for a limited liability company with two or more shareholders, or of the General Meeting of Shareholders for a joint stock company; a decision of the sole owner of a limited liability company with one shareholder regarding the change in the company's charter capital; and a document from the Department of Planning and Investment approving the contribution of capital, purchase of shares, or equity participation of foreign investors as provided in Clause 1 of Article 26 of the Investment Law.

The Decision and meeting minutes must clearly record the amendments made to the company's Articles of Association.

3. In cases where the General Meeting of Shareholders approves the issuance of new shares for sale to increase the charter capital, while entrusting the Board of Directors to handle the registration procedures for increasing the charter capital after the end of each share offering period, along with the Notification specified in Clause 1 of this Article, the registration application for increasing the charter capital must include:

a) A Decision and a valid copy of the minutes of the General Meeting of Shareholders on the issuance of new shares for sale to increase the charter capital, specifying the number of shares offered for sale and entrusting the Board of Directors to handle the registration procedures for increasing the charter capital after the end of each share offering period;

b) A Decision and a valid copy of the minutes of the meeting of the Board of Directors of a joint stock company on registering the increase in the company's charter capital after the end of each share offering period.

4. In cases of reducing the charter capital, the enterprise must commit to ensuring full payment of all debts and other financial obligations after the reduction in capital.

5. In cases where resolutions or decisions on changing the charter capital have been legally approved according to the provisions of the Enterprise Law, but some members or shareholders have died, disappeared, are absent from their place of residence, under temporary detention, sentenced to imprisonment, lost or restricted in civil capacity, or refuse to sign the list of members, the list of founding shareholders, or the list of foreign investor shareholders, then it is not mandatory to have the signatures of those members or shareholders in the aforementioned lists.

6. Upon receipt of the notification, the Business Registration Office shall issue a Receipt, check the validity of the file, and issue a Business Registration Certificate to the enterprise.

15. Amend Clause 1 of Article 45 as follows:

"1. In cases where new members are accepted leading to an increase in the charter capital, the company shall send a notification to the Business Registration Office where the company has registered. The contents of the notification include:

a) Name, business registration code, tax code, or business registration certificate number (in cases where the enterprise does not yet have a business registration code or tax code);

b) Name, business registration code, main office address for organizational members; full name, nationality, identification card number, passport number, or other legally recognized personal identification as stipulated in Article 10 of this Decree for individual members; the value of the capital contribution, the proportion of the capital contribution, the time of contribution, the type of contributed assets, the quantity and value of each type of contributed asset of new members;

c) The changed capital contribution portion of existing members after accepting new members;

d) The charter capital of the company after accepting new members;

đ) Full name, signature of the legal representative of the company;

Accompanying the notification must be:

- A Decision and a valid copy of the minutes of the meeting of the Board of Members on accepting new members and increasing the charter capital. The Decision and meeting minutes of the Board of Members must clearly record the amendments made to the company's Articles of Association;

- Documents confirming the capital contribution of new members of the company;

- A valid copy of the establishment decision or Business Registration Certificate or equivalent document, a valid copy of one of the legally recognized personal identification documents as stipulated in Article 10 of this Decree of the authorized representative and corresponding authorization decision for organizational members or a valid copy of one of the legally recognized personal identification documents as stipulated in Article 10 of this Decree for individual members;

- A document from the Department of Planning and Investment approving the contribution of capital, purchase of shares, or equity participation of foreign investors as provided in Clause 1 of Article 26 of the Investment Law.

Upon receipt of the notification, the Business Registration Office shall issue a Receipt, check the validity of the file, and issue a Business Registration Certificate to the enterprise.

16. Amend Article 51 as follows:

"Article 51. Notification of Changes in Information of Founding Shareholders of Joint Stock Companies

1. Founding shareholders as prescribed in Clause 2, Article 4 of the Enterprise Law shall be founding shareholders declared in the List of Founding Shareholders and submitted to the Business Registration Agency at the time of registering for business establishment.

2. The notification of changes in information of founding shareholders to the Business Registration Agency shall only be carried out in cases where founding shareholders have not paid or have only partially paid the amount of shares they registered to purchase as stipulated in Clause 1, Article 112 of the Enterprise Law. Founding shareholders who have not paid the amount of shares they registered to purchase will automatically cease to be shareholders of the company according to point a, Clause 3, Article 112 of the Enterprise Law and their names will be removed from the List of Founding Shareholders of the company.

3. Enterprises are responsible for notifying changes in information of founding shareholders within thirty days from the end date for paying the full amount of shares registered to purchase as stipulated in Clause 1, Article 112 of the Enterprise Law. In cases where there are changes that enterprises fail to notify, they will be subject to administrative penalties under the law on administrative sanctions in the field of planning and investment.

4. In cases of changes in information of founding shareholders, the company shall send notifications to the Business Registration Agency where the company has registered. The contents of the notification include:

a) Name, business registration code, tax code, or business registration certificate number (in cases where the enterprise does not yet have a business registration code or tax code);

b) Name, main office address, enterprise code number or establishment decision number for founding shareholders that are organizations, or name, identity card number, passport number, or other legally recognized personal identification as stipulated in Article 10 of this Decree for individual founding shareholders;

c) Name, identity card number, passport number, or other legally recognized personal identification as stipulated in Article 10 of this Decree and signature of the company's legal representative. Upon receipt of the notification, the Business Registration Agency shall issue a receipt, check the validity of the dossier, and update the information of founding shareholders in the National Enterprise Registration Database. If the enterprise requests, the Business Registration Agency shall issue a certificate confirming the change in enterprise registration content to the enterprise.

5. In cases where the notification dossier of changes in information of founding shareholders of joint stock companies is invalid, the Business Registration Agency shall notify the enterprise to amend and supplement the dossier within three working days.

17. Amend Article 55 as follows:

"Article 55. Publicizing Enterprise Registration Content

1. The request to publicize enterprise registration content shall be made at the time the enterprise submits the enterprise registration dossier.

2. Information on publicizing enterprise registration content shall be published on the National Portal for Enterprise Registration.

18. Amend Clause 3 of Article 58 as follows:

"3. In cases where the information declared in the enterprise registration dossier is not truthful or accurate, the Business Registration Agency shall notify the competent state agency to handle it according to the law and require the enterprise to resubmit the dossier to reissue the Enterprise Registration Certificate. The issuance of the Enterprise Registration Certificate shall be completed within three working days from the date of receiving the valid dossier of the enterprise."

19. Amend Article 62 as follows:

"Article 62. Determining the Content Declared in the Business Registration File to be Forgery

1. In cases where there is evidence to determine that the content declared in the business registration file is forgery, organizations and individuals have the right to request the Business Registration Office to revoke the Enterprise Registration Certificate and are responsible for providing the Business Registration Office with one of the necessary documents as prescribed in Clause 2 of this Article.

2. The document determining that the content declared in the business registration file is forgery includes:

a) A certified true copy of the document issued by the competent state agency affirming that the document issued by such agency is forged; or

b) A certified true copy of the conclusion of the public security agency regarding the fact that the content declared in the business registration file is forgery;

3. In cases where it is necessary to determine that the content declared in the business registration file is forgery to serve as the basis for revoking the Enterprise Registration Certificate as stipulated in point a, Clause 1, Article 211 of the Enterprise Law, the Business Registration Office shall send the document along with the business registration file to the agencies specified in points a and b of Clause 2 of this Article. These agencies shall respond in writing to the Business Registration Office's request on the results of the determination within thirty days from the date of receipt of the request. Based on the conclusions of these agencies, the Business Registration Office shall revoke the Enterprise Registration Certificate according to the procedures and formalities prescribed in Clause 1 of Article 63 of this Decree if the content declared in the business registration file is forgery.

20. Amend and supplement Article 63 as follows:

"Article 63. Procedures and Formalities for Revoking the Enterprise Registration Certificate

1. In cases where the content declared in the business registration file is forgery:

If the content declared in the business registration file for newly established enterprises is forgery, the Business Registration Office shall issue a notice of the violation committed by the enterprise and issue a decision to revoke the Enterprise Registration Certificate.

If the content declared in the business registration file for changing the registered information of the enterprise, or the notice of change in registered information of the enterprise is forgery, the Business Registration Office shall issue a notice of the violation committed by the enterprise and cancel the changes made in the registered information based on false information, and restore the Enterprise Registration Certificate issued based on the most recent valid file, while notifying the competent authority to handle according to the provisions of the law.

2. In cases where the enterprise has registered with individuals or organizations prohibited from establishing enterprises under Clause 2, Article 18 of the Enterprise Law:

a) For sole proprietorship enterprises and limited liability companies with one member owned by an individual: The Business Registration Office where the enterprise has registered shall issue a notice of the violation and issue a decision to revoke the Enterprise Registration Certificate.

b) For limited liability companies with two or more members, limited liability companies with one member owned by an organization, joint-stock companies, and partnerships: The Business Registration Office where the enterprise has registered shall issue a written notice requesting the enterprise to change members or shareholders who are not permitted to establish enterprises within thirty days from the date of the notice. If the enterprise does not register the change of members or shareholders beyond the said period, the Business Registration Office shall issue a notice of the violation and issue a decision to revoke the Enterprise Registration Certificate.

3. In cases where the enterprise violates point c, Clause 1, Article 211 of the Enterprise Law, the Business Registration Office shall notify in writing about the violation and require the legal representative of the enterprise to come to the office for explanation. After ten working days from the end of the deadline specified in the notice, if the person requested does not come or the explanation is not accepted, the Business Registration Office shall issue a decision to revoke the Enterprise Registration Certificate.

4. In cases where the enterprise fails to submit reports as prescribed in point c, Clause 1, Article 209 of the Enterprise Law, within ten working days from the end of the deadline specified in point d, Clause 1, Article 211 of the Enterprise Law, the Business Registration Office shall send a written notice about the violation and require the legal representative of the enterprise to come to the office for explanation. After ten working days from the end of the deadline specified in the notice, if the person requested does not come or the explanation is not accepted, the Business Registration Office shall issue a decision to revoke the Enterprise Registration Certificate.

5. In cases where the enterprise is compulsorily enforced to execute administrative tax decisions as prescribed in Clause 26, Article 1 of the Law Amending and Supplementing Certain Provisions of the Tax Administration Law, within ten working days from the date of receiving the request for revocation of the Enterprise Registration Certificate from the head of the tax management agency as prescribed in Clause 31, Article 1 of the Law Amending and Supplementing Certain Provisions of the Tax Administration Law, the Business Registration Office shall revoke the Enterprise Registration Certificate according to the procedures and formalities prescribed in Clause 4 of this Article.

6. The Business Registration Office shall be responsible for coordinating with relevant state management agencies in examining the explanations provided as prescribed in Clauses 3, 4, and 5 of this Article.

7. After receiving the Decision to Revoke the Enterprise Registration Certificate, the enterprise shall carry out the dissolution procedures as prescribed in Article 203 of the Enterprise Law.

8. Information about the revocation of the Enterprise Registration Certificate must be entered into the National Information System on Business Registration and sent to the tax authority.

9. In cases where the Court decides to revoke the Enterprise Registration Certificate, the Business Registration Office shall issue a decision to revoke the Enterprise Registration Certificate based on the Court's decision.

21. Amend and supplement Article 65 as follows:

"Article 65. Handling business registration procedures pursuant to court decisions or commercial arbitration decisions

1. Within fifteen working days from the date on which the judgment or decision of the court or commercial arbitration becomes effective, the person requesting to change the business registration content or other content related to business registration pursuant to the court or commercial arbitration decision shall submit the request to the competent Business Registration Office.

2. The persons requesting to change the business registration content or other content related to business registration as stipulated in Clause 1 of this Article include:

a) Individuals or organizations designated to carry out according to the court or commercial arbitration decision;

b) Enterprises;

c) Enforcement agencies.

3. The documents for registering and notifying changes to the business registration content include:

a) A document requesting changes to the business registration content;

b) An authentic copy of the judgment or decision of the court or commercial arbitration that has become legally binding."

Article 2. Implementation Provisions

This Decree takes effect from October 10, 2018.

This Circular takes effect from December 25, 2025/.

1. The Ministry of Planning and Investment shall be responsible for guiding the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government agencies, and chairpersons of provincial people's committees directly under the central government are responsible for implementing this Decree./.